Jury Nullification

Some of you may have heard about a juror who was dismissed from his jury for asking the judge to specify where in the Constitution the federal government's authority to ban drugs was.  (Background at the Volokh Conspiracy) The judge produced a 40-page memorandum explaining his decision to strike that juror from the jury after deliberations have begun.  The juror doesn't get quite the same platform but still tells his side of the story.

It's shameful that the long and mostly proud tradition of jury nullification as a check on government abuse has been reduced to the point where a juror must lie about his reasons for refusing to convict in order for his decision to stand. 

Jury nullification has never been the easiest right to exercise.  The case from which the principle was derived required the jurors to endure lengthy imprisonment during their "deliberations" before the government accepted their verdict.  In this case the government didn't even have to do that; they simply swapped in an alternate juror who rendered the approved verdict.

The defendent in this case should already be writing his appeal.  And we had best hope he wins, however disreputable he may be as an individual.  Otherwise jury nullification as a practical restraint on government power is in dire jeopardy.

The Anti-Defamation League has expressed outrage that Jefferson County Treasurer Mark Paschall has used his elected status in distributing handbooks that urge jurors to follow religious beliefs and not established law.

"The belief that he is espousing is consistent with extremist groups that we have concerns about," said Bruce DeBoskey, the regional ADL director.

"This is extremist, this is the Patriot movement, this is the anti-government movement," DeBoskey said Wednesday. "He is using his official position to add legitimacy to an extremist philosophy that undermines our government."

The pocket-sized guides promote "jury nullification," a concept that politically conservative groups argue means jurors have the right not only to decide guilt or innocence but also whether laws are just and are in keeping with God's law.

I am flabbergasted that a so-called "rights group" can claim with a straight face that jury nullification is a religious issue. But then, their credibility as a rights group was completely destroyed when they started to talk about "extremists" and "Patriots".

What we really have here, folks, is not a "rights group", it's a cult-watch group -- the same sort of crowd that insists militias are really racists. There are some legitimate cults out there, to be sure, and some legitimate groups to raise awareness of them -- but the extremists are more interested using the cult label against their political opponents.

According to arrest documents, U.S. District Court Judge G. Ross Anderson charged Mr. Cummings after he attempted to hand out flyers to passersby outside the G. Ross Anderson Federal Courthouse during jury selection at Mr. Gibbs? trial on Monday. The flyers contained information from a group called the Fully Informed Jury Association of South Carolina about jury tampering and jury rights.

Mr. Hagen was arrested when he refused to give his last name when the judge asked him to identify himself. Supporters said Mr. Hagen, who only identified himself as "Bruce" to the judge, was not required to give his name because he was a spectator and not a part of the court proceedings.

The exact reason for Mr. Gibbs? contempt arrest was not available Tuesday. All three men were brought to the jail by federal marshals. They were not processed, so booking reports with charging information were not available.

How exactly is this not a violation of the First Amendment?

There's an interesting discussion of jury nullification at Damnum Absque Injuria and Patterico's blog, sparked by comments from Radley Balko.  The lawyers are coming down against the nullification concept; this should not surprise anyone, since lawyers generally feel that only they are qualified and trained to interpret the law.  Patterico is a prosecutor and thus clearly subject to a professional bias against the idea.  But the discussion seems to be missing the point.

Jury nullification is specifically related to judging the law as well as the facts.  Refusing to convict because the cops are allegedly racists or the defendent is cute isn't jury nullification.  The case of Carl Rowan, which I've discussed before, is a good example.  Sometimes the law is wrong; that's why we have juries.

XLRQ continues the discussion with a proposal for line-item jury verdicts.  I'm not buying; such verdicts would only provide an excuse to appeal jury verdicts and would weaken the double-jeopardy protections unacceptably.