Jury Nullification and Why Ross Ulbricht’s Prosecutors Are Trying to Evade It

(Originally published in December, 2014, a few weeks before the trial began.)

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 full privacy, but the actions of a policeman authorized to use violence must be scrutinized. More so 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 v. 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, “You 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 can do (so far) 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. They frequently convict 98% 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…

[Update: She failed, badly.]

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 wrong, that’s because it is. They obviously can’t prove this, but they still want to prejudice the jury by telling them horror stories.
  • 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, it’s demented: 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… even though the operators never knew about it.
  • The power behind this prosecution is Chuck Schumer, the perpetual 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’s far from pure. I’d bet that Schumer has his fingers all over this trial; it’s his turf and he’s been pushing it from the beginning.

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.

Jury nullification is a last line of defense. Enforcing the ignorance of this protection serves tyranny alone.

Paul Rosenberg

This article was originally published by Casey Research.