The Ins and Outs of Jury Nullification

If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen’s safeguard of liberty, -- for the saddest epitaph which can be carved in the memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.
-- Thomas Jefferson

The Framers of the Constitution of the United States were united in believing that individual liberty could only be defended if government were small, constrained in its functions, and accountable to the people – the sovereign source of its powers. They recognized that Leviathan ever seeks to expand and consolidate its power, regardless of its particular political form (e.g., monarchy, oligarchy, democracy, etc.). They understood that this inherent tendency of government inevitably works against individual liberty and thus promotes tyranny.

Therefore, the Framers took particular pains to constrain the federal government from increasing and consolidating its powers. Following Montesquieu’s advice, they divided the powers of government among the legislative, executive, and judicial branches, each with its own particular constitutional functions which are the exclusive privilege of the branch in which they inhere.

Further, the Constitution specifies the proper relations of the federal government with respect to the states and the people. The Bill of Rights provided “further declaratory and restrictive clauses” designed to prevent the federal government from abusing its powers, and to “extend the ground of public confidence in the Government.” Our constitution designates a very few enumerated, well-defined powers, generally of national scope, as the legitimate sphere of activity for the federal government. Under the principle of subsidiarity – which calls for the least or lowest unit of social power with the competence to carry out a particular function to have the responsibility for that function’s discharge -- all other powers were reserved to the several states or the people themselves. The federal government was expected to adhere to the constitutional bargain that the people made with it; that is, to stick with the plain language, meaning, and intent of the Framers themselves – which is what the founding generation ratified.

To ensure this outcome, the Constitution therefore provides for five veto powers:

The legislative;
The senatorial (prior to the Seventeenth Amendment, this veto power resided in a majority of the legislatures of the several states);
The executive;
The judicial;
The individual (in his sovereign authority as juror).

Probably most readers are already familiar with the first four of these constitutional veto powers. We know, for instance, that the president may veto acts of Congress. We also know that Congress may veto the president’s decision by means of override. We know that the Supreme Court may overturn legislation that it finds unconstitutional; and also that Congress, if it feels the courts have overstepped their legitimate bounds, may issue corrective legislation.

Ultimately, the separation and balance of powers that the Framers envisioned is a specification for ongoing, dynamic political conflict and compromise, with the Constitution as the ultimate mediator of what is permissible to the respective parties. All branches of the federal government, and the states and the people, are assumed to have an interest in seeing constitutional provisions respected and carried out. Further, all the parties to the Constitution were expected to have sufficient knowledge of our rule of law to ensure this result would be achieved. And in the case of the federal government, it is reasonable to expect this, for all its officers have sworn oaths (or affirmations) to carry out this very principle – deference to our written constitution in all matters concerning the People.

As noted, the Constitution defines the relations of the federal government with the several states and with the people. The Constitution recognizes that both have veto powers with respect to the actions of the federal government. For the senatorial veto formerly represented the interests of the states (the status quo prior to the Seventeenth Amendment; its ratification in 1913 effectively disenfranchised state legislatures as legitimate parties to the Constitution). The constitutional role of the juror acknowledges and recognizes the power of the individual citizen to test federal law and, if conscience finds it wanting – either in the particular case at law or in general -- to nullify it.

“Jury nullification of law,” as it is sometimes called, is a traditional right that was rigorously defended by America’s Founding Fathers. Those great men, Patriots all, intended the jury to serve as a final safeguard – a test that laws must pass before gaining sufficient popular authority for enforcement. Thus the Constitution provides five separate tribunals with veto power – representatives, senate, executive, judges – and finally juries. Each enactment of law must pass all these hurdles before it gains the authority to punish those who may choose to violate it. – unsigned article at http//:www.isil.org/resources/lit/history-jury-null.html

Unfortunately, many people today believe that their sole input into “the political system” is their exercise of the franchise (voting), paying taxes, and/or writing/calling their elected representatives to harangue and/or plead. And yet the Bill of Rights guarantees so many different exercises of individual (and group) power that I do not in the least believe that the Framers intended such a passive role for the people, whose natural liberties the BoR so strongly and indisputably guarantees. Indeed, any such expectation would be absurd, given the power that the Framers’ system endues in the individual juror.

A really interesting “balance-of-power” issue here is that the original “senatorial veto” required a majority of assent from the several states in order to be effective. Then, the “senatorial veto” might be vetoed in turn by other legitimate constitutional powers-that-be: Perhaps it would be sustained, perhaps overcome.

