Does the President believe in jury nullification?

[Loudly]

President Barack Obama said Friday that NSA leaker Edward Snowden can return to the United States and appear in court and "make his case," if he "believes what he did is right."

Is the President seriously suggesting that a judge would allow a jury to consider whether the law prohibiting the leaking of secret information can be ignored, disregarded, rejected, second-guessed?

Is the President seriously suggesting that a judge would allow a jury to consider whether information which an agency of the U.S. government has classified as secret is entitled to be classified as secret?

Is the President seriously suggesting that a judge would even allow a Snowden defense team to present any such nullification arguments?

The President is a lawyer and Constitutional law lecturer. I don't know what to make of his "invitation." It seems highly disingenuous.

[hlthe2b]

1. It would ring more true, if it were not for our recent history of misdeeds with respect to those our

government believes violated the law or posed a "nebulous threat" to national security.

The world has taken note of the Manning trial (and pre-trial torture), our history of rendition, our validation of the ability to kill American citizens based on the unquestioned decision of ONE person and the continuation of Gitmo, despite repeated denunciations and pledges to close.

So, yes, these comments with respect to "fair" trial for Snowden or any number of others-- in a time where the US no longer holds the "moral high ground" ring quite hollow.

[RC]

2. They do want Snowden back so bad, they'll say anything to get him to return.

Then, compared to what they will do to Edward Snowden, Bradly Manning's last 3 some years were in the lap of pampered luxury.

[LuvNewcastle]

3. Good point. Of course it's disingenuous.

It's just another ploy to get the public on his side and suppress favorable opinions toward Snowden.

[oldhippie]

4. Good point!

But I believe that what the President really meant to say was ," ... if he "believes what he did is LEGAL."

[Loudly]

6. That's even more disingenuous. Snowden's consciousness of guilt is obvious.

He fled to avoid arrest and prosecution.

The President HAD to mean if Snowden believes what he did was justifiable despite its illegality.

But our courts don't allow such defense theories to be presented.

It amounts to an invitation to go directly to jail without passing Go.

[Demo_Chris]

17. Right! He should face the inquisition tribunal. Fleeing is a confession of heresy!

Also, if he floats he's a witch.

[grasswire]

5. It is the right of the citizen to judge the law as well as the facts of a case.

Dosn't matter what the president thinks.

Jury nullification is the citizen's last defense against tyranny. It is Constitutionally allowed.

Despite the fact that the mere mention of it might bring a person a contempt charge for even mentioning it near a court room.

It is the right of the citizen to judge the law and refuse to convict.`

[COLGATE4]

7. Where is jury nullification 'allowed' in

the Constitution?

[grasswire]

8. anything that is not prohibited by law is allowed the citizen

And there is SC case law supporting nullification.

[COLGATE4]

10. Cite to the SC case?

[oldhippie]

12. I'd like to see that case cite also ....

Everything I have researched on the subject shows that it is still unsettled law. It depends on the judge.

[grasswire]

16. SC specifically

What has the United States Supreme Court had to say about jury nullification?

John Jay, the first Chief Justice of the U. S. Supreme Court stated in 1789:
“The jury has the right to judge both the law as well as the fact in controversy.”

Samuel Chase, U.S. Supreme Court Justice and signer of the Declaration of Independence, said in 1796: “The jury has the right to determine both the law and the facts.”

U.S. Supreme Court Justice Oliver Wendell Holmes said in 1902:
“The jury has the power to bring a verdict in the teeth of both law and fact.”

Harlan F. Stone, the 12th Chief Justice of the U.S. Supreme Court, stated in 1941: “The law itself is on trial quite as much as the cause which is to be decided.”

In a 1952 decision (Morissette v United States), the U. S. Supreme Court recognized the powers of juries to engage in nullification. The court stated:
“Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges....They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter.”

In a 1972 decision (U. S. v Dougherty, 473 F 2nd 1113, 1139), the Court said: “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”

Likewise, the U. S. Supreme Court in Duncan v Louisiana implicitly endorsed the policies behind nullification when it stated: “If the defendant preferred the common-sense judgment of the jury to the more tutored but less sympathetic reaction of the single judge, he was to have it.” — Julian Heicklen, “Jury Nullification”

In 1895, in United States v. Sparf, the court effectively found that, yes the juror had the sovereign right to exercise reason, judgment, and conscience with respect to both fact and law; but because he presumptively already knows he has this right from extra-legal sources, judges are not required to explain it to him.

