Jury nullification is the acquiting of a defendant by a jury through a verdict of ‘not guilty’ by disregarding the court’s judgment and its own findings of the facts. A difference of opinion in the decisions of a judge and jury has always been controversial and debatable. A jury is distinguished from a judge in being a panel of many citizens representing a cross-section of society. Proponents of jury trials advocate that many brains are better than one, and they can function synergistically to arrive at a better decision. Moreover, it is difficult to bribe or influence many members simultaneously compared with influencing one judge, who is easier to bribe. The professional inexperience enables the jury to review a case in spirit without remaining within the confines of the letter of the law.
1. Trial of John Peter Zenger
John Peter Zenger was a New York printer who published the material against the ill-reputed governor of New York, William Cosby. In August, 1732 Cosby filed a suit demanding shares of Rip Van Dam’s salary. Van Dam was a 71-year-old, respectable member of New York and had been acting governor of New York prior to the arrival of Cosby. Knowing that the jury may not necessarily be in his favor, Cosby designated a hand-picked court of Ex-Chequer, a court without a jury. The trial opened in New York City Hall on August 4, 1735, and Bradley, the Attorney General, told jurors that Zenger was a seditious person and had published false news and seditious libel. After the jury had deliberated, the jury foreman, Thomas Hunt, stated the verdict of the jury was: ‘Not Guilty.’
2. Dr. Jack Kevorkian
Dr. Jacob Kevorkian’s acquittal was a high-profile jury nullification in the recent past. Also known as Dr. Death, he was a pro-euthanasia activist and is best known for his publicly speaking in favor of the terminally ill people’s right to die at their request. According to his own statement, he had assisted at least 130 patients in dying. He advocated ‘dying is not a crime.’ Dr. Kevorkian made a video film of himself while he was injecting the lethal injection into a paralyzed, 52-year-old patient Thomas Youk. CBS television televised the film in CBS’s news program 60 Minutes. Dr Kevorkian was tried five times during ten years for assisting in the death of terminally ill persons, and in all the cases he had violated laws against assisted suicide. A Michigan jury finally found him guilty of second-degree murder in the death of Thomas Youk.
3. William Roger Clemens
William Roger Clemens is a former American baseball starting pitcher who was 11 times an All-Star and twice a World Series Champion. On February 13, 2008, he appeared before a Congressional committee along with McNamee, a personal trainer, who testified against Clemens. On the other hand, Clemens swore under oath that he did not take steroids, did not discuss HGH, Human Growth Hormones with McNamee, did not attend a party at Jose Canseco’s home, and was only injected with B-12. In January, 2009, a grand jury indicted Clemens on six accounts including perjury. Clemens was re-tried, and on June 18, 2012 was found not guilty and acquitted of all six charges against him.
4. R. V. Krieger, 2006 SCC 47
R. V. Krieger, 2006 SCC 47 is a famous jury nullification case in Canada. The parties to the action were Grant Wayne Krieger, Appellant, and Her Majesty the Queen as Respondent. Mr. Krieger suffered from a debilitating illness; therefore, he had grown cannabis to get marijuana for his treatment, and he also provided it to others. For the unlawful possession of cannabis, he was indicted on September 29, 1999 in the court of the Queen’s Bench of Alberta. The Supreme Court in this case confirmed that ‘juries in Canada have the power to refuse to apply the law when their consciences require that they do so.’ Within this decision, it is stated that ‘juries are not entitled as a matter of right to refuse to apply the law ” but they do have the power to do so when their consciences permit of no other course.’
5. Bushel’s Case, (1670) 124 E.R. 1006
William Penn and William Meads, two Quakers, also known as members of the Religious Society of Friends, were arrested in August, 1670 for violating the Conventicle Act, which prohibited the assembly of more than five people outside the Church of England. The jury found them guilty but did not add ‘unlawful assembly’ to the charges. The angry judge instructed the jury that ‘they shall not be dismissed until we have a verdict that the court will accept.’ The jury refused to convict Penn, despite pressure from the Lord Mayo who said to the jury, ‘You shall go together and bring in another verdict, or you shall starve.’ The judge found the jury in contempt of court and fined it, but a member of the jury, Edward Bushel, refused to pay the fine; therefore, the case is known as Bushel’s Case.
6. James Hickok’s Trial
In the pre-Civil War era in America, some juries refused to convict for violations of the Fugitive Slave Act, and that was the beginning of jury nullifications in America. Later on, the juries’ nullified alcohol control laws in about 60 percent of cases. On July 21, 1865, Wild Bill Hickok and the cowboy Davis Tut had a one-on-one pistol quick-draw duel in the town square of Springfield, Missouri. Judge Sempronius Boyd first instructed the jury that conviction was their only option under the law but later instructed them that they could apply the unwritten law of a fair fight and acquit whereupon Hickok was acquitted.
7. Shadrach Minkins
Shadrach Minkins was an African-American fugitive slave who fled in 1850 and settled in Boston, Massachusetts. A year after that, Congress enacted the Fugitive Slave Law which allowed the federal agents to capture the escaped slaves and hand them over to their owners. On February 15, 1851, the U.S. marshals arrested him, but members of the Anti-slavery Boston Vigilance Committee freed him from the marshals by force and sent him to Montreal. President Millard Fillmore received calls to help the marshals enforce the law by using federal troops. Fillmore called on the citizens of Boston to respect the law and ordered the prosecution of Minkins’ liberators, but the juries did not convict any of them.
8. United States v. Dougherty, 473 F.2d 1113
In 1972, the United States court of Appeals for the District of Columbia ruled that members of the ‘D.C. Nine’ who had broken into Dow Chemical Company and had vandalized it were not entitled to a retrial on the basis of the judge’s failing to allow a jury nullification instruction. The Appeals Court by 2-1 vote ruled ‘The fact that there is the widespread existence of the jury’s prerogative’¦does not establish as an imperative that the jury must be informed by the judge of that power’¦’ However, the defendants were allowed an opportunity for a retrial on the basis that they had been denied their right of self-representation.
9. Georgia v. Brailsford, 3 U.S. 1 (1794)
It is had been a general assumption that it was for juries to judge the facts and for the courts to judge the law. Georgia v. Brailsford clarified the ambiguity, and the case is often cited as a precedent by the proponents of jury nullifications. Keeping in mind the juries, the first Chief Justice John Jay wrote, ‘It is presumed that juries are the best judges of the facts; it is, on the other hand, presumed that courts are the best judges of the law. But still both objects are within your power of decision’¦you have a right to take it upon yourselves to judge both, and to determine the law as well as the facts in controversy.’
10. Julian Heicklen
In June, 2010, Julian Heicklen of Teaneck, New Jersey was found distributing pamphlets that were promoting jury nullification. These posters were distributed outside the Federal Court in Manhattan. The contents of the pamphlets urged the potential jurors to go after their conscience in case they disagreed with the law or government’s stance. The pamphlets contained the statement: ‘Juries were instituted to protect citizens from the tyranny of the government’¦’ U.S. District Judge Kimba Wood dismissed the indictment ruling that ‘The court holds that a person violates the statute only when he knowingly attempts to influence the action or decision of a juror upon an issue or matter pending before that juror…Heicklen was not addressing a specific case or issue before an active juror.’
Shakespeare’s drama The Merchant of Venice enlightens us on the need for merciful justice which cannot be left to the letter of the law only. Jury nullification is a sort of check on the Shylock approach.
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