But under our constitutional design, the exercise of conscience by a juror needs only one person to be completely effective. And no court in the land, no legislature, no executive, no state may question it, let alone set it aside.

It’s called “jury nullification.” And it almost goes without saying how very much the legal establishment detests it. They recognize it for what it is: a challenge to their authority, power, and prestige.

Even quite conscientious members of the legal community may deplore jury nullification as an impediment, both to the administration of “equal justice” under a “rule of law”; and also as a threat to the integrity of the main theories of legal reasoning that are most current at the time.

Which today is to say those systems of legal theorizing which specialize in abstract principles that are fundamentally divorced from common human experience and common human culture and tradition –especially American historical experience, culture, and tradition – are attempting to take the political high ground, from which to prosecute the fight against all the rest of us. With many elite jurisprudential theorists, the abstract is ever infinitely preferable to the concrete, daily experience of mere mortals trying to live their lives in the ways that seem most reasonable and beneficial to them. Often enough these days, such “abstract thinkers” have a nasty penchant for calling such “mere mortals” undereducated, incompetent, ignorant, uncultured – or just plain stupid.

Such an attitude reveals the mind of a government that does not trust its own people. The inevitable corollary is: The power of the people must be limited in the interest of the greater good of society.

The American model is rooted in British common law, while European jurisprudence has its roots in Roman law. French law, by way of the Code Napoleon inspired by the ancient Roman Imperium, is “highly written, systematic, sweeping, learned, … and codified,” writes Dan Gifford in “The Conceptual Foundations of Anglo-American Jurisprudence in Religion and Reason.” Such a system of law is whatever the emperor says it is: It a rule of men, by men, not of law under God. Gifford quotes the amusing remark of Newton N. Minow, former chairman of the FCC:

In Germany, under the law everything is prohibited except that which is permitted. In France, under the law everything is permitted except that which is prohibited. In the Soviet Union, everything is prohibited including that which is permitted. And in Italy, under the law everything is permitted, especially that which is prohibited [i.e., by the Roman Catholic Church].”

The European jurisprudential model is generally secular and authoritarian. There are no trials by jury; Justice is meted out by panels of professional judges; i.e., the judges – employees of the government all -- are the jury. Accused persons are presumed guilty until or unless they can prove their innocence. The logical consistency of legal theory as determined by experts, and overriding state interests as divined by experts, ever take precedence over the rights of the individual defendant. The individual has no rights against the state: he is a subject, not a citizen. And the courts may use whatever stratagems to trip him up and involve him in self-contradiction they like in order to return a guilty verdict against him, whether or not such stratagems have any substantial merit or direct relevance to his case. He stands in the dock alone, before naked power…. His legal outcome will largely depend on the efficacy of his lawyer – who is probably of the same legal class with the same jurisprudential sympathies as the judges sitting in his judgment.

In contrast, English law’s core principle is the right of the citizen to be secure against abusive state power. Unlike, say, in France, the individual has rights against the state. This understanding goes all the way back to Magna Carta (1215), in which the English barons forced King John (under severe duress) to recognize the right of every freeman to a trial by jury in all cases where the state indicts for alleged crimes.

What was the enormous significance of this? After Magna Carta, the defendant was entitled to the interposition of a jury of his peers – members of his own community who might in general share his knowledge of social and moral norms, local knowledge, customs, traditions, values, beliefs – to stand between him and the exercise of naked state power. It would be his neighbors, members of his own community, not the state, who alone could render a just verdict of “guilty.”

In other words, after Magna Carta, no state in the English-speaking world has the legitimate power or authority to punish any individual, unless a panel of his own neighbors is willing to convict him first: The individual stands or falls by the judgment of his own community, and only by its judgment. And to convict, that judgment must be unanimous. Otherwise, there is a “hung jury,” and probably a mistrial, which the judge or an enterprising district attorney might push to get retried.

But if the jury acquits, that’s the end of it -- the double-jeopardy provision of Article V of the Bill of Rights kicks in: That defendant may not twice be put in jeopardy of loss of life or liberty for the same alleged offense. He walks, scot-free.

Nor in regard to their verdict may jury members ever be questioned, punished, or overruled. Their decision is final, absolute: The state has no power to appeal it to a higher authority for – absent God only – there is no higher authority under our Constitution to appeal to.