…to this day, trial jurors retain the right to veto, or “nullify” bad laws, though they are rarely told this by the courts. Prosecutors and judges try to exclude people from serving on juries who admit knowing they can judge the law, or who have doubts about the justice of the law.

another post to follow re: nullification generally

[grasswire]

18. Jury nullification generally

from wikipedia:

Jury nullification is a de facto power of juries. Judges rarely inform juries of their nullification power. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors' motivations during or after deliberations. A jury's ability to nullify the law is further supported by two common law precedents: the prohibition on punishing jury members for their verdict, and the prohibition (in some countries) on retrying defendants after an acquittal (see related topics res judicata and double jeopardy).

Jury nullification is the source of much debate. Some maintain that it is an important safeguard of last resort against wrongful imprisonment and government tyranny.[6][7] Others view it as a violation of the right to a jury trial that undermines the law.[7]

Some view it as a violation of the oath sworn to by jurors. In the United States, some view the requirement that jurors take an oath to be unlawful in itself, while still others view the oath's reference to "deliverance" to require nullification of unjust law: "will well and truly try and a true deliverance make between the United States and the defendant at the bar, and a true verdict render according to the evidence, so help [me] God." United States v. Green, 556 F.2d 71 (D.C. Cir. 1977). [8] Some fear that nullification could be used to permit violence against socially unpopular factions.[9] They point to the danger that a jury may choose to convict a defendant who has not broken the letter of the law. However, judges retain the rights both to decide sentences and to disregard juries' guilty verdicts, acting as a check against malicious juries. Jury nullification may also occur in civil suits, in which the verdict is generally a finding of liability or lack of liability (rather than a finding of guilty or not guilty).[10]
Nevertheless, there is little doubt as to the ability of a jury to nullify the law. Today, there are several issues raised by jury nullification, such as whether:

juries can or should be instructed or informed of their power to nullify.

a judge may remove jurors "for cause" when they refuse to apply the law as instructed.

a judge may punish a juror for exercising the power of jury nullification.

all legal arguments, except perhaps on motions in limine to exclude evidence, should be made in the presence of the jury.

snip

Common law precedent[edit source | editbeta]

Even prior to Bushell's Case, Sir Nicholas Throckmorton, a non-Episcopalian English Dissenter or Nonconformist outside of the established Church of England, was acquitted by a jury, despite the hostility of the judges.

The early history of juries supports the recognition of the de facto power of nullification. By the 12th century, common law courts in England began using juries for more than administrative duties. Juries were composed primarily of "laymen" from the local community. They provided a somewhat efficient means of dispute resolution with the benefit of supplying legitimacy.

The general power of juries to decide on verdicts was recognised in the English Magna Carta[14] of 1215, which put into words existing practices:
No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land
For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood

Largely, the earliest juries returned verdicts in accordance with the judge or the crown. This was achieved either by "packing the jury" or by "writ of attaint". Juries were packed by hand-selecting or by bribing the jury so as to return the desired verdict. This was a common tactic in cases involving treason or sedition. In addition, the writ of attaint allowed a judge to retry the case in front of a second jury when the judge believed the first jury returned a "false verdict". If the second jury returned a different verdict, that verdict was imposed and the first jury was imprisoned or fined.

