Posted on 12/09/2013 3:20:19 PM PST by servo1969
A Texas jury was recently lambasted in open court for committing jury nullification by visiting judge Jerry Ray because they acquitted a defendant in a driving while intoxicated (DWI) case. Judge Ray went so far as to equate the jury’s verdict with the acquittal of O.J. Simpson. Unfortunately, like many judges, Judge Ray did not understand what jury nullification is, what juries do, or his own obligations as a judge.
Jury nullification occurs when a criminal jury votes not guilty, in spite of proof of guilt beyond reasonable doubt, because they believe the law is either unjust or is being misapplied. Jury nullification has a heroic history, having laid the foundation for the First Amendment, helping to bring about an end to slavery, and precipitating the demise of Prohibition. It was because juries refused to send all killers to the gallows that American courts carved out degrees of homicide; it was because juries refused to convict women who killed their abusive husbands that courts began to recognize Spousal Abuse Syndrome.
Social change moves more rapidly than legal change, and that is probably for the best. We do not want the laws whipsawing with every trend or fad. On the other hand, we don’t need to be filling prisons with harmless people who violated laws that no longer serve to protect society. Jurors, acting in a deliberative body, are capable of properly balancing social change with the law, acting as a safety valve to prevent the law from destroying good people who have run afoul of outdated or ill-conceived legislation. In the process, jurors can send a message to the legislature as to how the law needs to change to better serve society.
In short, jury nullification is not a “bug” within the criminal justice system – it is a feature. Jury discretion was protected by the Founders, who understood that legal professionals did not have all the answers. The Founders guaranteed a right to jury trial to ensure the public has a voice in seeing that justice is done – a very different thing from merely seeing that the law is enforced. That is why the jury is so often referred to as the “conscience of the community.”
But a jury cannot nullify the law by acquitting a defendant who has not been proven guilty. The first step is for the jury to decide the evidence is adequate to prove guilt; if the jury cannot get to that point, they have nothing to nullify. There is no reason to believe the Tarrant County jury in this case nullified.
What the jury decided was that an “Intoxilyzer” (a machine that purports to measure blood alcohol levels by measuring the amount of alcohol in the breath) was not sufficiently reliable to credit in a close case. The ‘Intoxiliar,’ as criminal defense attorneys call it, came up with a blood alcohol level of .095 percent, only .015 percent over the legal limit of .08 percent. This amount – three parts in 20,000 over the legal limit – is so close the jury had an absolute right to doubt the Intoxilyzer’s accuracy.
Because the State had not proven the reliability of the machine, the jury was obligated to vote not guilty. They were left with nothing to nullify. Judge Ray should have known that.
Judge Ray’s outburst showed that if anyone was not following the law, it was Judge Ray. By chastising the jurors and describing their verdict as “one of the most bizarre [] I’ve seen,” he violated numerous provisions of the Texas Code of Judicial Conduct, which requires judges to remain impartial and to treat both litigants and jurors with patience, dignity and courtesy.
Before a judge criticizes jurors for not following the law, he should make sure that he both knows the law, and is following it himself. Judge Ray either did not understand or did not follow the laws prescribing the State’s burden of proof, or the laws regulating his own conduct in court. He did not understand what jury nullification is, either in history or practice. Texas courts should hold out a big “No Vacancy” sign when this particular visiting judge comes knocking.
THOMAS JEFFERSON (1789): I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.
JOHN ADAMS (1771): It’s not only ....(the juror’s) right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court.
ALEXANDER HAMILTON (1804): Jurors should acquit even against the judge’s instruction....”if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong.”
U.S. vs. DOUGHERTY (1972) [D.C. Circuit Court of Appeals]: The jury has....”unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge.”
Hear, hear!
Thanks Servo, : This is a interesting subject and one of the most well written articles I've seen recently. He states it well, backs his premise clearly and makes his point with out having to run on and on for three pages.....Bravo
The 1895 supreme court decision that declared that jurors need not be informed of their rights is among the worst ever.
Jurors have far more power than most people realize. They can submit questions for witnesses, decide what is and isn’t admissible etc.
Indeed.
In trial by jury the power of justice is invested in the jury, not the judge.
bkmk
That reminds me of a statement in the book “Senatorial Privilege” about Kennedy and Chappaquiddick. The author said a grand jury has a tremendous amount of power but are generally led around by the prosecutor and never know what they actually can do.
Yes. It is supremely important when notified of jury duty for prospective jurors to educate themselves on their duties, responsibilities, and authority. And each juror chosen as foreman should initially review those along with the judge’s instructions prior to deliberating on the case being tried.
