Jury Nullification
and the Rule of Law

Whenever the offense inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind.
Edward Gibbon

'If Miss Tuttle's broken the law, the Jury are entitled to acquit her! It's their ancient and inalienable privilege, I shall tell them. It's the light that shows the lamp of freedom burns.'
Horace Rumpole [John Mortimer, "Rumpole and the Official Secret," The Second Rumpole Omnibus, Penguin Books, 1988, p.517-518]

 

Men do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness. That state is most fortunate in its form of government which has the aptest instruments for the discovery of law.

Calvin Coolidge, to the Massachusetts State Senate,
January 7, 1914
 
I was summoned for jury duty some years ago, and during voir dire, the attorney asked me whether I could obey the judge's instructions. I answered, "It all depends upon what those instructions are." Irritatingly, the judge asked me to explain myself. I explained that if I were on a jury back in the 1850s, and a person was on trial for violating the Fugitive Slave Act by assisting a runaway slave, I would vote for acquittal regardless of the judge's instructions. The reason is that slavery is unjust and any law supporting it is unjust. Needless to say, I was dismissed from jury duty.
Walter Williams, 11 July 2007
It's every man's business to see justice done.
Sherlock Holmes [Sir Arthur Conan Doyle, "The Crooked Man," Memories of Sherlock Holmes, 1892]
Do justice, sir, do justice.
Learned Hand

Not long after the end of the original O.J. Simpson trial, I got in a little argument in the mail room with one of my colleagues at Los Angeles Valley College, Farrell Broslawsky, who teaches history and political science. He said that the O.J. verdict was an example of "jury nullification" and that the whole idea of jury nullification was a violation of the rule of law. Since then, I have seen the same argument made elsewhere, and I think it is important to address it.
"Jury nullification" means that a jury finds a defendant innocent because the law itself is unjust, or is unjust in a particular application, and so should not be applied. Since no O.J. jurors expressed or implied opposition to the laws against murder, their verdict was certainly not an example of nullification in that sense. Nor did any jurors admit that they were persuaded of O.J.'s guilt but that they thought it was OK for him to have committed the murders anyway. Instead, jurors simply said that they accepted the defense argument that police carelessness and possible misconduct, motivated by racism, introduced an element of reasonable doubt against the prosecution's case. Since Judge Ito allowed the defense to make that argument (judges typically do not allow defense lawyers to make pleas for nullification), it certainly doesn't look like a nullification case. The jury may have been more suspicious of the police than was reasonable, but that was the luck of the draw in the jury pool--a jury in Santa Monica later found O.J. liable for the murder, under the less rigorous standard of "preponderance of the evidence," rather than "beyond a reasonable doubt," in the civil case against him.
On the other hand, does a jury have the power and the right to nullify the law? Would nullification be a violation of the principle of the rule of law? Yes, and no, respectively. It is common today for judges to tell prospective jurors that they must apply the law as he gives it to them and that their business is simply to determine whether the defendant has broken the law or not. But that is not what was intended by the right to trial by jury in the Bill or Rights. Thomas Jefferson said in 1782 (Notes on Virginia):

...it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact.
Then, recommending trial by jury to the French in 1789, Jefferson wrote to Tom Paine, "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...."
One may say that Jefferson is not talking about nullification, but just about a jury taking the interpretation of the law into its own hands--though that is already well beyond what a jury is allowed to do now, especially if a jury undertook to apply its own interpretation of the Bill of Rights. On the other hand, we have the District of Columbia Circuit Court of Appeals, in Unites States v. Dougherty, 1972, saying:

