Anarchy or Justice?

Determining the role of the juror

The Gazette continued this past month to explore judicial history, looking for answers from local jurists and prosecutors on what the role of the jury and its jurors should be in Luzerne County and in Pennsylvania, as a whole.

Regardless of where one might stand on what some may consider a controversial issue, it is the desire of these reporters that the dialog take place, and only through thoughtful and respectful debate can a consensus be approached on the topic of jury nullification. In that context the Gazette thanks all who weighed in to date on the matter, with special consideration to President Judge Thomas Burke, with whom the Gazette spoke in his judge’s chambers for over an hour in late May, and to District Attorney Stefanie Salavantis for her well-thought-out reply to the Gazette‘s questions.

Defining jury nullification
So what is jury nullification? The first question that must be determined is, What is the role of the juror? Is that role to judge the facts of the case and render a decision on the law as given by the sitting judge, or is it to determine that justice ultimately be served? Do we find at the federal level the Department of Laws or the Department of Justice?

As reported in last month’s Gazette, many of the Founding Fathers believed that it was paramount that justice be served by recognizing the jurors’ right to judge the merits of the law as well as the facts of the particular matter before them, and then base their verdict on the dictates of their own conscience. John Adams, speaking of the juror, wrote, “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.”

This form of justice can be found today in our military tribunals and also in the courts of New Hampshire, which last year passed into law recognition of the right of a prosecuting attorney to inform jurors of their right to nullify based on their own assessment of a law as unconstitutional or unnecessarily onerous.

Many view jury nullification as a kind of soft anarchy, which term some assert merely refers to self-organization absent coercion. Luzerne County District Attorney Stefanie Salavantis has expressed concerns about offering juries excessive latitude, responding to the Gazette

“I submit that this proposition [jury nullification] is a dangerous one. It brings forth the risk of disparate treatment of citizens on trial. In other words, under this theory, two people charged with the same crime under the same circumstance would be treated differently…one convicted assuming the law and facts provided for conviction, the other person, however, set free, not because the facts warranted acquittal, but rather because he or she had a more sympathetic jury.”

In summing up her position, Ms. Salavantis wrote, “The law provides that people should be treated equally. Jury nullification runs afoul of that principle.”

Jury nullification applied to Rosa Parks
The hypothetical question posed by the Gazette last month concerned the famed civil rights activist Rosa Parks. We asked, Would you as an everyday citizen, if required to serve as a juror today in such a case, return a guilty verdict against Rosa Parks? The fact is that in any Luzerne County Courtroom—or any courtroom in Pennsylvania—you would be expected to do just that. As a juror you take an oath to base your decision on the law as given and the facts of the case, with no consideration allowed by today’s courts for your conscience concerning the proper application of the law. That, at its core, is what such discussion is all about. Is the role of the juror to determine that justice is served or that laws are adhered to? Have we naïvely concluded that both ends are one and the same?

Ms. Salavantis also weighed in on the Gazette‘s question pertaining to Rosa Parks, writing, “The question is obviously a loaded one as it brings squarely into question a time in this country when, as unfathomable as it seems today, laws discriminated against people based on their race.”

The District Attorney continued, “As despicable as that law, the fact remains that it would be unfair to put in the purview of the jurors the decision to enforce laws differently on a case-by-case basis. Rather, it is the job of the appellate courts to declare such laws unconstitutional and further, the duty of the legislature to pass laws that abide by the Constitutions of the United States and each of the individual states.”

Ms. Salavantis’ views are in agreement with those of President Judge Thomas Burke, who told the Gazette that if changes were to be made in Pennsylvania courts, they should come from the legislature or changes in the rulesof procedure promulgated by the Pennsylvania Supreme Court. “These rules take into account public comment,” said Burke.

When pressed by Gazette reporters as to what law or legal precedent prohibits defense attorneys from informing jurors of their right to judge the application of the law Burke had this to say: “The judiciary is a separate branch of government, and, as such, has the ability to issue rules of procedure.”

Legal precedent
In the Gazette‘s previous issue we referenced the 1895 Supreme Court case Sparf v. United States, which held in a 5–4 decision that judges had no responsibility to notify the jury of its right to nullify, but nowhere to be located in our investigations can a ruling be found that a jury cannot be informed of the rights spoken about by no lesser authorities than Jefferson, Adams, and Hamilton.  As Judge Burke mentioned, the current  rules have been implemented by the courts, themselves. He continued

“Broadly  speaking I don’t believe the doctrine of jury nullification has any foundation under the laws of the Commonwealth of Pennsylvania. To the contrary, the existing laws and procedures, as I understand them, impose an obligation upon the jurors to follow the court’s instructions on the law, albeit it that the jury will indeed decide the facts of the case, and applying the law to the facts will render a true and just verdict.”

When asked if he spoke for all the judges within his purview Burke explained that the role of the president judge is one of administration, and that what each judge does in his or her own courtroom is their own responsibility, so they could answer for themselves on this issue. To date no other county judge has come on record with their view on jury nullification, or what consequences one might face if raising the matter in their courtroom. That is not to say the matter will not be raised in such a venue, though, and this a subject to be brought up in future issues of the Gazette.

When asked what he would do if the prospect of jury nullification were broached in his courtroom, Judge Burke responded with

“Any express attempt by a defense lawyer to inject or argue jury nullification to the jury would be improper and the matter would be dealt with by the court accordingly. Where I draw the line towards  what precisely would happen would depend on the precise verbiage used and the misconduct taking place. Disciplinary proceedings with a variety of possible consequences would be possible.”

Regarding the somewhat hot-button issue of distributing jury information on courthouse steps Judge Burke affirmed that free speech is paramount so long as it does not interfere with proceedings taking place inside the courtrooms.

Is it time?
At a time when polling indicates that over 60% of the American populace distrusts government, when legislation is increasing being written by special interests and lobbying groups and then passed by compliant legislatures without even being read, much less properly debated, is it time to resurrect the latent power of juries?

In recent years many have been taught to fear facing a jury, that by not accepting a plea bargain they faced stiffer penalties if found guilty before a jury of their peers. How many innocents are serving jail time today, deprived of their liberty, because accepting a plea bargain was in their best interest under the current rules of judicial conduct imposed by the courts?

When one can be jailed for years for merely driving through states like New Jersey and New York while possessing empty magazines in violation of their state laws, or when one is forced to follow laws that more and more citizens are finding unconstitutional, or when one may be imprisoned because of outdated drug policies, well, the doctrine of jury nullification must surely be vigorously advanced.

What is appealing to many is the notion of a jury of one’s peers deciding one’s fate based not only on the law as instructed by the courts but on the application of the law and a juror’s best conscience, in order to ensure that justice is administered properly as prescribed by our constitutions, both federal and state.

As talk of a runaway and tyrannical government becomes more prevalent, with groups being targeted by seemingly unaccountable government alphabet agencies, and with a free press under attack, the words of our third president, Thomas Jefferson ring true: “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.[Emphasis added]”

We at the WBIG feel it is important that our readership is informed and so we thank those who have put their views on the line so this conversation about freedoms and rights can begin. Debate on  such matters, in conjunction with critical thinking, is important and could only make for a better judiciary. The same holds true for the electorate: dialog and mutual understanding can only make for a better citizen and juror.

  • Louis R. Jasikoff
  • Lou is the founder and producer of the WBIG family of publications. He's been active in politics most of his adult life, and is passionate in building the Wilkes-Barre/Scranton Independent Gazette into an independent press organization that is respected for its independent journalism, educating the public on stories and issues often not discussed in today's biased and controlled media.

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