By George Noga
There are two nullification issues, neither of which you learned about in school.
The first involves states nullifying acts of the federal government. This comports with the Jeffersonian notion that individual states had a right, nay a duty, to abrogate laws that are unconstitutional or usurp powers not delegated to the federal government. The idea of state nullification is in the ascendancy and may be the subject of a future MLLG post. This blog post however is about jury nullification, currently a radioactive issue in central Florida.
“Juries are sovereign; they can ignore judges, vote their conscience and even nullify laws they believe are unjust.”
Recently in Orlando Judge Belvin Perry (of Casey Anthony fame) jailed two men, Mark Schmidter and Julian Heincklen, for 151 days for handing out juror information outside of a tiny “free speech zone” he established near the courthouse. It is a permanent free speech zone and insofar as I know the only one of its kind in the entire USA.
Silly me; I thought the entire United States of America was a free speech zone. He jailed them for violating his order for which he served as judge, jury and executioner. The case is being appealed; I’ll let you know how you can help with legal fees at the end.
At issue is whether or not jurors can go beyond the facts of a case to ignore the judge’s instructions, to vote their conscience and even to, in effect, nullify a law they consider unjust or misapplied. In some places in the USA judges instruct juries about nullification or permit defense attorneys to do so.
Not so in Judge Perry’s chamber. Perry is imperious, arrogant and petty. He could have made his point with a short sentence instead of putting a 79 year old man away for 151 days. Moreover, courts have struck down free speech zones on college campuses and throughout the USA; consequently, Perry’s order flew in the teeth of the law.
“The jury has the right to determine both the law and facts. ” First US Supreme Court Chief Justice John Jay
“The law itself is on trial quite as much as the (case).”
Twelfth US Supreme Court Chief Justice Harlan Stone
The most famous example of jury nullification is the trial of William Penn. A London jury refused to find Penn (a Quaker) guilty for preaching an illegal religion. The jurors held steadfast despite being held several days without food, water or toilet facilities and then being fined and jailed. Eventually England’s highest court acknowledged jurors’ rights to reject law and fact to deliver a verdict according to conscience, a right that may be traced back to Magna Carta. This precedent continued in the American colonies. The Constitution and Bill of Rights embedded the tradition of fully informed juries and voting conscience in the USA.
All juries are sovereign; they can ignore instructions from judges, vote their conscience and nullify an unjust law or its application. They even can ignore any oath they were required to take to apply the law as explained by the judge. They can and should hang a jury, by themselves if necessary, if their conscience dictates; they must resist all pressure from other jurors and the cost of a retrial. They must use their independent life experiences, concept of justice, wisdom and beliefs rather than mindlessly follow a judge, other jurors or a bad law.
As recently as 1972 the US Circuit Court of Appeals held that a jury has an “unreviewable and irreversible power . . . to acquit in disregard of the instructions on the law given by the trial judge. The pages of history shine upon instances of the jury’s exercise of its prerogative to disregard instructions of the judge; for example, acquittals under the fugitive slave law.”
“Trial by jury is the only anchor by which a government can be held to the principles of its constitution.” Jefferson
“It is not only (the juror’s) right, but his duty to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.” John Adams
No one is advocating nullification for light or transient reasons. Today there are so many laws that people are charged with crimes without knowing the law existed; there are many who did not intend to commit a crime and hence did not have a mens rea, or guilty mind.
Then there are the vague and victimless crimes and those where government tramples our rights. Maybe, just maybe, an occasional jury nullification will send the right signals to overweening governments, headline-seeking prosecutors and over zealous law enforcement.
If you want further information there is an active national organization called Fully Informed Jury Association; its website is www.fija.org or you can call 1-800-TEL-JURY. You may write to them at P.O. Box 5570, Helena MT 59604. If you would like to help Mark Schmidter and Julian Heincklen with the legal fees for the appeal, please email me and I will provide instructions for you to do so via a Pay Pal account they have established.
Reader Feedback about Buffet vs. his Secretary
MLLG is proud of its informed readers. Immediately after I published the October 3 blog which contained a discussion of Buffet and his secretary’s income tax situation, I received the following email which I am reprinting verbatim because I can’t write it any better. I regret not thinking of this myself.
“George: Great letter, but I wish you could add one more point to the discussion of Buffet’s disingenuity, and I think this is the most poignant. Berkshire is a “C” corporation; as such it pays its own taxes. Last year it paid $5.6 billion in taxes on behalf of its shareholders. By virtue of ownership of about 30% of Berkshire, Buffet’s share was over $1.6 billion in corporate income tax even though he did not write a personal check for it. This is compounded by the immense amount of tax paid by all the corporations Berkshire invests in but doesn’t control such as Coke, Wells Fargo, Washington Post, Bank of America, Goldman, US Bank and many others. As one of the most heralded tax-efficient investors of our time Buffet has to know this. How can he be getting so tax-dumb?
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