“Courts have recently been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them [i.e., by the sitting judge], whether they agree with the law or not. Only in a handful of states [e.g., Indiana, Maryland] are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law. [bold added]

[I was so instructed myself, on reporting for jury duty in Massachusetts district court recently: In so many words, I was told “the judge does the law, and you, as juror, get to do the facts.” (I wasn’t selected to serve, let alone made it to voir dire. Apparently all defendants plea-bargained that day….)]

“Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.” -- unsigned article at http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification….

And yet consider this assertion logically: The judge’s instruction as to the law is yet another fact in the case. Thus even if we believed that juries were only authorized to deal with “fact,” wouldn’t the jury be well within its authority to admit the judge’s instruction as a most salient fact – perhaps the most salient -- to be appraised by them?

Regarding jury nullification, in all fairness we must consider the typical attitude of modern courts:

Judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies. They suggest that informing of the power to nullify will increase the number of hung juries. Some judges also have pointed out that jury nullification has had both positive and negative applications – the negative applications including some notorious cases in which all-white southern juries in the 1950s and 1960s refused to convict white supremacists for killing blacks or civil rights workers despite overwhelming evidence of their guilt.

Time out for a brief list of some issues that jury nullification got right over time, which were subsequently “mainstreamed” into American society at large: freedom of the press (John Peter Zenger case of 1735); the abolition of slavery; the labor movement; the repeal of prohibition (on the grounds that the Eighteenth Amendment was unenforceable because juries routinely refused to convict traffickers in adult beverages).

…that informing jurors of their power to nullify places too much weight on their shoulders – that it is easier on jurors to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws.

Such a finding, if established, would represent the absolute surrender of individual conscience as having any application or relevance to the struggles of American sociopolitical life. The ratifiers of the Constitution, their sovereign authority having been passed down to us now living through the generations, would no longer have any say in what the Constitution says, or how it is to be applied to changing social conditions. This is the “leave it to the experts” mentality that is literally killing Europe right now, right before our own very eyes….

But make no mistake: America is not Europe. America from its very inception – quite consciously and deliberately -- has understood itself as the AntiEurope: We were to be a system of, for, and by an active people, not a passel of passive subjects, ever in submission to the vagaries of virtually absolute authority vested in power-hungry kings or oligarchs. Which may be at least part of the reason why Jacques Chirac and other European heads of state are so p*ss*d *ff at us lately….

In the teeth of such facts, we might wonder: What has the United States Supreme Court had to say about jury nullification?

John Jay, the first Chief Justice of the U. S. Supreme Court stated in 1789: “The jury has the right to judge both the law as well as the fact in controversy.” Samuel Chase, U.S. Supreme Court Justice and signer of the Declaration of Independence, said in 1796: “The jury has the right to determine both the law and the facts.” U.S. Supreme Court Justice Oliver Wendell Holmes said in 1902: “The jury has the power to bring a verdict in the teeth of both law and fact.” Harlan F. Stone, the 12th Chief Justice of the U.S. Supreme Court, stated in 1941: “The law itself is on trial quite as much as the cause which is to be decided.”

In a 1952 decision (Morissette v United States), the U. S. Supreme Court recognized the powers of juries to engage in nullification. The court stated:

“Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges....They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter.”

In a 1972 decision (U. S. v Dougherty, 473 F 2nd 1113, 1139), the Court said: “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”

Likewise, the U. S. Supreme Court in Duncan v Louisiana implicitly endorsed the policies behind nullification when it stated: “If the defendant preferred the common-sense judgment of the jury to the more tutored but less sympathetic reaction of the single judge, he was to have it.” -- Julian Heicklen, “Jury Nullification”

In 1895, in United States v. Sparf, the court effectively found that, yes the juror had the sovereign right to exercise reason, judgment, and conscience with respect to both fact and law; but because he presumptively already knows he has this right from extra-legal sources, judges are not required to explain it to him. This seems to be the very reverse of the Miranda reasoning; oh, well….

