A curious theme appears to be emerging in the Granite State with regard to the NH Republican Party and its stated objectives. The NH GOP's platform specifically states that the party supports expressly acknowledging the right of jury nullification (find some historical opinions on the matter here). Just as the NH GOP's platform specifically states that the party supports the right to record cops, thereby holding public servants accountable (which also resulted in some recent confusion).
The Legal System
The Republican Party believes that the New Hampshire Advantage is, in part, secured and promoted by a legal system that upholds the safety, values and freedoms of law-abiding citizens. We will work to maintain a legal system that provides every citizen prompt and impartial justice by: ...
* Support jurors being instructed on the right of jury nullification
And yet somehow the GOP-dominated House Judiciary Committee nevertheless managed to unanimously recommend killing HB146, 'relative to the right of jury nullification,' NH's 2011 "fully informed jury" bill. Here's the majority opinion blurb published in the House Calendar, where it was placed on the Consent Calendar, with other "non-controversial" bills:
HOUSE CALENDAR
CONSENT CALENDAR
WEDNESDAY, FEBRUARY 23
JUDICIARY
HB 146, relative to the right of jury nullification. INEXPEDIENT TO LEGISLATE.
Rep. Gregory M Sorg for Judiciary: This bill would require judges in all court proceedings to “instruct the jury of its inherent right to judge the law and the facts and to nullify any and all actions they find to be unjust.” The committee concluded that, as drafted, this bill would incorrectly instruct the jury to put the law on trial rather than the application of the law in the case actually before it. The committee further concluded that the so-called “Wentworth” instruction, by which the judge instructs the jury that if it finds that the prosecution has proved all of the elements of the crime beyond a reasonable doubt, it should find the defendant guilty, adequately informs the jury of its unquestioned right of nullification without misleading it. Vote 15-0.
By all indications, much party chaos, embarrassment and hysteria ensued, as it discovered the transparently tenuous nature of its own allegiance to principle, on display for all to appreciate. Here is the subsequent floor debate, mere days later, to salvage both intended citizen control over government, and Republican self-respect, 2/23/2011. The result? Back to Committee. We're gonna keep doin' this until you get it right...! Thank you, Speaker O'Brien.
The NH House Judiciary Committee hears testimony on HB1452, "relative to jury nullification," 1/16/2014. In 2011, HB146 (here's another source for the bill, itself) was passed and signed (following in the wake of 2010's less successful HB1347 and 2007's HB906). It's current law. It "permits" defense attorneys to advise juries of the jury's right -- the characterization of that law -- to nullify. So now, some defense attorneys enlighten them, and some don't. Don't all defendants have a right to a similarly informed jury?
The Executive Branch -- represented by the AG's office -- and the Judicial Branch lobby hard (once again) in opposition, that the jury's nettlesome right should be kept from them because it could hinder convictions. One former defense attorney even argued that, basically, if nullification weren't part of his defense strategy, he wouldn't want the jury to nullify, and so he wanted the option to not inform them. Evidently that would be a "tainted acquittal." Or something. Huh...? It's a secret, you see, that juries must discover for themselves. Just as the Supreme Court decided that if you don't demonstrably know you have a right to remain silent, well, then you don't.
Surprise, surprise... 'Course, in the 6 or 7 years that I've been haunting committee hearings with cameras, I cannot recall the AG's office ever advocating in defense of liberty, sad to say. Let me say that again: I don't believe I've ever been pleased with the AG's position on pending legislation. If anybody can point me to hearing video I have where they exhibited a respect for anything other than unrestrained authority and its unrelenting enforcement, I'd love to have my memory demonstrated faulty. It's the second thing to go, I hear -- although I can't remember the first...
Herewith, testimony before the NH Senate Judiciary Committee on HB133, "relative to a jury's determination as to the applicability of law." 4/25/2017. The question of whether juries have the rightful authority, regardless of the State's preferences, to judge not only the facts of a case, but the offended statute at issue -- jury nullification -- was settled (again) in NH in 2012, with the eventual gubernatorial signature on 2011's HB146, which at least restored the right of the defense to present to the jury the possibility of it exercising its collective conscience. The intention of this bill is to settle whether servant government, itself, needs to outwardly come to terms with that established fact.
