Jury Nullification - Real or Imagined?

[Dennis]

1) I was selected for jury duty in San Antonio more than ten years ago. While
waiting, (and waiting!) I struck up a conversation with a chap who explained Jury
Nullification to me. I had never heard of such a thing. He said a (?member of the
Jury?) or (?majority of the jury?) could declare the law to be unconstitutional and
actually nullify the law - not just declare the accused “not guilty”. I thought he
was nutso.

During jury selection, the judge was very clear and very specific that it was NOT
our job as jurors to evaluate or judge the law. We, as fact-finders, were tasked
with determining whether there was an infraction of established law - in which case
we had no choice but to render a verdict of guilty. He asked if anyone here might
be unable to do that. My new friend immediately stuck his hand up. I thought
about “MIGHT be unable to do that” and I stuck my hand up. The two of us were
sent home immediately - not even permitted to ask a question or speak - apparently for fear we might “contaminate” the prospective jury members.

2) I had book-marked this site on jury selection but it now comes up, “Page not
found.” http://www.surf.com/~graham/jury_nullification.html I don’t
remember, specifically what was there, so...

3) I did a search on aol.com for “Jury Nullification”. Jeez! A bzillion hits:

= http://home.utah-inter.net/don-tiggre/jrp.appartwt.htm
Here you can read about a “hemp activist” who did not volunteer her background
when she was selected for jury duty. She was fined $1200 for contempt. The
question of Jury Nullification apparently was not decided. There’s more at:
http://internet.ggu.edu/university_...ome.utah-inter.net/don-tiggre/jrp.lkwplet.htm

= The Fully Informed Jury Association maintains we have the right!
http://metalab.unc.edu/fija/fijaintr.htm

= http://www.cap-press.com/conrad/ seems to indicate we have the right
but can’t use it.

= http://www.buildfreedom.com/ft/jury_nullification.htm has a LOT of
material on Jury Nullification.

= http://www.fija.org/masters.htm discusses the right to distribute
leaflets about this subversive Jury Nullification thing.

My God, there’s pages and pages of references to “Jury Nullification” on the
aol.com search engine.

5) So, perhaps I have jumped the gun! Maybe we still have the right of Jury Nullification. So, please direct me to a case where Jury Nullification has been
successfully employed in the last fifty years.

If we have the right but are not allowed to use it, do we actually have it? I think
not (but I am open to corrections). We have the Second Amendment, but we are
“infringed” as the dickens. I believed such may be the fact with Jury Nullification.

6) I really like the idea of Jury Nullification. IF we have that right, let’s get on juries and tear down gun control laws. These laws clearly violate the Second Amendment.
Wouldn’t Sarah Brady and Rosie have a fit?

If the judge commands us to find a defendant “guilty”, are we subject to
“contempt” if we follow our conscience and declare the law to be invalid?

Clue me in, guys! I truly thought we had lost this final check upon governmental
tyranny - if not in fact, at least in practical terms. If I’m wrong, in practical terms, as Bugs Bunny would say, “You realize, of course, that this means war!” - in the courts, of course.

Perplexed, and Prepared to be Humbled, Grump

 

[Destructo6]

I believe your acquaintance was correct. I think that goes under the idea that 12 regular citizens can decide that a law, although on the books, is unreasonable and should be ignored.

Judges don't like it because it amounts to ignoring their instructions too.

 

[John/az2]

Dennis,

It is my understanding that juries were put in place to have the last word on the law.

In a government such as ours it is the final "check and balance" before armed conflict.

When the judges say that you MUST follow their instructions, they are basically saying that this is a staged court (verdict already decided) that allows you to perform civil masturbation. It feels good but, does nothing that it was intended for.

A jury is not needed in a totalitarian/socialist country, because the judge has the law before him, and he can decide a guilty or innocent verdict by himself after the presentation of the evidence.

The jury, on the other hand, if used properly, casts the final vote on the life of a law.

This is my understanding.

Sorry about the fragmented line of thinking... I've never put the down before...