…to this day, trial jurors retain the right to veto, or “nullify” bad laws, though they are rarely told this by the courts. Prosecutors and judges try to exclude people from serving on juries who admit knowing they can judge the law, or who have doubts about the justice of the law. This destroys the protections jurors were supposed to be able to invoke on behalf of fellow citizens against unjust prosecutions: how can our right to a trial by an impartial jury be met if those with any qualms about the law are excluded from serving?” – unsigned article, http://nowscape.com/fija/_adhope.htm

It’s probably fair to say that jury nullification is about as popular with the American political class, including its myrmidons in the media and academe, as the Second Amendment guarantee of the right to keep and bear arms. Yet the former may well find a way to be helpful to the latter in the courts of law. There is no law that says “elite opinion” must inevitably get the last word on such questions.

In closing, let the foundational principle of the American system of liberty and equal justice under law be stated here: The sense and consent of We the People is the final and unimpeachable test of the legitimacy of our government and the laws it propagates.

I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.

Jury nullification is indeed a two-edged sword. The OJ trial is a case, really, of jury nullification. They simply refused to convict based on a general mistrust of the police that his attorneys played on.

The second, civil, trial bothered me in much the way that the re-trial of the Rodney King cops bothered me; it smacks of double-jepardy. Someone didn't like the first verdict, so they re-try the case until they get the answer they want. Actually, I wasn't that happy with the verdicts, but under our system, once the jury has spoken, that it supposed to be the end of it. Re-visiting the crime with federal civil rights prosecution, or a civil suit after aquittal "nullifies" the first jury.

So if juries have almost forgotten that they can nullify laws, lawyers and judges have discovered ways to nullify juries.

Whatever its imperfections, jury nullification stands as the penultimate popular veto (the ultimate being the second ammendment). Both of these are blunt weapons. If things have deteriorated to the point that they are needed, things are in bad shape indeed. But knowing that they exist provides a corrective that more often than not prevents the need to invoke them. And if things really go sour, thats what they are there for. In a democratic republic, laws have to have popular support or they are not law.

That gets spooky in cases where the majority are oppressing a minority, which happens from time to time, where the victim is not very likeable and the perp is a sympathetic figure. In such a case jury nullification could leave the victim without any redress. But this is intended as a corrective against state misconduct, it can't do much in the case where the good neighbors have gone off the track. But that is the weakness of democracy in general, not merely of the jury system.

So if you are a victim and the jury has refused to convict your victimizer, you have the option of leaving it to God, or taking justice in your own hand, either of which stands in its own way as another kind of jury nullification. Judges and police, in the final analysis are our agents, not our rulers.

Or you endure and work to change the hearts of your neighbors. Its slow, but its how people finally change. Thats where preachers and pundits come in to play their role.

You can never achieve perfection, you can only set up enough checks and balances and back doors and parallel routes so that you can't game the system indefinitely, and no one has the absolute advantage.

Ah, a most excellent article by my favorite essayist! The supporting research is superb.

Personally, I view jury nullification along with the right to keep and bear arms as "reset buttons" for the rule of law, provided by the framers to keep both the federal and state government in check. Their existence alone ought to be enough to constrain the law makers and judiciary.

But rather than being constrained by them, on the one hand, the law makers seek to make the second amendment of no such effect and on the other hand, the judiciary omits to mention jury nullification while at the same time, exercising that very power on their own initiative (judicial activism).

The problem is ignorance, a basic (K-12) education system which keeps the next generation in the dark about the checks and balances of our rule of law and the veto power of the governed. Conversely, the solution is information. When the educators don’t or won’t speak of such things, then we can via broadcast – internet, publications, etc.

Secondly, the early legal minds of this country were disinclined to demand a juror return any verdict that the juror could not in good conscience support. The "Right of Conscience" is one of our forgotten rights.

Excellent point, djf -- the idea being that no juror should walk away from his jury service with a tortured conscience, of feeling that his vote was inherently, morally wrong, even though it complied with the law as interpreted to him by the judge.

I, too, am deeply concerned that jury verdicts have been "nullified" by the legal system in recent times. As marron also points out on this thread, the OJ case is a great example. I don't have any particular sympathy for OJ, and think he probably murdered his wife and her friend. But the matter should have been over with after the criminal trial, regardless of whether we approved the jury's verdict or not. The later civil proceeding was a double-jeopardy for OJ, and a nullification of the criminal jury's verdict. This to me is most unsettling....

...one quote seems incorrect to me--the statement that there are 5 Constitutional sources of veto power over unconstitutional laws. I believe the Constitution does not give that power to judges. That "power" wasn't established until later in Marbury v Madison (1803 IIRC).