This history, however, is marked by a number of notable exceptions. In 1554, a jury acquitted Sir Nicholas Throckmorton, but was severely punished by the court. Almost a century later in 1649, in the first known attempt to argue for jury nullification, a jury likewise acquitted John Lilburne for his part in inciting a rebellion against the Cromwell regime. The theoretician and politician Eduard Bernsteinwrote of Lilburne's trial:

His contention that the constitution of the Court was contrary to the fundamental laws of the country was unheeded, and his claim that the jury was legally entitled to judge not only as to matters of fact but also as to the application of the law itself, as the Judges represented only 'Norman intruders', whom the jury might here ignore in reaching a verdict, was described by an enraged judge as 'damnable, blasphemous heresy.' This view was not shared by the jury, which, after three days’ hearing, acquitted Lilburne — who had defended himself as skilfully as any lawyer could have done — to the great horror of the Judges and the chagrin of the majority of the Council of State. The Judges were so astonished at the verdict of the jury that they had to repeat their question before they would believe their ears, but the public which crowded the judgment hall, on the announcement of the verdict, broke out into cheers so loud and long as, according to the unanimous testimony of contemporary reporters, had never before been heard in the Guildhall. The cheering and waving of caps continued for over half an hour, while the Judges sat, turning white and red in turns, and spread thence to the masses in London and the suburbs. At night bonfires were lighted, and even during the following days the event was the occasion of joyful demonstrations.[15]

In 1653, Lilburne was on trial again and asked the jury to acquit him if it found the death penalty "unconscionably severe" in proportion to the crime he committed. The jury found Lilburne "Not guilty of any crime worthy of death".[citation needed]

In 1670, a grand jury refused to convict William Penn of unlawful assembly in Bushel's Case. The judge attempted to find the jury in contempt of court; this was ruled inappropriate by the Court of Common Pleas.

In 1681, a grand jury refused to indict the Earl of Shaftesbury. Then in 1688, a jury acquitted the Seven Bishops of the Church of England of seditious libel. Juries continued, even in non-criminal cases, to act in defiance of the crown. In 1763 and 1765, juries awarded £4,000 and £300 to John Wilkes and John Entick, respectively, in separate suits for trespass against the crown's messengers. In both cases, messengers were sent by Lord Halifax to seize allegedly libelous papers.[citation needed]
In Scotland, jury nullification had the profound effect of introducing (or as others believed, reviving) the verdict of "not guilty". It was in 1728 that one Carnegie of Finhaven accidentally killed the Scottish Earl of Strathmore. As the defendant had undoubtedly killed the Earl, the law (as it stood) required the jury merely to look at the facts and pass a verdict of "proven" or "not proven" depending on whether they believed the facts proved the defendant had killed the Earl.[citation needed] However, if the jury brought in a "proven" verdict they would in effect cause this innocent man to die. To avert this injustice, the jury decided to assert what it believed to be their "ancient right" to judge the whole case and not just the facts, rendering the verdict of "not guilty" which remains in Scotland to this day. Over time, however, juries have tended to favour the "not guilty" verdict over "not proven" and with this the interpretation has changed. Now the "not guilty" verdict has become the normal verdict when a jury is convinced of innocence and the "not proven" verdict is only used when the jury is not certain of innocence or guilt.[citation needed]

Standard jury trial practice in the United States during the Founding Era and for several decades afterward was to argue all issues of law in the presence of the jury, so that the jury heard the same arguments the bench did in reaching his rulings on motions. This is evidenced by such decisions as the 1839 case Stettinius v. U.S., in which it was held that "The defense can argue law to the jury before the court gives instructions."[16] Later, judges began to demand the parties submit motions in writing, often before the jury was empaneled, to be argued and decided without the jury being present. This transition began with motions in limine, to exclude evidence, on which it was felt the jury should not hear the argument because they would be informed of the evidence to be excluded. Later that was expanded to include all legal argument, so that today, that earlier practice of arguing law before the jury has been largely forgotten, and judges even declare mistrials or overturn verdicts if legal argument is made to the jury.[citation needed]

Specific jurisdictions[edit source | editbeta]

Canada[edit source | editbeta]
Although extremely rare, jury nullification does occur in Canada, however, as the prosecution has powers to appeal the resulting acquittal, it lacks the finality found in other systems. In R. v. Latimer, 2001 SCC 1,[17], the Supreme Court discussed jury nullification, and indicated it is a duty of the presiding justice to try and prevent it from occurring.

