America's Founders worried that the
government they created might someday grow too powerful, and begin to pass laws
which would violate the rights of the very people it was intended to protect:
ordinary, peaceful, productive folks. But they kept an "ace in the hole", a
trump card they believed citizens could use to hold this new, experimental
government in check. That ace was the right to a trial by a jury of one's
peers.
How a jury can restrain a government? The key is that juries can
say "no" to
bad laws and to arbitrary and unjust prosecutions. It's
true!
The Founders realized that the temptations of power and corruption
would
eventually prove to be too much for any of the three branches of
our
government to resist, let alone check and balance the other branches.
They
knew that government "of, by and for the people" meant that the people
would
every so often have to roll up their
sleeves and exert their authority, to act as
the final check and balance on the
whole system. Since law is the
main tool by which a government exerts its
control, trusting juries of
ordinary citizens to veto the use of bad law was
the logical choice.
So they provided for trial by jury--once in the
Constitution, and twice more
in the Bill of Rights. In those days, it was
part of the definition of the word
"jury" that its members could judge
the law as well as the evidence, and
the judge would often remind them of
this power. For example, if jurors found
the law to be unjust or misapplied,
or that the defendant's rights had been
violated in bringing the him or her
to trial, they would acquit for those reasons,
despite good evidence.
In
addition to veto power, our common law legal traditions also provide that
if
a jury decides to acquit, its decision is final. A verdict of "not guilty"
cannot
be overturned, nor can the judge
harass the jurors for voting for acquittal, or
punish them for voting their
consciences, even after making them swear to
follow the law as given by the
judge! And jurors may be asked, but cannot
be obliged, to explain their
verdicts.
These principles were subject to contention for centuries in
England and the
British Empire as citizen jurors fought to assert their
rights against the
power interests of the crown.
In 1670, William Penn
was arrested in London for preaching a Quaker sermon,
which broke a law establishing the
Church of England as the only legal church.
His jurors, led by Edward Bushell,
refused to convict him, despite being held
for days without food, water,
tobacco or toilet facilities--and then fined. The
most defiant four of them refused to
pay the fine and were then put in prison for
nine weeks.
The highest court
of England, upon releasing them, both acknowledged and
established that trial
jurors could not be punished for their verdicts.
Recognition of our freedoms
of religion, peaceable assembly and speech thus
all trace to the exercise of jury
power, wielded by a jury unintimidated by
government judges.
In
colonial America, the sedition trial of John Peter Zenger established
another
landmark case. Zenger, a publisher, was arrested for printing news
critical
of the Royal Governor of New York Colony and his cronies, accusing
them of
corruption. His accusations were all true, but the court informed
his jury
that under the law, "...truth is no defense".
"Philadelphia lawyer"
Andrew Hamilton then told the jurors the story of
William Penn, and argued
that as judges of the merits of the law, they
should not in good conscience
convict Zenger of violating such a bad law.
The jurors agreed. Zenger was
acquitted in about fifteen minutes, and his
case spawned recognition of our
right to a free press.
Cases like these therefore were part of the
political heritage of the
Founders, which may explain why they so appreciated
jury power.
John Adams said it so well in 1771 that the Fully Informed
Jury Association
(FIJA) put his words on a coffee mug: "It is not only...[the
juror's] right,
but his duty... to find the verdict according to his own best
understanding,
judgment, and conscience, though in direct opposition to the
direction of
the court."
First U.S. Supreme Court Chief Justice John
Jay, writing in Georgia v.
Brailsford, 1794, concluded: "The jury has the
right to judge both the law
as well as the fact in
controversy".
President Thomas Jefferson in 1789 told Thomas Paine: "I
consider trial by
jury as the only anchor yet devised by man, by which a
government can be
held to the principles of its constitution."
And
Noah Webster, who wrote his original 1828 dictionary in order to
preserve the
integrity of the language of the Constitution, defined "petty
jury" as
"...consisting usually of twelve men [who]...attend courts to
decide both the
law and the fact in criminal prosecutions".