I think Chief Justice John Marshall was, in a certain sense, endeavoring to increase the power of the court -- by virtue of the doctrine of judicial review -- in Madison v. Marbury. But I think he had a reasonable basis to do this, given the language of Article III, section 2: "The judicial power shall extend in all cases, in Law and Equity, arising under this Constitution...." This must mean the law under which a person has been indicted must pass muster under the Constitution, that the justices must measure the law against what the Constitution requires in order to render justice. If there is no constitutional basis for the law, then it is a nullity and has no force.

If the court should so find, this would be a rebuke of Congress, to be sure; yet it is not a direct veto on an act of Congress, but an indirect one resulting from the presentation of an actual case at law where statutory requirements must in all justice be subordinated to the constitutional rights of a real, actual defendant who has been indicted for an alleged crime.

It seems to me that judicial review of the constitutional basis of a law is something that ought to occur at all levels of the federal bench. Obviously, this is not the case.

So if SCOTUS winds up being "the court of last resort" for judicial review, so to speak, perhaps that is not a bad thing -- provided the justices' decisions actually accord with the Constitution rather than with their own jurisprudential preferences. This is where things really get dicey....

Perhaps the answer lies in less judicial reliance on the principle of stare decisis. A "bad" (e.g., patently unconstitutional) SCOTUS decision doesn't get any better with age; and to bind the Court with wrongly reasoned precedent is no service to justice.

Thanks so much for writing, jammer, and pointing out this very important issue.

If this power is not inherent in the powers of the Court as defined in the Constitution, then one could only characterize the establishment of such a power by the Court itself as a usurpation.

Absolutely, database. Still, I don't think Chief Justice Marshall was a usurper. I think he was trying to "put some flesh on the constitutional bones," i.e., the logic and reason that informed the spare constitutional language of Article III, Section 2 -- to express its meaning in terms of the duty laid on the court by the Constitution. And it doesn't seem to me that he took a real "flyer" in what he did -- his interpretation of the language does not seem the least unreasonable, nor any great logical stretch. I think Marshall's judicial review implicitly follows from the logic of the text.

Marshall was not far removed from the Framers in time, and the Framers' philosophy of government was still vividly current at the time of Marbury v. Madison. In all probability, Marshall shared it.

Plus he doesn't seem to have been particularly "dictatorial" or power-hungry. Case in point: When the prosecution in the Aaron Burr trial wanted to subpoena then President Thomas Jefferson to appear and testify, Marshall issued the warrant. But Jefferson refused to appear, and I gather did not feel he needed to give the court any reason for his non-appearance. Marshall had the good sense to simply let the matter drop -- he did not push it. In this, he indicated a certain respect for the prerogatives of the executive which, in a system of divided powers, I think can be a good thing. I think if he had been a real dictator type, he would have found a way to dragoon TJ into court.

But then, that's only my opinion. FWIW. i could always be wrong. :^)

Laws, or judgments, repugnant to the principles of our constitution are null & void, and it is the duty of ALL of us to ignore them.

The USSC is charged in Art. III, Sec. 2 with the judicial power to decide all cases "arising under this constitution".
But this power is not absolute, as it too is checked & balanced by Congress, the Executive, and ultimately by the people.

-- In fact, as the article also notes, the people exercised that power in the case of prohibition.. -- We ALL simply refused to obey a 'law' repugnant to our constitutional common sense.

Conscription to fight in foreign wars immediately comes to mind.

Under our Constitution we gave Congress the power to declare wars and to 'raise Armies', -- and, we are all pledged by our oath of citizenship to defend our Republic from enemies, foreign & domestic:

--- I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.
In acknowledgement whereof I have hereunto affixed my signature.

In some cases, INS allows the oath to be taken without the clauses:
"… that I will bear arms on behalf of the United States when required by law; that I will perform non-combatant service in the Armed Forces of the United States when required by law…

OK, I have more time now.

"that the justices must measure the law against what the Constitution requires in order to render justice. If there is no constitutional basis for the law, then it is a nullity and has no force."

The historians of law would love everybody to believe that. The history of law is quite different.

The Constitution itself, started solely as an investment of some authorities in a centralized federal government. The BOR was added as almost an afterthought.

"Common Law" does not mean "ordinary law". It means "the law of the common folk".

The kingdoms that came about in Britain finally realized it was better to have the regular folks deal with issues like murder, rape, etc. So "common law" by it's essence is law not of or by the government, but the law of the people.

