no third solution

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A Lawyer Admits – Jury Nullification is a Right of the People

June 6th, 2010

A lawyer friend of mine started talking the other night about how the jury is really the most powerful component in the entire legal system, because they have the power to nullify laws. I hinted around the topic and he confirmed that jurors definitely do have the right to nullify laws and render verdicts as they see fit, but also confirmed that as a lawyer he is not allowed to inform jurors of this right. I didn’t corner him in to this admission, he came right out and said it.

However, the examples he was trying to describe were all strawman varieties. Now maybe this was for simplicity of trying to explain the concept to the other people we were talking with, none of whom were at all aware of jury nullification or FIJA etc., but I would not be at all surprised to learn that, in law school, aspiring lawyers are taught only strawman versions of jury nullification, which is why they don’t have a problem hiding it from jurors. If they were instead taught that the citizens can practice jury nullification in order to render impotent the unjust, oppressive, or just plain unpopular laws, I suspect that more of them would question the basis on which they are instructed not to mention this concept to the jury.

Now, this probably won’t surprise anyone here, but it always does surprise most people when you tell them about jury nullification, especially if you tell them about it after they’ve participated in some kangaroo courtroom. “But the judge said that we had to apply the law as he interpreted it…” and so on, they will usually attempt to deflect responsibility for their actions.

Indeed the judge did say this, essentially asking for you to be complicit to injustice. And most people go right along with the incremental erosion of justice, simply because some figure presuming authority (the judge or magistrate) has asked for your obedience, and seeking the comfort of conformity, none want to break rank and defy that presumed authority.

I’ve responded previously to a lot of criticism regarding jury nullification, and suffice to say I think most of the arguments against it are bullshit. One objection that continually resurfaces is that the citizens (as jurors) do not have the right to challenge or defy the laws of the State by refusing to apply a verdict as those laws stipulate. I think this objection stems directly from the presumed authority of the system and its agents, that is, people use it to rationalize their cowardice, their refusal to step out-of-line regarding the judge’s interpretation of the law.

But everyone can imagine some circumstances in which a State has clearly crossed the line separating the just from the unjust. It’s just a matter of where you draw that line, but in these cases jury nullification is the only moral option. Ask a dozen people on the street whether they’d join in applying some ridiculously oppressive law (i.e., blacks can’t sit on the bus, Jews must surrender their firearms, the pharaoh is going to kill all first-born males, etc.) and I’ll be damned if you’d find more than one willing to participate in such injustice.

It does not matter what the law says, if that law is an instrument of oppression; anyone who tells you otherwise is an enemy of freedom.

no third solution

Blogging about liberty, anarchy, economics and politics