Keep Juries Dumb

UPI ^ | November 5, 2002 | John Bloom

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NEW YORK, Nov. 4 (UPI) -- In America we like our juries dumb and predictable. God forbid they should know anything about the case they're judging, much less the law they're judging it by. We need to protect them from all sorts of things that could infect their brains with information.

If we didn't do that, it would be like trusting 12 guys off the street to dispense justice. What a quaint idea. And, obviously, a dangerous one.

The idea of a jury is at least 3,000 years old -- the Greeks thought 12 was the perfect number of panelists -- but our version of it is much younger. We're coming up on the 800th anniversary of the year when King John was told, essentially, stop forcing your laws down our throats or we're going to burn down your castle.

Voila! The modern jury system was born. The king could decree all the laws he wanted to decree, but from then on it would be 12 guys from the neighborhood who decided whether they would actually be used against anybody.

King John didn't go quietly, of course -- he hated the Magna Carta and tried to throw jurors in prison when they failed to convict -- so it shouldn't be that surprising that eight centuries later our own black-robed jurists continue to fear juries and try to manipulate and rein them in whenever possible. They would be much more comfortable with juries in the French, Russian or Islamic sense -- panels of professional judges -- but unfortunately they've got this pesky "peers" concept to deal with.

The main way they neutralize the enemy is to make sure the jury is stupid. The dumbing-down process has taken effect gradually over the past hundred years, mostly by making certain the jurors don't know how much authority they have, by keeping jurors off the panel who might tend to vote their conscience instead of the law of the land, and by just simply withholding information.

For example, in criminal trials, it's now routine to withhold from the jury any information about mandatory sentencing. While deliberating a man's fate, you're not allowed to know whether "guilty" is more likely to result in five years of prison or 50 -- because if you knew just how hard the hammer was about to fall, you might decide it's not fair and vote for acquittal.

News alert: it's the jury's job to decide what's fair and what's not fair. It's not the judge's, and, contrary to popular wisdom, it's not the legislature's. The legislature is the modern stand-in for King John, and it has no more authority over the jury than he did.

Unfortunately, we've reached a stage in our history when the people are forced to take back the rights granted by those ancient kings, notably in the form of Amendment A in South Dakota. The so-called "jury nullification" proposal in that state would require judges to tell juries that they're allowed to interpret the law -- not just the facts -- so that they can follow their own consciences if they disagree with some concoction of the legislature that shouldn't be applied to the living, breathing human being set before them.

Oddly enough, this idea strikes fear into the heart of the judiciary everywhere. And yet it's one of the oldest ideas in the land -- almost all the Founding Fathers agreed with it -- and, if you think about it, it's self-evident. If the judge could direct a verdict, by framing a question so narrowly that you could only vote one way, then it wouldn't be a real jury in the first place, would it?

And yet listen to what the state of California allows its judges to say while instructing the jury:

"It becomes my duty as judge to instruct you concerning the law applicable to this case, and it is your duty as jurors to follow the law as I state it to you. . . . You are to be governed solely by the evidence introduced in this trial and the law as stated to you by me."

Note the arrogance. You must not only follow the law. You must follow it "as I state it to you." The idea of a reasonable man rising up to say, "But I've read the law and I don't think that's what it means," is beyond the pale of the judge's understanding of his duty. Far less would the judge tolerate "I know that's the law but the law stinks." The jurist doesn't condone this sort of mob thinking, and he doesn't allow it. He's essentially saying that a law degree, an elective office and/or a black robe convey special knowledge and wisdom that no juror could possibly have. The whole basis of the charge -- which is fairly standard in courtrooms across the country -- is profoundly un-American.

Which is precisely why the "informed jury" movement has been gaining strength for about 15 years now. And even though they don't have any major victories yet -- they've lost in Oklahoma, Arizona and Montana -- it warms the cockles of this jaded old heart to see that there are enough renegade patriots left to continue to insist on it.

First of all, I despise this term "jury nullification." If the jurors choose to disregard the law, they are not nullifying it. They are exercising their right not to apply it in this specific case. This used to happen all the time. All those jurors in Massachusetts who refused to convict violators of the Fugitive Slave Act knew very well that the law wasn't on their side. The difference at that time was that the defense attorney was allowed to argue that they should set aside the law. Today such an argument would result in a contempt charge against the attorney, and probably a mistrial.