The true source of law is regarded by the framers as being the almighty, not government. Story himelf at one point states in his commentaries that even Supreme Court decisions are interpretations and opinions about law, not true law.

The vast majority today of what masquerades as "law" is actually "equity".

I rarely discuss law and politics anymore. We are close to the point where, if a judge tells the bailiff to haul you off and put you in chains, the bailiff will do so, whether you or the judge is right or wrong.

And then law no longer makes a difference, it is then simply "might makes right".

I see a judges oath of office as a positive DUTY to inform an impartial jury as to the Constitutional facts of the issues at hand.

I agree, tpaine -- and among the constitutional facts is this fact:
The Constitution nowhere requires juries to be mere "rubber stamps" of the judicial authority. Juries are expected to be, not only impartial, but independent: They are completely free to make up their own mind according to their own best lights. And this applies to the law, not merely to the facts of the case.

Good to see we can agree again Betty. Now if I could just convince you to withdraw your support of the 'myrmidons' of the American political class, as our author points out:

"-- It's probably fair to say that jury nullification is about as popular with the American political class, including its myrmidons in the media and academe, as the Second Amendment guarantee of the right to keep and bear arms.
Yet the former may well find a way to be helpful to the latter in the courts of law.
There is no law that says "elite opinion" must inevitably get the last word on such questions. -- "

And a Happy Fourth to you Betty.

I would have had no trouble nulifying the instructions of the judge if they did not make sense, but the case was not one where this was necessary. I would recommend you keep your position to yourself and go ahead and try to get on a jury. We can use more self thinkers.

Exactly my experience the one time I was seated on a jury. I fully support nullification, but it wasn't even a consideration in my (drunk driving) case.

These days, I strongly believe each citizen should judge laws for themselves - politicians have gone nuts and have passed far too many stupid laws. I'd have no problem nullifying an obviously-ridiculous and/or intrusive law.

Jury nullification is indeed a two-edged sword.

Oh yes it is, dear marron. The OJ case you cite is most instructive. Many Americans took great umbrage at the result of the first, criminal trial, feeling that justice had not been served. American popular opinion had been turned against the very idea of jury independence by the mass press at the time: "Popular justice" called for the return of a guilty verdict.

But the jury evidently had problems with police procedure and so forth. If the DA's case is sloppy or otherwise questionable, any sane jury might refuse to convict -- under the judge's very instructions that guilt must be ascertained beyond a reasonable doubt. The performance of the DA and the police gave the jury capacious scope for entertaining notions of reasonable doubt.... At best, the performance of the prosecutorial authorities was confusing.

Whatever we think of the trial outcome, that should have been the end of it. But it was not: The criminal jury was overridden -- as it were nullified -- by the civil jury. Such a development does not seem to be authorized under constitutional rules.

So the public needs to ask itself whether such an "evolution" of legal rule is justified or authorized by the Constitution under which it has long lived. That is, the public must ask this question, and answer it, if it expects to maintain the rules of existence as it knows them from its own direct experience over time. Either that, or it must be prepared to quickly adapt to whatever pipe dream legal theory has been conjured up and articulated by the newest "bright boy" that the New York Times might want to feature on its front page....

As for me, I would rather set a guilty man free than ever to see the Constitution undermined.

Think of our sovereign, unalienable rights this way: (1) Never have any of them ever been grants of the state -- They have a divine source, and thus the state may not touch them in any way. (2) The state will try, not only to touch them, but to make them go away. (3) Natural rights -- that is, God-given rights -- are like muscles: You use them, or you lose them.

Thank you, dear friend, for your beautiful reply, and for letting me rant here....

p.s.: As I mentioned a while back, the Fully Informed Jury Association (www.fija.com) is an excellent source of materials that educate people in their sovereign rights as jurors. I also mentioned this was a Libertarian organization -- which is not to impugn the outfit in any way. Just noting the vintage here.

In any case, FIJA justly sees the sovereign rights of jurors as a potential check on the excesses of government authority. I get the impression they think the next "test cases" will come in the area of marijuana decriminalization/legalization. The point is, whether they're right or wrong about this, if there is any real, solid public enthusiasm for anything that statutory law cuts against, if the people insist on their own preferences rather than those their elected officials give them, as enforced by the courts -- under the theory of the Constitution, the people ought to prevail. It seems FIJA believes it has methods and tools that can help in the prosecution of public goals whose proponents achieve a certain critical mass....

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