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It was supposed to be just another federal drug prosecution.  The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade.  The defense attorney said the government agents entrapped his client.  And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened.  The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”

That’s a fair question.  It is a point that has been made in Cato’s publications ( go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others.  Federal District Court Judge William Young was startled.  He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law.  Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively.  When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.”  Once discovered, that juror was replaced with an alternate–over the objections of defense counsel.  Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations.  So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf).  I happen to know and respect Judge Young.  I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin.  I will briefly respond to his substantive arguments below.

1.  Court precedents say jurors have no right to nullify.  Well, yes, that is undeniable.   But that’s like someone saying in 1950 that court precedents tell us that  ”separate, but equal” is the law of the land–go read Plessy v. Ferguson. The real question is whether those court rulings are truly consistent with the Constitution.  I would also point out that even though many modern court rulings express hostility toward jury nullification, no court has yet dared try to reverse a not guilty verdict or attempt to punish any juror who cast a not guilty vote in a jury room where the result was deadlock (not an untoward outcome, by the way).  Judges do remove jurors from time to time, but there is no punishment.  At least not yet.

2.  Judge Young writes, “The impropriety of nullification emanates from the notion that ours is ‘a government of laws and not of men,’” and he attributes that proposition to our second president, John Adams, who also authored the Massachusetts Constitution.  The quote is accurate, but Young is mixing up legal principles and does not know Adams well enough.  Like so many of America’s early leaders, John Adams was a strong proponent of jury nullification.  Here’s Adams: “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” C.F. Adams, “The Works of John Adams,” 253-255 (1856)(emphasis added).

3.  Jury nullification undermines the rule of law. This is simply another variation of objection #2 above.  There is a logical fallacy to this objection.  Jury nullification is assumed to be improper–so it undermines “the law.”  It is like saying a presidential pardon undermines the “rule of law.”  But if the president has the power to pardon, and he does, he can exercise it (though we may or may not like the result in particular cases).  This is the way in which to understand jury nullification.  The framers of the American Constitution considered it to be part and parcel of what a criminal jury trial was all about.  Some state constitutions, such as Indiana, Maryland and Oregon, explicitly provide that juries have the power to judge the law and the facts in criminal cases.  Judges are the ones that have undermined the “rule of law” by pretending those provisions mean the opposite of what they say.

Judge Young expressed alarm about the recent Time magazine article by David Simon and his The Wire colleagues that calls for jury nullification in drug cases.  But that article has revived a debate that we should all welcome.  For much more on this subject, go here, here, here, and here.

Some other jury nullification quotes:

The jury has the right to determine both the law and the facts. -Samuel Chase, U.S. Supreme Court Justice / 1796

The jury has the power to bring a verdict in the teeth of both law and fact. -Oliver Wendell Holmes, U.S. Supreme Court Justice / 1920

The jury has a right to judge both the law as well as the fact in controversy. -John Jay, U.S. Supreme Court Justice / 1794

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. -Thomas Jefferson / 1789

Spring 2008 Newsletter

Dear Friends,

As we roll along into summer, this issue is finally going to the printer, a bit later than usual, due to a series of meetings we had here to begin the work to revamp the FIJA web site to make it more user-friendly and to hold more content, and to begin the work on the FreedomLaw.com web site, which recently came under FIJA ownership.

So, may I assume that everyone is well-versed in our new brochures on the Second Amendment and Body Ownership? You have probably noticed that in these two new brochures, there are less quotes of Founders and Supreme Court decisions.

You may also be aware of the evolution of FIJA from an organization relying strongly on Supreme Court decisions and Founders’ quotes, towards an organization which places much more emphasis on individual initiative, conscience, and individual common sense. Not to negate the prior, but to affirm the latter, we must come to rely less and less on the role of government in rendering justice, and more on the individual.

As I am sure you can see around you every day, the legitimacy of every branch of the government diminishes daily right before our eyes.

Bureaucrats, politicians and their sycophants have become a society of scofflaws with respect to the intent, the words, the laws, and the covenant, that was so very cautiously, considerately, and conscientiously set forth in our Constitution so that this day would never arrive.

But it has arrived. We see decreasing legitimacy in our courts: jurors, those proper masters of the government, including the corrupt court officials, are treated with disrespect, lied to, threatened and sometimes even jailed or prosecuted for exercising their conscience.

Judges routinely lie to jurors about the legitimate authority of the juror. They no longer tell jurors that each individual human, while serving on a jury, has the absolute authority to determine the correctness of any law as well as the guilt or innocence of the defendant.

Therefore, we can no longer expect any reliance by the courts on those laws which were earlier enforced in this nation. We can no longer expect that those who stand before us as authorities on the law have even the least understanding of the law. How much less can we count on the for a sense of justice, fairness, equity, or protection?

As we watch the decline of the government, let us remember, that we, the people, are not the government any longer. The government is no longer a representative, nor yet a protector, of the people who formed it. It is debased and depraved.

Read More…

FTL2008-06-13.mp3

Dick Marple was running the FIJA booth at PorcFest this year and on Friday went on FTL to talk about some of the foundations in New Hampshire for jury nullification. The interview starts at about 104 minutes in and goes to the end of the show.