When the Courts Turn the Law On Its Head
July 14, 1997, Orange County Register, http://www.ocregister.com

BY:  TIBOR MACHAN

THE ISSUE:A San Diego court instruction booklet for jurors blatantly contradicts case law on jury nullification.

THE WRITER: Mr. Machan teaches business ethics at Chapman University and is an adviser to Freedom Communications, Inc., the parent company of the Register.


When the courts turn the law on its head

One bulwark against tyranny in America is what we call the system of jury nullification. It means jurors are authorized to set defendants free whom the prosecution has proved guilty under existing law.

The rationale behind this system is that the ultimate sovereignty in a free society lies with the individuals who participate in the political and legal process. Thus, whatever politicians or bureaucrats have decided, if jurors consider it wrong, they can make their judgment stick, at least in the case before them.

An acquaintance of mine was recently summoned for jury duty in San Diego, and while he wasn't selected, he did receive a little booklet telling him that jury nullification is not permitted.

The pamphlet contains such statements as: "It is imperative that the jurors in each case accept the law as the judge gives it to them. Jurors must base their verdicts on the judge's instructions as to the law rather than on their own notions of what the law is, or ought to be"; "The ruling of the judge involves questions of the law -- not of fact -- and must neither be questioned by the jury as to their correctness"; and "You must base your verdict on the evidence as you will hear it in court and stipulations made by the parties, and on the law as the judge will instruct you in it."

As my acquaintance put it, he pretty much expected something like that, but was surprised at how blatant they were about it, especially when there are a number of statements on public record, from the Supreme Court and founding fathers, which clearly contradict this.

  • And he produces some of these statements of public record, which flatly contradict the handout's instructions. A few of them are especially direct: "The jury has an unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge." U.S. v. Dougherty , 473 F 2nd 1113, 1139 (1972).

  • "If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the evidence." U.S. v. Moylan , 4th Circuit Court of Appeals (1969).

  • "The jury has the power to bring a verdict in the teeth of both the law and the facts." Oliver Wendell Holmes, Horning v. D.C. , 254 US 135 (1920)

The founders of the American republic were no less explicit on this score.

Alexander Hamilton, of all people -- who is not known for his disparagement of strong government -- put the matter as follows: "Jurors should acquit even against the judge's instructions...if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong" (1804).

And Thomas Jefferson put the matter more generally: "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."

But it wasn't only these political theorists who championed jury nullification.

John Jay, the first chief justice of the Supreme Court, made the point equally explicitly: "The jury has a right to judge both the law as well as the fact in controversy" (1789).

Let me just continue to quote my baffled friend's own remarks about this issue:

"Given all this, I wondered how in the world the San Diego Courthouse could possibly get away with denying basic jury rights. And then it struck me...there is no date, no publisher, and no author printed anywhere in those juror handbooks of theirs, and on the first page there is the statement: `The information contained in this booklet is not a substitute for the instructions given you by the judge. You should disregard anything which is in conflict with such instructions.' So, there is no accountability for what's written in the booklet!

"Anyone who's read it, and that's probably everyone in the jury pool (a few hundred new ones every day), will be indoctrinated. When jurors then get assigned to various courts, the judges never even need to bring up such controversial matters...the ideas have already been implanted in the minds of the jurors by a booklet which explicitly invalidates itself! And, of course, if the judges don't mention it, then they also can't be held accountable. Very slick. What a fascinating learning experience this is!"

I think these remarks speak for themselves. Has anyone wondered what our system is coming to and why some less-than-balanced folks are going crazy over it?

One can only hope that peaceful ways are found and used to combat the deterioration of our system of justice before people are reminded of the fact that our Declaration of Independence explicitly reminds us all that when governments have become sufficiently tyrannical, we have the moral authority to overthrow them. The same sentiments are found in the grandparent of our system, John Locke's "Second Treatise on Government."

No, we haven't yet reached the point of sufficient tyranny, I think, but some folks do not understand fine nuances bearing on this topic and begin to act wildly once they see that our courts -- as well as various law-enforcement personnel -- violate the principles of the American republic without hesitation.

It is the responsibility of the rest of us to do something about all of this before matters get out of hand.

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