Peer Pressure

Today, having been summoned for jury duty, I spent a few hours as a cog in the machinery of American justice. Admittedly, a case could be made that my contribution was trifling: I showed up at 8:45 a.m. at the Supreme Court building at 360 Adams Street in downtown Brooklyn; sat in a large room, reading, until lunchtime; took a very enjoyable stroll (accompanied by an equally enjoyable sandwich) down to the lovely Brooklyn Promenade overlooking New York Harbor, where I dined al fresco in the delightful spring sunshine; returned to the Central Jury room at 2; sat there reading until the end of the day, at which point I was discharged. Still, despite the fact that my name was not called even once other than to send me packing, I exited the building with that special glow of inner satisfaction that only those who, like me, have sacrificed in the service of their country can really understand. Not pride, mind you, but just the knowledge that one has done one’s Duty, and done it well.

Upon hearing that I would be dishing out King’s-County-style justice today, and therefore would not be in the office, my PubSub pal Mike Zaharee suggested that if for some reason I ever might wish not to be chosen for a particular panel – presumably so that I might have a mechanism whereby I could offer my Solomonic wisdom where it would do the most good – that I should, during the voir dire segment of the proceedings, mention an interest in the principle of Jury Nullification. I had heard the phrase before, but being rather an ignorant boob when it comes to legal matters, I had no clear idea what it meant. What it means, of course, is that the jury, having the case in their hands, can rule as they see fit, and that they can acquit a defendant, if they like, even though they are convinced that said defendant has in fact committed the act with which he is charged. They can do this simply as a gesture of contempt for the law itself, laws often being the product of the unsavory dealings of state and federal politicians.

In the entry on nullification at the Constitutional Rights Foundation of Chicago, we read:

When people suspect that it has occurred, nullification is seen as a fundamental threat to the rule of law, a triumph of democratic government, or (paradoxically) a little of both.

Although this is a live option for any jury, judges are reluctant to point it out, and in fact people have been charged with jury-tampering for doing so. There have been proposals for bills requiring judges to advise jurors of the full extent of their power, but such legislation is highly controversial.

The American Jury Institute offers an online Juror’s Handbook that takes a good long look at the subject. In it we read this, from the instructions given to the very first Supreme Court jury by John Jay:

It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy.

We see also that the veto power of juries over the law

…is reflected in the Sixth Amendment, which grants the accused an inviolable right to a jury determination of his guilt or innocence in all criminal prosecutions for serious offenses. Because of this right, a trial judge absolutely cannot direct a verdict in favor of the State or set aside a jury’s verdict of not guilty, “no matter how overwhelming the evidence.” Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). Any violation of this rule is automatically reversible error without regard to the evidence of guilt. Indeed, the point is so well settled that it was announced without dissent in Sullivan by a Court that has been unanimous on only a few constitutional questions in the past ten years.

Now to some, this sort of thing reeks of creeping anarchy and vigilantism. It was used by racist juries in the South, for example, to acquit white defendants of crimes of violence against black victims. To others, it represents an important bulwark against the State’s lust to expand its power. Any opinions from the gallery?

Anyway, leave it to a New Hampshireman to bring this up. Mike works in PubSub’s Granite State Research Kitchen, up in Nashua, New Hampshire, where the license plates say “Live Free or Die”.

I’ve always thought there was a particular irony in that, given who usually makes license plates…

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5 Comments

  1. Mike Z says

    Yes, and the Welcome to New Hampshire sign used to say “Live Free or Die” as well until some pinko leftists got control of the governor’s office. That’s ok, we’ve got legislation pending that will fix that!

    Posted April 18, 2006 at 11:28 am | Permalink
  2. Malcolm says

    Why would pinko leftists object to living free?

    Posted April 18, 2006 at 11:32 am | Permalink
  3. Bob Koepp says

    Pinko leftists usually object to _others_ living free.

    Posted April 18, 2006 at 3:18 pm | Permalink
  4. Malcolm says

    I think it’s the “or die” part. I think it sounds too absolute for them, and sort of violent. If it were “Live Free, or Engineer Social Change Through Cultural Awareness”, then it would be fine.

    Posted April 18, 2006 at 3:24 pm | Permalink
  5. Mike Z says

    From http://www.nh.gov/nhinfo/emblem.html on the history of “Live Free or Die”:

    The motto was part of a volunteer toast which General Stark sent to his wartime comrades, in which he declined an invitation to head up a 32nd anniversary reunion of the 1777 Battle of Bennington in Vermont, because of poor health. The toast said in full: “Live Free Or Die; Death Is Not The Worst of Evils.” The following year, a similar invitation (also declined) said: “The toast, sir, which you sent us in 1809 will continue to vibrate with unceasing pleasure in our ears, “Live Free Or Die; Death Is Not The Worst Of Evils.”

    I may have inadvertantly slandered pinko leftists in the governor’s office. An ad agency working for the state’s division of travel and tourism came up with the slogan “You’re going to love it here”, which currently appears on NH welcome signs. Said ad agency is from Portsmouth, an area of the state known for it’s ‘pinko leftists’. Governor Lynch has said he will sign the legislation I previously mentioned.

    Posted April 19, 2006 at 8:40 am | Permalink