[The jury has an] unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge...The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.
Indeed, if juries do not have the right and power to nullify the law, we must face the fact that Harriet Tubman, one of the great heroines of American history, would and should have been guilty of multiple federal crimes by violating the fugitive slave laws. That is a morally revolting prospect, but judges today who reject nullification must confess that they would enforce the fugitive slave laws and convict Harriet Tubman. If they were to honestly admit as much, and hold themselves powerless to disobey unjust and morally despicable laws, they should be told that "obeying orders" was not accepted as a defense in the Nazi war crime trials at Nuremberg.
It is tempting to say that today we don't have laws like the "fugitive slave laws." That would be a serious self-deception. The prisons are full of people who have done nothing wrong, except be in possession of a "controlled substance" that the federal government, at least, has no authority under the Constitution to "control." People dying of cancer or AIDS have been arrested and jailed just for growing and smoking marijuana, the only thing that enables them to eat, take their medication, and stay alive. Despite the passage of medical marijuana laws in many states, as far apart as California and Maine, federal prosecutors have viciously targeted medical mairjuana activists, who are often very ill themselves, and have found pliant judges, without honor or conscience, who prohibit medical necessity defenses.
But must we simply accept such possible injustices in order to uphold the rule of law? By allowing jury nullification, do we not license the misuse of the principle, as when Southern white juries would acquit KKK'ers for murdering or terrorizing blacks or Jews? Unfortunately, as long as we have trials, by jury or otherwise, it will be possible for bias to misuse the law and perpetrate injustices. KKK'ers would have gotten acquitted because a large part of (white) public opinion, and the staff of the courts themselves, was biased in their favor. Regardless of the duties of judges or juries, a means was going to be found in such circumstances to prevent their conviction. The remedy for that is a system of checks and balances. A local jurisdiction, whether in police or courts, that allows KKK'ers to murder people and get away with it is violating the 14th Amendment by denying the "equal protection of the law," making itself liable to federal civil rights intervention, as was vigorously pursued by Ulysses S. Grant, before the shameful capitulation of the Republicans, after Grant was gone, in 1876.
Does jury nullification contribute to, rather than mitigate, such judicial misbehavior? No, because it is part of the system of checks and balances itself -- a check against the bias of judges and the irrationality and corruption that creeps steadily into the law, as irresponsible legislators and judges think about things other than justice. Jury nullification is not a violation of the rule of law because it is part of the rule of law. It represents a basic misconception of the principle of the "rule of law" itself to say that it means that everyone absolutely must obey the law until the law can be changed by the appropriate processes. Indeed, that conception of the rule of law would forbid civil disobedience, which was justified by Martin Luther King, quoting St. Augustine, that, "An unjust law is no law at all." But how can we have the rule of law if we accept something like that? How can people just go around judging for themselves whether a law is just or not? The answer is, that they have to, and that is simply the principle of moral conscience. The rule of law is not contrary to that; for the rule of law is not an injunction to blind obedience. Instead, the rule of law is a principle of the limitation of the authority of government.
To be "ruled by laws, not by men," is the old expression. Now, a jury nullifying a law or a protester practicing civil disobedience is not engaged in ruling. Instead, they are doing the precise opposite: negating the instructions and actions of government. The principle of the rule of law does the same kind of thing, for it means that the authority and power of government and of individuals in office is limited to those spheres, those issues, and those actions that are specified by the law. The rule of law denies to government unlimited or discretionary power and authority. The rule of law is thus part of a system of checks and balances to prevent dictatorship and despotism. Because of that, it is curiously the case that you do not need to have laws to have the rule of law: for the whole system of Common Law developed through the practice of the courts in considering claims that someone had committed a wrong. The original purpose of trial by jury in the Magna Carta was similar. The threat, indeed, addressed by the Magna Carta was of the laws and judges of King John. If Magna Carta juries could not nullify the laws of King John, or ignore the instructions and rulings of his judges, trial by jury would have been a useless protection. But the Barons, in obtaining King John's pledge, as Lysander Spooner wrote in 1852, "were engaged in no such senseless work as that."
The jury is the last line of defense, the last check and balance, against tyrannical government, if, that is, it is charged with determining the justice of a case and not just with blindly applying the law as given by a judge. It was become a very interesting perversion of the sytem of checks and balances when, as we are told, the Constitution means whatever the Supreme Court says it means but that we are then expected to obey without resistance. Since the Supreme Court has in general, since the New Deal, interpreted the Constitution to mean exactly the opposite of its original purpose, which had been to establish a federal government of limited and enumerated powers, but which now seems to have gotten us a national government of unlimited and plenary powers, which can legislate or regulate in any matter whatsoever, what we have seen is the destruction of the rule of law, through the arbitrary authority of an irresponsible court, rather than its preservation. When the citizen demands that the government obey the Constitution, and the government replies that it is obeying its interpretation of the Constitution, which gives it authority and discretion far beyond that overthrown in the American Revolution, then the whole idea of the "rule of law" has been turned around to justify the very kind of arbitrary, discretionary, and unaccountable authority that it was supposed to prevent.
The interpretation of the law cannot be trusted to those with the power to enforce it also. The separation of powers between the judiciary and the executive in the federal government was not sufficient to prevent this, as Thomas Jefferson already understood:  "How can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual State, from which they have nothing to hope or fear?" The federal courts are part of the federal government and will tend to take its side in the long run. This is precisely what has happened.
Hence we return to Jefferson's maxim that only trial by jury can hold a government to the "principles of its consitution." Since, as a matter of fact, a jury can practice nullification even if the judge tells it that it can't, because its deliberations are secret and unrecorded, trial by jury is still, as long as jurors are brave and informed, one of the most important protections for freedom. Most Americans on jury duty blindly obey the judge, but occasionally feelings run high enough in important cases for juries to ignore the judge and do the right thing.
In defending the rule of law but also complaining about judicial activism, Thomas Sowell says:

