A judge in a criminal trial has more authority than the judge or the governor! The juror is the final defense against official tyranny. He can declare a bad law null and void, and if that is often done by informed, intrepid, and incensed jurors, it will result in new laws that are not offensive.
One juror has the right and the responsibility to declare, “This law is unjust, and I declare the defendant not guilty.” The judge can yell like a stuck pig, gnash his teeth and seethe, without recourse. He is powerless to do anything about it, and that is what most of them don’t like. It erodes their power (control). Though the defendant is guilty of breaking a law, he is innocent of committing a crime! That is jury nullification, and it is hated by totalitarians and loved by informed patriots.
Most judges get testy when discussing jury nullification and suggest or affirm that it is really “jury lawlessness,” but they are wrong. Jury nullification is firmly established in historical and legal precedents.
An early case of jury nullification in America happened in 1670 when William Penn and William Mead preached, contrary to the Church of England, to illegal assemblies (non-approved churches) and were arrested. The jury heard the case and decided for the preachers, not the Crown even though the preachers had, in fact, preached to non-approved assemblies.
However, the judge was angry, agitated, and aghast at the jury. He fined the jury and jailed them without food or water for two days. Four of the jurors were jailed for nine weeks for daring to disobey the aggrieved judge! Often the prisoners were soaked with urine and smeared with feces, but one of the four, Edward Bushell, said, “My liberty is not for sale.” The courageous men were released on appeal to the Court of High Pleas and established the principle that a jury can not be punished by a vindictive judge for their decision. Since that time a jury can look a judge in the eye and say, “That law is a bad law. The defendant is not guilty, and our word is final.” That will result in the defendant going free, and will nullify that law at least in that one case.
In another landmark case in 1735, John Peter Zenger of New York was tried for printing the truth about colonial governor, William Cosby! The Chief Justice disbarred Zenger’s attorney and appointed a lawyer who was loyal to the governor to “defend” Zenger. (Legal hanky panky even in those early years!) The jury was told to disregard whether or not the printed information was truthful; they were to decide whether he had printed the charges.
Zenger hired Andrew Hamilton, who argued that juries have the right to decide on the law as well as the facts of evidence so they can arrive at a just decision. Hamilton, whose advice is still relevant, said, “Jurors should acquit, even against the judge’s instruction…if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong.”
About forty years later, John Adams, in 1771, stated: “It is not only… [the trial juror’s] right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Justice Theophilus Parsons said in 1788, “If a juror accepts as the law that which the judge states, then the juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen’s safeguard of liberty.
Chief Justice John Jay gave jury nullification a more solid legal foundation when he said in 1794, “The jury has the right to judge both the law as well as the fact in controversy.” Such action by a jury tells an arrogant legislature and activist judges that the American people are still in control!
In 1804, Alexander Hamilton said that jurors should acquit even against the judge’s instruction “if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong.”
But doesn’t jury nullification strike at the very heart of our judicial system? Not at all. It is a guarantee of our way of life, our mores, and our traditions. Remember that a “trial by jury” is a trial by our country, by our people, not by our government. The judge and prosecuting attorney work for the government. The jury works for justice, not whether or not a paper law (that could change tomorrow) was broken.
Lysander Spooner, an American attorney about 140 years ago said,” If a jury have not the right to judge between the government and those who disobey its laws, the government is absolute, and the people, legally speaking, are slaves.” He was correct.
When a citizen is in a jury room, he has the right and the duty to decide whether or not the defendant should go free. It matters not about the judge’s instructions nor what the other jurors decide. Is the law a good or bad law? Will enforcing that law result in justice or injustice? If possible, the defendant’s motives should be ascertained, although the judge may tell the jury that the motives are not relevant.
A juror must use his authority carefully, and he must stand alone, if necessary to produce justice. He must not be intimidated by anyone, realizing that he will not answer to anyone except to his conscience and his God. He, the juror, has more authority than the judge or the governor and stands between an oppressive government and slavery.