A detailed historical
analysis of jury veto power, also called jury
nullification of law, appeared
in the Yale Law Review in 1964. It held that
"The right of the jury to decide
questions of law was widely recognized in
the colonies. In 1771, John Adams
stated unequivocally that a juror should
ignore a judge's instruction on the
law if it violates fundamental
principles: There is much evidence of the
general acceptance of this
principle in the period immediately after the
Constitution was adopted."
However, during the next century, judges began
chipping away at this vital
and fundamental right of free citizens, thereby
transferring citizen power
to themselves. The biggest "chip" or usurpation
took place in 1895, when in
Sparf and Hansen v. U.S., a bitterly split
decision by our Supreme Court
held that failure of the judge to remind the
jurors of their powers was not
a basis for mistrial or appeal. That was the
green light for trial judges to
go mum on the topic, and they
did.
That is why very few lawyers or law professors, only some judges,
and
practically no school teachers know about jury veto power: it's "not part
of
the curriculum". Few history books give juries the credit they're
due--for
stopping the Salem witch trials, for overturning slavery in state
after
state before the Civil War, and for ending Prohibition--all by refusing
to
convict because they thought the law itself was wrong.
These days,
trial by jury often doesn't accomplish all that it should. And
the usurpation
continues: trial judges now falsely tell jurors that their
only job is to
decide if the "facts" are sufficient to convict, and that if
so, they
"should" or "must" convict. Defense attorneys can face contempt
of court charges if they urge jurors
to acquit if they think the law is
unconstitutional or unjust. And
self-defenders are usually stopped and
rebuked if they even mention their
motives, or why they disagree with the
law, to the jury.
Yet to this
day, trial jurors retain the right to veto, or "nullify" bad
laws, though
they are rarely told this by the courts. Prosecutors and judges
try to
exclude people from serving on juries who admit knowing they can
judge the
law, or who have doubts about the justice of the law. This
destroys the
protections jurors were supposed to be able to invoke on behalf
of fellow citizens against unjust
prosecutions: how can our right to a trial by
an impartial jury be met if those
with any qualms about the law are
excluded from serving?
The fact is,
it cannot. Jury selection has degenerated into a jury-stacking
contest
between the attorneys and judge involved. And then, if those who
survive the
selection process bring in a verdict that the community does not
like, who
gets the blame?
Worse, after enough verdicts have disappointed or angered
enough people,
the politicians move in for the
kill, arguing that the "jury system needs
reform". By that they mean
stripping even more power from the jury, using
juries in fewer and fewer
kinds of cases, allowing verdicts to be reached by
a super-majority instead
of a unanimous vote, replacing ordinary citizens
with government-licensed
professional jurors, etc.
Beware! All such reforms will lead only to a
still more powerful government,
and a less powerful citizenry. Justice would
come to mean whatever the
government says it means, and the people would be
left with no peaceful
method of controlling government tyranny.
That
is why it is time to act. It is time to share what you now know about
the
real role and power of the jury, especially with someone who has
been
summoned for jury duty. Show that person this article, or invite him/her
to
visit the Jury Power Page--before visiting the courthouse.
If you
want to speed up this vital national educational effort, download one
or more
of the camera-ready documents available from the Jury Power Page,
duplicate
them, and get them into the hands of prospective jurors. This can
be done by
handing them out in front of your local courthouse on jury
selection days.
Or, they can be mailed to the local jury pool.
Or, you can focus all your
effort on one day--the jury selection day nearest
to September 5. Several
state governors have already proclaimed this date to
be "Jury Rights Day", in honor of
the jury acquittal of William Penn. And
you can join the organization which
started the modern jury power movement,
the Fully Informed Jury Association
[FIJA], by phoning its toll-free information
line, 1-800-TELL-JURY.
If you
really want to get active, post one or more trials on the Jury Power
Page
Trial Directory. List the trial or trials that you know about in which
you
think the jury is going to need to know about its veto power if justice
is to
be served. When a trial is posted, others will learn about it, and
perhaps
show up to leaflet, or help you with a mailing, or demonstrate, or?
The
farther and faster the truth about jury veto power spreads, the more
likely
are you and your children to enjoy the American promise of "liberty
and
justice for all".
JAIL4Judges, in cooperation with FIJA, recommends you
visit www.fija.org and learn your rights when called upon for jury duty. Write fija
at