by Julian Heicklen
LWRN Podcast, September 25, 2010
Juries originally were introduced into England to protect the
individual from the tyranny of government. The first case in which
juries nullified a law was that of William Penn and William Mead in
England in 1670 The jurors refused to convict the two Quaker activists
charged with unlawful assembly. The judge refused to accept a verdict
other than guilty, and ordered the jurors to resume their deliberations
without food or drink. When the jurors persisted in their refusal to
convict, the court fined them and committed them to prison until the
fines were paid. On appeal, the Court of Common Pleas ordered the
jurors released, holding that they could not be punished for their
Jury nullification was introduced into America in 1735 in the trial of
John Peter Zenger, Printer of The New York Weekly Journal. Zenger
repeatedly attacked Governor William Cosby of New York in his journal.
This was a violation of the seditious libel law, which prohibited
criticism of the King or his appointed officers. The attacks became
sufficient to bring Zenger to trial. He clearly was guilty of breaking
the law, which held that true statements could be libelous. However
Zenger's lawyer, Andrew Hamilton, addressed himself to the jury,
arguing that the court's law was outmoded. Hamilton contended that
falsehood was the principal thing that makes a libel. It took the jury
only a few minutes to nullify the law and declare Zenger not guilty.
Ever since, the truth has been a defense in libel cases.
Several state constitutions, including the Georgia Constitution of 1777
and the Pennsylvania Constitution of 1790 specifically provided that
"the jury shall be judges of law, as well as fact." In Pennsylvania,
Supreme Court Justice James Wilson noted, in his Philadelphia law
lectures of 1790, that when "a difference in sentiment takes place
between the judges and jury, with regard to a point of law,...The jury
must do their duty, and their whole duty; They must decide the law as
well as the fact." In 1879, the Pennsylvania Supreme Court noted that
"the power of the jury to be judge of the law in criminal cases is one
of the most valuable securities guaranteed by the Bill of Rights."
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
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, 342 US 246), 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."
Likewise, in 1968, (Duncan v. Louisiana, 391 US 145) the U. S.
Supreme Court 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."
In a 1972 decision (U. S. v. Dougherty, 473 F 2nd 1113, 1139), the
said: "The pages of history shine on instances of the jury's exercise
of its prerogative to disregard instructions of the judge."
In recent times, the courts have tried to erode the nullification
powers of juries. Particular impetus for this was given by the fact
that all-white juries in the southern states refused to convict whites
of crimes against blacks. As a result there is a practice of judges to
incorrectly instruct the jury that the judge determines the law, and
that the jury is limited to determining the facts. Such an instruction
defeats the purpose of the jury, which is to protect the defendant from
the tyranny of the state. Judges or expert witnesses can determine the
facts better than juries can. The purpose of the jury is to protect the
defendant from the tyranny of the law.
The problem with the all-white juries that refused to convict whites
that committed crimes against blacks was not in jury nullification, but
in jury selection. The jury was not representative of the community and
would not provide a fair and impartial trial.
In recent years, jury nullification has played a role in the trials of
Mayor Marion Barry of Washington, DC for drug use and Bernhard Goetz
for his assault in a New York City subway.
In Les Miserables, Victor Hugo highlighted the difference between
justice and law. The jury's responsibility is to deliver justice, not
to uphold the law. Judges in Maryland and Indiana are required by law
to inform the jury of its right to nullification. Article 23 of the
Maryland Bill of Rights states:
"In the trial of all criminal cases, the Jury shall be the judge
of Law, as well as of fact, except that the Court may pass upon the
sufficiency of the evidence to sustain a conviction."
Nullification applies just as much in other states, including
Pennsylvania. Article I of the Constitution of the Commonwealth of
Pennsylvania states in Section 6: "Trial by jury shall be as heretofore
(emphasis mine), and the right thereof remain inviolate." Section 25
states: "To guard against transgressions of the high powers which
we have delegated, we declare that everything in this article is
excepted out of the general powers of government and shall forever
remain inviolate." Taken together, these two sections mean that juries
shall have the powers that they had "Heretofore." i. e. when the
Constitution was adopted.
