Commentary: SHOULD A JURY VOTE ITS CONSCIENCE? YES.
by Godfrey D. Lehman
American Reporter Correspondent
San Francisco, Calif.
SAN FRANCISCO, Calif. -- The practice of juries bringing in verdicts co= ntrary to the law as interpreted to them in court would be banned if a unan= imous California Supreme Court decision has its way.
Jurors "are expected to follow the law" because "a nullifying jury is es= sentially a lawless jury," declared Chief Justice Ronald George in San Fran= cisco in May. He would compel jurors to accept the law dictated by the judg= e presiding at each trial.
In a decision in People vs Williams, all seven members of the cou= rt would outlaw what is known as "jury nullification", which refers to the = power of the jury to override or "nullify" any law involved in the case bef= ore them on the basis of conscience, and even to disregard the evidence. =
Ours is "a government of laws and not men", George wrote, and jurors mus= t adhere to the law as the respective legislatures wrote it, he said.
At = the same time, the state's high court acknowledged that it is also true tha= t juries do possess the power to override. But trial judges should not only= not inform jurors about jury nullification, but they must deny it exists b= y dismissing any juror who professes an understanding of the power.
The = courts must "not encourage or glorify the jury's power to disregard the law= ," George wrote in the court's opinion.
In effect, that comes down to instructing trial judges to become lawbrea= kers themselves by deceiving jurors -- or to actually lie to them in order = to set up "a government of men and not law," provided that the "men" (inclu= ding females) are those who sport the black robe and sit on high benches.
By hedging in this way, the state's highest court tacitly acknowledged t= hat the jury's authority to act on the law comes not from written law nor e= ven from the Constitution. It derives from the basic concept of the Constit= utional republic we are supposed to enjoy in this country, where the people= hold sovereign power just by fact of existence.
Every state constitution and the Federal constitution acknowledges this= by declaring that "All political power is inherent in the people," or phra= seology to that effect. "Inherent" means by fact of birth. This is not a gr= ant of power but a declaration that the power exists as a characteristic of= sovereignty. To be sovereign means to be the highest, and in effect answer= able only to "our Creator" and one's own conscience and sense of justice.
Judges, and all other governmental officials possess only those powers g= ranted to them by the Constitution, per the Tenth Amendment's caveat to tha= t effect, and all other powers are reserved "to the people." Thus the seven= way-up-there judges, no matter how "high" they may sit, nonetheless are si= tting lower than the people and can neither deny nor grant to the people an= y rights and powers.
Indeed, no government can exist except on the basis of there being a co= nstitution to create it. Take away the constitution and you take away an op= erating government and all judges. But the people remain as creations of ou= r universal Creator, and they are free to write a new constitution as they = may prefer and establish a different government or other types of judges.=
The California Supreme Court's action is nothing less than an act of tyr= anny, because it moves beyond the constitutional limitations placed upon it= , and is a grab for sovereign power for itself. Although the court referred= to the fact that occasional "juries" in the South acquitted white defendan= ts of killing black or civil rights advocates as a basis for denying nullif= ication, an analysis shows. first, that such "juries" were not true juries = in the sense that they were for the most part hand-picked and controlled by= a corrupt jury selection process, and, second, evidence was withheld from = them on the basis of judicial whim.
A true jury must have the character of independence from outside forces,= and when this exists, the historical record is consistently to the contrar= y -- juries "nullified" laws restricting freedom of religion, of the press,= overrode prejudicial race laws, and recognized the right of women to vote = and hold public office long before that became "official" law. Juries have = almost consistently acted on the side of people's rights despite monarchies= , dictatorships and other forms of tyranny.
Juries, as sovereigns, have the power even to override the Constitution = of the United States, and have done so in at least two notable series of ca= ses: Juries negated the constitutional provision in Article 4, section 2, = clause 3 which could be interpreted as upholding slavery; and overrode the = 18th or "Prohibition" amendment, which was effectually repealed by jury ver= dicts before official repeal by the 21st Amendment.
It was on the basis of the people's power through the jury to nullify ba= d law that the likes of Thomas Jefferson and James Madison termed the jury = as "the grandest in the whole list" of people's rights; and Alexander Hamil= ton observed that if the Framers agreed in nothing else, they agreed on the= power of the jury to act independently onconscience alone.
The court also raised the question of dismissing a potential juror who d= isplays aknowledge of the jury nullification power.
This implies that the= courts have power to make personal invasions of each juror's privacy and m= ind to extract from them their individual thoughts and experiences. But to = allow the courts to do this (and it has long been common practice to make p= ersonal inquiries) is to deny the citizen his right not to be molested by t= he government -- his protection as defined by the several constitutional am= endments.
Under the Fourth Amendment, government is denied the right to intervene = in private lives except under probable cause that the individual has commit= ted a crime, and even then only under due process oflaw. No juror candidate= is under suspicion of having committed a crime, and therefore no inquiry i= nto his private life is permitted.
Even such questions as "Are you married?" are violations of the Fourth a= nd Fifth Amendments. And since such privacy invasions are for the purpose o= f building "custom" or "stacked" juries which the court can control, the in= quiry itself is revolting to both of the two jury trial amendments, the Six= th and Seventh, and to the catch-all amendments, the Ninth and Tenth, which= states specifically that "The powers not delegated to the United States by= the Constitution, nor prohibited by it to the States, are reserved to the = States respectively, or to the people."
The Constitution contains no provision delegating to the courts a power = to grant or withhold rights to the people. This action by the California Su= preme Court is thus as ineffectual as determining the law of gravity is unc= onstitutional and need no longer be observed, or that flowers have no right= to bloom in the Spring.
Godfrey Lehman is the author of "We the Jury," a 1997 examination of 12 = cases in which jury nullification has changed the course of history-- and a= lways for the better. He is based in San Francisco.