Perhaps the most famous cases of jury nullification in Canada were the various trials of Henry Morgentaler, who openly operated a private abortion clinic in violation of the Criminal Code. Repeated attempts at prosecuting Morgentaler resulted in acquittals at jury trials in the 1970s and 1980s. In the 1988 Supreme Court case, R. v. Morgentaler, 1988 SCR 30,[18] a nullification was appealed all the way to the country's highest court, which struck down the law in question. In obiter dicta, Chief Justice Dickson wrote:

The contrary principle contended for by Mr. Manning, that a jury may be encouraged to ignore a law it does not like, could lead to gross inequities. One accused could be convicted by a jury who supported the existing law, while another person indicted for the same offence could be acquitted by a jury who, with reformist zeal, wished to express disapproval of the same law. Moreover, a jury could decide that although the law pointed to a conviction, the jury would simply refuse to apply the law to an accused for whom it had sympathy. Alternatively, a jury who feels antipathy towards an accused might convict despite a law which points to acquittal. To give a harsh, but I think telling example, a jury fueled by the passions of racism could be told that they need not apply the law against murder to a white man who had killed a black man. Such a possibility need only be stated to reveal the potentially frightening implications of Mr. Manning's assertions. [...]

It is no doubt true that juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, "the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law" (Law Reform Commission of Canada, Working Paper 27, The Jury in Criminal Trials (1980)). But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so.

The Supreme Court more recently issued a decision, R. v. Krieger 2006 SCC 47,[19] which confirmed that juries in Canada have the power to refuse to apply the law when their consciences require that they do so. Within this decision, it is stated that "juries are not entitled as a matter of right to refuse to apply the law — but they do have the power to do so when their consciences permit of no other course."[19]
England[edit source | editbeta]

By the late 17th century, the court's ability to punish juries was removed in Bushel's Case[20] involving a juror on the case againstWilliam Penn. Penn and William Mead had been arrested in 1670 for illegally preaching a Quaker sermon and disturbing the peace, but four jurors, led by Edward Bushell refused to find them guilty. Instead of dismissing the jury, the judge sent them back for further deliberations. Despite the judge demanding a guilty verdict, the jury this time unanimously found Penn guilty of preaching but acquitted him on the charge of disturbing the peace and acquitted Mead of all charges. The jury was then subsequently kept for three days without "meat, drink, fire and tobacco" to force them to bring in a guilty verdict and when they failed to do so the judge ended the trial. As punishment the judge ordered the jurors imprisoned until they paid a fine to the court. Four jurors refused to pay the fine and after several months, Edward Bushell sought a writ of habeas corpus. Chief Justice Vaughan, sitting on the Court of Common Pleas, discharged the writ, released them, called the power to punish a jury "absurd", and forbade judges from punishing jurors for returning a verdict the judge disagreed with.[21] This series of events is considered a significant milestone in the history of jury nullification.[22] The particular case is celebrated in a plaque displayed in the Central Criminal Court (The Old Bailey) in London.

In a criminal libel case, R. v. Shipley (1784), 4 Dougl. 73, 99 E.R. 774, at p. 824, Lord Mansfield disparaged the practice of jury nullification:

So the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.
To be free is to live under a government by law [...]. Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State.

In opposition to this, what is contended for? – That the law shall be, in every particular cause, what any twelve men, who shall happen to be the jury, shall be inclined to think; liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less, are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man could tell, no counsel could advise, whether a paper was or was not punishable.
In 1982, during the Falklands War, the British Royal Navy sank an Argentine Cruiser – the "ARA General Belgrano". Three years later in 1985, civil servant (government employee) named Clive Ponting leaked two government documents concerning the sinking of the cruiser to a Member of Parliament (Tam Dalyell) and was subsequently charged with breaching section 2 of the Official Secrets Act 1911.[23]The prosecution in the case demanded that the jury convict Ponting as he had clearly contravened the Act by leaking official information about the sinking of the Belgrano during the Falklands War. His main defence, that it was in the public interest that this information be made available, was rejected on the grounds that "the public interest is what the government of the day says it is", but the jury nevertheless acquitted him, much to the consternation of the Government. He had argued that he had acted out of "his duty to the interests of the state"; the judge had argued that civil servants owed their duty to the government.[citation needed]
United States[edit source | editbeta]

