originally published July 27, 2014
When I was asked to serve on a jury back in 2006, my innards were polarized in their response. On the one hand, it would mean experiencing the justice system from the inside out, hearing evidence, steering the waves of someone’s fate, and perhaps getting to reenact the dramatic speech made by Henry Fonda in Twelve Angry Men. On the flip-side, I’d heard too many stories of people desperately seeking an escape from jury duty not to be suspicious of the supposed visceral experience of it all. What the hell, I figured. I had a dull job (though my current job makes computer tech support look like Indiana Jones-level archaeology by comparison), why not serve the system?
It was a three-day trial, resulting in me being sequestered in a hotel for three days, cut off from family, phone, newspapers, internet and television, lest I stumble across an episode of Law & Order that might taint my objectivity. I remember almost nothing else about the trial, except that Henry Fonda’s words failed to fall from my lips, and I missed three nights of The Daily Show. But I did my duty.
Little did I know the potential power of a jury to scrote-kick the law and even change it. Jury nullification is a quirky little corner of legal lore that has quietly but profoundly been a factor in how the judicial system works. Or fails to work, as the case may be.
The Magna Carta, one of those ancient leafs of yellowing paper that you’ll find behind glass so that generations of school kids can wander by and nod disinterestedly at it, established juries as a staple ingredient in the silty justice stew England was trying to put together in the 13th century. Back then, juries tended to side with the crown. This wasn’t a case of not wanting to piss off the king (though on occasion it might have been), but more a question of jury manipulation.
It wasn’t hard to bribe a jury back then. The checks-and-balances and policing of the jerks running the country were concepts that were still centuries away. Outright bribery or hand-picking the schmucks on a jury was easy and uncontestable. Not only that, but judges could write off any jury’s decision if it didn’t go his way, and order a second trial. There were a lot of ways to scoot around the system to get the conviction the crown was after.
It took a few hundred years before juries began flexing their muscles to fight the system. When John Lilburne faced high treason charges in 1649 for rallying a revolution against Oliver Cromwell’s royalist faction, his jury acquitted him, despite a cauldron of bubbly evidence that pointed at his guilt. But the people were behind Lilburne’s cause, and an acquittal was a statement of triumph.
In Scotland, jury nullification introduced the concept of ‘not guilty’ to the court system. In the 1728 trial of James Carnegie of Finhaven for accidentally killing the Earl of Strathmore, a ‘proven’ verdict would have sent James to the noose. ‘Not proven’, which was the other common conclusion in Scottish courts, wouldn’t make sense, since it was clear as a wayward kilt upon a field of Scottish thistle that he’d killed the guy. The jury invoked what they believed was their ‘ancient right’ to judge more than just the facts, so they issued a verdict of ‘not guilty’. This option remains commonplace in Scotland to this day.
Canada’s most infamous case of jury nullification went down in the 1980’s. Henry Morgentaler was a Montreal doctor who, aside from being one of the first Canadian docs to perform a vasectomy and then one of the first to hand out birth control pills, operated a private abortion clinic, which was a clear violation of the Criminal Code. Yet every time Morgentaler appeared in court throughout the 70’s and 80’s, he was acquitted by a jury. Eventually one of these jury nullifications was hauled all the way through the system to the Supreme Court.
The highest court in the land elected not to strike down the jury’s decision and enforce the law. Instead, Chief Justice Brian Dickson indicated that yes, juries have a right to do this. Sure, allowing an arbitrary dozen people who couldn’t come up with a legitimate excuse to get out of jury duty the power to change the law could be dangerous, but it’s necessary to allow the collective conscience of the public to have a say. The law that Morgentaler had been accused of breaking was ultimately crumbled by that one jury’s decision not to apply it. This was Canada’s Roe vs. Wade.
In the United States, jury nullification became an effective tool of thwarting a racist government and pushing for civil rights. Yes, there are undoubtedly cabinets full of cases wherein white people were acquitted (by all-white juries of course) for murdering black people – this is part of that danger Justice Dickson was talking about in his 1988 ruling. But it worked the other way when 24 people were accused of helping a slave escape from jail in 1851. The first four trials netted three acquittals, leading the government to give up and drop the rest of the charges.
During Prohibition, it’s estimated that as many as 60% of cases looking to enforce alcohol restriction laws were nullified by juries who believed the law to be garbage. This is believed to be a massive force in bringing about the Twenty-first Amendment that let the liquor flow once more. Lately this has been popping up – albeit with a much lower level of visibility – in drug cases. This could be how drug policy gets reformed: not through a referendum like we saw in Colorado and Washington, but from the courts.
Judges can yank a juror (or several) if they feel there’s a reason the juror is not doing their job properly. And if they feel a jury screwed up and convicted someone they shouldn’t have, the judge can step in or the appeals process can help to right the ship. But an acquittal is an acquittal, especially in regions that employ the double jeopardy rule, in which a person cannot be tried for the same crime twice. Juries can’t be punished for delivering a nullifying verdict that smacks the letter of the law upside its frilly be-wigged head.
So is nullification an act of undermining the law? Is it a violation of the oath jurors must take before they can plant themselves in a courtroom? Or is nullification a genuine protection against tyranny, wrongful imprisonment and stupid legislation? It exists, and so far it’s a legal practice that has had a profound effect on the face of modern justice. It’s something anyone called up for jury duty should be aware of.
I never got the chance to boldly raise the scepter of truth in the face of an unjust statute – I simply sat through hours of testimony and even more hours of deliberation whilst being cut off from my friends, family, hobbies and vices. Next time the invitation to serve shows up in my mailbox, I might look for a way to escape my duty. But then again, it might mean a few days off work. I could use the change of scenery, so long as it doesn’t interfere with my weekends.