One of the
problems with discussing, thinking about, avoiding, educating about, being
concerned about “jury nullification” is that the term itself is
misleading. It implies that there would legitimately
be a certain outcome but for the jury aggressively vetoing that matter. But that is not consistent with the Framers’
notions of, and intents about, the citizen jury.
Government
can start down the road of invading people’s liberties by arresting for and
then by prosecuting for a criminal accusation, but there cannot be a conviction
unless a jury is convinced that there is beyond reasonable doubt quantum of
evidence and also convinced that general concepts of justice are satisfied by a
conviction. That is the original jury’s
role. The thing we label “nullification”
is really simply part of the jury’s original role, which government wants now
to suppress. But the jury is not nullifying anything when it considers factors
other than sheer evidence; it has to be convinced both of the sufficiency and of
the justice of the matter, or acquittal is mandated.
Over the
years, the executive has put pressure on their judicial friends to nay-say the jury’s
full role, pretending the executive has a right to conviction if they have
given enough evidence, and judges who are generally not well-steeped in
constitutional history and principles have given in, commanding attorneys not
to let juries know their full powers.
But you see,
that proves the point, because the function of the jury was to protect people
against not only bad-minded executives, but also against bad-minded judges,
because the protection of juries was against all of government.
So the fact
that a judge tells a jury that they must look only at the questions of fact,
and not of law nor of justice, merely points out the increasing need for a
robust jury. In other words, the fact
that judges say juries can’t do their full and intended function of protection
is like the fox telling the famer that he should not put up a sturdy fence
around the chicken coop. The wrongful and harmful claim illustrates the need
for the protection.
We must
educate the public that despite what wrong-minded government tells the citizenry,
the citizens, through their jury power, are the ultimate deciders, and they
should not be dissuaded from using their power simply because one of the
agencies they are designed to protect us against says they can’t protect us
against it.
When courts,
or the “sovereign’s representative” – public prosecutors, speak ill of the
doctrine of jury nullification, they thereby speak against the founding
principles of the Republic; they thereby speak against the power of the people
to govern the Republic; they essentially speak treason.
Jurors need to
know that regardless of what the agencies they were designed to protect us
against, the executive and the judicial branches [and the legislative branch
also!], they have the power, legitimate power, power recognized and celebrated
and endorsed by the Founding Fathers, to disregard evidence and instructions
and contrary proclamations and to acquit people who are on trial in front of
them. And they have the duty to do so.
Independence
Day approaches, and jurors taking matters into their own hands and acquitting
people on trial is the ultimate exemplar of the sort of independence that the
Framers envisioned. Jurors doing
otherwise is precisely why we have so many factually innocent people who have
been convicted and imprisoned, sometimes for decades.
As Ben Franklin intoned,
the nature of our liberty is such that it is better that 100 guilty people be
turned loose than that even one innocent person be convicted.
www.kennedyforlaw.com
