Recently, a couple who had rescued a deer and nursed it back to good health — only for the state of Indiana to charge them with a misdemeanor and a jail sentence of 60 days. It’s quite the conundrum – they broke the law, but to punish a man for acting righteously is the height of wickedness. In the Bible, God annihilates the cities of Sodom and Gomorrah for such depravity. If it were a felony offense, the couple would be put before a jury, who must decide only on the facts of the case, on whether they committed the alleged crimes.
Except that last sentence is false. The entire legal system has conspired to keep jurors blind to one of their most powerful privileges – that they judge the facts AND the law. If a juror accepts that the person on trial did indeed violate the law, the juror may still return a finding of ‘not guilty’ because they consider the law unjust. This right is known as jury nullification. It has had a long and storied history; famously, a man was accused of sedition in New York in 1735, while it was still under the control of the British crown. There was no question that he, John Peter Zenger, had violated the law, with his truthful criticism of the government. But the jury returned a verdict of ‘not guilty’ because they deemed the law unjust.
In the years before the American Civil War, juries in the North refused to convict runaway slaves under the ‘Fugitive Slave Act,’ because they believed escaping bondage was not a crime. Jury nullification has also been practiced in Canada and the United Kingdom.
The Government Cover-Up
In 1794, in the case of Georgia v. Brailsford, the US Supreme Court ruled that judges were obligated to inform jurors of their right to jury nullification. A hundred years later, in Sparf v. United States, the Court ruled that judges were not obligated to tell the jury of their rights to judge the law. Later rulings would affirm the right of the courts to bar the defense from telling jurors that they could use jury nullification. A 1997 ruling held that a juror can be removed if he intends to use jury nullification; a 2001 California Supreme Court ruling involving a statutory rape case held that jurors must effectively snitch when a fellow panelist is opting for jury nullification.
In 1994, the courts in Colorado ended up going on a witch hunt after a woman started arguing for jury nullification to her fellow jurors. She turned out to have a drug-related sentence, 12 years prior, which she had not been asked about during jury selection. The government charged her with perjury, for not disclosing her prior drug sentence, even though she answered all jury selection questions truthfully. Said Clay Conrad, author of a book on jury nullification, “It is obvious from the context of the entire case they prosecuted her for her verdict. If they can punish jurors for their verdicts, the jury system is just a living fossil brought out to harm people. There is nothing left if jurors can’t be independent and vote their own consciences.”
To use jury nullification is to ‘obstruct justice’ these judges held, shredding the power of jury nullification. The court tried to convict her of perjury based on things she said during jury deliberations, deliberations which may not be used in court proceedings so that jurors can speak candidly among themselves when making decisions.
I asked an older lawyer friend of mine about jury nullification, and he steadfastly denied that what I was proposing was legal. I asked another friend who is an attorney, and he had never heard of it, despite a successful career. In fact, federal prosecutors indicted a man for telling people about jury nullification, saying that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.” In other words, the feds were too happy to baldly suppress free speech, in the case of a retired chemistry professor handing out pamphlets on juror rights. Thankfully, he was acquitted.
Honest, accurate coverage of jury nullification is the exception, not the rule. For a captivating illustration of jury nullification, see this brief work, by the illustrator of the internet sensation ‘Go The F**K To Sleep.’ Noted libertarian Ron Paul is also a prominent advocate of jury nullification.
What You Can Do
The next time you hear some self-righteous jackass ask if you voted, ask them if they know what ‘jury nullification’ is. While your election votes will probably never make a difference, your vote in a jury trial in a criminal case is decisive—a guilty verdict is required from all twelve jurors. Without your assent to his guilt, the defendant cannot be convicted.
You must look to your own beliefs to decide when jury nullification is appropriate. But it’s not hard to imagine them:
- The War on Drugs – someone is on trial for felony possession of marijuana: not guilty
- Domestic Violence - A man is facing jail time for slapping his wife after she was caught cheating on him: not guilty
- The Right To Bear Arms – A woman is charged with illegal weapons possession after confronting a mugger with a handgun, in a city where it is impossible for a law-abiding citizen to legally carry a firearm on his person: not guilty
- Self-Defense - A homeowner is charged with murder for shooting a burglar: not guilty
- Sexual Assault – A man is charged with sexual assault for not using a condom during sex: not guilty
- Assault – A man is charged for punching a woman who physically started a fight with him: not guilty
- Child Support – A man is charged for non-payment of child support for a woman who lied about being on the pill and refused to get an abortion: not guilty
- Statutory Rape – A 17 year old male turns 18 and continues to sleep with his 17 year old girlfriend, and then gets charged with statutory rape: not guilty
In short, if a defendant committed something you don’t consider a punishable crime, and you believe it would be a violation of your conscience to convict the defendant, you simply vote ‘not guilty.’ Outcome: either the jury is hung, giving the defendant another trial, or the defendant is acquitted completely. I cannot think of any other power you have a citizen that is as easy, potent and immediate as jury nullification.