A judge cannot "do justice" directly in the case before him. This view was strongly expressed in a small episode in the life of Justice Oliver Wendell Holmes. After having lunch with Judge Learned Hand, Holmes entered his carriage to be driven away. As he left, Judge Hand's parting salute was:
"Do justice, sir, do justice."
Holmes ordered the carriage stopped.
"That is not my job," Holmes said to Judge Hand. "It is my job to apply the law."
[The Quest for Cosmic Justice, The Free Press, 1999, p. 169]
Although Sowell is properly concerned about the erosion of the rule of law by judicial activism in the service of "cosmic" and totalitarian ideology, he and Justice Holmes are wrong in this. The law is supposed to be an instrument of justice, and judges, like any morally conscientious persons, have a duty to see that justice is done. What is required, of course, is a proper sense of justice, which is to respect things like property rights that have been trashed by 20th century American courts. As it happens, property rights are protected by the Constitution, the supreme law of the land. Any judge who threw out an indictment that violated the "Takings" clause of the Fifth Amendment is thus very properly respecting the law -- respecting it as it has not been respected by even the Supreme Court since the New Deal. It is only a belief in blind obedience (to the dishonest Supreme Court), not the rule of law, that prevents judges from doing this.
Recently, a federal judge in Los Angeles prohibited a cancer patient from smoking marijuana while on bail, even though he would become more ill, and might even die, without it, just because such an exemption would violate the very laws that the patient was being accused of violating. The judge, however "sympathetic" to the "plight" of the dying man, could not authorize a violation of the law. However, in a related medical marijuana case, the Ninth Circuit Court of Appeals subsequently sent back a judgment for reconsideration because the trial judge had not allowed "medical necessity" as a consideration in his opinion. "Necessity," indeed, is an old common law defense:  If someone must violate a law or die, one has a perfectly valid reason for violating the law. No "judicial activist" made this up, but the trial judges in both the cases mentioned would not allow it. Who is respecting the rule of law in these cases? The judge who sadly knows that he may be condemning a man to death, or a judge who appeals to an ancient and reasonable exception to laws that are inappropriately applied? In the former, the judge is both a bad judge, rejecting the existing tools of justice, and a bad man, for not at least recusing himself lest he be forced by a perverse duty to do evil. One hopes that something like applying the Nuremberg Laws or the fugitive slave laws would have been too much for Justice Holmes.
I should note in closing, however, that government conducts much of its business today through administrative rulings and penalties that are imposed summarily, without trial by jury, or often without trial at all. This is becoming the most convenient instrument of tyranny open to modern American government. At the same time, judges who are hostile to nullification, and who have the power of arbitrarily imposing "contempt of court" penalties without trial by jury, or even legal explanation, are beginning to use their powers to intrude on the deliberation processes of juries, trying to make jurors answerable for deliberations that traditionally and constitutionally have been secret, unrecorded, and unreviewable. But, as Jefferson would have said, it is not surprising to see such devices used, by those with tyranny in their hearts, to expand their own power and the domination of government.

