Motus Mentis

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…