There is a basic principle that underlies any honest attempt at good governance:
Anyone given power over others must be subject to more scrutiny, and must be given less benefit of the doubt.
Judging from their complaints, nearly everyone in modern America feels that things are out of control, and the rampant violation of this principle has to be among the biggest reasons.
The man who lives quietly on 4th Street is entitled to his privacy, but the actions of a policeman authorized to use violence must be scrutinized. Likewise the prosecutor who can ruin lives with the stroke of a pen.
Power may never be given the benefit of the doubt by a free people; it must be suspect at all times. Anything less leads to tyranny.
Jury Nullification: The Embodiment of This Principle
Jury nullification occurs when a jury decides that a defendant shouldn’t go to jail, regardless of what the law says. Here’s how it embodies the principle we started with:
By nullifying a law, people who don’t coerce others stop the excesses of those who do.
This is a very old practice and one that is explicitly recognized in US law.
The problem with nullification is that law enforcers—people who use force on others—don’t like it. In fact, they’ve worked hard to prevent jurors from knowing about it. And in the Ulbricht trial, they’re trying very hard to make sure the jurors never find out about it. These prosecutors recently filed a motion to make sure that Ulbricht’s attorneys never mention the subject.
But I’m getting ahead of myself. First, I should explain why jury nullification has remained part of US law, even though it’s generally hated by prosecutors, judges, policemen, and politicians. That reason is simple: it was of massive importance to the American revolutionary generation and it couldn’t be kept out of the founding legal decisions.
Here are a few examples:
In the winter of 1768-‘69, John Hancock was tried for smuggling… a “crime” of which he was clearly guilty. But Hancock had a brilliant young lawyer by the name of John Adams, who bypassed the facts of the case and questioned the constitutionality of the statute (referring to the Massachusetts Constitution, of course). In other words, Adams went directly for nullification. The prosecutor dropped the case, knowing that the jury approved of Hancock and would nullify his law.
In November of 1734, a printer named John Peter Zenger was arrested for seditious libel against his majesty’s government. Freedom of the press was not the law at that time. But Zenger didn’t stop—he continued to inform people about the actions of their British rulers. As a result, he was brought to trial in 1735. At the end of the trial, the judge ordered the jury to uphold the law and convict Zenger. But jury disregarded the judge’s instructions and found him not guilty… and kept hearing the truth from him.
In February of 1794, the Supreme Court of the brand new US government presided over a case called Georgia vs. Brailsford. In his instructions to the jury, the first Chief Justice of the US Supreme Court, John Jay, told the jury that they were entitled to judge both the facts of the case and the law, saying, “[Y]ou have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”
Subsequent US judges have tried to cut back on jury nullification, but about the best they’ve done is to forbid defense attorneys from mentioning the subject. That’s not trivial, of course, because if a jury knows nothing about nullification, they’ll probably be far too intimidated to defy a sitting judge. The Fully Informed Jury Association has been fighting for years to inform people about this.
Prosecutors, especially federal prosecutors, exercise a tremendous amount of coercion, and they do it with nearly unlimited funds.
Prosecutors frequently convict 98% or 99% of their targets. That number is fully unobtainable in any kind of fair fight… and as anyone who has been prosecuted will tell you, facing off against these guys bears no resemblance to a fair fight.
Back to the Ulbricht Trial
As mentioned above, Ross Ulbricht’s prosecutors don’t want his jurors to know anything about this. After all, millions of peaceful people have been imprisoned (and subsequently impoverished) by their beloved drug war, and all of those people have families.
So if you get a juror whose brother had his life ruined by selling a few ounces of pot to a friend, and if this person learns anything about nullification, he or she may very well refuse to convict.
It will be interesting to see how the judge (Katherine Forrest) rules on this. She has issued brave rulings in the past, particularly in the case of Hedges v. Obama, stopping the indefinite detention of suspects under the National Defense Authorization Act. Judge Forrest did the right thing then, and she may do the right thing again.
A few other facts about the case:
- The prosecutors, in their dread of nullification, are trying to suppress all of Ross’ opinions on politics, justice, and more or less everything. A passage from their motion reads:
[T]he defendant should be prohibited from raising any arguments or presenting any evidence regarding the defendant’s purported political views—including but not limited to views concerning the propriety of U.S. or international drug laws… or anything else meant to convince the jury that the defendant’s conduct should be excused, even if criminal, for any reason.
No right to defend oneself, Inspector Javert?
- The prosecutors want to tell the jury that Ross Ulbricht ordered multiple murders, even though they dropped those charges. If this sounds ridiculous, that’s because it is. They obviously can’t prove this, but they still want to prejudice the jury by telling them horror stories. And the stories would be troubling.
- The defense isn’t allowed to know the names of the prosecution’s witnesses. Why? Well, because Mr. Ulbricht likes to order murders, of course! (Yes, I know, it gets crazy: they won’t even try to prove that he did this, yet they get to cripple his defense with it.)
- This case is crucial for the freedom of the Internet. It involves something called “transferred intent.” In practice, transferred intent makes an Internet site liable for what a bad guy does there. If, for example, two thugs discuss criminal strategies on your site, it’s also your fault, and you can go to jail. Crazy? Of course! But how often does that stop “the law”? Friends of the state like AT&T and Google won’t have to worry about this (large donations to politicians have their uses), but plebeian website operators would be placed in serious jeopardy.
- The power behind this prosecution is Chuck Schumer, the senior Senator from New York. I have no inside information on the case, but I’ve been around the legal system much of my life: please believe me that it is far from pure. I’d bet that Schumer has his fingers all over this trial; it’s his turf, after all, and he’s been pushing this from the beginning.
I suppose I should add that my personal experience with judges has been good, with just a few exceptions. My experience with juries has been fairly good as well. Still, I know of some nasty things that have gone on in the US legal system, and almost any experienced trial lawyer can tell you nasty stories.
In the End…
In the end, power always corrupts. And that is precisely why power must never be given the benefit of the doubt. People who don’t use power must be able to stop those who do.
Power loves just one thing: more power. If unchecked, it naturally evolves into self-righteous tyranny. (And these days it’s not only unchecked, but glorified. See your local TV listings!)
Jury nullification is a last line of defense. Enforcing the ignorance of this protection would be a grave error.
This article was originally published by Casey Research.