A number of years ago, I had the privilege of serving as the foreman of a jury in a murder trial. That experience was, in varying degrees, inspiring, exasperating, and surreal. Despite all the corruptions that have crept into our system, and there are many, the system is still operational. It still functions. But it could function a lot more effectively if the people generally knew about the rights of juries. An informed populace means informed jury pools, and informed jury pools means informed juries.
Incidentally, you might want to neglect to inform the judge about the fact that you have been “informed,” which you will be shortly, provided you keep reading. Trained legal professionals don’t like informed juries.
The Surreal Part
While we were cooling our heels in the jury pool, we were shown an inspirational video about the important role of juries in our legal system. And in a portion of that video, we were told that juries had performed a valiant service in our fight for independence from Great Britain in the War for Independence. The sentiment they were trying to elicit in that part was yay for juries. This historical datum was quite true, but they didn’t tell us why or how juries managed to do this, which I will come back to in a minute.
And then, after the jury was selected, the judge informed us in no uncertain terms that we were obligated to do exactly as we were told, we were to follow his instructions to the letter, and that we did not get to think for ourselves. Our assigned task was profoundly simple and binary. It all came down to a red button/green button choice. Guilty or not? Reasonable doubt or not? Not only so, but we were to make this determination with a set of artificial blinkers on, not allowing ourselves to think of certain “other things.”
So what we had there, in the space of just a few days, was a legal system that presented us with a flat contradiction. We were to be inspired by the example of American juries in the run-up to the War for Independence, but under no circumstances were we to allow that inspiration to lead us into following their example in any way.
Because—if the truth on all this were to come out—those juries of yore were the sorts of juries that did not do exactly what the judges wanted them to do, and I see that I shall have to explain a bit more.
The principle I am arguing for is called jury nullification. What it means is this. When a defendant is brought to trial, the jury is (in effect) sitting in judgment on both the defendant AND the law itself. Now in the case where I was serving this was a moot point because there is no legitimate objection to be raised against the laws against murder. Those laws are fine.
But let’s imagine something different—some screwball law that makes no sense, or a law that is legitimate but the penalty is draconian. “Not guilty” in those circumstances would be a fully appropriate verdict, even if the defendant “did it.”
Or suppose there has been prosecutorial misconduct—say a peeved prosecutor is throwing the book at her ex-boyfriend for jaywalking, and we can all see that something is amiss. He takes the stand in his own defense, and when she cross-examines him, we all start looking at each other sideways. “Did you or did you not say that you would love me forever and a day?” It would be the jury’s duty to return a verdict of “not guilty,” even if there had been fifteen witnesses who saw him jaywalk, and footage from three surveillance cameras to confirm it.
But the judge, representing a legal system that does not want juries throwing any sand into any of their gears, is going to tell the jury that their only task is to determine whether or not the defendant did, beyond a reasonable doubt, commit the offense he was charged with. If he did, then the jury is obligated to find him guilty. The fact that they might object to the law itself is something that (sez he) they must set aside. They must ignore that part.
And I am saying that they must not set it aside. That is the crux of the issue. Not only do they not have to set it aside, they have an obligation of conscience not to do so.
Those Juries of Yore
Those juries of old time, the ones we were supposed to be inspired by, were juries that refused to convict people who were manifestly guilty of breaking the laws in question. And they did this because of their disgust with the laws in question.
The laws, established by Parliament, were laws against smuggling. Remember the tea tax and all that stuff? The Americans believed that the taxes and tariffs being imposed on them by Parliament were illegitimate (because they were, but that is an argument for another place and time), and so smugglers would then do their thing to get around the illegitimate burden that such taxes and tariffs imposed. When such a smuggler was charged, the jury was selected from a pool of Americans who thought the best thing to do was to request that Parliament go pound sand. They did this through a refusal to convict.
The Power of Juries
Now it is beyond dispute that juries have this power. The question under dispute is whether or not they have any right to wield this power. The legal community today wants to argue no, but the legal community today would get rid of juries themselves if they could. The people who established the jury system, and who defended it in olden time, most certainly believed that it was the right of juries to behave this way. That is why things are set up this way.