------------------
John/az

"Just because something is popular, does not make it right."

www.countdown9199.com

 

[Chuck B.]

My understanding of Jury Nulification is extremely rudimentary, but I always thought that the jury could find the law to nullified -in that particular instance-. How can there be an issue if the jury returns a not guilty verdict? It isn't necessary to say anything more.

 

[Dennis]

Have we found the way to nullify gun laws? Maybe we should support the Fully
Informed Jury Association (FIJA) as a way around all the lies spread by the
anti-gunners. Who cares what they think and say so long as gun owners are not
convicted?

Another site: http://home.utah-inter.net/don-tiggre/jrp.history.htm

Here’s a good one:
http://www.drtavel.com/Amicus.htm

Here you can read the following story and more:
((quote))
HUGO BLACK, a great believer in the Jury system, used to tell this story--
Years ago, in the foot-hills of Alabama, a tenant-farmer was charged criminally
with stealing a cow from his landlord, and was brought to trial. As was frequently
the case in rural America, the Jurors selected for the trial were acquainted with
everyone, including the accused and his victim. Each juror knew that the farm's
landlord was a nasty bastard who tormented his neighbors, while frequently
treating the town's orphans and widows with derision. By the same token, the
tenant-farmer was the salt of the earth, beloved by everyone. But still, the evidence
of his guilt was indisputable.
After the evidence was in and the jury retired to deliberate, it quickly returned to
the courtroom to announce its verdict: "If the accused returns the cow, we find
him not guilty."
The judge was infuriated. His anger heightening, he commanded the jury to return
to the jury room to deliberate --shrilly chastising them for their flagrantly
"arrogant" and "illegal" verdict.
Not a moment passed when they re-appeared in the tense courtroom to trumpet
their new verdict: "We find the accused not guilty -- and he can keep the cow."
The American Jury, Justice Black reminds his listeners, is effectively omnipotent in
rendering an acquittal. What hits home in Justice Black's story is the deeply-held
American notion that juries often perform an independent role in a system in which
the people - not prosecutors, judges or lawyers - have the last word. In the end, if
the jury wishes to let the defendant keep the cow, that is what will happen.
((unquote))

Another: http://metalab.unc.edu/fija/doigart.htm
Check out these quotes:
((quote))
As Thomas Jefferson said, in a letter to Thomas Paine in 1789: "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."
America's second President, John Adams, said in 1771: "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."
And John Jay, the first Chief Justice of the U.S. Supreme Court, said: "The jury
has a right to judge both the law as well as the fact in controversy." Georgia v.
Brailsford, 1794.
In American legal tradition, an unconstitutional law is viewed as invalid, and is no
law at all. And until a law passes the test of community acceptance, and is
enforced by juries, it cannot be viewed as a done deal.
((unquote))
Looks to me like we have Jury Nullification about as much as we have the Second
Amendment. So, what are we going to do about this?
+ IF there are 80,000,000 gun owners in America, and
+ IF we educate them about Jury Nullification,
= Then fewer people would lose their guns unjustly,
= More people could regain their improperly confiscated firearms,
= The government would be more responsible for damaging, destroying, or
“losing” confiscated firearms.
= Gun owners could nullify infringement on our Right to Keep and Bear Arms.
= We could take our courts back and end the floor shows such as the O.J.
Simpson trial.
= Citizens would have recourse to improper government action.
---------------------------------------
I was bemoaning the loss of Jury Nullification. In practical terms, I was right.
“They” have taken it from us. If we can take it back, we may be able to avoid our
government’s “final solution” for us.

Dennis

 

[DC]

Dennis...

I hate to tell you and realize I am a diehard proponent of jury nullification....but it works both ways. I seriously doubt that OJ would have been convicted because there is a very real possibility that that is how that jury voted.

That said, its like all of our rights...ya gotta take some bad with a net gain of good..."ain't no such thing as a free lunch"

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"Quis custodiet ipsos custodes"

 

[John/az2]

DC, Having not followed the OJ case very closely, could you elaborate on you post?

