Sunday, July 31, 2005

Jury nullification as civic duty

I'm late in posting on this but it's a timeless piece and well worth wide exposure. Radley Balko posts a brilliant column on jury nullification. This is the check on the balance of power available to ordinary citizens. I urge you to read the whole thing, it's not long, but here's the money quotes.

The doctrine of jury nullification (search) rests on two truths about the American criminal justice system: (1) Jurors can never be punished for the verdict they return, and (2) Defendants cannot be retried once a jury has found them not guilty, regardless of the jury's reasoning. So the juries in both the Rosenthal and Paey cases could have returned a "not guilty" verdict, even though Paey and Rosenthal were undoubtedly guilty of the charges against them.
The first point is not entirely true. I'm aware of at least one case in Massachusetts where a lone juror was arrested on other charges after having evoked nullification. While she wasn't directly punished for exercising that right, the arrest was clearly linked to her decision. I'm also reminded of arrests made outside of courthouses of pamphleteers who attempted to distribute information to incoming jurors on the subject. The court clearly doesn't relish having it's authority undermined.

Nonetheless, although it takes courage to employ this tactic, it is our right as citizens to do so.
Here in America, the Founding Fathers understood the importance of allowing juries to determine not just the guilt or innocence of the man on trial, but the justice and fairness of the law he's charged with breaking. John Adams said of jury nullification, "It is not only [the juror's] right, but his find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." John Jay, the first chief justice of the Supreme Court, said "The jury has the right to judge both the law as well as the fact in controversy."

...Now that the Supreme Court ruled that federal prosecutors can continue to arrest medical marijuana patients, and given the Drug Enforcement Administration's continued prosecution of pain patients and the doctors who treat them, we're likely to see more outrages like those perpetrated against Ed Rosenthal and Richard Paey.

A common question I get from people disturbed by these kinds of cases is, "What can we do?" Well, here's one thing the average citizen can do: Serve when you're called to jury duty, and while there, refuse to enforce unjust laws. If a defendant is guilty of harming someone else, certainly, throw the book at him. But if he's guilty of violating a bad law, or if you feel the law has been unjustly applied to him, by all means, come back with "not guilty," no matter what the judge, the prosecutor, or the evidence says.

Not only is this your right as a juror, some would say it's your obligation.
We have the power, it's up to us to use it.


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