But first by request, the isolated testimony of NH Liberty Alliance Political Director, the Honorable Dan McGuire.
And, of perhaps most note here, some of the historical (even official judicial) recognition (that the self-interested Attorney General and police prosecutor and Judicial Branch attorney in attendance this day, you will surely note, nevertheless choose conveniently to ignore) of the jury's clear and necessarily rightful authority to judge both fact and law. The People run this shop, and the juries that by design represent and run interference for them -- "12 good men and true," and not the government they hire, not their servants -- are the final arbiters of the society that they want.
"We recognize, as appellants
urge, the undisputed power of the jury to acquit, even if its verdict is
contrary to the law as given by the judge, and contrary to the evidence.
This is a power that must exist as long as we adhere to the general verdict
in criminal cases, for the courts cannot search the minds of the jurors to
find the basis upon which they judge. If the jury feels that the law under
which the defendant is accused, is unjust, or that exigent circumstances
justified the actions of the accused, or for any reason which appeals to
their logic of passion, the jury has the power to acquit, and the courts
must abide by that decision."
-U.S.
4th Circuit Court of Appeals for the District of Maryland-
Source: US vs
Moylan, 417 F 2d 1002, 1006 (1969) http://quotes.liberty-tree.ca/quote_blog/U.S..Court.of.Appeals.for.the.District.of.Maryland.Quote.E7D7
"It may not be amiss, here, Gentlemen, to remind you of the good old rule,
that on questions of fact, it is the province of the jury, on questions of
law, it is the province of the court to decide. But it must be observed that
by the same law, which recognizes this reasonable distribution of
jurisdiction, you have nevertheless a right to take upon yourselves to judge
of both, and to determine the law as well as the fact in controversy. Both
objects are lawfully within your power of decision."
-Chief Justice John
Jay-
Georgia v. Brailsford, 1794
"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."
-Thomas
Jefferson-
to Thomas Paine, 1789. ME 7:408, Papers 15:269
"If a juror accepts as the law that which the judge states then that juror
has accepted the exercise of absolute authority of a government employee and
has surrendered a power and right that once was the citizen's safeguard of
liberty, -- For the saddest epitaph which can be carved in the memory of a
vanished liberty is that it was lost because its possessors failed to
stretch forth a saving hand while yet there was time."
-George
Sutherland-
(1862-1942) U. S. Supreme Court JusticeSource: 2 ELLIOTS
DEBATES, 94, BANCROFT, HISTORY OF THE CONSTITUTION, p.267, 1788
"If a juror feels that the statute involved in any criminal offence is
unfair, or that it infringes upon the defendant's natural god-given
unalienable or constitutional rights, then it is his duty to affirm that the
offending statute is really no law at all and that the violation of it is no
crime at all, for no one is bound to obey an unjust law."
-Harlan
F. Stone-
12th Chief Justice U.S. Supreme Court
"The law itself is on trial quite as much as the cause which is to be
decided."
-Harlan
F. Stone-
12th Chief Justice U.S. Supreme Court
Source: 1941
"For more than six hundred years -- that is, since the Magna Carta in 1215
-- there has been no clearer principle of English or American constitutional
law than that, in criminal cases, it is not only the right and duty of
juries to judge what are the facts, what is the law, and what was the moral
intent of the accused; but that it is also their right, and their primary
and paramount duty, to judge the justice of the law, and to hold all laws
invalid, that are, in their opinion, unjust, oppressive, and all persons
guiltless in violating or resisting the execution of such laws."
-Lysander
Spooner-
(1808-1887) Political theorist, activist, abolitionist
Source: AN
ESSAY ON THE TRIAL BY JURY p. 11 (1852)
"The pages of history
shine on instances of the jury's exercise of it's prerogative to disregard
instructions of the judge."
-U.S.
