Our Founders put into place checks and balances because they knew how easy it would be for power hungry politicians to pervert the Constitution. States Rights of Nullification are only one of the checks put into place which allows the states to void out an Un-Constitutional law passed by the U. S. Congress. But what about Un-Constitutional State Laws? Watch the interview and then read below for the answer.
This is one of the best papers I have read on the subject of a Jury's Power of Nullification.
EMPOWERING THE JURY AS THE FOURTH BRANCH OF GOVERNMENT
by Justice William Goodloe, Washington State Supreme Court, retired
with gratitude for the research of Professors Alan Scheflin, Jon Van Dyke, and Mark Howe, and for the citation verification by Tom Stahl
The case commemorated is Bushell's Case, 6 Howell's State Trials 999 (1670). This case is a good beginning for tracing the roots of a legal doctrine known as jury nullification.
The year was 1670 and the case Bushell sat on was that of William Penn and William Mead, both Quakers, who were on trial for preaching an unlawful religion to an unlawful assembly in violation of the Conventicle Act. This was an elaborate act which made the Church of England the only legal church. The facts clearly showed that the defendants had violated the Act by preaching a Quaker sermon. And yet the jury acquitted them against the judge's instruction. The Conventicle Act was nullified by the jury's not guilty verdict and the infuriated judge fined the jurors and jailed them until such time as their fines should be paid.
Edward Bushell and three others refused to pay the fines. As a consequence they were imprisoned for nine weeks and Bushell filed a writ of habeas corpus. He and the other recalcitrant jurors prevailed in the Court of Common Pleas, and the practice of punishing juries for verdicts unacceptable to the courts was abolished. Thus was re-established the right of jury nullification, an ancient right expressed in Magna Carta and dating from Greek and Roman times. And the jury's nullification verdict in this case, the trial of William Penn, established freedom of religion, freedom of speech, and the right to peacefully assemble. These rights became part of the English Bill of Rights, and later, part of the First Amendment to the United States Constitution. The man whom the courageous jurors had saved, William Penn, later founded Pennsylvania and the city of Philadelphia in which the Declaration of Independence and the United States Constitution were written.
According to the doctrine of jury nullification, jurors have the inherent right to set aside the instructions of the judge and to reach a verdict of acquittal based upon their own consciences. As abolitionist lawyer Lysander Spooner explained the doctrine in Trial By Jury in 1852, page one:
"For more than six hundred years - that is, since Magna Carta, in 1215 - there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws."
Sparf and Hansen is not the Supreme Court's last word on the jury's role. In 1968 the Court ruled in Duncan v. Louisiana, 391 U.S. 145, that the Constitution requires states to provide jury trials for all defendants facing a possible punishment of two years or more, and the Court strongly implied that it would later extend the jury trial right in state trials to all defendants facing a possible punishment of six months or more. Justice White, writing for the majority, gives some of the fundamental reasons why trial by jury is essential to liberty.
"A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government ... Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the
compliant, biased or eccentric judge ... Fear of unchecked power, so typical of our State and Federal Government in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence."
Duncan, 391 U.S. at 155-156
The community can hardly make an effective participation in the determination of guilt or innocence if the jury is told that it must disregard its conscience and follow the law as dictated by a judge. The very word "guilt" requires the finding of a guilty mind, mens rea, the evil intent to do harm, and the jury can not determine this without consulting its own sense of right and wrong.
Modern Day Authority for Jury Nullification
Jury nullification remains the law of the land in every American jurisdiction. The ruling of Chief Justice Vaughan in Bushell's Case that the jury can not be punished for its verdict stands today in every jurisdiction, state and federal. This, coupled with the rule that verdicts of acquittal are final, is the substance of the power of jury nullification. Unless either or both of these two pillars of freedom are eroded away, the power of jury nullification is and will always be the law of the land. If the original intent of the Founders is our guide to the Constitution, then there is no doubt that jury nullification is a Constitutional right of both the defendant and of the jurors themselves, an unalienable part of the jurors' identity as sovereign citizens with the power to judge laws.
As the court has stated in U.S. v. Moylan, 417 F.2d 1002, 1006 (4th Circuit Court of Appeals, 1969):
"We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence ... If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions 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."******************************************
ANSWERING COMMON OBJECTIONS
Some common objections to informing the jury about its power of nullification are that chaos and anarchy will result from inconsistent jury verdicts, that the jury will unjustly convict, and that it is the function of the legislature, and not the jury, to repeal laws. All of these objections are unfounded.
Jury nullification has not produced anarchy or social disintegration in history, but rather, it has given us our most important rights. Obviously, juries which are representative of the community will not want to render verdicts which will cause anarchy and chaos in the very communities in which the jurors reside.
