Jury nullification
Jury nullification

One of Britain’s cultural blessings is the common law and the right to a jury trial. Naturally this historic right and last bastion of liberty is increasingly under threat. Those “progressives” will never leave well enough alone. Sure the right to was written in the Magna Carta in 1215, but who cares about that anymore? The icons of the evil forces of conservatism must not stand in the way of progress.

Trial by jury is important for multiple reasons other than the it being an ancient right. One role of the jury is as the final bastion of liberty against a despotic government. I kid you not. The jury can find a person innocent against the weight of evidence if they disagree with the law. This is termed jury nullification. It is the role of the jury to judge the law itself and to vote on the verdict according to conscience.

The US provides a recent example of what is effectively preemptive jury nullification:

Missoula District Court: Jury pool in marijuana case stages ‘mutiny’: Jurors – well, potential jurors – staged a revolt.

They took the law into their own hands, as it were, and made it clear they weren’t about to convict anybody for having a couple of buds of marijuana. Never mind that the defendant in question also faced a felony charge of criminal distribution of dangerous drugs.

The tiny amount of marijuana police found while searching Touray Cornell’s home on April 23 became a huge issue for some members of the jury panel.

No, they said, one after the other. No way would they convict somebody for having a 16th of an ounce.

In fact, one juror wondered why the county was wasting time and money prosecuting the case at all, said a flummoxed Deputy Missoula County Attorney Andrew Paul.

District Judge Dusty Deschamps took a quick poll as to who might agree. Of the 27 potential jurors before him, maybe five raised their hands. A couple of others had already been excused because of their philosophical objections. Hat tip Boing Boing.

The case did not go to trial and the person being prosecuted reached an agreement whereby he left court a free man without a conviction being recorded. It is not exactly a case of jury nullification as the jury was not empaneled. But it is similar enough to make the point.

A UK case demonstrates just how important the right of jury nullification is:

Jury nullification: In 1982, during the Falklands War, the British Royal Navy sank an Argentine Cruiser – the “ARA General Belgrano“. A civil servant (government employee) named Clive Ponting leaked two government documents concerning the sinking of the cruiser to a Member of Parliament (Tam Dalyell) and was subsequently charged with breaching section 2 of the Official Secrets Act 1911. The judge in the case directed[dubious – discuss] the jury to convict Ponting as he had clearly contravened the Act by leaking official information about the sinking of the Belgrano during the Falklands War. His main defense, that it was in the public interest that this information be made available, was rejected on the grounds that “the public interest is what the government of the day says it is”, but the jury nevertheless acquitted him, much to the consternation of the Government. He had argued that he had acted out of ‘his duty to the interests of the state’; the judge had argued that civil servants owed their duty to the government.

Like so many other liberties the defense provided by juries is being undermined in the UK:

End to Right to Trial by Jury in England and Wales: The first serious criminal trial in 400 years to be held without a jury ended on the 31st of March 2010 with the conviction of four men for an armed robbery at Heathrow airport.

The defendants were found guilty at their forth trial. This trial was made possible by the Criminal Justice Act (2003) which removed the right to trial by jury.

Sadly it appears to be another case of the world view of the right having been perverted by the “progressive” left ideology. Once they step upon the slippery slope they almost inevitably progress in a downward direction. Is this how civilization falls. Death by a thousand cuts?

The Canadian Supreme Court also supports the right:

Jury nullification: The Supreme Court more recently issued a decision, R. v. Krieger 2006 SCC 47,[21] which confirmed that juries in Canada have the power to refuse to apply the law when their consciences require that they do so. Within this decision, it is stated that “juries are not entitled as a matter of right to refuse to apply the law — but they do have the power to do so when their consciences permit of no other course.”

