Following the dictates of one’s conscience.
The Independent Gazette recently inquired of Luzerne County District Attorney Stefanie Salavantis and Luzerne County Judges Thomas Burke, Jennifer Rogers, Michael Vough, William Amesbury, Tina Polachek Gartley, David Lupas, Fred Pierantoni, Lesa Gelb, Joseph Sklarosky, Jr., and Richard Hughes what their thoughts were on jury nullification—what rights, if any, jurors possess, and what would happen in their own courtroom should a defense attorney instruct the jury of its rights.
Let’s review some history. It was none other than John Adams who said about the juror, “It is not only his right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Our third president, Thomas Jefferson, framed the matter in this way: “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.”
Remaining in the Founding Fathers’ period of history, we find the case of John Peter Zenger illustrative. He was found “not guilty” of seditious libel only after Andrew Hamilton informed the jury of its rights. The prosecution in the case argued that “truth is no defense,” because at the time it was forbidden by law to print damaging stories about the Royal Governor of the New York Colony, be they true or not.
On June 18, 2012, New Hampshire Governor John Lynch signed into law HB 146, explicitly allowing defense attorneys to inform juries about jury nullification. The new law states:
“[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.”
This, of course, is the essence of jury nullification and yet throughout the United States, judges have forbidden defense attorneys from informing juries that they have a right to nullify a law based on their assessment of that law as unjust or in conflict with the US Constitution or their own state constitution. For example, a defense attorney in California who argues on grounds of nullification could face disbarment or other sanctions by the court—and this is not an isolated incident. In fact, many judges in the United States penalize anyone attempting to present a nullification argument to jurors. Often cited by judges is the 1895 case Sparf v. United States, whose majority opinion was written by Justice John Harlan. The Supreme Court held in a 5–4 decision that a trial judge has no responsibility to notify the jury of its right to nullify.
Our question to each of the recipients of our letter was simple but straight to the point: Where do you stand on the issue of jury nullification? We would like to know what would happen in your courtroom if a defense attorney were to relate this nullification information notifying the jurors that they not only possessed the right to judge a case based on its facts, but to judge the law itself.
Would they be cited for contempt? Would they face even harsher penalties?
We then posed a hypothetical question and one for which the voters of Luzerne County deserve a direct answer. It was not intended as a typical “gotcha” question, but intended only to get to the heart of the matter, and whose answers should clearly indicate the respondents’ stances regarding jury nullification.
In most courtrooms today, the judge will instruct the jury to uphold the law as he presents it to them. Our question: If Rosa Parks were to appear in your courtroom today, would you permit her defense attorney to instruct the jury regarding its prerogatives and obligations without fear of sanctions? The facts of the matter would not be in dispute: it was against the law for Parks to sit where she was sitting. If Parks’ defense attorney were not allowed to notify the jury of it rights, that jury would have no choice but to return a verdict of “guilty.”
As of this printing, the WBIG has received no responses from the recipients of our missive, but we will work to find out where our local judges stand on this important issue. We at the WBIG feel it is important that our readership is informed, and especially so given our location in Luzerne County, with its history of judicial misconduct. It is likewise important that our current judges are forthright and up-front about how they view the role of jurors in their courtroom. Look to the June edition of the Gazette for a full report on the responses we’ve received by then.