Justice Often Served By Jury Nullification 

Justice Often Served By Jury Nullification 
Posted by CN Staff on July 28, 2005 at 05:30:31 PT
By Radley Balko
Source: Fox News Network 
USA -- In February of 2003, a California jury convicted marijuana activist Ed Rosenthal of growing marijuana, in violation of federal law. What the jury didn't know  and wasn't allowed to hear  was that Rosenthal was not only growing the marijuana for medical patients, he was growing the stuff for the city of Oakland. After the trial, the jury was outraged. "'I'm sorry' doesn't begin to cover it," one told the New York Times. Said the foreman, "It's the most horrible mistake I've ever made in my entire life."
As you read this, a 46-year old paraplegic named Richard Paey is serving a 25-year prison sentence in Florida. Paey suffered a bad car accident followed by a botched back surgery, and both left him in incredible pain. Paey, a father, discovered that he could relieve his pain by taking large doses of tightly regulated opiate painkillers, but the quantity of the drugs he needed exceeded that which his doctors could legally prescribed. Paey felt he had no choice but to break the law to get the medication he needed to live a normal life, and he was convicted of obtaining the drugs by using a photocopy of the last prescription his doctor wrote for him.Prosecutors admitted Paey never sold his medication. But they charged him with distribution anyway, under Drug War laws stating that anyone possessing a given amount of a controlled substance is automatically guilty of distribution. Here again, jurors expressed disappointment in how the law gave them no choice but to return an unjust verdict.But is that necessarily true? Must jurors uphold even unjust laws? Maybe not.In his 1998 book "Jury Nullification: The Evolution of a Doctrine," Clay S. Conrad defines "jury nullification" this way: "Jurors in criminal trials have the right to refuse to convict if they believe that a conviction would be in some way unjust."The doctrine of jury nullification rests on two truths about the American criminal justice system: (1) Jurors can never be punished for the verdict they return, and (2) Defendants cannot be retried once a jury has found them not guilty, regardless of the jury's reasoning. So the juries in both the Rosenthal and Paey cases could have returned a "not guilty" verdict, even though Paey and Rosenthal were undoubtedly guilty of the charges against them.This may sound radical, perhaps even subversive, but jury nullification serves as an important safeguard against unjust laws, as well as against the unfair application of well-intended laws. It's also steeped in American and British legal tradition.The first case of jury nullification in British law came in the trial of William Mead and William Penn, the latter of whom would go on to found the province of Pennsylvania. In 1670, the two men were charged in England with unlawful assembly, a law aimed at preventing religions not recognized by the Crown from worshipping. Both almost certainly broke the law, and the judge demanded a guilty verdict. But the jury refused, on the grounds that the law itself was unjust. After repeated refusals, the judge ordered the jury imprisoned. England's highest court eventually ordered the jurors released, establishing into common law the independence and integrity of juries in criminal cases.Here in America, the Founding Fathers understood the importance of allowing juries to determine not just the guilt or innocence of the man on trial, but the justice and fairness of the law he's charged with breaking. John Adams said of jury nullification, "It is not only [the juror's] right, but his find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." John Jay, the first chief justice of the Supreme Court, said "The jury has the right to judge both the law as well as the fact in controversy."In recent times, the doctrine has become almost obsolete. Judges routinely instruct jurors that they are not to determine the justness of the law in question, only whether the defendant is guilty of breaking it. This is simply not true. In the Rosenthal case, the judge actually cut off the defense lawyer when he hinted in his closing remarks that the jury had the power to acquit Rosenthal regardless of the evidence against him.So why do judges continue to get jury nullification wrong? Many point to an 1895 case in which the Supreme Court ruled that judges aren't obligated to tell jurors of their power to nullify bad law. Some have wrongly interpreted that decision to invalidate the doctrine of jury nullification altogether. They're mistaken.In fact, the Supreme Court has since repeatedly upheld the doctrine of nullification. In 1952, for example, the Court found that "juries are not bound by what seems inescapable logic to judges." And in 1972, that "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge."Indeed, Americans can be proud of our history of boldly and valiantly standing up to unjust laws (if not so proud of the laws themselves). There are multiple cases of jurors refusing to convict violators of the Alien and Sedition Act, the Fugitive Slave Act, and alcohol prohibition laws, among others.Now that the Supreme Court ruled that federal prosecutors can continue to arrest medical marijuana patients, and given the Drug Enforcement Administration's continued prosecution of pain patients and the doctors who treat them, we're likely to see more outrages like those perpetrated against Ed Rosenthal and Richard Paey.A common question I get from people disturbed by these kinds of cases is, "What can we do?" Well, here's one thing the average citizen can do: Serve when you're called to jury duty, and while there, refuse to enforce unjust laws. If a defendant is guilty of harming someone else, certainly, throw the book at him. But if he's guilty of violating a bad law, or if you feel the law has been unjustly applied to him, by all means, come back with "not guilty," no matter what the judge, the prosecutor, or the evidence says.Not only is this your right as a juror, some would say it's your obligation.Radley Balko maintains a Weblog at: Fox News Network (US)Author: Radley BalkoPublished: Wednesday, July 27, 2005Copyright: 2005 FOX News Network, LLC. Website: foxnewsonline foxnews.comRelated Articles & Web Site:Ed Rosenthal's Pictures & Articles 'Guru of Ganja' Walks Free Movement Seeks Sympathetic Juries Rosenthal Spared from Prison Sentence 
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Comment #17 posted by Hope on July 29, 2005 at 06:56:34 PT
...understanding, judgment, and conscience...