Thanks.

------------------
John/az

"Just because something is popular, does not make it right."

www.countdown9199.com

 

[Idaho02]

Didn't a jury acquit the surviving Davidians from Waco only to have the Judge set aside the verdict?

 

[Grayfox]

Question: If a jury should nullify a law does that mean that the law is no longer valid regarding everyone or simply not valid in this particular case?

------------------
It's a shame common sense isn't more common.

 

[DC]

The particular case.

As to Idaho's post....basically its a pissing contest (there's that water reference again

)......is it politically expedient and feasible to go with the jury or against it, then does the community have the stones to back up the jury if the jury is overturned?
That is one reason why judges don't inform juries, and it is also legal for a judge to hold an attorney in contempt if he/she does inform the jury.

Say a jury does the unexpected....the court has a perfect right to investigate for any type of tampering or undue influence, etc..but failing to find that then in theory the jurie's verdict must be upheld. But, there is also the bluff factor if there are politics involved. The average citizen is conditioned to believe that a judge's word is almost that of God's. Thus, if a judge overrides a jury, most of us don't know how to enforce our will. Hence, community involvement and position on the issue.


Those of you who have ever had jury duty and witnessed a jury selection...think about it and remember who got booted. In my case I've served 6 times at 2 weeks per time but only have been on 2 cases (avg 3 days per case). Gosh, I wonder why

------------------
"Quis custodiet ipsos custodes"

 

[Jim March]

The #1 classic type of jury nullification case were the Northern juries that regularly found escaped slaves in the North "not guilty" of being such escapees even though they quite obviously were. There was a 10 year or so period when the North wasn't safe either (appeasment measure to keep the South from complaining) and the "underground railroad" had to be extended all the way to Canada.

The Northern juries that turned recaptured slaves loose helped add to the southern frustrations that led to the "Civil" war which was anything but. These nullifications were "classic" in that they helped tear down a law that we today all realize was horrendously wrong. I would argue with any liberal that views nullification on gun cases with horror that the ability to shred bad law a the jury level has an honored history...and that such a liberal must ponder the idea that stripping people of their civil right to self defense might be only a slight step up from flat-out enslaving them.

To be against jury nullification, you'd have to think that the laws against being a runaway slave prior to 1860 were PROPER and that tearing them apart jury by jury was "anarchy".

Jim March
http://www.ninehundred.com/~equalccw

[This message has been edited by Jim March (edited June 05, 1999).]

 

[Jim March]

May I suggest that if you believe in this principle, your answer to the judge should be "I will obey the law 100%", knowing that nullification is built into US law.

Jim March

 

[DonL]

DC brings up a good point about actually being on a jury. Unfortunately, attorneys, especially for the defense, often want mindless lemmings to be led into the box for them to dazzle a dozen mouthbreathers with their propaganda or spin. People with real opinions or rational thought processes rarely make it into the jury room. This was pointed out to me the several times I was actually in the box.

Attorney: "Are you familiar with the term, `deep pockets liability'? "
Me: "Yes."
Attorney: "Thank you. Your honor, I would like to excuse juror number (whatever-he meant me, though)."

Attorney (addressing the whole jury group): "Do you have any strong feelings against negligence or liability laawsuits?"
Me: (nodding head in affirmative motion)
Attorney: "Judge, I would like to excuse the following jurors... (yes, myself and two others who showed affirmative reations were bumped).

Another time, I was excused for a smirk when some curmudgeon said something derogatory during jury pool interviews about "painted-up peacock looking gangbangers with their goofy clothes and all". Just struck me as funny for some reason and The Man didn't appreciate it. And yes, I joined the curmedgeon on our way back to the jury pool waiting room. He was a neat old coot.

My point is, though, that attorneys don't want people who can think for themselves in rational thought processes because then they lose control of molding the jury's mind to their side of an argument. I personally think that alot of us would be excused from juries because we hold thoughts and opinions that aren't popular with the sheeple, especially for those of us that live in larger cities, where liberalism tends to be more prevalent.

