Jury Nullification: Road to Anarchy

Article excerpt

What philosophical view do the following groups and individuals share: Bernhard Goetz, William Kunstler, the Branch Davidians, the John Birch Society, the National Rifle Association, the CATO Institute, the Montana Militia, Judge David Bazelon, the Ku Klux Klan, O.J. Simpson, Terry Nichols, the Aryan Nation and John Peter Zenger?

Answer: Jury nullification.

What's that? All of the above share the notion that despite whatever the judge instructs on the law of a given case, the jury can decide on its own what it deems to be the proper result according to "community standards" of justice and the jury's sense of "what is fair."

Those who believe in jury nullification advocate that the judge specifically instruct the jury in such a manner, namely that the law in that particular case is what each juror determines it to be based on his or her view.

In the colonial era, John Peter Zenger, a New York printer, was charged with seditious libel under British law. Zenger's attorney told the jurors that they had "the right beyond all dispute to determine both the law and the facts." Zenger was acquitted, and his victory was viewed as an important blow against British oppression.

But by the end of the 19th century, the Supreme Court agreed with the British king long gone that there would be no right to jury nullification in the federal system. The court was unwilling to legalize lawlessness.

Juries sometimes do, in fact, "nullify" the court's instructions. Juries in fugitive slave prosecutions, prohibition cases, selective service and anti-war trials and similar matters have acquitted defendants because they found the law they were called upon to apply to be distasteful or, in the case before them, grossly unfair.

The jury nullification movement now seeks to convert what has occurred sporadically into standard, everyday practice. The movement seeks to institutionalize jury rebellion. Each panel is to be an independent legislature to decide, as it sees fit, what laws are to be honored or ignored. In criminal trials, especially, the effort now is to persuade at least one juror to ignore the judge's instructions so as to cause a hung jury.

The Ku Klux Klan wants white juries in the South to have the legal authority to apply "community standards" in cases where white defendants are accused of crimes against blacks. …

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