Supporters of the informed jury movement usually go back to the John Peter Zenger libel case to bolster their position. Zenger was a New York printer who in 1735 published a series of pamphlets criticizing the colonial governor of New York. He was charged by the crown with "seditious libel," and at the time the definition of libel was the publication of anything criticizing public officials, laws or the government.

The judge in the case, quite rightly, ruled that the only fact matter to be proven was: Did he publish the articles or not? Everyone, including Zenger, agreed that the articles had been published and that they contained criticism, so there was no reason to put on evidence. Nevertheless, Zenger's attorney, Andrew Hamilton, argued that the articles were also true, and urged the jury to acquit on that basis. The jury ignored the law and acquitted Zenger, thereby establishing a principle that was later made law: truth is an absolute defense against libel charges.

But I think there's an even better case. In 1670 William Penn was indicted for preaching Quakerism under the "unlawful assembly" act. Despite the fact that he was obviously guilty according to the judge's interpretation of the law, four of the 12 jurors voted to acquit him. The judge had the jurors thrown in jail and starved for four days in an attempt to change their votes. It didn't work. Reluctantly, he ordered Penn released -- but the crown still wasn't finished with the recalcitrant jurors.

The four who voted for innocence were assessed fines for failing to follow the law and sent to prison until the fines should be paid. Three chose to pay the fine -- just to get things over with. The fourth juror, Edward Bushell, was of heartier stock and refused to pay. Instead he took his case to the Court of Common Pleas, where Chief Justice Vaughan eventually ruled that Bushell was right -- jurors could not be punished for a verdict. If anything established that the jury was the sole arbiter of law AND facts, it was this case.

Now this is the secret that no one wants you to know: If you serve on a jury, and you just flat don't like the law you're asked to enforce, you do NOT have to enforce it. You can vote in direct contradiction of the law and in direct contradiction of the judge's instructions -- without fear of reprisal.

Up until 1895, the jury was routinely informed of this right. Then the big mining companies started losing a lot of cases against unions, and they put pressure on the courts, resulting in a Supreme Court decision stating that judges were not required to inform the jury of its rights. Could anything be more draconian? The defendant is informed of his rights. The plaintiff is informed of his rights. The state prosecutor, being an attorney himself, is well aware of his rights. The jury -- the only people in the room without right to counsel -- must figure out its authority on its own. The judge, who is supposed to act as counsel for the jury, to advise it, is conspiring to deprive it of essential information.

And yet the jury's supreme authority was well known to the very first chief justice of the Supreme Court, John Jay, who explicitly informed a jury that it was free to ignore him and his court. It was well known to John Adams, who said, "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." He even went further and called it "absurdity" for a court to expect a juror to be required to accept the judge's view of the law. The principle was well known to those two political opposites, Jefferson and Hamilton, and yet they both agreed on this point.

Need more legal celebrities? Justice Oliver Wendell Holmes wrote in 1920: "The judge cannot direct a verdict, it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts." In more recent years, the Fourth Circuit Court of Appeals wrote: "If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence."

Could it get any clearer than that?

We shouldn't even need Amendment A in South Dakota, or any similar measure in any other state. All we need is for judges to assume their traditional roles as advisors to the jury, not dictators riding herd over it.

If a man stands before you with a little more marijuana than he might need for his personal use, and the result is that he's facing a 30-year prison term, you do have the right to say, "I won't be a party to that." If a man is charged with animal cruelty for striking a snarling dog with his cane -- one of the more notorious South Dakota cases -- you have the right to say, "Even though the law says he's guilty, I say he's not." If a man comes before you for the third time on burglary charges, and the only possible result is that he goes to prison for the rest of his life, the jury is empowered to say, "The law is too harsh. We will not condone it."

As D.C. Circuit Judge D. Bazelon once put it: "It's easy for the public to ignore an unjust law, if the law operates behind closed doors and out of sight. But when jurors have to use a law to send a man to prison, they are forced to think long and hard about the justice of the law."

And yet our courts today say: "Don't think long. Don't think hard. Don't think at all. It's not your place."

It IS your place. Some guy got shackled in leg irons by King John so that it WOULD be your place. Don't send us back to the Dark Ages by acting like a wimp.

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(John Bloom writes a number of columns for UPI and may be contacted at joebob@upi.com or through his Web site at joebobbriggs.com. Snail mail: P.O. Box 2002, Dallas, Texas, 75221.)

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