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•  Jury Nullification
•  The Communication Decency Act
•  The Column "Jury Can Weigh Justice Along with Law"

 

Jury Nullification

True or False: You are on a jury. The defendant has clearly broken one of the laws described below. You must follow the letter of the law and the judge's instructions, and convict him or her. (If you answered "True," you need to keep reading...)
 
1. Medicinal Marijuana "Consider, Will Foster, 38, torn from his wife and children to serve 93 years in prison for growing his pot to treat his crippling rheumatoid arthritis." (Dale H. Gieringer, "Those Who Really Need Marijuana," Wall Street Journal, 11/17/97, A27) This happened in Oklahoma. Now, it is illegal to grow marijuana in Oklahoma (and most states). I do not believe in recreational drug use, but some physicians believe that marijuana has some legitimate medical applications. Like any other drug or medicine, marijuana should not be taken without a medical reason.
• "In Merced, Calif., Mike Osborn currently faces 13 years for growing marijuana for seven AIDS and cancer patients." (Peter Gorman, "Those Who Really Need Marijuana," Wall Street Journal, 11/17/97, A27) Only if a jury convicts him.
• A physician prescribes marijuana for a cancer patient who is getting chemotherapy. This is legal in the doctor's state (due to a ballot initiative), but is illegal under Federal law. The Federal government prosecutes the doctor. Do you vote to convict? I vote to acquit (and, in most places, that's enough to hang the jury.)
• A physician prescribes marijuana for anyone who wants it. The Federal government prosecutes the doctor. Do you vote to convict? I do, since prescribing any medication for recreational use is unprofessional conduct (to say the least) in the medical profession.
2. Physician Choice and Medicare A clause was recently slipped into Medicare legislation that makes it illegal for a physician who sees Medicare patients to accept Medicare-eligible patients who choose to pay privately. A Medicare-eligible patient wants to see a particular specialist, and circumvents, evades, or defeats the law. The government prosecutes the patient and/or physician. There is no question that they have broken the law. Do you vote to convict? I do not, since I do not recognize the government's right to regulate physician choice.
3. Affirmative Action/ Race Preferences  A construction contractor uses a "front," or misrepresents his/her ethnicity, to circumvent, evade, or defeat a set-aside preference. The Federal, State, or local government prosecutes him for fraud when it finds out. Since I do not recognize the legitimacy of any form of race, sex, religious, or ethnic discrimination, I vote to acquit.
4. Air Bags A car owner disconnects her car's air bags (or has a mechanic do it) in violation of Federal law. The owner is afraid of being injured by the air bags. The government prosecutes the car owner and/or mechanic. Do you vote to convict? I would vote to acquit, since a reasonable person might fear injury by the air bags. (I would not want to disconnect mine, since I'm the right size, 6 feet, to be protected by the air bag instead of being injured.)
5. "Environmental" Laws The government declares part of someone's property a "refuge" for an "endangered species." A brush fire is raging, and the owner plows a firebreak to protect his home. This destroys the "refuge." The government prosecutes him. Sorry, government, first, if you wanted that property, you should have taken it by eminent domain, and paid for it. Second, the property owner has a right to protect his property from a fire.
6. Gun Control  Someone ignores or defies a new local ordinance requiring surrender of handguns, semiautomatic guns, etc. (New York City, a while ago, passed a law requiring owners to surrender all semiautomatic rifles.) The person is prosecuted for violating the law. Do you vote to convict? I do not, if they are not doing anything illegal with the gun. If they're dealing drugs out of the place where they keep the gun, or are using the gun to endanger others or commit a crime, that's another matter.
• Crown Heights: Rioters trashed a Jewish neighborhood in New York City. Police did not respond to calls (shades of the "Night of the Broken Glass" in Nazi Germany.) As far as I am concerned, New York City has no gun possession laws that anyone is obliged to obey. Remember that the social contract between a government and its people works two ways: the people obey the government's laws in return for the government's protection of their natural rights (life, liberty, and property).
• Los Angeles Riots: Police told citizens, "You're on your own." California National Guard took its time to show up. As far as I am concerned, California citizens have no duty to obey their state's gun possession laws.
• Did you know that the first gun control laws were passed to prevent Black people from owning guns? The Ku Klux Klan didn't like the idea of their victims shooting back.
7. Fugitive Slave Law Go back 150 years. An abolitionist is being prosecuted for harboring a fugitive slave. Juries did exercise their right to nullify the law by refusing to convict.
8. Louise Woodward The original jury, as I understand, favored a manslaughter conviction. Since the judge told them they could only consider first or second degree murder, the jury convicted her of second degree murder. (The judge later changed it to manslaughter.) Despite the judge's instructions, the jury could have convicted the defendant of a "lesser included charge."

The First Amendment and the Internet

Spammers, or people who abuse the Internet with bulk E-mail, accuse their opponents of wanting to suppress free speech. Anti-spammers, they say, want freedom of expression only as long as it applies to themselves. As the guest editorial below shows, I am 100 percent in favor of free speech and freedom of expression. I do not, however, agree with what spammers call "freedom of expression."

