Sunday, January 23, 2005

Jury Duty Again! Well maybe not . . .

There's a certain grad student on campus who's referred to by most as a "professional student."
He's been in college for about a decade now. Time and again, when any sort of question arises, someone in a group will suggest, "Go ask, PS! He'll know! He knows all the loopholes."

When one of us got a summons the word got out that jury duty would soon be upon us. As the word wafted back to PS, he felt the need to impart some wisdom upon us.

"If they give you a questionaire to fill out, you need to write two words," he informed us as we all leaned forward on the edge of our seats. "Jury nullification."

It appears to work. We're not passing this on to suggest that you use it to avoid jury duty (do with it what you will), but we do think people need to know about a legal term (one whose reference frightens prosecutors so) that is very much a part of our past and present.

Readers of Howard Zinn will no doubt be familiar with the term. In Passionate Declarations, Zinn addresses the concept:

The Camden jury had exercised a right that judges never tell juries about: the right to come to a verdict following their conscience rather than the strict requirements of the law -- to choose justice over law.
That right of "jury nullification" goes back to the eighteenth-century Britain, when jurors, despite being fined and jailed, refused to convict two Englishmen for speaking to a street crowd
. . .
In America, the principle of jury nullification was affirmed in 1735 when John Peter Zenger, a New York printer who was charged with seditious libel for printing material not authorized by the British mayor, was acquitted by a jury that ignored the instructions of the judge. The jury followed the advice of the defense attorney to "see with their own eyes, to hear with their own ears and to make use of their consciences."
[from pages 137 to 138]

Doug Linder, professor of law at the University of Missouri-Kansas City Law School, has written on the issue of jury nullification. He explains the concept as occuring:

when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate that are charged with deciding.

Linder also notes:

Juries clearly have the power to nullify; whether they also have the right to nullify is another question. Once a jury returns a verdict of "Not Guilty," that verdict cannot be questioned by any court and the "double jeopardy" clause of the Constitution prohibits a retrial on the same charge.
Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.
Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power.
Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

Online searches of the term turned up many entries. Here's Sam Smith (no, we don't know who he is either) discussing the topic:

Merely raising the issue of nullification can make prosecutors nervous, for it takes only one person aware of the right in order to hang a jury. In Washington, DC, where the concept was discussed in connection with the Marion Barry trial, a local television station reported that the US Attorney was worried that a jury might nullify the law in that case. The joke in DC was that Barry was campaigning, but only for one vote, that of a single juror. The specific charges against Barry revolved around his use of drugs and a growing number of people are coming to accept the argument that drug use or addiction should not be a criminal offense. Further many DC residents were concerned about the prosecution's heavy-handed pursuit of the mayor. Despite the refusal of courts to inform juries of their right to nullify, American juries have periodically exercised it anyway. In recent years, some peace protesters have been acquitted despite strong evidence that they violated the law. In the 19th century northern juries would refuse to convict under the fugitive slave laws. And in 1735 journalist Peter Zenger, accused of seditious libel, was acquitted by a jury that ignored the court's instructions on the law.
Those who have endorsed the right of a jury to judge both the law and the facts include Chief Justice John Jay, Samuel Chase, Dean Roscoe Pound, Learned Hand and Oliver Wendell Holmes. According to the Yale Law Journal in 1964, during the first third of the 19th century judges did inform juries of the right, forcing lawyers to argue "the law -- its interpretation and validity -- to the jury." By the latter part of the century, however, judges and state law were increasingly moving against nullification. In 1895 the US Supreme Court upheld the principle but ruled that juries were not to be informed of it by defense attorneys, nor were judges required to tell them about it. Stephen Barkan, writing in Social Problems (October 1983), noted that the attacks on nullification stemmed in part from juries acquitting strike organizers and other labor activists. And in 1892 the American Bar Review warned that jurors had "developed agrarian tendencies of an alarming character."
Today, the constitutions of only two states -- Maryland and Indiana -- clearly declare the nullification right, although two others -- Georgia and Oregon -- refer to it obliquely. The informed jury movement would like all states to require that judges instruct juries on their power to serve, in effect, as the final legislature of the land concerning the law in a particular case.

To read up on the Camden case that Zinn mentions in the section we excerted at the start of this piece, Camden28 offers a good resource of articles (jury nullification is addressed in the article by Renee Winkler of the Courier-Post) .

While not endorsing the avoidance of serving on a jury, we'll use any hook to get you interested in history that might matter to you. (And, as a journalistic experiment, writing down an explanation of jury nullification to a question asking if "you believe in the rule of law" appears to be the thing that got one of us kicked off jury duty.)

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