JURY NULLIFICATION
by Julian Heicklen
LWRN Podcast, September 25, 2010

History
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 verdict.

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 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, 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 Court 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 Goetz

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.

Marion Barry
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.[27][28] After scolding the jurors for not following his instructions, the judge declared a mistrial on the remaining charges.

As a result of his arrest and the ensuing trial, Barry decided not to seek reelection as mayor.[29] In the midst of his campaign for a city council seat, Barry was sentenced to a six-month federal prison term in October 1991.[30]

Rodney King
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.

O. J. Simpson
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 1994.

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 guilt.

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.

Cases for 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, PA.
   
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 traffic law.

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 children.

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 into it.

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 sure.

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 currency).   

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 secretary.

Housing discrimination was ended in California.  Civil disobedience does work, and no-one was physically hurt.
FIJA Actions
   
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.

Julian Heicklne activities
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.