Fenger Pointing

Becky Fenger | October 28, 2009

No, Your Honor

Becky Fenger“I consider trial by jury as the only anchor yet imagined my man by which a government can be held to the principles of its constitution.” – Thomas Jefferson

I was called to jury duty at Maricopa County Superior Court last week. Although I wasn’t chosen – probably due to being abundantly opinionated – the experience got me to thinking.
The process of weeding out juror candidates is painstaking. (Couples contemplating marriage should get this level of scrutiny.) The last time I appeared, we were all asked what publications we read on a regular basis. The number of prospects whose singular answer was “TV Guide” was depressing. Another time we were asked if we had any bumper stickers on our vehicles. I answered that mine read: “Stop Global Whining!”

This time the questions were more straightforward. We were told that this criminal case involved charges of kidnapping, robbery, and other nasty acts. We were warned that both the victim and perpetrator were homeless persons who would be brought into the courtroom without being cleaned up for their time in the spotlight. Inquiries led us to surmise they were also substance abusers with previous felonies.

We were then asked if we could believe the word of a homeless, besotted person when he gave testimony. I would take his word over that of Barney Frank, Chris Dodd, Charles Rangel and a host of other big shots who are determining our lives from the rarified air of Washington, D.C. anytime.

There was another question about whether we would have any trouble being “boxed in” by being given only certain choices to determine guilt or innocence or if we were likely to cause a hung jury. The judge didn’t use the words “jury nullification” or “fully informed jury,” but that is what we were being asked.

Jury nullification can be defined thusly: Jurors in criminal trials have the right to refuse to convict if they believe a conviction would be in some way unjust. The concept goes back to our roots in British legal tradition. Our Founding Fathers were well aware of the importance of allowing juries to not only determine the guilt or innocence of the accused but also of the fairness of the law he or she is charged with breaking. Also, if a juror feels that the law has been unjustly applied to the defendant, he should vote “not guilty.” The judge, the prosecutor, or the evidence be damned!

American juries were told about their power to vote their consciences until the late 1890s. Nowadays judges will strike a juror “for cause” if he states that he disagrees with the law being violated, and routinely tell jurors to follow the government, not their consciences.
One saw jury nullification most often in violations of the Fugitive Slave Act when juries were loath to prosecute those who sheltered runaway slaves. During Prohibition, alcohol control laws were frequently nullified. Self defense and defense of property is a common reason for juries to override their instructions.

One reason judges and defense attorneys do not inform jurors of their right of nullification is because it can lead to more hung juries. Nobody is thrilled with that. But this right is pivotal to our system of checks and balances. One can point to the states of Maryland and Indiana which require that the jury be fully informed. Their crime rates are no higher than other states.

The Fully Informed Jury Association works tirelessly to educate the public about passing the Fully Informed Jury Act throughout all fifty states with this statement: “The primary function of the independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power by government.”

As Dave Kopel of the Independence Institute points out, support for this Act is made up of quite disparate groups: “Tree-hugging EarthFirsters attend FIJA meeting with timber-cutting Wise Use advocates. Radical pro-abortion feminists sit next to Eagle Forum anti-feminists.”

Although I am a tough-on-crime sort of dame who would like to see the crime of vandalism made into a capital offense since it is so senseless (thereby purging the gene pool of such idiocy), I would have had to tell the judge I believe in jury nullification. If it was embraced by the likes of John Adams, Thomas Jefferson and Prof. Walter Williams, that’s good enough for me.