December 28, 2003

Posted at Westword, Liberty Post and Trumpet America.

Letters to the Editor
Westword
P.O. Box 5970
Denver, CO 80217

Editor:

In your December 25-31 profile of Jefferson County Treasurer Mark Paschall, you ridicule the “theory” of jury nullification.

The rights of jurors are the most forgotten rights of all. Indeed, from before the Revolution up through the Civil War, jurors had the power to judge not only the facts of a case but also the law pertaining to that particular case. If a juror thought the law under which the defendant was being tried was unjust or just plain stupid, that juror could vote to acquit and the defendant would walk. The best example of jury nullification at work may be found with regard to the Fugitive Slave Laws of the 1850s. If juror Smith thought these laws were unjust, he could, on this basis alone, vote to acquit defendant Jones. As a result, the Fugitive Slave Laws became unenforceable.

Consider the stupid laws on the books today and how we could combat them if jurors only knew their rights. Imagine someone on trial for violating a federal tax law that not even a Harvard-educated tax attorney could understand; imagine a doctor on trial for prescribing marijuana to cancer and AIDS patients who had exhausted all conventional medical avenues; imagine a woman who uses a gun to ward off a rapist, and then faces charges when it is discovered that said gun is unregistered.

For decades, jury nullification was considered the ultimate guarantee against unjust and onerous laws. Today, almost no one even knows about jury nullification. Legislators, governors and presidents concoct new laws at a rate unthinkable a few decades ago. And the people think they are powerless in the face of a runaway government.

When I present this subject, people are almost always skeptical. Why, if a juror can acquit just because he does not like a particular law, this can only result in anarchy! We cannot have people making up laws as they go along! I respond that  jurors exercising their rights are not making up new laws, but acting as a line of defense against bad laws. An unrestrained government – i.e. one that makes whatever laws it willy-nilly wants whenever it willy-nilly wants to -- is far more dangerous than an educated populace that uses every available tool to restrain that government.

Far from being a crackpot “theory”, jury nullification is a cornerstone of constitutional government and a truly free society.

Douglas F. Newman
Aurora

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Freely Speaking: Essays by Doug Newman

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