If you sat on a jury today in Pennsylvania, or in most states, and especially right here in Luzerne County that is exactly what you would need to do if you believed the words of most, if not all, sitting judges. Why do I say that? Sounds crazy, does it not? Unfortunately, not so much. The judge will instruct the jury that it must uphold the law as he or she gives it. The judge will be lying. The jury must judge the law, as well as the facts.
Juries were instituted to protect citizens from the tyranny of government. It is not the duty of the jury to uphold the law. It is the jury’s duty to see that justice is done. That it is why it is called the Department of Justice and not the Department of Laws.
John Adams said this about the juror: “It is not only his right, but his duty to find the verdict according to their own best understanding, judgement, and conscious, though in direct opposition to the direction of the Court.”
Thomas Jefferson put it like this: “I consider trial by jury as the only anchor yet imagined by man by which government can be held to the principles of the Constitution.”
His jurors stood by their verdict even though they were held without food, water, or toilet facilities for many days.
So why have you not heard of this before? In a recent interview, former Pennsylvania Republican candidate for United States Senate, Marc Scaringi, said, “They just don’t teach you about this stuff in law school.” During the 1800s a series of judicial decisions tried to limit jury veto power.
While no court has yet dared to deny that jurors can nullify or veto a verdict by judging both the law and the facts, an 1895 Supreme Court decision held, hypocritically, that jurors need not be told their rights. So there you have it.
According to the Fully Informed Jury Association (FIJA), only decades had passed since freedom of the press was established in the colonies when a jury decided John Peter Zenger was “not guilty” of seditious libel. He was charged with this “crime” for printing true, but damaging, news stories about the Royal Governor of New York Colony.
“Truth is no defense,” the court told the jury. But the jury decided to reject bad law and acquitted Zenger. Why? Because defense attorney Andrew Hamilton informed the jury of its rights.
He told the story of William Penn’s trial — of the courageous London jury which refused to find him guilty of preaching what was then an illegal religion, Quakerism. His jurors stood by their verdict even though they were held without food, water, or toilet facilities for many days.
You, as a juror, have an obligation to judge the morality of a law and should not abdicate that right for any reason. During the Nuremberg trials defendants argued that they were “only following the law.” They were told quite correctly that they each had a personal responsibility to judge the morality of the law and should have acted according to their conscious.
The United States leads the world in percent of population behind bars. Very often prosecutors will initially charge a defendant with numerous felony offenses only to offer a plea deal to avoid a jury trial. Our prison populations have exploded with victimless crimes, but more and more people would seek jury trials once and if they realize jurors were allowed to be instructed properly. Recently, the state of New Hampshire did just that. On June 18, 2012, New Hampshire governor John Lynch signed HB 146 which reads:
“[A] Right of Accused. In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”
Thank goodness for New Hampshire, and now back to the original question. Would you as a juror send Rosa Parks off to jail? If you believed the instructions of the judge you would need to do just that. Why?
Because the facts were that it was against the law for Ms. Parks to sit in the front of the bus, and, in fact, she did sit in the front of the bus. We all know the moral answer to this question, so you now know that you not only have a right to do what is moral, but, as a juror, an obligation to do the same.