by Dave Kopel, originally published at DaveKopel.com
“In this country, we have three ways to secure our freedom,” remarked Idaho Senator Steve Symms, “The ballot box, the jury box, and if those don’t work, the cartridge box.” This article discusses how doing your legal duties in the jury box can help protect your right to own a cartridge box, and to exercise all the rest of your constitutional rights.
In Oak Park, Illinois a few years ago, a gas station owner drew a gun to defend himself against an armed robbery. Oak Park has a handgun ban, so the prosecutor threw the book at the gas station owner. A jury speedily acquitted him, although the facts seemed to clearly prove the station owner guilty. Was the jury acting illegally? Not at all. The jury was simply exercising its power to judge the law as well as the facts. The jury apparently determined that in the particular case, it would be unjust to punish the gas station owner for violating the handgun prohibition.
In one infamous prosecution under the Gun Control Act of 1968, the federal government brought 88 felony charges against a skeet shooter who sold guns as hobby, to pay for some of his shooting expenses. The “crimes” worth 88 felony counts and up to 440 years in prison? Letting his customers try out the guns for a few days before buying them, and making gun sales at the range rather than at his business office. Although the defendant admitted his actions on the stand — and his acts were technical violations of the Gun Control Act — the jury found him “not guilty” on every count.
Jury acquittal of a defendants who is technically guilty, but who does not deserve punishment, is called “jury nullification.” In the American legal system, the jury’s power to nullify is unquestionable. The District of Columbia Court of Appeals — the second highest court in the United States — explains that the jury has an “unreviewable and irreversible power…to acquit in disregard of the instruction on the law given by the trial judge…” (U.S. v. Dougherty, 473 F.2d 1139 (1972).)
Or as another federal court of appeals summarizes: “If the jury feels the law under which the defendant is accused is unjust, or that exigent circumstances justified the action of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit and the courts must abide by that decision.” (United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969).)
The court was re-affirming what John Jay, the first Chief Justice of the U.S. Supreme Court, told jurors: they possess “a right…to determine the law as well as the fact in controversy.” (Georgia v. Brailsford 3 Dallas 1, 4 (1794).)
In what situations does jury nullification come into play? One of the most common situations for nullification is self-defense and defense of property, when prosecutors throw the book at crime victims who might have technically exceeded the legal boundaries of self-defense. The acquittals for self-defense are typical of acquittals in other cases, where overzealous prosecutors bring charges that violate common justice.
During the years preceding the Civil War, juries would often refuse to convict persons accused of harboring runaway slaves. In the Prohibition era of the 1920s, many juries refused to send their fellow citizens to prison merely for possessing a bit of liquor. The acquittals laid the foundation for repeal of a bad law. In modern Kentucky, juries make it difficult for the government to obtain convictions for marijuana possession.
Paying taxes is never pleasant, and some people add a little note at the bottom of their tax form, such as “signed under protest.” Internal Revenue Service bureaucrats have actually prosecuted these people for failing to file a proper return. Juries laugh the I.R.S. out of court.
Columbia Law Professor George Fletcher observes that jury nullification might at first seem “to conflict with the rule of law, but careful historical reflection underscores the power of the jury not to defeat the law, but to perfect the law, to realize the law’s inherent values.” He points to jury acquittal of John Peter Zenger in a 1735 trial for seditious libel. (“Seditious libel” was the criminal offense of harming a government official’s reputation.) Zenger’s lawyer told the jury that they were the ultimate judges of law as well as fact; the jury acquitted Zenger on the grounds that his articles in The New York Weekly Journal about a corrupt governor were true — even though the formal law did not yet recognize truth as a defense to seditious libel.
That’s how the American system works; the law is created by “We the People.” If a power-hungry prosecutor exercises bad judgement, the people, acting through the jury, can stop him. Accordingly, it is not only the juror’s right, but his obligation to vote his conscience. As future President John Adams explained, it is the juror’s “duty…to find the verdict according to his own best understanding judgement, and conscience, though in direct opposition to the direction of the court.”
Curiously, although there is no legal doubt about the jury’s right to vote its conscience and acquit, there is generally no rule that the jury be told about that right. In 1895, a divided Supreme Court held that there was no Constitutional requirement that juries be informed of their power to nullify. (Spars and Hanson, 156 U.S. 64.) The case came from an era when the Court was devoted to protecting corporate power. Going on strike or joining a union was generally illegal, but juries were refusing to convict workers accused of these “crimes.”
Maryland and Indiana, through their state Constitutions, do require that the jury be fully informed. Maryland’s Constitution explicitly makes the jury “the Judges of Law, as well as of fact.” (Maryland Const., Declaration of Rights, Art. 23.) Indiana’s Constitution states that “the jury shall have the right to determine the law and the facts.” (Indiana Const., Art. I, section 19.)
Citizens in other states are working to put a “Fully Informed Jury Amendment” (FIJA) on their own state statutes. Juries in all states, like Indiana and Maryland juries, would be explicitly instructed about the right that is already theirs. As the cases discussed above illustrate, many jurors already know of their power to reject unfair applications of bad laws.