That's got to be improved. The jury pool has been "dumbed down" by demonization and scurrilous propaganda.
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Comment #16 posted by Hope on July 29, 2005 at 06:49:31 PT
"...standing up to unjust laws."
"John Adams said of jury nullification, "It is not only [the juror's] right, but his find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." John Jay, the first chief justice of the Supreme Court, said "The jury has the right to judge both the law as well as the fact in controversy.""
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Comment #15 posted by OverwhelmSam on July 29, 2005 at 04:44:05 PT
Just a Few Notes About The Article
I swear FOX news is reading this web site. Every time we bring something up, it seems to hit the FOX News.If the Jury in the Rosenthal Case knew of their right to return a not-guilty sentence in spite of the evidence, Rosenthal would not have been convicted in California.The IRS doesn't take anyone to court in Montana anymore, because they can't get a Jury in Montana to convict anyone on tax evasion or fraud. I guess Montanians are ahead of the rest of the country on Jury Nullification.
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Comment #14 posted by OverwhelmSam on July 29, 2005 at 04:35:47 PT
Just A Comment Charmed Quark
I don't think Juries will nullify murder or rape in this day and age, but I do think they will nullify pot laws especially in cases where a Judge is restricting evidence. What kind of sham do the Courts think they're running?
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Comment #13 posted by charmed quark on July 28, 2005 at 19:22:16 PT
What a surprise. Of course, in most trials the government tries to hide any information that would indicate what is really going on - it's not relevant, you know, that he was growing for the city of Oakland.Anyway, nullification, like all things, is a two-edge sword. I'm glad it is there and would certainly use it if I was on a jury dealing with this sort of case. But it was also used in the South by all-white juries to find not guilty people who lynched blacks.-CQ
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Comment #12 posted by OverwhelmSam on July 28, 2005 at 18:27:31 PT
Fascinating! The principle of Jury nullification hits mainstream America. Once Americans know their power to ignore the Judges instructions, the govwernment will be permanently reined in. They asked for it, now they're going to get it by Juries across America revoking Congress' laws at trail. Outstanding!Overwhelm Uncle Sam
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Comment #11 posted by FoM on July 28, 2005 at 12:44:14 PT
That's good! 
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Comment #10 posted by runruff on July 28, 2005 at 12:38:50 PT:
Elevated laywers
This this all a judge is. Lawyers publicly have about as much respect as a used car salesman yet they run our government and become judges. A judge has never seen a law he or she doesn't like. The more laws the more controll 
the more jobs the more budgets the more job security.
Not many judges are worthy of respect yet in a court room we are forced to address them as your honor. Who's honor? 
