By George Noga
Are You Willing to Convict Someone of Eating a Ham Sandwich?
What Do All These Things Have in Common? Jury Nullification!
Under the English and American political systems, juries are sovereign and hence have absolute power. In 1670 a London jury, despite being jailed for four days without food, water or toilet facilities, refused to convict William Penn for the crime of preaching Quakerism.
Ultimately England’s highest court held that a juror’s right to reject law and to vote conscience is traceable to Magna Carta. In America, it is a right enshrined in the Constitution and Bill of Rights.
“The Salem witch trials ended for one reason and one reason only: 52 consecutive hung juries and acquittals.”
Do you know why the Salem witch trials, which began in 1692, ended? They ceased for one reason and one reason only. Beginning in May 1693 there were 52 consecutive hung juries and/or acquittals. Thereafter prosecutors ceased bringing new cases to trial and the public lost interest.
In 1735 jury nullification decided the Zenger sedition case – Zenger was tried and acquitted for criticizing (truthfully) the royal governor of New York – a crime which he freely admitted. Later in 1760s colonial America, juries refused to enforce forfeitures under the English Navigation Acts. This prompted England to restrict jury trials as part of the 1774 Intolerable Acts which, in turn, led to the shot heard around the world.
“The Constitution provides five separate tribunals with veto power before any law can punish offenders; these are: (1) representatives; (2) senators; (3) the president; (4) courts and judges and, most importantly, (5) juries.”
In the 1850s, northern juries began acquitting abolitionists for violating the 1850 Fugitive Slave Law. Toward the end of the nineteenth century, corporations began losing jury verdicts in trials involving the organization of labor unions and strikes – which were illegal. Under pressure from business, the Supreme Court in 1895 rendered a bitter split decision that courts no longer had to inform juries they had the power to veto an unjust law.
Despite this decision, jury nullification played a big role in ending prohibition. During the Vietnam war, juries acquitted protesters in those instances when they were informed of their sovereign power.
What to do if You are Called for Jury Duty
Most prosecutors and judges go to great lengths to keep you from knowing about, no less exercising, your rights. Government is petrified of informed citizens with a conscience. During the voir dire (jury selection) process, it is becoming common for jurors to be asked: “If it were illegal to eat a ham sandwich, would you convict if the evidence were beyond a reasonable doubt?”
This is an attempt to weed out possible jurors who will vote conscience. Frighteningly, nearly everyone answers in the affirmative. It is not necessary for you to answer such questions truthfully as they are nothing more than naked attempts to strip you of your rights.
In Florida jurors take the following oath: “Do you solemnly swear that you will well and truly try the issues between the State of Florida and the defendant and render a true verdict according to the law and the evidence?” Again, such an oath is not binding on jurors.
Finally, the judge instructs the jury, often as follows: “You the jury are judges of the facts. But in reaching your decision as to the facts, it is your sworn duty to follow the rules of law as I explain them. You have no right to question the wisdom or correctness of any rule I state. You must not substitute your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you.” You guessed it: this is self-serving hogwash.
“When you sit on a jury, you have the absolute right to vote your conscience – no matter what the judge may instruct and no matter what oath you must take.”
Remember under current law juries are sovereign. The Supreme Court decision of 1895 did not change that, it merely ruled courts were not required to inform juries of their sovereign right to vote conscience. Nevertheless, it takes an intrepid soul to run the gauntlet of voir dire, juror’s oath, instructions from the judge and likely pressure from other jurors to vote his/her conscience.
Yet, that is precisely what you must do; it is no less than our ancestors did for Quakers, accused witches, fugitive slaves and other victims of unjust laws. Although the issues have changed from witches and slaves, the principle has not. Our freedom remains at stake.
Although jury nullification should never be used for shallow or transient reasons, there is no shortage of opportunities today; some of them are:
- Laws have proliferated to the point where honest citizens acting in good faith unknowingly violate laws they never knew, or reasonably should have known, existed.
- Anyone convicted of a crime should have a mens rea, or guilty mind. In the past this was nearly always true. Do not convict anyone who acted 100% innocently and had no intention whatsoever to do anything wrong.
- Vague and victimless crimes abound; surely some of these are subject to conscience.
- Alleged crimes where the government tramples citizens’ rights cry out for nullification.
- Crimes where the probable sentence is out of proportion to the crime. Note: It is permissible for jurors to ask a judge about possible sentences before the jury is charged.
- Crimes that should not exist. Case in point: Dairy farmer, Vernon Hershberger soon will be tried in Wisconsin for the crime of providing raw milk to the owners of cows he boards who specifically desire the raw milk. Consuming raw milk is legal in Wisconsin; however, the government considers Hershberger a criminal for providing it.
This movement about voting conscience and jury nullification has an active national organization: the Fully Informed Jury Association, or FIJA. Its website is www.fija.org and it contains detailed information for prospective jurors – far more than I can put in a blog post. FIJA plans to hold a vigil outside Vernon Hershberger’s trial.
“Central Florida is blessed with a dedicated and expanding band of FIJA activists; they are making a difference and have the local constabulary apoplectic. They truly are heroes for liberty!”
Central Florida is blessed with a dedicated and expanding band of FIJA activists who regularly hand out information, at great risk of false arrest and incarceration, where juries are convened in Orange, Osceola, Seminole and Volusia counties. They definitely are beginning to make a difference and have the local constabulary buffaloed and apoplectic. I will be writing more about them from time to time. They truly are heroes for liberty.
This just in – Iowa Jury Votes Conscience; Nullifies Laws
A jury in Polk County, Iowa acquitted an “Occupy” protester who admittedly violated curfew and trespass laws by remaining on statehouse grounds to peaceably protest. Both the prosecutor and judge took the position it was an open and shut case because the defendant admitted he was on the grounds after curfew and hence was trespassing. The jury acquitted.
Afterward, juror Aimee Mairs told reporters that the decision was a matter of putting the US Constitution above state curfew and trespass laws. Mairs said the jury decided the defendant was justified in being on the grounds for the purpose of exercising his First Amendment right to peaceably assemble. The jury voted conscience and nullified state law. In light of the courageous jury decision, 15 others accused under the same laws are demanding jury trials.
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