February 09, 2007
The history of jury nullification
Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws. In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.
More recent examples of nullification might include acquittals of "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders.
Of course, not all nullifications advance justice and the rights of individuals. As Linder points out there are "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." I am not sure if this constitutes nullification since, as I understand it, true nullification involves refusal to convict because of a belief that the law is unjust, not because one simply wants, for whatever reason, to see the accused go free. But nonetheless, recognizing the rights of juries to nullify laws does carry with it the risk that juries will acquit for less noble reasons.
Perhaps the most celebrated case of jury nullification was back in 1670 in England when William Penn, the Quaker, was accused of preaching to an assembly in a public street, the building where they usually met having been closed by the authorities. William Mead was accused of conspiring with Penn to create a 'tumult' and thus both were accused of being in violation of the law prohibiting such actions. The proceedings at the Old Bailey, which were recorded in almost verbatim form by an observer, gives a fascinating account of the trial.
Penn's defense was that he was merely seeking to assemble with other believers to worship god, not seeking to create a riot, and he was unshakeable in asserting this. The fact that there were several hundred people in the street creating such noise that he could barely be heard was not questioned, so technically he had violated the law prohibiting creating 'tumults' in a public place. In terms of the law and the facts, the prosecution pretty much had a slam-dunk case.
It was clear from the start that the judge (who was the Mayor) and the court recorder (who is what we now call the prosecutor) were extremely hostile to the defendants, subjecting them to various indignities. It seems that the courtroom was crowded and the proceedings were boisterous, with both Penn and Mead conducting their own defense with so much vigor and cleverness that Penn was accused by the recorder of being a "saucy", "impertinent", and "troublesome fellow."
At one point Penn was ordered to be taken away because of his arguments irritated the prosecution, and while being led away made this stirring speech about the need to protect fundamental liberties: "[I]s this justice or true judgment? Must I therefore be taken away because I plead for the fundamental laws of England? However, this I leave upon your consciences, who are of the jury (and my sole judges,) that if these ancient fundamental laws, which relate to liberty and property, (and are not limited to particular persuasions in. matters of religion) must not be indispensably maintained and observed, who can say he hath right to the coat upon his back? Certainly our liberties are openly to be invaded, our wives to be ravished, our children slaved, our families ruined, and our estates led away in triumph, by every sturdy beggar and malicious informer, as their trophies, but our (pretended) forfeits for conscience sake."
After Penn had challenged the case made by the prosecution, the judge removed the prisoners and charged the jury to look at only the facts of the case. But Penn shouted out a final appeal to the jury as he was being led away: "I appeal to the jury who are my Judges, and this great assembly, whether the proceedings of the court are not most arbitrary, and void of all law, in offering to give the jury their charge in the absence of the prisoners; I say it is directly opposite to, and destructive of the undoubted right of every English prisoner, as Coke, in the 2 Instit. 29. on the chap. of Magna Charta."
Penn's appeals to the jury must have worked because despite pressure from the judge to achieve unanimity, the jury returned after about ninety minutes with what we would now call a hung verdict, in which eight found the defendants guilty but four wanted to acquit. After scolding the four dissenting jury members, the judge sent them back to their room with instructions to come up with a unanimous decision. After considerable time they did, and the verdict on Penn spoken by the foreman was "Guilty of speaking in Grace-church street." This was a mere statement of fact and not a guilty verdict of an actual offence. The judge wanted them to convict the prisoners of causing a riot and he was furious at the jury's seeming evasion but the foreman refused to say anything more than what he had said earlier.
The judge and recorder then scolded the jury and said that they could not accept their statement as a verdict and that the jury would not be released from duty until they came back with the verdict that they wanted. The jury was then sent them back to the deliberation room again but returned after half an hour with the same verdict: "We the jurors, hereafter named, do find William Penn to be Guilty of speaking or preaching to an assembly, met together in Gracechurch-street."
The judge and recorder were enraged and the recorder issued this threat: "Gentlemen, you shall not be dismissed till we have a verdict that the court will accept; and you shall be locked up, without meat, drink, fire, and tobacco; you shall not think thus to abuse the court; we will have a verdict, by the help of God, or you shall starve for it."
The jurors were then locked up and not even allowed to have chamber pots or to go out to the bathroom so that they ended in their room for the night hungry and thirsty and cold and surrounded by their own excrement.
The next morning the jury was called in and the foreman gave the unanimous verdict: "William Penn is Guilty of speaking in Gracechurch-Street." The judge prompted: "To an unlawful assembly?" but the foreman refused to add anything to what he had said earlier. This caused an uproar in the court.
The judge and recorder again threatened the jury with starvation if they failed to bring in the "proper" verdict. The recorder was so disgusted with the jury that he wished that England could adopt the highly efficient Spanish Inquisition, then currently in vogue in the rest of Europe, saying: "Till now I never understood the reason of the policy and prudence of the Spaniards, in suffering the inquisition among them: And certainly it will never be well with us, till something like unto the Spanish inquisition be in England." But the jury foreman would not be swayed and only said: "We have given in our Verdict, and all agreed to it; and if we give in another, it will be a force upon us to save our lives."
The judge ordered them locked up in prison again for another day under the same onerous conditions. The next day when the jury was brought in, they had a new verdict: Not guilty for both Penn and Mead.
Needless to say the judge and recorder were furious and fined both the defendants and the jury for contempt, telling the jury that they had "followed your own judgments and opinions, rather than the good and wholesome advice which was given you" and ordered them jailed for non-payment of the fines.
But the jury was released soon after on the basis of habeas corpus applications and their incarceration was ruled illegal by a higher court.
I recount this story to remind us that it was due to the fortitude of people like Penn and Mead and the members of that jury that we enjoy the freedoms that are written in the Bill of Rights. They were able to stand up to coercion. The jury felt that the law prohibiting assembly and association was unjust and despite the disgusting treatment they received and the awful conditions they were subjected to, they were unwilling to compromise. By nullifying the law, they gave us a fundamental right.
US Chief Justice Harlan F. Stone would have approved: "If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant's natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law."
It is good to be reminded of the history of how hard won are those things that we now consider fundamental freedoms, especially these days when people seem to be so willing, even eager, to give them up for a false sense of security. The recent enactments of the Patriot Act and Military Commissions Act, renditions, and the use of torture have stripped people of many of their rights. We tend to feel helpless in the face of an increasingly authoritarian government and a complaisant legislature. But we, the people, have the ultimate power as members of juries. If we consistently refuse to convict people on the basis of unjust laws, then the laws have no force.
But for this to have even a chance of happening, people have to be aware of the full rights of juries. I wonder, though, how many juries today, even if they knew of this right, would have the courage and fortitude of the William Penn jury and refuse to convict on the basis of unjust laws, whatever the facts of the case.