Journal May 29, 1995
Jurors Rise Up Over
NATIONAL LAW JOURNAL STAFF REPORTER
justice system sends jurors
conflicting messages about power: They are trusted to decide questions
and death, but not to take their notebooks home at night -- assuming
judge lets them have notebooks.
the great unspoken truth
about jurors is that in fact, they do have the inherent power to take
of the legal process through concerted action.
in just two states can jurors
expressly be told of this power.
it is taken for granted
that jurors will put up with almost anything, it hasn't always been so.
greatest legend about a
jury is a juror mutiny," says political science Prof. Jeffrey Abramson
ex-prosecutor and author
of the 1994 book "We, the Jury," a historical survey of the jury
system. British jurors defied a trial judge's instruction to convict
Penn of unlawful assembly 300 years ago. They were jailed and denied
stood by their acquittal and prevailed. Bushnell's Case, 124 Eng.
Rep. 1006 (P.C. 1670).
was an example of jury
nullification, and Professor Abramson and others point to it as the
empowerment of independent-minded jurors. Nullification occurs when a
following its own moral compass, refuses to conflict, although facts
permit only guilt. Technically, nullification can go the other way when
convict in violation of the letter of the law -- say, a jury refuses to
a mens rea requirement -- but legally insupportable convictions can be
with its sibling,
civil disobedience, jury nullification was an integral feature of the
our nation," says U.S. District Judge Jack B. Weinstein, of the Eastern
District of New York, who has written and spoken on the topic. "The
Tea Party and the acquittal of dissident John Peter Zenger on charges
both might be called founding acts of civil disobedience and
tradition was ratified by the
Supreme Court in Sparf v. U.S.,
156 U.S. 51 (1895), which conceded a court's lack of recourse if jurors
in spite of overwhelming inculpatory evidence.
include in that heritage the Northern juries who refused to enforce
slave laws during the 19th century. The darker potential, however,
shows up in
this century in the refusals to white jurors to convict white
was nullification's service to
racism that "stripped it of its moral statute," as Professor Abramson
puts it, leaving the doctrine "in virtual eclipse." Currently the
constitutions of just Indiana and Maryland
at the defendant's request, to tell juror that although the instruction
will hear on the law is meant to guide the, it should not be regarded
binding their consciences. (In the 1970s, Kansas experimented briefly with
the debate centers on
whether other states' jurors should be told they have the power to
one extreme, the Fully Informed Jury Association, a group claiming some
dues-paying members, with headquarters in Montana
and a sizable presence in Southern California,
wants the doctrine incorporated into the U.S. Constitution.
members are a stew of libertarians,
anti-abortion activists, marijuana legalization advocates, income tax
protesters and gun control opponents who share a belief that the
grown tyrannical. They share with many on the far right a belief the
system is a tool of that tyranny.
some five years of existence,
the FIJA has made no headway with its prime goal: getting state
pass laws requiring judges to inform jurors they have an inherent,
judge the law itself. Earlier this year, a classic FIJA bill to amend
introduced in that state's Legislature, only to die in committee. (The
Rep. Steve Fuhrman, admitted to reporters that the idea of jurors
laws to follow sometimes gives him "a twinge" of fear but added,
"I don't trust big government.")
the other end of the spectrum
are those who reject the concept of nullification as an invitation to
Among them are some San Diego
judges who had FIJA members arrested for jury tampering when they
informational pamphlets in from the courthouse during the trespass
abortion protesters in the early 1990s.
a middle course, Judge
Weinstein says that although juries should not be instructed that they
power to nullify, judges should allow evidence bearing on moral values.
nullification instruction "is like telling children not to put beans in
their noses," the judge observes. "Most of them wouldn't have thought
if it had it not been suggested."
what looks like juror
defiance has a more lawful explanation. IN May 1994, the Los Angeles
states that "the most celebrated recent case of jury nullification in California" was a San Diego jury's 1993 acquittal of
Skipper on felony counts of growing marijuana. He admitted he did it,
said he needed pot to counter AIDS-induced nausea. When the jury
agreed, FIJA announced that jurors as subordinated the law to the
value of medical necessity. In fact, explains his attorney, San Diego
Public Defender Julian Humphrey, the standard instructions given the
allow acquittal in such cases, where medical necessity is present.