Court of Appeals for the District of Columbia-
Source: US v. Dougherty,
473 F 2nd 1113, 1139, (1972)
"To render the magistrate a judge of truth, and engage his authority in the
suppression of opinions, shews an inattention to the nature and designs of
political liberty."
-Robert
Hall-
(1764-1831)
Source: An Apology for the Liberty of the Press, 1793
"The jury has the right to determine both the law and the facts."
-Samuel
Chase-
(1741-1811) Signatory to the United States Declaration of
Independence as a representative of Maryland, Associate Justice of the
United States Supreme Court
Source: 1796
"... Jury nullification is the undisputed power of the jury to acquit, even
if its verdict is contrary to the law as given by the judge and contrary to
the evidence."
-State v. Hokanson, 140 N.H. at 721B906-
cited and reiterated
in State of NH v Sanchez, 2005
"It is clear in our criminal justice system that the jury has the power to
nullify -- that is, the power to acquit or to convict on reduced charges
despite overwhelming evidence against the defendant. ... In a criminal
trial, the court cannot direct a verdict of guilty, no matter how strong the
evidence. In addition, if the jury acquits, double jeopardy bars the
prosecution from appealing the verdict or seeking retrial. Similarly, if the
jury convicts the defendant of a less serious offense than the one charged,
the prosecution cannot again try the defendant on the more serious charge.
This result occurs regardless of whether the jury consciously rejects the
law, embraces a merciful attitude, or is simply confused concerning the law
or facts. Thus, nullification -- with or without authority, intended or not
-- is part of our system."
-Anne
Bowen Poulin-
Professor of Law, Villanova School of Law
Source: Article:
The Jury: The Criminal Justice System's Different Voice, 62 U. CIN. L.
REV. 1377, 1399 (1994)
"The power of nullification plays an important role in the criminal justice
system. ... Because an accused criminal is restricted in the defenses he or
she can raise, the law recognizes only certain defenses and justification,
and correspondingly, limited evidence. The jury's power to nullify
provides an accommodation between the rigidity of the law and the need to
hear and respond to positions that do not fit legal pigeonholes, such as
claims of spousal abuse before the battered-spouse syndrome received
acceptance. Jury nullification permits the jury to respond to a position
that does not have the status of a legally recognized defense. The power to
nullify guarantees that the jury is free to speak as the conscience of the
community."
-Anne
Bowen Poulin-
Professor of Law, Villanova School of Law
Source: Article:
The Jury: The Criminal Justice System's Different Voice, 62 U. CIN. L.
REV. 1377, 1400 (1994)
"But, sir, the people themselves have it in their power effectually to
resist usurpation, without being driven to an appeal of arms. An act of
usurpation is not obligatory; it is not law; and any man may be justified in
his resistance. Let him be considered as a criminal by the general
government, yet only his fellow-citizens can convict him; they are his jury,
and if they pronounce him innocent, not all the powers of Congress can hurt
him; and innocent they certainly will pronounce him, if the supposed law he
resisted was an act of usurpation."
-Theophilus
Parsons-
(1750-1813)
Source: in the Massachusetts Convention on the
ratification of the Constitution, January 23, 1788, in "Debates in the Several State Conventions on the Adoption of the Federal
Constitution,"
Jonathan Elliot, ed., v.2 p.94 (Philadelphia, 1836)
"The Jury has a right to judge both the law as well as the fact in
controversy."
-John
Jay-
(1745-1829) first Chief Justice of the Supreme Court, First
President of the united States after the American Revolution - preceding
George Washington, one of three men most responsible for the US
Constitution1789
"Why do we love this trial by jury? Because it prevents the hand of
oppression from cutting you off ... This gives me comfort -- that, as long as I
have existence, my neighbors will protect me."
-Patrick
Henry-
(1736-1799) US Founding Father
Source: 3 J. Elliot, The Debates In
The Several States Conventions On The Adoption Of The Federal Constitution
545, 546 (1901)
"Jury lawlessness is the greatest corrective of law in its actual
administration. The will of the state at large imposed on a reluctant
community, the will of a majority imposed on a vigorous and determined
minority, find the same obstacle in the local jury that formerly confronted
kings and ministers."