Judges usually do not inform the jury of this right. Even worse, some
judges instruct the jury that it does not have the right to interpret
or nullify the law, but only to determine the facts. Near the end of
alcohol prohibition, juries refused to convict for alcohol violations.
Has the time arrived for juries to do the same for marijuana violations?
Jury nullification has played a role in several more
recent trials. Four cases described by Wikipedia are:
Bernard Hugo Goetz, publicly known as Bernhard Goetz or as Bernie
Goetz, is an American man best known for shooting four young men whom
he said were intent on mugging him, resulting in his conviction for
illegal possession of a firearm. Goetz came to symbolize New
Yorkers’ frustrations with the high crime rates of the mid 1980s.
The incident occurred on the Seventh Avenue 2 express subway train in
Manhattan on December 22, 1984. It sparked a nationwide debate on
vigilantism, the perceptions of race and crime in major cities, and the
legal limits of self-defense.
Goetz fired an unlicensed revolver five times, seriously wounding all
of the would-be muggers. The initially unknown shooter, dubbed the
"Subway Vigilante" by the New York press, was both praised and vilified
in the media and in public opinion.
Goetz surrendered to police nine days later and was
eventually charged with attempted murder, assault, reckless
endangerment and several firearms offenses. A Manhattan jury found him
not guilty of all charges except an illegal firearms possession count,
for which he served two-thirds of a one-year sentence. The incident has
been cited as a contributing factor to the groundswell movement against
urban crime and disorder, and successful National Rifle Association
campaigns to loosen restrictions on the concealed carrying of firearms.
On January 18, 1990, Barry was arrested with a
former girlfriend, Hazel "Rasheeda" Moore, in a sting operation at the
Vista Hotel by the FBI and D.C. Police for crack cocaine use and
possession. The incident was widely broadcast on television,
showing an enraged Barry excoriating Moore, who had become an FBI
informant. The outburst, in which Barry muttered, in part, "Bitch set
me up," became a popular quote associated with Barry.
Barry was charged with three felony counts of
perjury, 10 counts of misdemeanor drug possession, and one misdemeanor
count of conspiracy to possess cocaine. The criminal trial ended in
October 1990 with a conviction for only one possession incident, which
had occurred in November 1989, and an acquittal on another. The jury
hung on the remaining charges. Six or seven jurors (of whom two were
white and the rest black) believed that the evidence against Barry was
overwhelming and that he had displayed "arrogance" during the trial.
Against these, five black jurors were convinced that the prosecution
had falsified evidence and testimony as part of a racist conspiracy
against Barry, and even disputed factual findings that had not been
contested in court. After scolding the jurors for not following
his instructions, the judge declared a mistrial on the remaining
As a result of his arrest and the ensuing trial,
Barry decided not to seek reelection as mayor. In the midst of his
campaign for a city council seat, Barry was sentenced to a six-month
federal prison term in October 1991.
Rodney Glen King (born April 2, 1965) is an American who
was famously the victim in a police brutality case involving the Los
Angeles Police Department (LAPD) on March 3, 1991. A bystander, George
Holliday, videotaped much of the incident from a distance.
The footage showed LAPD officers repeatedly striking
King with their batons while other officers stand to watch without any
action to stop the brutal beating. A portion of this footage was aired
by news agencies around the world, causing public outrage that raised
tensions between the black community and the LAPD and increased anger
over police brutality and social inequalities in Los Angeles.
Four LAPD officers were later tried in a state court
for the beating but were acquitted. The announcement of the acquittals
sparked the 1992 Los Angeles riots. A later federal trial for civil
rights violations ended with two of the officers found guilty and sent
to prison and the other two officers found not guilty.
The problem with this case is not jury
nullification. Amendment VI of the U. S. Constitution requires that the
trial be “by an impartial jury of the State and district
wherein the crime shall have been committed.” That was not
the case here, because the crime was committed in Los Angeles County,
but the trial was held in Santa Barbara County. The defense
claimed that the police officers could not get an impartial jury in Los
Angeles County. So the judge moved it to Santa Barbara County
where a large number of police officers live.