The entire purpose of the jury is to ensure the government, the King, doesn’t just make bad laws and jail the people as the people have authority via the jury over what laws they will find a person guilty of violating. If the jury doesn’t like the law, so be it.
The government employees feel they, and they alone, have total authority over the people and all dictates come from them. Well, surprise, We the People also have authority. We can ignore their dictates.
Juries are truly unto themselves, yet they have bizarre limits on them, set by the courts. For example, juries may not consult the Bible when reaching a decision, but they may flip a coin. Odd in that not long ago, witnesses had to swear on the Bible.
One of the grossest abuses by a juror that made me clench my teeth was during the trial of a child killer in California. The evidence was overwhelming, and conviction was almost guaranteed. To show his contempt for the proceedings, as the jury was led to the jury room to reach their verdict, he “flipped them off”. As expected, they found him guilty.
But after conviction, one juror chimed in and said: “I was willing to give him the benefit of the doubt, until he flipped us off. Then I knew he was guilty.”
ARGH! In my opinion, that should have been enough for a mistrial. But the courts didn’t think so.
And that is the acid test of juries. By *whatever* means they reach a verdict is generally okay. If that includes nullification, then fine.
But it will almost *never* be called nullification. Which is one of the ways the courts keep a lid on nullification.
During Prohibition, juries nullified so much that the government came up with an alternative means to the same end as conviction: the injunction.
A judge would enjoin a rum runner in such a way that his civil rights were stripped from him. He no longer had freedom to travel, freedom of association, and many other things. And if he violated the injunction, he would be hauled up before the judge, not a jury, to face a “contempt of court” citation, up to six months in jail.
The civil rights era was hard on juries. Lots of crimes became federal and were moved out of local jurisdictions. While its true that racist jurors were willing to let obviously guilty men go free, the cure was worse than the disease.
I despise hate crime laws for the same reason.
The show Courage New Hampshire gave a pretty accurate depiction of colonial court proceedings. Basically the whole village took part and everyone had something to say.
The fact that British appointed judges were stepping in and handing down sentences really angered the local people and was one of the catalysts of a growing revolution.
http://www.colonybay.net/w/index.php/movie-theater/
Probably doesn’t understand why a jury of his peers is used instead a jury of judges or blood sucking lawyers!
I also think it is right in the privacy of the jury room for a jury to nullify a conviction.
It should be strongly discouraged all along the way, and any potential juror who suggests he might engage in it should be kicked of the jury.
But if it happens anyway then that is perfectly acceptable.
The best way to get rid of bad laws is to force people to live under them. If the Republicans had been less stupid they would have focused their efforts on forcing Obama to enforce ObamaCare as passed. We might already be seeing votes for its complete nullification.
Instead we'll have to wait until enough people get screwed over to want to vent their anger at the Dems. Now it looks like that might not be until it's too late.
It is the duty to convict those, who in the totality of their actions and above reasonable doubt, were guilty of violation of legitimate law and to acquit all others. I consider “legitimate law” to mean law including the penalty being imposed. There have been cases where a defendant committed a minor crime, but because of “three strikes” laws, would face an unbearable and unjust prison term. I could not vote guilty in those cases.
The judicial system too often conspires with the legal establishment, legislatures and law enforcement to act as instrument of oppression.
Whenever I am called to jury duty I tell the judge that if the law which the defendant was charged or the manner of his prosecution were clearly in violation of the Constitution, it is my duty to vote to acquit. They ask me to leave without talking to any other prospective jurors.
I have jury duty tomorrow. Try everything i can to get out of the corrupt machine.
Is that for both Petite and Grand Jurys
Two people in the US are needed to substantially reform federal judicial abuses, the chairmen of the house and senate judiciary committees.
If both of them are conservatives, with a conservative POTUS, there is hopefully going to be a lot of judicial reform.
To start with, the structural organization of the federal courts needs rearranging in several ways, such as dividing the 9th Circuit and making a more orderly process of the 8,000 or so appeals to the SCOTUS every year, which can only handle a few dozen cases.
Appeals of local and state issues that have been federalized, are often utterly petty and redundant. They need to have divined outcomes so substantially similar cases don’t clog the federal courts year after year. (The best example being the Alaska public school case of “Bong Hits for Jesus”, that has made it to, and been accepted by, the SCOTUS, twice!)
Next, state death penalty appeals can be easily streamlined without impairing any justice at all. Just declaring that states are competent to carry out executions without challenge by itself would half the time of such appeals.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.