Jury Nullification Continues to Gain Traction Across the United States
In 1782, Thomas Jefferson wrote in his tome, Notes on the State of Virginia, “it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges.
But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact.”
This may seem like an antiquated statement, especially given our current state of affairs regarding unconstitutional laws, however the application of jury nullification is making its way back to the forefront.
Be sure to read Brent’s other recent articles on ballot access for third parties, free speech in schools and local currencies.
On June 18, 2012 Governor John Lynch of New Hampshire signed HB 146, which reads:
“In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”
In other words, jurors have the right not only to be informed of jury nullification, but have the right to nullify a law if they have reason to believe the law itself is corrupt.
Even though the law does not go into effect until next January, jury nullification in New Hampshire has already occurred.
In 2009, Rastafarian Doug Darrell, of New Hampshire, was arrested after members of a marijuana eradication task force spotted plants from a National Guard helicopter flying over Darrell’s home in Barnstead.
Darrell’s lawyer, Mark Sisti, attempted to get the evidence suppressed, but to no avail, arguing the aerial surveillance was illegal, since the helicopter was below the Federal Aviation Administration of safe altitude, thus violating Darrell’s privacy.
Long story short, Darrell turned down all plea deals (he had 15 plants and did not even distribute), due to the fact he believed he did nothing wrong since marijuana is a sacrament in his religion and was cultivating it for medicinal use.
In Darrell’s second trial, which took place last month, he was acquitted and if he was convicted, Darrell could have received three and a half to seven years in prison for a Class B felony.
NH is not the only state practicing jury nullification.
In September, organic egg producer Alvin Schlangen of central Minnesota faced threemisdemeanors of distributing unpasteurized milk, operating without a food handlers license and handling adulterated food.
Minnesota law prohibits the sale of raw milk “except directly to consumers on the farm when it’s produced.”
After a deliberation of 4 and a half hours, the six panel jury ruled not guilty on all three counts in Hennepin County District Court.
However, Schlangen is not completely out of the woods, as he is facing the same charges in Stearns County on November 2.
With these most recent cases, jury nullification is not some new revelation.
The first case of jury nullification can be traced back to 1670 in England when jurors refused to convict Quaker activists William Penn and William Mead on charges of unlawful assembly.
In 1735, jury nullification was introduced in America, in the trial of John Peter Zenger, who was the Printer of The New York Weekly Journal.
Zenger’s offense was constantly attacking Governor William Cosby, which violated the seditious libel law, prohibiting any criticism of the King or his appointed officers.
Andrew Hamilton, Zenger’s lawyer, argued the court’s law was outmoded and challenged that falsehood was the key component that makes a libel.
The jury only took a few minutes to deliberate before declaring Zenger not guilty. Since then, the truth continues to be a defense in libel cases.
Besides those cases, jurors at times refused to convict perpetrators of the Alien and Sedition Act, the Fugitive Slave Act and alcohol prohibition laws.
Opponents of jury nullification fear this precedent will lead to anarchy.
As to be expected, I disagree with that since I believe it is a fallacious argument.
If We the People have a Constitution, then our rights should continue to foster the cause of liberty and strike down laws which violate that foundation, otherwise we will inadvertently give power to the tyranny of the majority.
The Fully Informed Jury Association (FIJA), who would probably agree with the aforementioned critique, is a group dedicating themselves to educate the American populace on the full powers of jurors, which includes the right to judge the merits of the law as well as the applications.
FIJA goes into further detail on how to protect citizens from abuses of power.
“The primary function of the Independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power by government.
The Constitution guarantees you the right to trial by jury.
This means that government must bring its case before a jury of The People if government wants to deprive any person of life, liberty, or property. Jurors can say no to government tyranny by refusing to convict.”
Currently FIJA bills have been introduced in Arizona, Alaska, Arkansas, California, Colorado, Connecticut, Georgia, Iowa, Louisiana, Massachusetts, Nevada, New York, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Utah and South Dakota.
With the decisions that have been rendered in New Hampshire and Minnesota, maybe it will unleash a trend in other states.
When the idea of jury nullification eventually becomes the norm (which may be wishful thinking) let’s hope caution is used by potential juries in order to prove the critics wrong.
For if discretion by jurors is not taken into consideration, then we could be on a slippery slope to this scenario: ”Where morality is present, laws are unnecessary.
Without morality, laws are unenforceable,” Anonymous (does not refer to the group, but is from an unknown source).
Edited by Madison Ruppert
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