The O. J. Simpson murder case (officially called the People v. Simpson)
was a criminal trial held in the Los Angeles County, California,
Superior Court in which former American football star and actor O. J.
Simpson was charged with two counts of murder following the deaths of
his ex wife Nicole Brown Simpson and her friend Ronald Goldman in June
The case has been described as the most publicized criminal trial in
American history. Simpson was acquitted after a lengthy trial that
lasted over nine months—the longest jury trial in California
history. Simpson hired a high-profile defense team initially led by
Robert Shapiro and subsequently led by F. Lee Bailey and Johnnie
Cochran. Los Angeles County believed it had a solid prosecution case,
but Cochran was able to persuade the jurors that there was reasonable
doubt about the DNA evidence (then a relatively new type of evidence in
trials) - including that the blood-sample evidence had allegedly been
mishandled by lab scientists and technicians - and about the
circumstances surrounding other exhibits. Cochran and the defense team
also alleged other misconduct by the Los Angeles Police Department.
Simpson's celebrity and the lengthy televised trial riveted national
attention on the so-called "Trial of the Century." By the end of the
criminal trial, national surveys showed dramatic differences between
most blacks and most whites in terms of their assessment of Simpson's
Later, both the Brown and Goldman families sued Simpson for damages in
a civil trial. On February 5, 1997, a jury unanimously found there was
a preponderance of evidence to hold Simpson liable for damages in the
wrongful death of Goldman and battery of Brown. On February 21, 2008, a
Los Angeles court upheld a renewal of the civil judgment against him.
The OJ Simpson case was not really a jury nullification case.
No-one wants to nullify murder. OJ Simpson was found not guilty
because there was reasonable doubt. There were no witnesses, no
weapon, or no bloody clothes. The glove he supposedly used did
not fit his hand. The lead prosecution witness lied under
oath. The jury had no choice but to find OJ not guilty, even
though everyone believes that he did commit the murder.
which I have personal knowledge
I was arrested 15 times in Centre County, PA.
As a result, I became friendly with the district attorney. He told me
that he had an airtight obscenity case against the area adult book
store owner. However the jury found him not guilty. The district
attorney told me that he would never try another obscenity case, and he
never did. The jury had nullified the obscenity law in Centre County,
Once I was driving on Teaneck Road in Teaneck, NJ. I made an
illegal U-turn so I could park in a parking lot across the street. As I
parked my car a police officer appeared and told me that I had just
broken the law. However, when he realized what a pathetic person I am,
his heart softened, and he just gave me a warning. He had nullified a
I as arrested for demonstrating across from the UN building on April
17, 2007, when President Mahmoud Ahmadinejad of Iran gave a speech. The
charge was failure to obey an order of a police officer. At
arraignment, I was told to appear in court on July 17, 2007. I asked
the court by mail to explain the reason for the appearance, since I was
not committed at arraignment. I received no response, so I notified the
court that I would not appear.
By telephone, I was notified by the Clerk of Court that an arrest
warrant would be issued if I did not appear. I did not appear,
and the warrant was issued. Three years later on May 25, 2010, I
was arrested under the warrant by federal marshals. I spent two weeks
in Riker’s Island before I was brought into court. The
prosecuting assistant district attorney dismissed the case in the
interest of justice. The prosecuting attorney nullified the law. I
assume that this is standard operating practice for law enforcement.
Punish first, then dismiss the case.
The most interesting and important nullification was made by a judge.
In fact he nullified two laws at once. When I lived in Los Angeles, I
was the action chairman for the Los Angeles Congress of Racial Equality
in 1962. One day a young black couple came to us and told us that they
had tried to buy a house in Wilmington, a suburb of Los Angeles, but
were denied. The husband was a postal worker, and they had small
Their story was that the wife had found a house in the housing tract
that she fell in love with and wanted very badly. They offered to
buy, and were told OK if the mortgage arrangements were accepted by the
loaning institution. Several days later, they were informed that their
mortgage had been denied.