My honor? Their honor? What honor? Judges are self serving just like laywers. They play the game. They get their rewards. Pavlov would be proud.Good afternoon all.Namaste
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Comment #9 posted by Hope on July 28, 2005 at 12:21:56 PT
Something funny
Bush To London Bombers: 'Bring It On'
WASHINGTON, DC -- President Bush officially responded to the latest round of London transit bombings Monday, challenging terrorists to "do their worst." Said Bush, in a televised statement from the Oval Office: "The proud and resilient people of London can take anything the forces of evil and cowardice can throw at them. They will never live in fear of you. Bring it on." Prime Minister Tony Blair thanked Bush for his comments, inviting him to visit London and ride the Underground in a show of solidarity.The Onion via
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Comment #8 posted by Richard Zuckerman on July 28, 2005 at 11:06:20 PT:
Militia of Montana,, sent me a FREEDOM CALENDAR 2005, which contains a few pages about jury nullification. One of the pages is a copy of select pages from the Congressional Bill which later became the Alien & Sedition Acts. This Bill contained the words:    "And the jury who shall try the cause, 
   shall have a right to determine the law 
   and the fact, under the direction of the court, 
   as in other cases."The phrase "as in other cases" clearly shows the jury had the duty to determine the law as well as the facts!The U.S. Supreme Court case referred to in the above article is Sparf and Hansen v. United States, 156 U.S. 51 (January 21, 1895). Unfortunately, the U.S. Supreme Court has refused to take a case on this issue ever since then! The lower courts contine to LIE to the jury that the jury MUST follow the trial court's instructions of law even if the jury disagrees with the law! This is a serious problem we have with the judiciary branch of government! It is bad enough that the U.S. Supreme Court has refused to take a case to squarely address the issue of whether gun control laws are in violation of the INDIVIDUAL CITIZEN'S Right to keep and bear arms within the Second Amendment of the U.S. Constitution! It is bad enough that the U.S. Supreme Court continues to uphold the validity of the Cannabis laws! One local New York City newspaper reported yesterday that one judge was publically reprimanded for presiding over a case involving his close friend! Has anybody checked out the proposed "Judicial Accountability Initiative Law" from We need to end absolute immunity of judges and prosecutors!Everybody becomes a member of the militia when we turn 17 years of age, according to 10 U.S.C. Section 311, the "unorganized militia." So, don't believe the hype that Militias are all that bad! is another non-hate group merely interested in getting Big Brother off of our backs.Voting for Republicans and Democrats will ensure the appointment of statist Judges.By the way, has anybody read the recent article on, entitled FINANCIAL TERRORISM TOWERS OVER 9/11? Would you people PLEASE read this article in its entirety? It is about the involvement of former U.S. President George Herbert Walker Bush and former U.S. President Bill Clinton in forgery of securities, murder and cover-up of U.S. Army Colonel Russell Hermann, and the illegal movement of the money to and from the Philippines to Israel, $240 Billion!!!Richard Paul Zuckerman, Box 159, Metuchen, N.J., 08840-0159, richardzuckerman2002 
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Comment #7 posted by FoM on July 28, 2005 at 11:01:03 PT
About Jury Nullification
I don't know how I would be approved to be on a Jury. I'm sure they would ask me questions that when I answered they wouldn't want me. 
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Comment #6 posted by Pete Guither on July 28, 2005 at 10:50:48 PT:
It can be a challenge to actually get on a jury
In order to even use jury nullification, you have to get on a jury. And if you don't want to lie, that could be difficult in some areas.My friend Jeff Trigg was called for jury duty, volunteered his political view to the judge that he believed in the concept of jury nullification and was immediately excused by the judge (without a lawyer using up a challenge).Here's his story of attempting to serve on a jury:Day 1: 2:
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Comment #5 posted by Max Flowers on July 28, 2005 at 10:17:36 PT
Jury Nullification needs to go mainstream
Jury nullification's biggest problem is its own obscurity to the "average person" (who tend to become jurors). Most people on the street do not even have a clue what it is, that it exists, or that the word of a stern-faced judge is NOT AT ALL the last word in authority in jury trials. The jurors have the last word. I know this, and we here know this, but our daunting challenge is to get the rest of America to learn this, and have it be as common knowledge as the fact that a jury duty summons can appear in one's mailbox.Few things are more outrageous to me than the arrogance of judges who think, and illegally deceive jurors into believing, that they are the supreme being and be-all, end-all of the law in jury trials. They are not---the jurors are.
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Comment #4 posted by JR Bob Dobbs on July 28, 2005 at 08:18:27 PT
Jury nullification on Fox News?!? What's next - Joeseph Goebbels' favorite recipes for matzoh ball soup?More on jury nullification: http://www.fija.orgMaybe Mike Doonesbury is still asleep and dreaming:
Last Sunday's Doonesbury
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Comment #3 posted by Pete Guither on July 28, 2005 at 06:49:08 PT:
Radley Balko
Radley Balko is one of the good guys. He's a libertarian drug policy reformer, does some work with CATO, and has the excellent blog "The Agitator"
http://www.theagitator.comHe's been a real leader in fighting the DEA in the war against doctors, and is an outstanding writer for drug policy reform. He also happens to write columns for FOX, and some other conservative outlets, which is great for us.
Drug WarRant
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Comment #2 posted by BigDawg on July 28, 2005 at 06:38:31 PT
Huh?What?Jury nullification mentioned on FOX news????Whoa!
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Comment #1 posted by FoM on July 28, 2005 at 06:35:58 PT
For Those Who Get Showtime
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