The Refusal: Jury Nullification
MacDonald King Aston
We often hear talk of “conspiracy theory” and the label, “conspiracy theorist,” even when pinned to someone with actual evidence of conspiracy, is considered to represent an idiot. So let us play the idiot. There is, in fact, an obvious conspiracy at work when it comes to the subject of jury nullification. More on that in a moment.
First, what is jury nullification?
Put simply, jury nullification is the power of any jury to reject a bad law by acquitting the person subject to that law. It is the power of a jury to refuse a law. It is the power of a jury to serve as a check on the passage of bad laws by refusing to recognise the validity of bad laws. It is the power of a jury to set a person free, even if that person did run foul of a particular law. But what really causes apoplexy to the alleged “modern judicial system” is the power, given by jury nullification, to say “No” to both the judge and the system for which he labours.
It is the Yankee's nightmare as well. The Yankee, after all, has built a “legal system” which proclaims (loudly) its fairness and justice, despite the fact that it is neither fair nor just, but simply another method to control the subjects of the Yankee Empire.
The legal system in question depends for its very existence on jurors' mute acceptance of a judge's order to return a yes/no, guilty/not-guilty verdict. But imagine yourself on a jury which refused to follow the judge's order, and instead returned another kind of verdict altogether: not guilty by reason of jury nullification. Imagine that, as a juror, you and your other 11 compatriots decided that the law, supposedly broken by the defendant, was itself unlawful. And imagine the look on the judge's face when you, as foreman of the jury, instruct the court about the jury's decision.
Sound improbable? It's already happened, and the Founding Fathers intended it so. The Founders provided for a trial by jury in three separate places: twice in the Bill of Rights, and once in the Constitution.
What does the word “jury” mean? The word comes originally from the Latin word, iurare, to judge. And that is what a jury does. It judges. Or at least it should. Now if a jury nullifies a law by refusing to convict upon that law, the jury is actively asserting its right to pass its judgement on that law. Thomas Jefferson recognised this right when he wrote: “I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.” In other words, a jury has the right, if not the duty, to anchor a government to its constitution; to hold it accountable to that constitution.
Historically, the colonists who fought the first war of secession, against the British Empire, practised jury nullification as a means to strike at the heart of their oppressors. In the 17th century, jury nullification was used to refute the right of the State to oppress religious beliefs. In 1670, for example, William Penn, after whom Pennsylvania is named, was convicted of illegally preaching a Quaker sermon. Penn had indeed preached an illegal sermon. No doubt about it. And the judge demanded a guilty verdict. He didn't get it. Instead, the jury acquitted William Penn.
Jury nullification originates from common law. Common law is non-statutory law based on precedent. Another way of putting it: Common law is common sense gotten from looking at what's gone on before. In legal terms, jury nullification is called a de facto “power” of a jury (as opposed to a “right”). De facto means “from the fact.” From the fact of what? From the fact that a jury, as envisioned by our Founders, stands as one of five checks upon bad law. The five are: the congress, the senate, the executive, judges, and juries.
But whence does this de facto power derive? The common law (common-sense). Common law states that it is generally not a good thing to a) ask about the motivations of jurors, b) punish jurors for their verdicts, or c) retry a person after an acquittal. (Think about O. J. Simpson, for example.) All three of these factors give jurors the power to nullify any law.
Judges today hate jury nullification. They despise it. They fear it.
After all, John Adams, the archetypal Yankee, wrote of the juror: “"It is not only his right but also his duty…to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court." Even Alexander Hamilton, the original Big Government Boy, wrote: “Jurors should acquit even against the judge's instruction...."if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong."
And John Jay, the first Chief Justice of the United States of America (back when said states were actually united), wrote: “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 [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”
To determine the law.
That's what scares the Empire's judge. It wouldn't do to have citizens deciding the validity of a law. If a jury could “determine the law,” as it can, what could happen to, say, someone tried under the Empire's “PATRIOT ACT”? What if the jury decided that the PATRIOT ACT was unlawful, and simply acquitted the defendant? After all, one of the factors that ended Prohibition was juries refusing to convict under it. And today in Kentucky juries sometimes refuse to convict defendents under the prohibition marijuana laws.
Is it any surprise the modern judicial system has tried to suppress jury nullification?Although the Empire can't actually take away the power of jury nullification, it does everything it can to make sure that jurors don't know about it. In 1895, the Sparf v. U. S. decision held that a trial judge does not have to tell the jury about its right to nullify laws. Because of Sparf v. U. S., judges now instruct juries to find guilt or innocence “according to the letter of the law.” And in 1969 a Fourth Circuit decision, U.S. v. Moylan, upheld the right of jury nullification, but at the same time permitted judges to refuse to tell the jury about its right.
Nowadays, it would be impossible to even get on a jury during the jury selection (voir dire) process if you let slip that you even knew about jury nullification.
Think about it. Would a contemporary judge want 11 more judges in the same courtroom? Of course not. That is why jury selection is now jury stacking.
The problem for that judge of today, though, is that jury nullification is wholly legal. You can, if empanelled, exercise the Great Refusal.
Michael Collins, the Irish patriot and Commander-in-Chief of the Irish Free State Army, said, “we have a weapon more powerful...than any in the whole arsenal of the British Empire! That weapon...is our refusal!”
We can still refuse also. And jury nullification is, at bottom, a weapon of refusal against the Yankee Empire.
MacDonald King Aston [send him email] is Chairman of the Colorado League of the South, Editor-in-Chief of FireEater.Org, member of the Choctaw Nation, a professional writer, a musician, artist, father, and husband.
If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels nor your arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen.
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