-U.S.
Court of Appeals District of Columbia-
Source: U.S. v. Dougherty, 473
F.2d 1113, 1130 at note 32 (1972)
"From now onwards the jury enters on a new phase of its history, and for the
next three centuries it will exercise its power of veto on the use of the
criminal law against political offenders who have succeeded in obtaining
popular sympathy."
-U.S.
Court of Appeals Sixth Circuit-
Source: U.S. v. Wilson, 629 F.2d 439, 443
(1980)
"The drafters of the Constitution clearly intended [the right of trial by
jury] to protect the accused from oppression by the Government. Singer v.
United States, 380 U.S. 24, 31, 85 S. Ct. 783, 788, 13 L. Ed. 2d 630 (1965).
... Part of this protection is embodied in the concept of jury
nullification: 'In criminal cases, a jury is entitled to acquit the
defendant because it has no sympathy for the government's position.' United
States v. Wilson, 629 F.2d 439, 443 (6th Cir. 1980). The Founding Fathers
knew that, absent jury nullification, judicial tyranny not only was a
possibility, but was a reality in the colonial experience. Although we may
view ourselves as living in more civilized times, there is obviously no
reason to believe the need for this protection has been eliminated. Judicial
and prosecutorial excesses still occur, and Congress is not yet an
infallible body incapable of making tyrannical laws."
-Judge
Thomas Wiseman-
Source: U.S. v. Datcher, 830 F. Supp. 411, 413 (M.D.
Tenn., 1993) case dismissed Sept. 1, 1994, 6th Cir. Ct. Of Appeals, Case No.
3:92-00054 certiorari denied U.S. Supreme Court Case No. 94-8767, May 15,
1995
"The jury possesses a general veto power and may acquit when it has no
sympathy for the Government's case, no matter how overwhelming the evidence
of guilt. A jury acquittal is final and unreviewable; a judge may not direct
a jury to convict or vacate an acquittal, nor may a prosecutor appeal an
acquittal on grounds of judicial error or erroneous jury determination."
-Lieutenant
Commander Robert E. Korroch-
Source: Lieutenant Commander Robert E. Korroch and Major Michael J. Davidson, (LTC Korroch serves with the U.S.
Coast Guard; B.S., U.S. Coast Guard Academy (1981); J.D., Marshall-Wythe
School of Law, College of William and Mary 1988) (Maj. Davidson serves with
the U.S. Army Judge Advocate General Corps, Litigation Division), in Jury
Nullification: A Call for Justice or an Invitation to Anarchy?, 139 MIL. L.
REV. 131 (1993)
"Jurors should acquit, even against the judge's instruction ... if
exercising their judgment with discretion and honesty they have a clear
conviction that the charge of the court is wrong."
-Andrew
Hamilton-
(c.1676-1741) Scottish lawyer in colonial America
Source: August
4, 1735, advice to jurors to acquit against the judge's instructions in the
seditious libel trial of John Peter Zenger; Rex. V. Zenger, How. St. Tr.
17:675 (1735)
"[That] the Jury may determine the law and the fact of the case, has been
supported by every English judge, except Chief Justice Jeffries .... And to
their credit be it spoken that the Juries have always been right on
fundamental questions of liberty and popular right."
-Georgia
Supreme Court-
Source: Keener v. The State, 18 Ga. 194, 231 (1855)
"[T]he Jury have not only the power, but the right, to pass upon the law as
well as the facts..."
-Georgia
Supreme Court-
Source: Keener v. The State, 18 Ga. 194, 231 (1855)
"In 'A jury's duty' (11/8) by Mike Romano, John Junker asserts that juries
have the right to nullify laws in principle but should not use this right in
practice. Would he then be willing to give up the rights of free speech,
freedom of religion, freedom of assembly, freedom to organize a labor union,
abolition of slavery in the North, and the repeal of alcohol prohibition --
all of which were given to us by juries who put the principle of
nullification into practice? Without jury nullification no systematic veto
exists for the people and tyranny ensues."