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Far more disturbing (and much less entertaining) is the way school officials and the criminal justice system are criminalizing children and teenagers all over the country, arresting them and throwing them in jail for behavior that in years past would never have led to the intervention of law enforcement.
This is an aspect of the justice system that is seldom seen. But the consequences of ushering young people into the bowels of police precincts and jail cells without a good reason for doing so are profound.
Two months ago I wrote about a 6-year-old girl in Florida who was handcuffed by the police and taken off to the county jail after she threw a tantrum in her kindergarten class.
Police in Brooklyn recently arrested more than 30 young people, ages 13 to 22, as they walked toward a subway station, on their way to a wake for a teenage friend who had been murdered. No evidence has been presented that the grieving young people had misbehaved. No drugs or weapons were found. But they were accused by the police of gathering unlawfully and of disorderly conduct.
In March, police in Baltimore handcuffed a 7-year-old boy and took him into custody for riding a dirt bike on the sidewalk. The boy tearfully told The Baltimore Examiner, “They scared me.” Mayor Sheila Dixon later apologized for the arrest.
Children, including some who are emotionally disturbed, are often arrested for acting out. Some are arrested for carrying sharp instruments that they had planned to use in art classes, and for mouthing off.
This is a problem that has gotten out of control. Behavior that was once considered a normal part of growing up is now resulting in arrest and incarceration.
Kids who find themselves caught in this unnecessary tour of the criminal justice system very quickly develop malignant attitudes toward law enforcement. Many drop out — or are forced out — of school. In the worst cases, the experience serves as an introductory course in behavior that is, in fact, criminal.
There is a big difference between a child or teenager who brings a gun to school or commits some other serious offense and someone who swears at another student or gets into a wrestling match or a fistfight in the playground. Increasingly, especially as zero-tolerance policies proliferate, children are being treated like criminals for the most minor offenses.
There should be no obligation to call the police if a couple of kids get into a fight and teachers are able to bring it under control. But now, in many cases, youngsters caught fighting are arrested and charged with assault.
A 2006 report on disciplinary practices in Florida schools showed that a middle school student in Palm Beach County who was caught throwing rocks at a soda can was arrested and charged with a felony — hurling a “deadly missile.”
We need to get a grip.
The Racial Justice Program at the American Civil Liberties Union has been studying this issue. “What we see routinely,” said Dennis Parker, the program’s director, “is that behavior that in my time would have resulted in a trip to the principal’s office is now resulting in a trip to the police station.”
He added that the evidence seems to show that white kids are significantly less likely to be arrested for minor infractions than black or Latino kids. The 6-year-old arrested in Florida was black. The 7-year-old arrested in Baltimore was black.
Shaquanda Cotton was black. She was the 14-year-old high school freshman in Paris, Tex., who was arrested for shoving a hall monitor. She was convicted in March 2006 of “assault on a public servant” and sentenced to a prison term of — hold your breath — up to seven years!
Shaquanda’s outraged family noted that the judge who sentenced her had, just three months earlier, sentenced a 14-year-old white girl who was convicted of arson for burning down her family’s home. The white girl was given probation.
Shaquanda was recently released after a public outcry over her case and the eruption of a scandal involving allegations of widespread sexual abuse of incarcerated juveniles in Texas.
This issue deserves much more attention. Sending young people into the criminal justice system unnecessarily is a brutal form of abuse with consequences, for the child and for society as a whole, that can last a lifetime.

Will Yonkers City Council President Chuck Lesnick, the exemplar of ethics, known to many as simply, “Lesnick the Liar,” in Yonkers, and among growing fan base in Westchester County  (NOT), demand a thorough review of Majority Leader McDow’s misuse of a city-owned vehicle? By permitting her “friend” to drive the city-owned vehicle assigned to her, Majority Leader McDow abrogated insurance protocol as demanded of her when she accepted the vehicle. Does driving onto an alley need to be paid for on the city’s dime? Who paid for the gas? You guessed it, you did.
Once the investigation begins, and in order to hasten Inspector General Phil Zisman's findings, it should be further noted that under the Yonkers City Charter, Section C4-4.1, the Yonkers City Council membership is specifically named as not being permitted to interfere in the appointments, transfers, or dismissals of city personnel. perhaps the Yonkers City Council Majority Leader should read and contemplate the Yonkers City Charter before threatening a Police Officer and the Yonkers Police Commissioner, respectively.
Is it not time for decorum to be re-instituted into the ethical conduct of our elected officials? When will Lesnick the Liar do the right thing? When will Majority Leader Patricia “Maid Marian” McDow get a room?
Let us pray that we don’t next find Lesnick the Liar and Maid Marian capsized in a canoe in the center of Sprain Lake being laughed at by Bonkers.
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Origin of Memorial Day

Henry Carter Welles of Waterloo, New York was credited for suggesting a national memorial day. Although Henry was a well known druggist at the time, he would probably be forgotten today by all but descendants except for a comment that he made to townspeople in the summer of 1865. At a social gathering, Henry suggested that a day should be set aside to honor the dead of the Civil War. The next year, he repeated his suggestion to General John B. Murray. The two men and a group formed of local citizens gained the support of the village, and on May 5, 1866, the first complete observance of Memorial Day took place in Waterloo, NY.