Spammers believe that the First Amendment to the Constitution of the United States entitles them to send unwanted and unsolicited bulk E-mail to anyone they want. The First Amendment guarantees only the right to speak or write; it does not give anyone the right to force others to listen or read. The First Amendment does not include the right to shout "Fire!" in a crowded theater; this is the classic example. It does not include the right to shout, "This is a hijack!" on an airplane, or "This is a robbery!" in a bank, even as a joke. It does not include the right to drive a sound truck through the streets to blast advertising, or political opinions, at full volume. That's disturbing the peace. Nor does it give anyone the right to program autodialers to call people with prerecorded advertising pitches. That's harassment.

I have the right to post this opinion on the Internet; you have the right to find it with a search engine and read it, or not read it. I do not have a right to stuff it into your E-mail box, especially if you must pay to receive messages. Rush Limbaugh's and Howard Stern's right to express themselves over the radio corresponds with the listener's right to change the channel, or turn the radio off. (I've heard Rush, and I think he usually makes sense.)

"How can I sell my product if I don't spam?" you may ask. It's simple: offer a good product at a good price, and develop a good Web site to promote it. Index your site on the major search engines and, if I'm interested in it, I'll find you. I have never bought anything from a spammer and I never will, but I have bought software that was advertised on a Web site. The problem with spam is that most of the "products" are trash: 900- numbers for sex, illegal chain letters, and multilevel marketing operations (MLM's), which aren't much better than chain letters. Spammers don't really have anything to sell; if they did, they wouldn't have to spam.

Now, what about the Communications Decency Act? Here's some interesting information (for more, see the Fully Informed Jury Association): the fact that Congress (or a state or local government) passes a law does not mean that any jury has an obligation to enforce it. Jury nullification is the jury's right to quote Mr. Bumble from Charles Dickens' Oliver Twist, and decide, "The law is an ass." (Would-be cybercensors: in this context, that's short for donkey, or jackass.)

Jury Can Weigh Justice Along with Law

"…the law is an ass, an idiot."

Mr. Bumble in Charles Dickens' Oliver Twist

In "Justice is held hostage by legal murkiness and manipulative lawyers" (07/03/96) Frank Leeland asks, "What is the proper role for our court [system] to play in our legal justice system? Is its primary function to follow laws, even if flawed, or to dispense justice?" He cites the recent $40 million judgment against Bernhard Goetz as an example of problems with the legal system.

This is but one example of New York City's version of justice. In another, a mugger was beating an elderly man in a subway when a transit police officer saw him. The mugger turned to run, and the officer shot him in the back. The officer's action was legal under New York's laws, as I understand them. Nonetheless, the mugger sued the city and won a multimillion dollar award. The elderly victim learned of this and successfully sued the criminal. He then returned the money (less the two lawyers' contingency fees) to the city in gratitude for the transit officer's timely aid.

We've also seen a multimillion dollar award from "Big McPockets" to a customer who spilled hot coffee on herself. This leads to the question, "Where do they find these juries?" To do a good job, potential jurors (that's us) need to know more about the system.

A jury's function is to dispense justice. In doing so, jurors can disregard both the law and the judge's instructions. For example, an English jury refused to convict William Penn for preaching Quakerism, an illegal religion. During the 19th century, American juries refused to convict people who hid runaway slaves. The jury "nullifies" an unjust or selectively enforced law by refusing to enforce it.

How might this apply today? During the 1980's, a New York jury convicted Bernhard Goetz of a felony for carrying an unlicensed handgun. In our state, a productive, law-abiding citizen like Goetz could have followed the rules and obtained a gun permit. This was, and is, not true in New York City. Furthermore, judges in New York and Washington, DC ruled that police have no duty to protect individual citizens. New York put this ruling into practice a few years ago, when rioters trashed Crown Heights and the police didn't come. During the Los Angeles riots, police similarly told victims, "You're on your own." People who are on their own, like pioneers in the Wild West, need guns.

These judges need to repeat their high school American history classes. Most high school students learn that a government derives its authority from a social contract. In return for its citizens' obedience, the government agrees to protect the citizens' natural rights: life, liberty, and property. When a government abdicates its duty to protect its citizens' natural rights, it forfeits their obedience. Had I been on Goetz' jury, I would have refused to convict him.

Many parts of the Communications Decency Act (CDA) would be candidates for jury nullification, if a Federal court hadn't ruled the entire law unconstitutional. Congress can grandstand and pass whatever it wants, no matter how unreasonable or irrational. This doesn't mean that jurors have to enforce the legislation.

Wouldn't it lead to anarchy if juries did whatever they wanted? Might juries allow murderers and rapists to escape justice? It's easy to find people who would refuse to enforce New York City's gun laws or the CDA. Few believe that violent crime, theft, and so on are acceptable. Jury nullification can, in fact, prevent criminals from escaping justice.

I recall that one of the LA rioters who beat Reginald Denny escaped conviction because of the judge's faulty instructions. The judge told the jury that the only available verdict was attempted murder. I recall that the prosecution had a videotape of the defendant beating Denny with a brick, but it couldn't prove that he intended to kill Denny. The judge's instructions, therefore, forced the jury to acquit the defendant. If the jury believed that the defendant wanted to hurt Denny badly (instead of killing him), it should have hung itself to force a retrial. The next judge might have included aggravated assault in the next jury's options.

I am not a lawyer, and this is not legal advice. Most of it is, however, common sense. For more information, contact the Fully Informed Jury Association (FIJA) at 800-TEL-JURY. If you have access to the Internet, go to http://www.fija.org/