Hung juries and inconsistent jury verdicts arising because of jury nullification are actually performing a service for society. They are sending messages to lawmakers in a peaceful, routine and institutionalized way that it is time for changes in the law. Jury nullification is an antidote for the kind of anarchy caused by the victimless crime laws. America now leads the world in the percentage of its population behind bars largely because of victimless crime laws and the ancillary crime that such laws generate. A long series of jury refusals to apply such laws will advise legislatures to repeal or modify them. As Scheflin and Van Dyke have noted: "Because of the high acquittal rate in prohibition cases during the 1920s and early 1930s, prohibition laws could not be enforced. The repeal of these laws is traceable to the refusal of juries to convict those accused of alcohol traffic." Scheflin and Van Dyke, Jury Nullification: The Contours of a Controversy, Law and Contemporary Problems, Vol. 43, No. 4, 71 (1980). FULL DOCUMENT
EMPOWERING THE JURY as the Fourth Branch of Government is the 6th article and is in a word doc. format.
Nullification: Individual and Collective Uses
Iloilo Marguerite Jones, Executive Director
Fully Informed Jury Association FIJA.org
In Wood's new and excellent book on Nullification, much is written about the use of nullification at the state level of government against the federal level of government, but less attention is given nullification by the individual juror. Yet, the essence of justice is that human rights and conscience exist and can be exercised only at an individual level. There is no “collective right” just as there is no “collective conscience.”
While the perceived collective political community may embark on collective political posturing for myriad reasons, it is only at the individual level that the elegance of the independent juror, capable of raising a standard of justice in anticipation of the coming tides in the affairs of men, that we observe the prescient nature of the individual human conscience in steering the ship of state through troubled waters.
Throughout human history, we have moved from slavery toward the recognition of the unique rights and self-ownership of each individual human. With this journey has come the recognition of the evils of collectivist thinking at all levels of consideration. When we finally accept––as a cultural necessity––the inherent value and rights of each individual human, and when there are free markets and voluntary associations, we will still have need of juries to consider, to weigh, and to decide, what is justice and what is not.
In fact, one can readily thumb through history and find instances of brilliant juror nullification: cases in which the jurors anticipated later-recognized human rights; cases in which jurors raised the standard of justice to new heights. A recent review carefully points up shifting sentiment toward nullification. At almost every instance within this excellent article, one could substitute the concept of the individual juror for the concept of the collective state government, and in that substitution, find the essence of the concept of the jury of 12 jurors: of self-determination on an individual level, as each juror accepts the authority to judge the law as well as the fact, based on individual sense of conscience, justice, and compassion.
Investigation of instances of failure of the jury can be attributed more to government employees’ political jury stacking than to jury malfunction. In many instances, racism, sexism, or other factors kept juries from being truly representative of all those connected to the case.
(The economic implications are clear: re-open justice to the vote of the free market: let the people, as should be represented by the jury in every criminal case, determine those laws considered economically viable for enforcement. We might soon see only one law: no initiation of force or fraud for any reason whatsoever.)
Let the jurors act on individual motivation, and let bad laws fall before the conscientious, informed jurors who understand that they have the authority to judge the law as well as the facts, and that it must be their personal sense of justice which compels their individual verdict. Let there be no distinction of the right to nullify bad laws, whether at the state level or at the individual level, where one juror, acting independently in good conscience, has the same right to nullify as any government body.
The jury is one of the smallest, and therefore most significant, of duly constituted bodies involved in the application of laws and the mechanisms of justice. The elegance of 12 jurors has been examined from a mathematical perspective, found as Appendix I in Vin Suprynowicz's brilliant SEND IN THE WACO KILLERS, which I imagine you have all read. Read the Appendix I again. You will be enlightened about the role of the individual juror in serving as an essential and mathematically significant check on government employees’ tyranny and attempted usurpation of human rights.
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution,” a Virginia lawyer wrote ... His name was Thomas Jefferson.
Jefferson clearly understood that while self-serving government employees at every level would exceed their authority given any opportunity, they could be denied that opportunity by the people who would comprise the jury, who would refuse to enforce usurpations of individual human rights. Jefferson also understood the "anchor" metaphor, and chose it above the "cannon" metaphor, because the jury is a peaceful, necessary restraint to keep the ship of state steady and safe in serving its purpose: the protection of individual human rights. Jurors hold the authority and the ability to enforce the limits of the Constitution by refusing to enforce government employees’ attempts to violate Constitutional boundaries.
Find out more by visiting the Fully Informed Jury Association. You will want to stay for a bit and read up on one of the least-known rights in our Common Law country. It is a right, that when known, effectively can save us––through peaceful means––from the war the government has declared and is making against its own people, not so different from those wars against the people that inspired the Magna Carta.
It is the independent, secular, non-partisan juror who stands as the Fourth Branch of Government, capable of placing a veto on bad laws by refusing to enforce them at the behest of self-interested government employees, whether at the federal, state, or local level. After all, conscientious nullification resides, in the final analysis, in the independent mind of the thinking individual.
Iloilo Marguerite Jones
15 July 2010
Iloilo Jones is Executive Director of the Fully Informed Jury Association. She is a consulting mathematician with her own consulting company, as well as an artist, and a full-time agorist. She lives in Montana, where she hunts, fishes, gardens, and plays in her studio.
"Lies The Government Told You"
This Interview with Andrew Napolitano is not Embedable. It is in the C-SPAN video library. CLICK HERE to watch.