-Patricia
Michl Sumner-
Source: November 29, 1995, Necessary nullification, letter
to the Seattle Weekly
"If a jury have not the right to judge between the government and those who
disobey its laws, the government is absolute, and the people, legally
speaking, are slaves."
-Lysander
Spooner-
(1808-1887) Political theorist, activist, abolitionist
"Jury lawlessness is the greatest corrective of law in its actual
administration."
-Roscoe
Pound-
Legal scholar1910
"[The] purpose of a jury is to . . . make available the common sense
judgment of the community as a hedge against the overzealous or mistaken
prosecutor and in preference to the professional or perhaps over conditioned
or biased response of a judge."
-U.S.
Supreme Court-
Source: Taylor v. Louisiana, 419 U.S. 522, 530 (1975)
"My own view rests on the premise that nullification can and should serve an
important function in the criminal process ... The doctrine permits the jury
to bear on the criminal process a sense of fairness and particularized
justice ... The drafters of legal rules cannot anticipate and take account
of every case where a defendant's conduct is 'unlawful' but not blameworthy,
any more than they can draw a bold line to mark the boundary between an
accident and negligence. It is the jury -- as spokesmen for the community's
sense of values -- that must explore that subtle and elusive boundary. ... I
do not see any reason to assume that jurors will make rampantly abusive use
of their power. Trust in the jury is, after all, one of the cornerstones of
our entire criminal jurisprudence, and if that trust is without foundation
we must reexamine a great deal more than just the nullification doctrine."
-Chief
Judge David L. Bazelon-
U.S. Court of Appeals, D.C. Circuit
Source: U.S. V. Dougherty, 473 F. 2D 1113, 1141-42 (Dissent) (1972)
"If the question relates to any point of public liberty, or if it be one of
those in which the judges may be suspected of bias, the jury undertake to
decide both law and fact. If they be mistaken, a decision against right,
which is casual only, is less dangerous to the State, and less afflicting to
the loser, than one which makes part of a regular and uniform system."
-Thomas
Jefferson-
"Since it was first recognized in [the] Magna Carta, trial by jury has been
a prized shield against oppression ...."
-U.S.
Supreme Court-
Source: Glasser v. United States, 315 U.S. 60, 84 (1942)
"Nullification is not a 'defense' recognized by law, but rather a mechanism
that permits a jury, as community conscience, to disregard the strict
requirements of law where it finds that those requirements cannot justly be
applied in a particular case."
-David
L. Bazelon-
(1909-1993) Chief Judge, United States Court of Appeals for
the District of Columbia Circuit
Source: U.S. v. Dougherty, 473 F. 2d 1113,
42 (dissent) (1972)
"Therefore, the jury have the power of deciding an issue upon a general
verdict. And, if they have, is it not an absurdity to suppose that the law
would oblige them to find a verdict according to the direction of the court,
against their own opinion, judgment, and conscience? ... [I]s a juror to
give his verdict generally, according to [the judge's] direction, or even to
find the fact specially, and submit the law to the court? Every man, of any
feeling or conscience, will answer, no. It is not only his right, but his
duty, in that case, to find the verdict according to his own best
understanding, judgment, and conscience, though in direct opposition to the
direction of the court."
-John
Adams-
(1735-1826) Founding Father, 2nd US President
Source: Diary entry
February 12, 1771, reprinted in The Works of John Adams, 254-255 (C. Adams
ed. 1850)
"Jury Nullification encourages participation in the judicial process, which
in turn furthers the legitimization of the legal system. Jury Nullification
also serves to inject community values and standards into the administration
of our laws. Ordinary citizens are given the chance to infuse community
values into the judicial process in the interests of fairness and justice
and at the same time provide a signal to lawmakers that they have drifted
too far from the Democratic will... History is replete with examples that
Jury Nullification serves as a corrective 'veto' power of the people over
both legislative and judicial rigidity and tyranny."
-Justice
William C. Goodle-
Washington Supreme Court
"The right of juries to decide questions of law was widely accepted in the
colonies, especially in criminal cases. Prior to 1850, the judge and jury
were viewed as partners in many jurisdictions. The jury could decide
questions of both law and fact, and the judge helped guide the
decision-making process by comments on the witnesses and the evidence. Legal
theory and political philosophy emphasized the importance of the Jury in
divining natural law, which was thought to be a better source for decision
than the 'authority of black letter maxim.' Since natural law was accessible
to lay people, it was held to be the duty of each juror to determine for
himself whether a particular rule of law embodied the principles of the
higher natural law. Indeed, it was argued that the United States
Constitution embodied a codification of natural rights so that 'the reliance
by the jury on a higher law was usually viewed as a constitutional
judgment.'"
-Kane
& Miller Friedenthal-
Source: Civil Procedure, p 476-77, chapter 11, Jury
Trial; 2 The Judge Jury Relationship (West Publishing Company 1985)
"Jury nullification is a doctrine based on the concept that 'jurors have the
inherent right to set aside the instructions of the judge and to reach a
verdict of acquittal based upon their own consciences, and the defendant has
the right to be so instructed.' Though jury nullification may seem like a
shocking proposal today, it is by no means a new idea. In fact, jury
nullification was first espoused nearly three and one half centuries ago."
-M.
Kristine Creagan-
Source: Jury Nullification: Assessing Recent
Legislative Developments, 43 CASE W. RES. 1101(1993) quoting Alan W. Scheflin, Jury Nullification: The Right to Say No, 45 CAL. L. REV. 168
(1972)
"It is left, therefore, to the juries, if they think the permanent judges
are under any bias whatever in any cause, to take on themselves to judge the
law as well as the fact. They never exercise this power but when they
suspect partiality in the judges, and by the exercise of this power they
have been the firmest bulwarks of English liberty."
-Thomas
Jefferson-
(1743-1826), US Founding Father, drafted the Declaration of
Independence, 3rd US President
Source: Letter to Abbe Arnoux, Paris, July 19,
1789
*groan...* So close. So-o-o close. Senator Groen leads the committee by the hand. But then they stub their collective toe on the ludicrous question of WHO OWNS THE RECORDING MEDIUM. Seriously? Was there ever an issue?
The answer, of course, is no, faithful reader. There is no case of which your humble chronicler is aware in which the cops have confiscated media based on the assertion that the "offending" journalist didn't actually own it. Just an excuse to delay acknowledging that, as per NH Constitution's Part First, Article 8, "All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them."
Don't wanna be accountable to them, don't be paid by them. Seems pretty clear to me...
Anyway, herewith, the NH Senate Judiciary Committee's Executive Session -- where they (usually) vote on their recommendation to the full body -- on HB145, "permitting the audio and video recording of a law enforcement officer while in the course of his or her official duties," followed briskly by HB146, "relative to the right of a jury to judge the application of the law in relationship to the facts in controversy," AKA jury nullification.
The latter went slightly more rationally, yet nevertheless resulted in "MORE STUDY!" Because, well, there's no reason you should understand your legitimate power, citizen. That would merely make your servants' jobs all that much harder. And they wouldn't want that, now would they...?
There's really no question about the existence of the natural and common-law right of jury nullification. Juries find contrary to the government's desires every single day, and need give no accounting of themselves whatsoever. They already do it, and there's nothing that can stop them.
The issue at hand is merely whether your servant government may continue to suppress this information, or must instead acknowledge this "inconvenient truth," must inform you, the juror, of your rightful independence, of your inalienable, Constitutionally protected (Part First, Article 4) natural right of conscience, a Constitutionally recognized right that (at the very least) thereby clearly supersedes any RSA a legislature can fancifully dream up. As Jim Rockford once relatedly admonished, "General, I'm a civilian. I outrank you."
Government cannot be allowed the hubris of presuming to be the ultimate arbiter of its own authority. The jury of these government-outranking peers of civilians is the final 'box' available to a civil society before the revolution comes:
By what point in that progression would you, dear reader, prefer resolution be found? When government is unresponsive to its bosses, the People, the jury is the last peaceful refuge of a free, moral society against tyranny. And that is why government is so deeply loath to recognize the jury's inherent and intended independence over its servants.