The US has a long history of Jury nullification:

Jury nullification: In the United States, jury nullification first appeared in the pre-Civil War era when juries sometimes refused to convict for violations of the Fugitive Slave Act. Later, during Prohibition, juries often nullified alcohol control laws,[23] possibly as often as 60% of the time.[24] This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition. Amidst the Civil Rights Movement, during the 20th Century, several all-white juries, despite overwhelming evidence of guilt, acquitted white defendants accused of murdering blacks.[25]

But despite no evidence of support from the people there are attempts to reduce this barrier to tyranny:

Jury nullification: In recent years, judges seem to be less likely to favor jury nullification. While unable to take away the power of nullification, they have done much to prevent its use. The first landmark decisions since the adoption of the U.S. Constitution confirmed several rights of the defense in a criminal case: a requirement on the bench not make a decision on motions until all legal arguments had been made by both sides; the right to be free of making those arguments before the jury had been seated; and the right to make those legal arguments to the jury.[31][32]

The first major decision that departed from this line was Games v. Stiles ex dem Dunn, 39 U.S. 322 (1840),[33] which held that the bench could override the verdict of the jury on a point of law. The 1895 decision in Sparf v. U.S. written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present a nullification argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.[34]

Recent court rulings have contributed to the prevention of jury nullification. 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 an instruction to the jury to this effect.[35] In 1972, in United States v. Dougherty473 F.2d 1113, the United States Court of Appeals for the District of Columbia Circuit issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense’s chance to instruct the jury about the power to nullify.[36] In 1988, theSixth Circuit upheld a jury instruction that “There is no such thing as valid jury nullification.”[37] In 1997, the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).[38] The Supreme Court has not recently confronted the issue of jury nullification. Further, as officers of the court, attorneys have sworn an oath to uphold the law, and are considered by bar associations to be ethically prohibited from directly advocating for jury nullification.[39]

The US thus finds itself in the positions where:

Jury Nullification: Freedom’s Last Chance: In only one state out of the 50 — Maryland — does the State Constitution oblige the judge to inform the jury that they have the right to acquit where the facts prove the defendent technically guilty but the sensibility of the jury holds that he or she did no real wrong. In the other 49 states, the right exists nebulously, like a ghost, haunting old parchments; judges do not talk about it, and juries, not knowing that they hold in their hands the final checkmate against tyranny, do not exercise the authority they possess

The Anglo inspired systems of government provide multiple tribunals with veto power. In the the US this takes the form of representatives, senate, executive, judges and juries. Each law has to pass all these barriers before those who violate it can be punished. Thus is liberty enshrined in the very fabric of our society. We mess with it at our peril. One need only look at the efforts to thwart justice in the Geert Wilders case to realise how risky it its to overly empower the judiciary.

The need for the role of consience in the criminal justuce system is manifest. But its application should reflect the values of the community, not that of a privileged elite. A jury is meant to be randomly drawn from the community. It is meant to reflect the communities values. The judiciary do not.

Activist judges should be aware of the role of the jury and not try to abrogate this role to themselves. It is a sad reflection of the progressive left influence on society that bodies which once protected our society and civilization now undermine it. Activist judges through their ability to throw the whole justice system into question are a case in point. As often are the public positions of “progressive” supreme court judges. If we think their public utterances misguided and foolish this will inform our attitude to them more generally and by extension to the highest court in the land. Naturally this will also undermine confidence in lower courts.

If activist judges are truly concerned about potentially inequitable outcomes in a case they should inform the jury of their role in judging the law. This would be a better way to achieve justice in the justice system than for activist judges arbitrarily abrogating the power to enforce or reject the law unto themselves.

Of course, jury trials can be problematic in a tribal system. If people put the interests of their tribe above that of the nation, then they will find members of their tribe innocent when they have harmed those not of their tribe. Despite their British antecedents neither Israel or Singapore have trial by jury. It is one more reason for not creating a tribal or multicultural society in one blessed with a cohesive culture.

The various moves to confiscate the proceeds of crime also open the door to tyranny. In order to stop the “criminal” disposing of the money they can try and freeze it before the person is found guilty. They may also limit the ability of those charged to fund their defense. Perhaps claiming they have “kick-back” arrangements with their defense council. Of course governments would never try and limit the ability of citizens to defend themselves – gun control anyone?



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