------------------
Don LeHue

The pen is mightier than the sword...outside of arms reach. Modify radius accordingly for rifle.

 

[James K]

I am surprised that everyone here seems to understand jury nullification, which is more than most lawyers and all writers seem to do. Unless statute law specifically negates nullification, a judge is wrong who demands the jury go strictly by the law without questioning the law itself.

This would certainly happen only in a very few cases; even the jury who acquitted O.J. did not want to nullify the California law against murder. There are a few areas of the law that could be ripe for this. Marijuana laws, "zero tolerance" school laws, and gun laws come to mind. But I think that 1) the jury would have to specifically state that they find the defendant innocent because the law is unconstitutional and why, and 2) be unanimous in that finding.

In other words, I think jury nullification is probably a dead issue in practice.

Jim

 

[Kodiac]

It would seem to me that if this Jury Nullification was to take effect as a plan. One would need to:

1. Catalog and document all cases where this was done in the past.

2. Change the legal proceedures of Jury selection - so the filthy lawyers can't pick and choose those from the jury pool.

3. Have all the jurors ready to Nulify. This would take an awfull lot of doing... And probably entail very large amount of illegal bribing of the jurors... And as this is behind closed doors - the one Gun Juror would have to go in with a heavy money belt... and face very heavy risk to do this.

Or - we could have a jury that was picked straight out of the local Gun Show.

Not going to happen...

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RAGE AGAINST THE MACHINE

 

[John/az2]

I asked this question before, but recieved no reply. Maybe this is a better setting to ask again.

Legally (and I mean real legality) are the lawyers allowed to pick and choose the jury?

Can anyone cite a specific law that allows this, or has it simply been done for so long that it has become an accepted, unquestionable practice?

It seems to me that this would be "stacking the jury". No?

If this is not a legal attorney's right, what can be done to reverse this precedent?

------------------
John/az

"Just because something is popular, does not make it right."

www.countdown9199.com

 

[bruels]

Prospective jurors are qualified for empanelment by the voir dire process. The court and the attorneys from both sides ask a number of questions to determine if a juror is qualified to sit on a jury. The questions are to determine if the juror has any prejudices, etc., that would be disqualifying.

Attorneys can challenge any juror for cause and can challenge an unlimited number of jurors for cause. The attorneys also have a fixed number of preemptory challenges for each defendant in a case. No reason is necessary to remove a prospective juror with a preemptory challenge. Usually the number is ten. This is how attorneys try to "customize" a jury to their liking.

There are a number of people who make a good living advising attorneys which juror to keep and which to reject.

Hint: They try to avoid having intelligent, thinking people on a jury panel. They want a jury that can be led. They want one member of the jury who they feel will end up foreman and can be influenced to "lead" the jury to the decision they want.


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Bruce Stanton
CDR, USN-Ret.

 

[DonL]

Bruce, thanks for explaining this in full. While I think many of us are familiar with the basics of jury selection, your post explained it both very concisely and accurately.

Yes, juries can be "hand selected". The term "jury consultant" comes to mind here. They want to find or select those that seem emotionally or rationally pliable, and then the spin begins.

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Don LeHue

The pen is mightier than the sword...outside of arms reach. Modify radius accordingly for rifle.

[This message has been edited by DonL (edited June 07, 1999).]

 

[Ipecac]

Vin suprynowicz's new book, "Send in the waco Killers" has a very informative section on jury stacking and jury nullification. Read about the book at: www.infomagic.com/liberty/vinbooks.htm

It is also extremely pro-gun.

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"All I ask is equal freedom. When it is denied, as it always is, I take it anyhow."

 

[Futo Inu]

You see, this is why Repubs suck big ones just as much as Dems. The Dems are after our 2nd Am rights, and the Repubs would love to destroy our seventh Am rights (jury trial).

