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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

• 10:00AM Sharon Harris from Advocates for Self-Government gave the opening speech this morning. She talked about how the liberty movement needs to start working toward honing our delivery of the freedom message. Libertarians, especially those who are active in the movement, tend to be more abstract thinkers. More logical progression of ideas whereas the majority of people are more emotional “think with the heart” types. We talk about abstract rights and wrongs and less practical examples but we need practical real world examples for those who aren’t generally like us.
• Chris Lawless informs us the hotel doesn’t want us to open carry.
• We ran into Glen Jacobs very briefly. He is better known as Kane from the WWE. He’s fairly well known as a libertarian and recently publicly supported Ron Paul for President. I believe he is also a member of the FSP. We unfortunately didn’t get an opportunity to get a photo with him but if he’s still around tomorrow or Sunday we surely will.
• 12PMish xyz and I checkin to the hotel and while walking out to the car we see the John McCain’s campaign bus. While walking in we discuss stopping Mr. McCain and telling him that after his argument with Romney over whether or not water boarding is torture we decided to try it out ourselves and agreed with him that it indeed torture. As we walk through the automatic doors into the lobby and are talking about this I nearly run into McCain as my head is turned talking to xyz behind me. I got out of the way in time however and diverted my knocking over of a 72y/o presidential candidate which would have been picked up on the camera which was following him.
• 1:00PM xyz and myself attend Gardner Goldsmith’s presentation on immigration. I listen to his radio show so little was new but it’s very enjoyable to interact with fellow Liberty Forum attendees in asking questions and whatnot. Robert Schulz of We the People Foundation also gave a very good lecture I heard. xyz and I did however get a chance to talk with him while waiting in line for dinner.
• 2:30PM I attended Don Gorman’s lecture on Becoming an Effective Activist but it effectively was a sales pitch for the FSP and how easy it is to participate in politics and protest in NH. xyz attended Peter Bagge’s presentation on his work for Reason Magazine and his art in general.
• 4:00PM Thomas Eddlem gave a lecture on how the current administration has been disobeying the Constitution. Particularly the 4th, 6th, and 8th Amendments. He however blew things out of proportion a bit in describing how it could be used against the average citizen. While it’s certainly an issue to say that it’s just as probable that I would be locked up and the key thrown away without trial is the same as some guy picked up who has the same name as a known terrorist and himself has a criminal record is ridiculous.
• Chatted with another Libertarian Party presidential candidate: Michael P. Jingozian. Reminded him that I believe he was invited to the Manhattan LP’s Annual Convention. He said he forgot to look into whether he could attend and took some contact info. We’ll see.
• Nearly had dinner with Gardner but it turned out the table we picked already was filled besides the two chairs we picked. However, those who had reserved those seats were people we had previously had discussions with during the cocktail hour. Including Ed Hudgins from The Atlas Society. Talked about hard money.
  
• The keynote speaker for the evening was Bernard von NotHaus of the Liberty Dollar. He came out dressed as the ghost of a Revolutionary solder, Capt. Roughseas, who was sent by the Founding fathers informing us to take care of this fiat money system that’s corrupted the US. Complete with sabre. It was a bit odd but generally entertaining. Nothing that probably more than half of them in attendance hadn’t heard before.

Dave Ridley’s Ridley Reports from the first night: