Wednesday, April 26, 2017

On Official Acknowledgement of the Right of Jury Nullification

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)

"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

"The judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts."
-Justice Oliver Wendell Holmes-
(1841-1935) US Supreme Court Justice, also known as "The Great Dissenter"Horning v. District of Columbia, 1920

"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-
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-
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

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