Mar. 21st, 2010

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I have a favour to ask of all of you. It will take about half an hour to an hour of your time in the next week, though first, for context, you should go read about what happened to Peter Watts.

TL,DR: Canadian science fiction author is accused by Michigan border guards, while he's on the way back to Canada, of having assaulted them. In court, it came out that although the guards struck Watts several times, Watts never raised a hand against the guards. However, he was still found guilty because the law places "failure to comply with a lawful command" -- in this case, a guard's ordering him to lie down -- as "obstructing a federal officer," and "obstruction", by the wording of the law, is considered to be as much of a crime as assault is.

Yes, Americans, Michigan just convicted a man for not lying down and groveling fast enough. The jury, at one point during deliberation, sent a question to the court: "Is failure to comply sufficient for conviction?" It doesn't get a lot clearer than that. And one thing that's especially clear to me is that this is a jury that had no idea what jury nullification is.

See, one thing the American court system has fallen all over itself to hide from the people in the last several decades is the fact that jurors are not only triers of fact: they are also triers of law. The jury is charged not only with determining whether the facts of the case indicate that the defendant did what he was charged with or not, but determining whether the law is a valid one or not. If the jury decides that the law is unconstitutionally vague, or unjust, or applied unjustly, the jury has the right and the authority to find the defendant not guilty, whether the facts of the case support the allegations against the defendant or not.

Jury nullification is one of the oldest components of the common-law tradition upon which US law is based; it dates back to at least the 1500s and probably earlier. It has been applied in the United States both before and after the country was founded; it has been used to acquit Underground Railroad conductors accused under the Fugitive Slave Act, bootleggers during Prohibition, and, less admirably, whites accused of murdering blacks during the era of the Civil Rights movement. (It's a tool. Like a hammer or a gun, it can be used for good or for evil, but the tool itself is morally neutral.)

If the jury in the Watts case had known about jury nullification, they could have said, "It's ridiculous to convict someone of a felony for not lying down fast enough; the law is worded unjustly, and we're not going to convict, on those grounds."

"But, Meredith," I hear you say, "how do you know that the jury didn't know about nullification?" I don't, but I'd put the chances at greater than 80%. The easiest way to get removed from juror selection is to let it slip to the judge or the prosecutor that you know that jury nullification exists. In 1969 and 1972, the Fourth Circuit and the District of Columbia (respectively) ruled that the court may deny the defense the ability to instruct the jury about the possibility of nullification, and in 1988 the Sixth Circuit (which unfortunately includes Michigan1) upheld a judge's instruction that "there is no valid jury nullification".

Let me spell that out again: the court has recently granted itself the right to refuse to even let the jury know about one of its powers that has a tremendous ability to affect the outcome of a case. The courts are deliberately depriving jurors of one of their most traditional rights, and deliberately depriving defendants of one of the most traditional, if rarely exercised, opportunities for acquittal.

However, the fact that the courts want to put jury nullification down the memory hole doesn't mean that it's going to go there quietly. We have the ability to keep it alive, but we're going to have to work for it.

So here's what I want you to do.

This week, I want you to find three people who don't already know about and understand jury nullification, and explain it to them. They can be Americans, Canadians, Britons, Australians, or anyone else who lives under a legal system derived from the British common law. You don't have to get them to agree with it; just get them to understand it, and to understand that this is a legal right, enshrined in over 400 years of jurisprudential history, that the courts have attempted to dispose of in the last 40 years. You can send them an email or link them to this post if you want, but it's best to do it in person. And get them to promise that they will also find three more people who aren't familiar with jury nullification, bring them up to speed on it, and get those people to spread the word. And so on, and so on.

It is said that rights exist only so long as they are exercised, but more fundamentally than that, a right can only be exercised if people know it exists. I am not asking you to exercise the right; I am asking you to help make sure that this right is not banished into oblivion by such an odious little thing as ignorance.

If you will do this, please leave a comment.

1I still need to read the decision in U.S. v. Krzyske, whence comes that ruling. If a Michigan jury were to nullify a law, must a mistrial be declared? If subsequent juries continue to nullify, does that mean that they just have to keep retrying and retrying until someone runs out of money?

Creative Commons License
This work by Meredith L. Patterson is licensed under a Creative Commons Attribution 3.0 Unported License.


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