However the wife wanted this house very badly, so they made their own
financial arrangements, returned to the housing tract, and said that
they could pay cash for the house. They were informed that the house
had been sold. Then they came to us. I told them that we would look
The next week, I sent a white woman to the tract to see if the house
was sold. Of course it was not. The sales person was very
interested in selling the house to the woman. She said that she was
very interested, but her husband had to look at it. the salesman said
The following Sunday, I appeared at the housing tract, said that I was
the woman’s husband, and that I would like to take some
measurements to see if our furniture and drapes would fit. The salesman
was agreeable and gave me the keys to the house.
I opened the house, and the Congress of Racial Equality moved in.
Simultaneously our public relations staff sent telegrams to the U. S.
President, the U. S. attorney, general, the California governor, the
California attorney general, all the area police and sheriff
departments, all the news media, and the local municipal officials
notifying them that now the Los Angeles Congress of Racial Equality
owned the house. If the builder would come to the door with the deed,
we would give him the money.
Then the party started. We lived in the house. We were news n all the
county media. People came to visit us, primarily from the black
community, and brought us food. It was big long party. The neighbors
were furious. After one week, at 4:00 am, the occupants of the house
were arrested. The locks were changed on the house doors, so we moved
onto the lawn. If they neighbors objected to us in the house,
they were more furious that we were living on the lawn. The arrests
continued. Our people were arrested 4 times before we had a court
appearance. We were defended by the Los Angeles branch of the American
Civil Liberties Union, by two lawyers, one of whom had the fitting name
of Abraham Lincoln Wirin, and the other was Fred Okrand.
The judge heard this case and nullified two laws at once. We were
guilty of trespassing, and the builder was guilty of violation the fair
housing ordinance, but the judge dismissed the case. However, he placed
both sides under court orders. the Congress of Racial Equality was
ordered to leave the housing tract and stay out.
The builder was ordered to obey the fair housing act, whose penalty
ordinarily was a $100 fine. The builder was the largest builder in
northern and southern California. At the time he had $194 million
dollars worth of houses (about $3 billion in current
Both sides knew that if they disobeyed the order they would be
imprisoned. The next week an identical house one block away was sold to
the couple, because there had been some damage to the original house.
The builder opened all of his housing tracts to the previously
discriminated groups, which included, blacks, Latinos, and east Asians.
Meanwhile we had been negotiating with Home Savings and Loan, the
biggest mortgage lender in southern California. They agreed to provide
the mortgage money. Not only that, but the President of Home
Savings and Loan hired one of our black women to be his executive
Housing discrimination was ended in California. Civil
disobedience does work, and no-one was physically hurt.
Duty of the Jury
A federal court judge is required by court rules to
instruct the jury
that it must uphold the law as he gives it to them. He will be
lying. The jury must judge the law as well as the facts. Juries
were instituted to protect the citizens from the tyranny of government.
It is not the duty of the jury to uphold the law. It is the
jury’s duty to see that justice is done.
The American Jury Institute is dedicated to educating the public about
Jury nullification. Its supporters are spreading the message at
courthouses all over the country.
I have distributed FIJA literature at 20 U. S. Courthouses. At ten of
these, I was not bothered by police. In Philadelphia, PA, Trenton, NJ,
Alexandria, VA, Washington, DC, Albany NY, and Pittsburgh, PA, the
federal police tried to drive us away, but we would not leave, so
they left us alone. In Allentown, PA, at our first visit, George
Donnelly was arrested for photographing on federal property. At three
subsequent visits, no federal officers even approached us.
We have demonstrated in Manhattan 12 times. Once bile was arrested for
photographing on federal property. Ten times I was arrested and once I
was robbed for distributing literature. At a later date, I hope
that both bile and George will tell their stories on this show. In
addition I have been arrested at the one appearance I made in both
Springfield, MA, and Newark, NJ.
In Newark, Springfield and 9 times in New York, I have been sent to
hospitals for extraordinary rendition. Now I am the defendant in three
criminal trials at the three locations where I have been arrested. Also
I have filed a civil claim against the Department of Homeland Security,
the New York City Fire Department, three hospitals, and the U. S.
Central Violations Bureau. In addition, I filed criminal complaints
against the above parties with both the federal and NY State grand
juries, but those complaints have been ignored.