By Gene Weingarten
Sunday, January 24, 2010
Last week I was a juror in the trial of a man accused of selling a $10 bag of heroin to an undercover police officer. At the end of the two days of testimony, I concluded that the defendant was guilty beyond a reasonable doubt. I also concluded that he should be acquitted.
In his charge to the jury, the judge made it clear that if we found the defendant guilty beyond a reasonable doubt -- which I had -- it was our duty to convict. I was prepared to defy these instructions and acquit, in the interest of a greater good. There is actually a term for this: "jury nullification." I was going to nullify. But I was pretty sure that in my absence, the remaining 12 would convict.
The first sign that I was wrong came just minutes after I was dismissed. The other alternate told me that she, too, felt that the defendant was guilty but that the police had lied; in her mind, the lying created reasonable doubt. She, too, would have acquitted. FULL STORY
How A Jury Is Chosen:
The Trial of William Penn
At the conclusion of the trial the jury retired to deliberate its verdict. Upon the jury’s return, foreman Edward Bushnell reported to the court simply that the jury found that William Penn had spoken on the street, which was no violation of the law at all.
The judge was outraged and overcome with anger. He commanded the jury to retire again and render the verdict of guilt. Nevertheless, the jury returned and again stated that the verdict was that Mr. Penn had simply spoken on a street and not violated any law. The indignant judge confined the jury “to the hole,” in Newgate Prison, and instructed the foreman Bushnell that the jury would remain in the hole without food or water until a proper verdict was rendered.
Three more times the jury went out and returned the same verdict. When the jurors persisted in refusing to go out any more, the judge fined each of them and ordered them imprisoned until the fines were paid.
Such harsh treatment was not unprecedented. Juries in 1670 were very much under the thumb of the Crown: if a jury delivered a result that was unsatisfactory to the Crown, jurors were imprisoned and fined. In fact, after the verdict in the William Penn case, foreman Bushnell (sometimes reported as Bushnel or Bushel) was imprisoned for alleged misconduct as a juror. He sought and achieved his own release by writ of habeas corpus. (See Vaughn’s Reports, 135.) The Writ was issued by Lord Chief Justice Sir John Vaughn of the Court of Common Pleas. Interestingly, this was the first time the court had issued such a writ.
Despite the jurors’ courageous stand, William Penn and a co-defendant did not escape punishment. They were sent to prison — for wearing hats in the courtroom. Penn and his companion had removed their hats upon entering the courtroom, but the judge ordered them to put their hats on, which they did.
After their release from prison, Penn left England to journey to America.
The William Penn trial helped establish the principle of jury independence, which remains vital to our democracy. A jury stands between the arbitrary power of the state and the rights and liberties of individuals. All of us should appreciate the value of trial by jury and be disturbed when it is denied to anyone so entitled.