Jury nullification is very rare because of the process of selection just as you described - you and your acquantaince were weeded out, along with the overall seriousness of the court process, which causes the vast majority of jurors to take their jobs very seriously and follow (to the extent possible with their existing mental faculties) the judge's instructions such as you received (NO nullification, jurors). However, nullifaction does happen (and probably should, but that is a separate normative question).

The jury is indeed one of the last bastions of power (along with armed citizens) in the hands of the people. Jurors, who have heard ALL of the evidence, can weigh and render any decision they wish to in the case, either within or without the stated parameters given to them, provided they can convince the requisite number of other jurors to follow that route (only one needed in crim case for not guilty, majority and sometimes 2/3rds needed for either direction in civil cases). When these big corporations get whacked for huge judgments in civil cases (mind you I didn't say settlements pursuant to exhaustive tactics, as is the case with tobacco and now guns), you can rest assured their conduct was egregious and warranted the punishment, precisely because so many jurors are intent on doing the right thing. The Repubs are always pressing to take power from the jury by placing caps on punitives or eliminating liability altogether for negligent conduct or building defective and unsafe products. This is very bad, BTW, because without the power granted to them in civil cases (and criminal), we are ripe for takeover by a tyrant - more likely a corporate tyrant like Microsoft or WalMart than a gov't leader. A society without jurys who possess power is very analagous to an unarmed society in terms of vulnerability.

Nullification, when it occurs, usually occurs when someone familiar with the system misleads (lies) about his/her prospective intent to judge the case fairly, then proceeds to bully, no let's say assert him/herself among the other jurors in a headstrong manner to reach the perceived "right" result, regardless of the law. Perhpas several jurors feel the same way. One thing I am suggesting is that even if all of us were to agree that all jury nullification is wrong, it is nevertheless a price we need pay in our system to keep the power where it belongs. Whether nullification is called for in any particular case is something we could argue ad nauseum. But, as suggested, if a law is clearly or almost clearly unconstitutional, the argument for nullification is much stronger, though to be sure, the judge would instruct the jury (correctly, in the law's eyes), that it is not their job to strike unconstitutional laws; rather it is the job of the appellate court judges upon appeal - the jury's only job is to decide questions of fact. But nullif can still occur despite this because jurys are usually just asked to give an dichotomic outcome in terms of liability (yes/no), amount of damages (monetary compensation), or guilty/not guilty. They are ordinarily not required to tell what the specific findings of fact were. These three conclusions the jurys reach every day are hybrid/cumulative mixed questions of law and fact, so if there is a finding of not guilty when clearly guilty or a finding of liability where clearly no legal liability, nullification has occured, but the verdict WILL stand, barring leakage of clear evidence of the nullification, because the court system assumes the verdict rendered turned on the questions of fact, NOT on the applications of law to the facts. For example, assume for a minute that OJ "did it" - some of you won't have to assume - and assume that all of the jurors knew he "did it" and privately agreed as much -in other words, assume that none of the jurors actually believed in the framing conspiracty theory, but decided to nullify by not applying the law properly to the facts. The law says if you "did it" and "it" was unjustified killing, then you are guilty of murder and the jury has no choice but to render the guilty verdict. The reason for the nullification could be anything - it doesn't really matter - here, if it occured at all, it was probably related to the "racial inequality" stuff.* But not guilty verdict has stood and will stand regardless, because the court didn't inquire of them "do you think he did it?", it only inquired "is he guilty?" which is the mixed question of law/fact. The system assumes the jurors think "he didn't do it", not "he did it but we're nullifying".

*BTW, what happened in OJ part 1 was apparently not nullification, but a finding of "we don't think he did it" to the requisite degree of certainly (BRD). So, although the racial component affected this outcome by virtue of the majority of the jurors' race causing them to be more likely to believe the framing conspiracy theory, this is not the same thing as nullification to "help the black race / send a message about race by nullifying". OK, that horse is now dead and beat some more.

[This message has been edited by Futo Inu (edited June 09, 1999).]