Main article: Jury nullification in the United States

In the United States, jury nullification first appeared in the pre-Civil War era when juries sometimes refused to convict for violations of theFugitive Slave Act. Later, during Prohibition, juries often nullified alcohol control laws,[24] possibly as often as 60% of the time.[25] This resistance may have contributed to the adoption of the Twenty-first amendment repealing Prohibition, the Eighteenth amendment.
In a well-known example of jury nullification, at the end of James Hickok's trial for the manslaughter of Davis Tutt in 1865, JudgeSempronius Boyd gave the jury two instructions. He first instructed the jury that a conviction was its only option under the law, he then instructed them that they could apply the unwritten law of the "fair fight" and acquit. Hickok was acquitted, a verdict that was not popular with the public.[26][27]

Fugitive Slave Law[edit source | editbeta]
"Jury nullification" was practiced in the 1850s to protest the federal Fugitive Slave Act, which was part of the Compromise of 1850. The Act had been passed to mollify the slave owners from the South, who were otherwise threatening to secede from the Union. Across the North, local juries acquitted men accused of violating the law. Secretary of State Daniel Webster was a key supporter of the law as expressed in his famous "Seventh of March" speech. He wanted high-profile convictions.

The jury nullifications ruined his presidential aspirations and his last-ditch efforts to find a compromise between North and South. Webster led the prosecution when defendants were accused of rescuing Shadrach Minkins in 1851 from Boston officials who intended to return Minkins to his owner; the juries convicted none of the men. Webster tried to enforce a law that was extremely unpopular in the North, and his Whig Party passed over him again when they chose a presidential nominee in 1852.[28]

Post Civil War[edit source | editbeta]
White defendants accused of crimes against blacks and other minorities were often acquitted by all-white juries, especially in the South, even in the face of irrefutable evidence. [29][citation needed]
21st century[edit source | editbeta]

In the 21st century, many discussions of jury nullification center on drug laws that some consider unjust either in principle or because they are seen to discriminate[verification needed] against certain groups. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification,[30] and a recent rise in hung juries is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves.[31]

Judicial opinion in the US[edit source | editbeta]
In the 1895 in the case of Sparf v. United States written by Justice John Marshall Harlan, the United States Supreme Court held 5 to 4 that a trial judge has no responsibility to inform the jury of the right to nullify laws. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present a nullification argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.[32]

In recent rulings, the courts have continued to prohibit informing juries about jury nullification. In a 1969, Fourth Circuit decision, U.S. v. Moylan, 417 F.2d 1002 (4th Cir.1969), the Court affirmed the concept of jury nullification, but upheld the power of a court to refuse to permit an instruction to the jury to this effect.[33] In 1972, in United States v. Dougherty, 473 F.2d 1113, the United States Court of Appeals for the District of Columbia Circuit issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense's chance to instruct the jury about the power to nullify.[34]

In 1988, the Sixth Circuit upheld a jury instruction: "There is no such thing as valid jury nullification." In 1997, the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).[35]The Supreme Court has not recently confronted the issue of jury nullification. Further, as officers of the court, attorneys have sworn an oath to uphold the law, and are ethically prohibited from directly advocating for jury nullification.[36]

[oldhippie]

19. So yes, there is historical precedent, but ......

..... the last four paragraphs of your Wiki article show that is generally being disallowed in modern cases. Judges instruct the juries, the defense is not allowed to present a case for nullification, and some jurors are sanctioned. I can't see it happening in a high profile federal case.

[grasswire]

9. by the way, I didn't say allowed "in" the Constitution. nt

[COLGATE4]

11. No, you said 'Constitutionally allowed"

A distinction without a difference. But whatever...

[grasswire]

14. no no, there is a significant difference.

Something may be allowed by our Constitution simply by not being prohibited by it. This thing may never be mentioned in the Constitution, but that means it is implicitly allowed.

[oldhippie]

20. Really? I think you need to sharpen that explanation a little ...

Murder is not mentioned, so it is implicitly allowed?

Yeah, that's absurd, but that's what you said.

[COLGATE4]

21. only in your mind. nt

[1-Old-Man]

13. I guess his law-school training didn't stick.

I'm a good bit more concerned with his Constitution nullification.

[grasswire]

15. +1 nt