Skipper, 140065 (Super. Ct.,
San Diego Co.).
often, observers can only
speculate that jurors hijacked a case, as U.S. District Judge Thomas
Jackson of Washington,
D.C., said after presiding
over the 1990
drug trial of Mayor Marion S. Barry. Some jurors "had their own
agendas" and "would not convict under any circumstances," the
judge tols a Harvard Law School audience a week after sentencing the
six months in jail for one misdemeanor count of cocaine possession.
to the judge, the evidence conclusively proved that the mayor was
guilty of at
least 11 of the 13 counts charged.
recently in California,
"three-strikes" sentencing law has jurors telling judges that they
will and won't do. In January, a San Francisco
jury revolted after it returned a guilty verdict on assault and
carjacking charges, only to learn that it had just decided the first
half of a
bifurcated trial; next they were to decide the validity of two prior
The three-strikes law requires prosecutors to "plead" and "prove"
prior convictions if they intend to use them to enhance a sentence. So
to color the initial deliberations, the jurors had not been told that
defendant, Eugene Jones, was a repeat offender.
they got to the second stage
-- when they learned that as a three-time loser, Mr.
faced a 25-years-to-life
sentence -- it was irrelevant that the state's standard jury
jurors not to take penalty or punishment into consideration. Bailiffs
that one man announced he felt "violated." In one account, a woman
began sobbing. When they refused to return to their deliberations,
Court Judge Anne E. Bouliane declared a mistrial. People v. Jones,
third president, Thomas
Jefferson, put it like this: "I consider trial by jury as the only
yet imagined by man by which a government can be held to the principles
Adams, our second president,
had this to say about the juror: "It is not only his right, but his
duty ... to find the verdict
according to his own best understanding, judgement, and conscience,
direct opposition to the direction of the court."
Only decades had passed
since the freedom of the press was established in the colonies when a
decided John Peter Zenger was "not guilty" of seditious libel. He was
charged with this crime for printing true, but damaging, news stories
Royal Governor of New York Colony.
is no defense",
the court told the jury! But the jury decided to reject bad law, and
Because defense attorney
Andrew Hamilton informed the jury of its rights: he told the story of
Penn's trial - of the courageous London jury which refused to find him
of preaching what was then an illegal religion (Quakerism). His jurors
their verdict even though they were held without food, water, or toilet
facilities for four days.
were then fined and
imprisoned for acquitting Penn - until England's highest court
acknowledged their right to reject both law and fact, and to find a
according to conscience. It was exercise of that right in the Penn
eventually led to recognition of free speech, religious freedom, and
assembly as individual rights.
depended on juries to thwart bad law sent over from England.
The British then
restricted trial by jury and. other rights which juries had helped
Result? The Declaration of Independence
and the American Revolution!
to protect the rights
they'd fought for from future attack, the Founders of the new nation
trial by jury - meaning tough, fully informed juries - in both the
and the Bill of Rights.
law - special-interest
legislation which tramples our rights - is no longer sent here from Britain.
our own legislatures keep us well supplied ... Now, more than ever, we
juries to protect us!
the 1890's, powerful
special-interest pressures inspired a series of judicial decisions
to limit jury rights. While no court has yet dared to deny that juries
"nullify" or "veto" a law, or "bring in a general
verdict", some - hypocritically - have held that jurors need not be
is why it is nowadays a rare
and courageous attorney who will risk being cited for contempt of court
informing the jury of its rights without obtaining the judge's prior
It's also why the idea of jury rights is not taught in (government)