When juries don’t know their rights, the results can be tragic. For example, in Phoenix, Arizona a few years ago, a pair of United States marshals burst into the home of 72-year-old Bill Span and his 74-year-old wife Virginia. According to newspaper and magazine reports, when Mr. Span asked to see a search warrant, one marshal pinned him against the wall, while another searched the home. The marshals then proceeded to the family’s store, where Mrs. Span and two of her adult children were spending the day. The marshals flashed a picture of a criminal suspect they were looking for. When Mrs. Span said she did not know the suspect, the marshals attacked the adult son and daughter from behind. The brother resisted by raising his hands to ward off the blows, and trying to wiggle out of a chokehold. When the horrified mother snapped photographs, a marshal grabbed the camera from the mother’s hands, ruined the film, and knocked the 72-year-old mother to the ground, sending her to the hospital, where she nearly died. The customers present at the store during the attack backed up the Spans’ version of the assault.
Why the attack on this family? Mistaken identity. The elderly couple had a son — who hasn’t lived in Phoenix for 39 years — who has the same name as an entirely different person the marshals were seeking to arrest. Rather than being reprimanded, the marshals were commended by their superiors for acting appropriately.
The victims of the marshals attack were placed on trial. Both marshals had a reputation with the marshal service for provoking assaults, but the judge refused to let the jury know that fact. At the trial, the judge (incorrectly) told the jury that the only legal choice for a person being beaten by a government agent is “to submit peaceably,” and file charges later. The judge also ordered, as is standard in most jury instructions, “You must apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not.” He never informed the jury of its power to nullify the particular application of law.
The jury determined that the marshals had indeed initiated the attack. Believing the law forbidding self-defense to be completely unfair, the jury nevertheless obeyed the judge’s misleading instructions, and convicted the victims of assaulting the marshals. After the trial, five jurors tearfully told the defendants that they knew the marshals were perpetrating an illegal attack, but the jury thought it had no choice except to convict, according to the judge’s instructions.
Had the judge not misinformed the jury — had he told the jury that they had the unreviewable power to bring refuse to convict if they thought a conviction would be unjust — the victims of the crime would have been acquitted.
Opponents of the Fully Informed Jury Amendment, warn that juries cannot be trusted to exercise all of their legal rights. For example, in the South during the 1950s and 1960s, all-white juries would often refuse to find perpetrators of racist violence guilty. The problem there, however, was not the jury knew its rights, but that the jury was not truly representative of the community, since Blacks and women were frequently excluded.
Fortunately, recent Supreme Court decisions have made it nearly impossible for lawyers to select lily-white or otherwise bigoted juries. Moreover, this is 1990s, not the 1950s. With the concern most people have about violent crime, there’s little reason to feel that our fellow citizens will refuse to convict a defendant who deserves prison.
Although the law enforcement establishment predicts anarchy and “blood in the streets” if juries are informed about their rights, the evidence provides no support for the fear-mongering. Indiana and Maryland — where the state Constitutions affirm jury rights — are no more lawless than their sister states. Indeed, up until 1895, most of the United States got along quite well with fully informed juries, and the crime rate was far lower than it is today.
The jury’s right and duty to vote its conscience is one of the most important checks in our systems of checks and balances. Accordingly, the Fully Informed Jury Amendment has drawn support from an amazingly diverse coalition of groups. Tree-hugging EarthFirsters attend FIJA meetings with timber-cutting Wise Use advocates. Radical pro-abortion feminists sit next to Eagle Forum anti-feminists.
Interestingly, while anti-nuclear and pacifist groups are also part of the FIJA coalition, the anti-gun movement is not. Perhaps the anti-gun lobby fears that fully informed juries would be a significant obstacle to enforcement of repressive gun control laws. Accordingly, the Fully Informed Jury Amendment is supported by many pro- Second Amendment groups, including National Rifle Association and the Gun Owners of America. These groups recognize that the whole Bill of Rights is one magnificent and interwoven tapestry of freedom. When we protect the rights of juries, we protect the rights of all other citizens as well, including gun owners.
Sources: Florida gun prosecution: “Neal Knox Report,” Shotgun News, Apr. 10, 1990. George Fletcher quote: George Fletcher, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial (New York: Free Press, 1988), pp. 154-55. John Adams: Quoted in 74 Yale Law Journal 173 (1964). Jury nullification common in self-defense cases: Valerie P. Hans & Neil Vidmar, Judging the Jury (New York: Plenum, 1986), pp. 151-53. Arizona marshals: “A Challenge to Marshals’ Use of Force,” Chicago Tribune, Sept. 8, 1991, p. 24; New Times (Phoenix weekly newspaper), May 16, 1990; “Juries Possess Great Power; They Just Aren’t Told About It,” Phoenix Gazette, May 21, 1991, p. A9 (op-ed).