Dear Friends,

Below is an article on jury nullificiation--a jury voting for
acquittal despite the evidence because it regards a law as immoral or
unfair--which is appearing in the January Cal-Pac MFSA Chapter
Newsletter. I thought some of you might appreciate reading it. Unlike
a brief, it does not contain legalese.

I can also provide it in Word97, WordPerfect 7 or generic word
processor (ASCII) formats for those who desire it in a form with better
formatting. Feel free to distribute it as widely as possible.

Peace,

Richard Bentley
Cal-Pac Chapter Convener
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Juries Say "No" to Injustice and Oppression!
A review of the history of jury nullification

In 1670 William Penn, who later founded Pennsylvania, and another man
were arrested and imprisoned for preaching Quakerism to an unlawful
assembly. Despite the clear violation of the law and the judge's
instruction to convict, four of the twelve jurors voted for acquittal.
The King of England was so angered by the jury's failure to reach the
proper verdict of guilty, that the jurors were imprisoned, starved for
four days and then fined. Even though the jurors continued to be
imprisoned until they paid thier fines, Edward Bushell refused to pay
his fine and brought his case before the Court of Common Pleas. Chief
Justice Vaughan finally held that jurors could not be punished for their
verdict and had Bushell released without paying the fine.

One jury courageously fighting oppression by nullifying an unjust law
resulted in establishing the most important principle of trial by
jury-that a jury can never be punished for its verdict. It established
that a jury does not have to explain how it reached its verdict or why
its verdict is correct. Not only did this jury's resistance to
injustice establish the independence of the jury, but it also
established the jury's power to nullify unpopular, unfair or immoral
laws.

Juries have a history of being the conscience of the community and
keeping the government from making and/or enforcing unjust laws.

·In 18th century England where criminal penalties were often harsh,
juries often nullified the law to prevent the imposition of the death
penalty.

·In 1735 an American jury nullified the law that made it a crime to
publish any statement, true or false, criticizing public officials or
the government. Despite clear and convincing evidence that John Zenger
had published a newspaper article critical of the royal governor of New
York, the jury voted for acquittal. Zenger's case--the result of jury
nullification--is celebrated as a hallmark of freedom of the press in
the United States.

·In the 1700's American Colonial juries often refused to convict those
accused of violating the English Navigation Laws that forced all
colonial trade to go through England. In response, the British removed
all maritime cases from colonial courts. This removal became an
important grievance that led to the American revolution.

·The passage of the Fugitive Slave Law in 1850 made it illegal for
anyone to help an escaped slave. Many northern juries nullified this
oppressive law by refusing to convict members of the underground
railroad and abolitionists accused of helping escaped slaves. Today,
we praise these nullification verdicts for helping end the immoral
institution of slavery, rather than condemning them for undermining the
rule of law and the integrity of justice.

·In the 1890's juries often nullified the laws that made strikes and
organizing labor unions illegal by refusing to convict labor leaders.
In 1895 the Supreme Court, under pressure from large corporations, ruled
in a bitter split decision that courts no longer had to inform juries
that they could veto an unjust law.

Despite this Supreme Court decision, juries do retain the power to
nullify unjust laws since they do not have to explain their verdicts.
Unfortunately, during the Vietnam War many juries were unable to nullify
unpopular laws because nobody was allowed to tell them about their
nullification powers. Still in 1966 researchers found that juries did
nullify the law in about 8.8% of all trials between 1954 and 1958. As
recently as 1991, a federal judge gave a jury nullification instruction
and allowed the defense to argue for jury nullification. Listening to
its conscience in that case, the jury voted acquittal even though there
was clear and convincing evidence for conviction.

Wisely used, jury nullification can:
·Protect minorities from "the body of the people operating by the
majority against the minority." (James Madison, June 8, 1789)
·Promote justice by mitigating against the application of a
law--always a general rule-- when it will have an unfair result in a
particular situation.
·Safeguard people from unfair laws and oppressive prosecutorial
practices by serving as the conscience of the community.
·Void laws that are unjust or oppressive.

In 1804 Alexander Hamilton observed, "Jurors should acquit, even against
the judge's instruction... if exercising their judgement with discretion
and honesty they have a clear conviction the charge of the court is
wrong." In 1852 Lysander Spooner wrote that if "no man shall be
allowed to serve as juror unless he be ready to enforce any enactment of
the government, however cruel or tyrannical it may be . . . [then this
juror] is palpably nothing but a mere tool of oppression in the hands of
the government."

I used to ask myself what I would have done if I had served on the jury
during Rosa Parks trial for refusing to give up her seat on the bus.
The facts were clear and convincing, she had violated the law. But the
law itself was unjust and unfair. Before learning about jury
nullification, I thought that I had no choice but to uphold the law and
violate my conscience.

Now that I know about jury nullification, I know that rather than
undermining justice, many of the freedoms which we cherish come from
precedents established by juries that listened to their conscience and
nullified oppressive laws. I hope that I will have the courage to
resist the forces pressuring me to return a guilty verdict for the
integrity of the justice system. Without justice, there cannot be
integrity. I hope I will resist the voices saying that with a
democratically elected governing body, the legislature, not the jury
room, is the only proper place to right laws that are wrong. When a
person is about to be victimized by an unjust law, must I be silent
while I wait for the legislature to come to its senses and/or stop
listening to special interests? No! Justice demands that juries send
clear messages to misguided legislators by voting their conscience
against oppressive laws.

Now that I know about jury nullification, I know that I have a choice.
Now that I know I have a choice, I hope I will have the courage and
strength to vote my conscience. In voting my conscience, I'll join the
cloud of witnesses who have gone before me in the jury room by striking
a blow against injustice and defending the cause of freedom.

Richard Bentley
January 1999


Richard Bentley has served on a United Methodist Church Committee on
Investigation that voted charges. He has also submitted briefs to the
denomination's Judicial Council. For further information about anything
contained in his report on jury nullification, write to the Methodist
Federation for Social Action - California-Pacific Chapter, at PO box
266082, Encino, CA 91426 or contact him directly at 909-992-0506;
e-mail: rbentley@...