Jury Nullification Is Now the Law

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When New Hampshire Governor John Lynch signed HB 146 into law on June 18, the Granite State became the first in the nation to enact a measure explicitly recognizing and protecting the indispensable right of jury nullification.

New Hampshire's jury nullification law reads, in relevant part: u201CIn all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

There is nothing novel about the principle and practice of jury nullification, which dictates that citizen juries have the right and authority to rule both on the facts of a case, and the validity of a given law. This is widely recognized in judicial precedents in both American history and in Anglo-Saxon common law dating back to the Magna Carta (or earlier). At the time of the American founding it was well and widely understood that the power of citizen juries – both grand and petit – was plenary, and that their chief function was to force the government to prove its case against a defendant – and the validity of the law in question.

In contemporary America, however, trial by jury has been all but abolished in practice. Reviewing recent Supreme Court rulings, legal commentator Adam Liptak of the New York Times observes that in its just-completed term, the High Court u201Chas turned its attention away from criminal trials, which are vanishingly rare, and toward the real world of criminal justice, in which plea bargains are the norm and harsh sentences commonplace.u201D (Emphasis added.)

The fact that the right to a trial by a jury of one's peers, which is supposedly sacrosanct, has become all but extinct illustrates the extent to which the U.S. u201Cjusticeu201D system has become Sovietized.

After the Bolsheviks seized power in 1917, the jury system – which had been established under Czar Alexander II in 1864 – was abolished and replaced with “People’s Courts” composed of a judge and a panel of two to six Party-appointed “assessors” who heard all of the evidence and decided all questions of both fact and law. The assessors “became known as `nodders’ for simply nodding in agreement with the judge,” wrote federal Judge John C. Coughenour in an article published by the Seattle University Law Review. “People’s assessors virtually always agreed with judges; acquittals were virtually nonexistent…. [U]nlike our adversarial system, the Soviet inquisitorial criminal justice system neither prioritized nor emphasized the rights of individual defendants, but instead paid homage to the interests of the state.”

One very telling measure of the Regime’s fear of citizen juries – especially those informed of their right to nullify unjust laws – is found in the efforts expended by prosecutors to prevent cases from going to trial.

In his 1998 book (co-written with Lawrence M. Stratton) The Tyranny of Good Intentions, Dr. Paul Craig Roberts points out that “the vast majority of felony cases are settled with a plea bargain….” Many, perhaps most, “felonies” today involve no offenses against persons or property, no criminal intent, and are usually a product of an opportunistic prosecutor’s malicious creativity in confecting a criminal offense.

It is common for prosecutors to multiply charges as a way of terrorizing an innocent defendant into accepting a plea. Very rarely do we see a defendant with the means to defend himself in such circumstances. For the average citizen who finds himself targeted by an ambitious prosecutor, a plea bargain usually seems like the only relatively palatable alternative to the expense of a trial and the possibility of a long time in prison. At the bargaining table, “I’m all in” for the prosecutor means that, should he lose, he would sacrifice a little prestige, with the taxpayers absorbing all of the expenses; the defendant stands to lose everything and faces the prospect of utter ruin.

This is why so many innocent people are willing to deal. For the State, the most attractive feature of such arrangements is the fact that it keeps such cases away from juries. And we’re left with a “justice” apparatus that functions, in the words of legal scholar John Langbein, like “the ancient system of judicial torture,” which relied on self-incrimination through duress, rather than conviction on the basis of sound evidence.

Some recent developments offer encouraging signs that New Hampshire's new law is part of a growing public trend toward jury nullification.

Police found Houston resident Israel Rangel in possession of less than a gram of cocaine – an amount equivalent to roughly half a sugar packet. He was arrested and charged with felony narcotics possession. When prosecutors vetted potential jurors, they found that 50 of the 130 candidates said they would not vote to convict someone accused of possessing such a tiny amount of cocaine.

The jury eventually acquitted Rangel of the charge. Lou Ellen Wheeler, who served on the jury, later said that the evidence against him was weak. But as defense attorney Todd Dupont pointed out, other jurors made it clear u201Cthey weren't going to make somebody a felon and ruin their lives over a gram of cocaine.u201D

Prosecutor Julian Ramirez insisted that even though the amount involved was minuscule, possession of cocaine is a crime because u201CIt's the law.u201D However, it is the for the jury – not the trial judge, and certainly not the prosecutor – to define the law, even if this specific verdict merely reflected the poverty of a particular criminal case.

This is at least the second time a conscientious jury has nullified a foolish drug prosecution. Two years ago a Montana jury refused to convict a man for marijuana possession. Hopefully this kind of principled rebellion will become a nationwide epidemic.

(Cross-posted from here.)

William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.

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