Author: FYI;
Jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding. Jury nullification can only be applied in criminal cases.
The American jury draws its power of nullification from its right to render a ‘general verdict’ in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendments ‘Double Jeopardy’ clause, which prohibits the appeal of an acquittal, and the fact that jurors can never be punished for the verdict they return. A jury can nullify a law due to disagreements with the justice of the law, jury nullification can sometimes take the form of a jury convicting the defendant of lesser charges than what the prosecutor sought.
Early in our history, judges often informed jurors of their legal nullification right. For example, our first Chief Justice, John Jay, told jurors: “You have a right to take upon yourselves to judge [both the facts, and the law]”.
In the 1895 decision in Sparf v. U.S., Justice John M. Harlan held that a trial judge has no responsibility to inform the jury of their legal right to nullify laws. It was upheld by a 5-4 decision of the Supreme Court. In a 1969 Fourth Circuit decision, U.S. v. Moylan affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit any instruction to the jury to this effect. In part, the decision reads: ” If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision”. Once a jury returns a verdict of “Not Guilty”, that verdict cannot be questioned by any court. NOTE: (But, the court now has no obligation to inform the jury of this nullification right, the jury has to figure this out for themselves somehow! MS)
Judges seem less likely today to favor jury nullification, or to willingly instruct a jury about their power of nullification as they were in the past. Judges are unable to take away the power of nullification, but have done much to prevent its use by not mentioning it as an option to juries, {that through no fault of their own, know nothing of the choice as it becomes more obscured by the courts.} Lawyers have even gone so far as asking potential jurors if they knew of jury nullification, then excused them from the jury pool if they did! The ‘fix’ is ‘in’ apparently.
If jurors have the power to nullify bad laws, shouldn’t they be told so? The omission by judges to give instruction on nullification is an extreme lack of ‘candor’, and, [I believe] in violation of our rights under the Constitution. Jury nullification can be used to provide the People an important mechanism for ‘feedback’. For example, jurors have sometimes used nullification to send clear messages to prosecutors about misplaced enforcement priorities, or what juries see as harassing or abusive prosecutions, (*a case is cited below). Jury nullification can be a tool to prevent our criminal justice system from becoming too rigid, or keep bad judges in check, it provides some ‘leeway’ in the ‘joints’ for justice, if jurors use this power wisely. But first they need to be educated about this right, something the courts shy away from, as noted above in: Sparf v. U.S. and: U.S. v. Moylan.
For example, this is a case in point; *In a recent 2010 case, a jury was never informed about their right to nullify by an activist, anti Second Amendment judge in New Jersey. The judge refused to allow evidence that was relevant to ‘exceptions’ in the vague gun laws of N.J.. Had the jury heard these exceptions that were requested from Brian Aitken’s attorney and even the jury itself, they would have rendered a ‘not guilty’ verdict based on the barred exceptions, but because of the instructions from the judge to only render verdict on evidence ‘allowed’, the jury was ignorantly forced into a ‘box’ and only had one choice, to render a “Guilty” verdict. This was a combination of a judge manipulating the verdict, and the jury not knowing their rights. Brian Aiken was subsequently, (wrongly) sentenced to 7 years in prison for crimes he never committed. (He served 5 months before sentence was commuted, 5 months of which he was brutalized in prison and will not discuss…, according to his father).
In a letter to the governor supporting Aiken’s clemency request, pro-gun Assemblyman Michael P. Carrol rightly noted that even if Aiken had committed “wholly technical violations [of] wholly problematic laws,” “not every violation of the law warrants an indictment, let alone incarceration.”
The Governor, Chris Christie, has since reviewed the case and has commuted the sentence, a sentence that should never have happened in the first place had it not been for a politically appointed thug in black robes with an anti gun agenda, returning political favors to the anti gun ‘progressives’ that appointed him and were his ‘masters’. The judge was removed from the bench after an investigation undeniably showed his bias. Other cases he presided over are under review. Now Chris Christy can go one step further, post haste, and give a complete PARDON to wipe the felony that ‘never was’ off Brian Aiken’s record once and for all. (Please finish the job Gov. Christy).
Now, I know this would be labeled under ‘wishful thinking’, but, let the crooked judge finish the 7 year jail sentence, maybe he should be ‘brutilized’. Now, wouldn’t that send a message to all the judges that actually believe their job is to legislate from the bench.
There are many cases where judges are driven by ideology rather than unbiased interpretation of the law/Constitution. One need only look at: D.C. v. Heller 6-26-2008, or: McDonald v. Chicago 6-28-2010, where both decisions were 5-4, barely in favor of our Second Amendment. Had these decisions been based only on honest interpretation of the Constitution and the preponderance of evidence surrounding the actual meaning of the Founders, the decisions would have had to be unanimous, and not along party lines. This points to how taunt a string our Second Amendment rights are balanced upon and how crucial judicial appointments are.
The Founders well understood history and that even a small amount of unchecked power corrupts otherwise good men over a sustained period of time, this is why they wisely built in ‘checks and balances’ to dilute and curtail this power. For the People, jury nullification is one way, the Second Amendment is another. The Executive, Legislative, and Judicial branches are three more, each presumably keeping the others in ‘check’. The voting booth is yet another, let us not lose sight of this by allowing candidates into public office that view the Constitution as a ‘roadblock ‘ in the way of their socialist/progressive ‘agendas’. You can tell this by what they have done, not by what they say.
Mark Shean, submitted 1-4-2011
Posted in