Author’s Note: this article was originally published on Newsbud.com over a year ago and may contain outdated information. I am posting it here now because it is no longer available on that website (more about that here). I will be posting a couple additional articles that I wrote for Newsbud that are also no longer available there.
In 1794, US Supreme Court Justice John Jay stated in his opinion in the case Georgia v. Brailsford “…on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as the fact in controversy…it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.”
This opinion is considered by many to have set the precedent for a little spoken of right of jurors in US criminal cases known as jury nullification that has roots dating back to at least the Magna Carta. It is defined here as “a sanctioned doctrine of trial proceedings wherein members of a jury disregard either the evidence presented or the instructions of the judge in order to reach a verdict based upon their own consciences. It espouses the concept that jurors should be the judges of both law and fact.”
This means that every US juror in any criminal case has the right to acquit the defendant even when the evidence presented proves the defendant’s guilt. At first glance, that might seem odd, why acquit someone proven guilty? But consider that this nation has had no shortage of unconstitutional and tyrannical laws, and excessive punishments, on the books throughout its history. Jury nullification serves as a last defense for people prosecuted under such laws.
In this August 2, 2016 article, Nathan Tschepik writes, “jury nullification is the constitutionally guaranteed right of every juror and jury to vote and issue any verdict they see fit without fear of punishment. This freedom from penalty frees the jurors to vote according to their conscience and not be bound to unjust or extraneous laws and punishments. The jury, therefore, has the right not only to judge the facts in a trial, but the very law itself—a right that undergirds the efficacy and basis of the jury system as a check on government power.”
On February 9, 2016, Kirsten Tynan wrote in an article for the Fully Informed Jury Association that the only US Supreme Court justice to preside over a jury trial has also spoken in support of the right jurors have to acquit defendants with nullification. Tynan writes, “current Supreme Court Justice Sonya Sotomayor is now on record: she says the prevailing Second Circuit view of jury nullification is too harsh and that juries could benefit from being aware of their option of jury nullification.” Tynan cites a talk given at New York University’s School of Law by Justice Sotomayor discussing a 1997 case in the Second Circuit “that savaged jury nullification as lawlessness.”
Historically, jury nullification has been practiced by US juries that acquitted defendants charged with violating the Fugitive Slave Act of 1850, juries who would not convict workers who were charged with illegally striking, and juries that refused to convict defendants charged under alcohol prohibition laws. In a case that is heralded as a hallmark for freedom of the press in the US, the jury in John Peter Zenger’s 1733 libel trial voted to acquit in spite of the judge’s order to the jury to find Zenger guilty if the evidence proved Zenger had printed material critical of the government. Even after it was proven that Zenger had printed the material, the jury voted to acquit him because they believed the law itself was wrong.
Of course, jury nullification has been misused in history as well, most notably in juries that acquitted defendants charged in violent crimes against minorities and civil-rights activists in spite of proof of guilt. Paul Butler writes in this December 20, 2011 New York Times Op-ed however, that “nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.”
Unfortunately, the average juror in the US today is likely unaware that they have the right to acquit a defendant, no matter the facts in a case, but rather based on the legitimacy of the law, the appropriateness of the punishment, or simply on their conscience. In 1895 in a split decision, the US Supreme Court ruled that courts, the judges and the lawyers, no longer were required to inform jurors of this right. According to this history of jury nullification, the Supreme Court made this ruling “under pressure from large corporations,” after the “giant corporations had lost numerous trials against labor leaders trying to organize unions” who were often acquitted at trial as a result of nullification. Ever since that ruling it has become largely accepted that not only are judges and lawyers not required to inform juries of this right, but that they should not inform juries of this right.
Jurors must now learn of this right by means outside of the court they serve in, perhaps through fictional courtroom dramas in film or books, or more likely, through community outreach programs that seek to educate Americans about this critically important bit of knowledge. This is often accomplished by handing out informative fliers on the street that explain jury nullification, most often outside of courthouses. Unfortunately, the legality of this activity is often questioned as activists are accused of tampering with juries.
In a comprehensive article published in 1996 entitled “Jury Nullification: the Top Secret Constitutional Right,” James Joseph Duane describes the fight to keep jury nullification out of the realm of public knowledge. He writes about Yvonne Regas who “almost landed in prison for her efforts to help spread the word to jurors. When her son went on trial for charges in federal court, [she] and a friend papered the windshields of nearby parked cars, hoping to let the jurors learn the completely unexpected fact that her son faced 450 years in prison for a single drug transaction nine years earlier. Federal authorities charged her with jury tampering and obstruction of justice, but eventually dropped the charges.”
More recently, in March of this year, felony charges were dismissed in the case of a former pastor, Keith Wood, who was charged for “distributing pamphlets on jury nullification outside a Michigan courthouse.” Wood still faces a misdemeanor charge for his attempts to educate the public, but his attorney, David Kallman, expressed confidence his client would prevail against the charge. Kallman stated, “this is such a clear violation of the First Amendment.”
In 2011, Julian Heicklen, was indicted for jury tampering after he had spent several years handing out fliers with information on jury nullification. He “stood outside courthouse entrances…and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.” According to this November 27, 2011 New York Times article by Benjamin Weiser, the prosecutors in the case explained the indictments by “arguing in a brief that his ‘advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.” The prosecutors also wrote, “his speech is not protected by the First Amendment.”
In the Weiser article, associate legal director of the New York Civil Liberties Union, Christopher Dunn, is quoted as saying, “the government is dangerously wrong in claiming it can criminalize sidewalk advocacy supporting jury nullification. Other than the extremely limited situations in which someone seeks to influence a known juror in a case, jury nullification advocacy is squarely protected by the First Amendment.”
John Richards, in this March 3, 2011 article, argues that “if jurors learned about, and formed their opinions on, jury nullification through the ordinary course of their lives, it’s obvious that there would be no problem with this [passing out jury nullification pamphlets near courthouses]. I don’t see why it should be any different if a juror happens to find out about jury nullification right before serving on a jury. After all, courts have repeatedly held that jurors are allowed to engage in jury nullification without any repercussions, so it probably shouldn’t matter if they learned about the concept of nullification a month or an hour before serving on a jury.”
In the end, the charge against Julian Heicklen was dismissed. One would hope that had the charge not been dropped and Heicklen had gone to trial, the jury of his peers would’ve acquitted him regardless of the proof the prosecution presented against him.
In today’s highly charged climate of political activism against war, police brutality, etcetera, combined with the prevalence of mandatory minimum sentences and increasingly over-reaching laws, the importance of knowing and understanding the right of US jurors to practice jury nullification cannot be understated. It is critical that US citizens remember that the United States was founded on the principle of government that serves the people. A jury of peers, fully apprised of their rights and responsibilities as jurors, is one of the greatest protections of that principle.