The first Chief Justice of the Supreme Court, John Jay, instructed jurors that they had the right to take upon themselves the task of judging both the facts and the law. In 1805, one of the charges in Samuel Chase’s impeachment trial was that he had refused to allow an attorney to include mentioning the right of jury nullification in his argument to the jury. But as the legal system got more ensconced, shall we say, they started to get tired of plebes and whatnot coming into their pristine courtrooms with all their unwashed opinions. So in 1895, the Supreme Court upheld a conviction (7-2) in a case where a judge had disallowed informing the jury of their right to nullify.
Nevertheless, the power to nullify is still there, and all that needs to happen is for juries to pick it up. Because of the “double jeopardy” clause in the Constitution, once a jury returns a verdict of “not guilty,” there is not a blessed thing anybody can do about it.
Juries are comprised of men and women, who are sinners, and so it should not be assumed that they will automatically advance the cause of righteousness. Jury nullification is a power that could be used to acquit meth dealers and child pornographers. If jurors have a seared conscience they might go into the jury room and then do what people with seared consciences do.
Jury nullification has been used against the Fugitive Slave Law, against Prohibition, and against drug laws. Obviously, on the merits a nullifying jury might get it right or wrong. If juries sit in judgment on the law, and not just on the defendant, and they do, then it is important that they not be guilty of a miscarriage of justice in either direction. One miscarriage of justice would be finding a defendant guilty if he did not deserve that verdict. Another miscarriage of justice would happen if a verdict against the law were returned if the law was just, and the prosecution was honest and conducted in good faith, and the penalty was not draconian. Remember, juries perform this function, not by finding the law “guilty,” but by finding the defendant “not guilty.”
The Origin of Juries
Our jury system began to take shape in the 12th century, when Henry II determined that a good way to resolve land disputes would be through the use of a jury. Then in 1215, the Magna Carta regularized the practice, stipulating that a free citizen could not be proceeded against in his liberties, or property, or his person “except by the lawful judgment of his peers.” I am collapsing centuries here, but as it stands today, the United States is the only country where juries are routinely used in non-criminal cases. It is a precious liberty, and just as we should not allow it to be taken away, so also we should not allow it to be redefined away.
So if you get summoned for jury duty, don’t weep and moan, and pretend to the judge that you twisted your ankle. In part, I am interested in citizens with good sense reading up on all of this because we have our own Stickergate jury trial coming up this month. And I for one am really interested in looking at the jurors’ faces as they discover what the city of Moscow has been up to. I can’t go into all of it now, but it rhymes with gennanashins.
A Feature, Not a Bug
The objections are not hard to come up with. It can easily be said that individuals, randomly selected from the citizenry are outsiders to the way our political system works—except in the sense that they have to live under it. It could also be said that these jurors are not trained in the law; they have no legal expertise. It could be said that we are placing matters of great moment into the hands of amateurs, and are risking a miscarriage of justice.
These objections actually all boil down to the same objection, which is that juries are not educated and trained in the niceties of the law. But that is actually the whole point. This is a feature, not a bug. Just as you don’t want the defendant’s very best childhood friend sitting on the jury, so also you should not want someone whose entire outlook was shaped and trained by the corrupt system that the jurors are evaluating. You want objectivity in both directions.
But unlike the trained professionals, a particular jury comes into existence and goes out of existence. All the people on the jury go back to their regular lives, lives in which they spend almost all their time minding their own business. The trained legal professionals, the prosecutors, the judges, and whatnot, have burrowed into the woodwork, and they spend almost none of their time minding their own business. That means when they are guilty of perpetrating a miscarriage of justice, it is likely to be something that happens more than once. It is likely to keep on happening. Their ideas of what justice should look like become systemic, and with no check. And we live in a time when we should want to the brakes to work on absolutely every established institution.
A jury has a great deal of power within their assigned scope. Juries are the brakes.
When a jury is impaneled, that jury is absolutely in charge of the guilty/not guilty determination. Thus it is not surprising that all the trained legal professionals, saddled with this monstrosity from the thirteenth century, want to do all they can to massage, coax, wheedle, manage, and mislead the jurors. And that is exactly what they do. And a big part of this is a refusal to explain the rights of a jury to the jury. We explain the rights of a defendant to the defendant, but the cohort of legal professionals have circled the wagons in defense of their perks. So you will not find out about the rights of juries in a courtroom. You should, but you won’t. If you find out about jury nullification, you will have to do it out here in the wide world where free speech can occasionally still happen.
Until, of course, it is determined that any defense of free speech is a prime indicator of white supremacy.