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Jury Nullification: Article, Brief, and Requested Jury Instruction

Jerald Finney
Copyright © July 21, 2013

Jury nullification has been an issue near and dear to my heart since the time in the 1980s when the Lord was dealing with me about going to law school. After attending the University of Texas School of Law and getting my license to practice law in 1993, I attended a Fully Informed Jury Association seminar and pursued the issue in selected cases. I drafted a brief to present to the court and a Requested Jury Instruction on the issue. The judges became very antagonistic when presented with the brief and the instruction. I will not bore you with the entire battle, but present this article to you so that, by reading the brief and requested instruction you may gain some understanding of the issue. Since I have not been allowed to argue nullification in any of my Texas cases where I attempted to do so, I have come up with a few tactics devised to try to get the jury to apply their right to nullify. Visit the Fully Informed Jury Association by clicking the blue colored link. Following the brief below is a copy of the requested instruction. Note: This website will not allow me to correctly format the headings to the brief and requested instruction (some of the entries in the headings are not centered).

No. ______________

 STATE OF TEXAS               §              IN [Name of Court]
§
     VS.                       §              OF              
§
                                     [NAME OF DEFENDANT]            §                [Name of county] COUNTY, TEXAS                

BRIEF IN SUPPORT OF ALLOWING DEFENDANT, THROUGH HIS ATTORNEY, TO ARGUE JURY NULLIFICATION, AND ASKING THE COURT TO INCLUDE A JURY NULLIFICATION INSTRUCTION IN THE CHARGE

Defendant, by and through his attorney, respectfully shows the court as follows:

Jury nullification is a positive force in a civilized society. Only the jury is in a position to balance compassion against the letter of the law and assure justice in a proper case.  [T]he jury stands as a bulwark against laws which it deems unjust or excessively harsh.”  Mouton v. State, 923 S.W.2d 219, 222 (Tex. App.–Houston [14th Dist.] 1996, no pet. history).  It is undisputed that a jury has the power of nullification.” Id. at 221.  “[J]ury nullification is a recognized aspect of our jury system.” Id.   The court in United States v. Burkhart, 501 F2d 993, 997 (6th Cir. 1974) noted that the law of jury nullification “allows a defense attorney “some leeway in persuading the jury to acquit out of considerations of mercy or obedience to a higher law.” Mouton at 221-22.

The majority in Sparf et al. v. United States, 156 U.S. 51 (1895), which was cited in Mouton, “suggested no way of eliminating the power of juries, sua sponte, to nullify the law. CLAY S. CONRAD, JURY NULLIFICATION 106 (Carolina Academic Press 1998).  “The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law.” Id.  “The case did not hold that federal judges could not give jurors [a nullification] instruction, or that they must disingenuously inform jurors that they were bound to follow the courts instructions.” Id. (emphasis mine).  “The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law.” Id. “The case did not hold that federal judges could not give jurors such [a jury nullification] instruction.” Id. at 108.

The criminal justice system which allows the defense attorney to argue jury nullification and the judge to tell the jury that it has the right to nullify the law is a better system. And there are good reasons for a jury to be told that they have the right to nullify the law.  Jurors may not be aware of their power to render a verdict according to conscience, or that they are immune from prosecution if they do so–particularly if they are under the impression that their oath binds them to enforcing the law as given in the court’s instructions. JURY NULLIFICATION at 126.  “Counting on jurors to come to  Court aware of their hidden powers runs counter to what little empirical evidence exists.” Id. at 133.  “Furthermore, psychological studies indicate that a juror may be willing to convict and impose a cruel sentence if the legal system supports and applauds his actions, because judicial instructions have deprived him of any personal moral responsibility for his verdict.” Id.

Judge Jack B. Weinstein believes that “[n]ullification is but one legitimate result in an appropriate constitutional process safeguarded by judges and the judicial system. When juries refuse to convict on the basis of what they think are unjust laws, they are performing their duty as jurors.” Id. at 145-146 citing HON. Jack B. Weinstein, Considering Jury “Nullification”: When May and Should a Jury Reject the Law to do Justice?, 30 AM. CRIM. L. REV. 239, 240 (1993).  He wrote:

“When jurors return with a “nullification” verdict, then, they have not in reality “nullified” anything: they have done their job. . . Juries are charged not with the task of blindly and mechanically applying the law, but of doing justice in light of the law, the evidence presented at trial, and their own knowledge of society and the world.  To decide some outcomes are just and some are not is not possible without drawing upon personal views.” Id. at

District Court Judge Thomas Wiseman, in the Middle District of Tennessee, wrote:

 “Argument against allowing the jury to hear information that might lead to nullification evinces a fear that the jury might actually serve its primary purpose, that is, it evinces a fear that the community might in fact think a law unjust.  The government, whose duty it is to seek justice and not merely conviction, should not shy away from having a jury know the full facts and law of a case.  Argument equating jury nullification with anarchy misses the point that in our criminal justice system the law as stated by the judge is secondary to the justice as meted out by a jury of the defendant’s peers.  We have established the jury as the final arbiter of truth and justice in our criminal justice system…” United States v. Datcher, 830 F.Supp. 411, 412 (M.D. Tenn. 1993), discussed in Kristen K. Sauer, Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences, 95 COL. L.REV. (1995) and cited in JURY NULLICICATION at 146-147.

 A Brief History of “Jury Nullification”

History demonstrates that the advent and practice of jury nullification has been a positive and compassionate force in the development and operation of our criminal justice system. “Although the use of the jury in criminal trials in England was encouraged by the Assize of Clarendon in 1166, it was not until 1215 that juries were routinely used in the trial of criminal cases.”  JURY NULLIFICATION at 17 citing SIR PATRICK DEVLIN, TRIAL BY JURY, 9 (3d ed. 1966)(Reprinted 1988).  This was the result two events: the Pope’s condemnation of the entire system of trials by ordeal and his prohibition of clerics from participating in them and the Magna Charta.  JURY NULLIFICATION at 17.

“Although originally juries which returned ‘incorrect verdicts’ were treated very harshly, the power of juries to correct oppressive or unjust laws was beginning to be recognized by the mid-seventeenth century.  Id. at 23-28.  Bushell’s Case in 1670 ushered in what has been called the heroic age of the English jury.”  Id. at 24-28.

“In Bushell’s Case, jurors acquitted the Quakers William Penn and William Mead of the capital offenses of unlawful and tumultuous assembly, disturbance of the peace and riot.  They were charged because they preached to their congregation in the street after the police locked them out of their church because the Quaker religion was illegal.  After the evidence, the court told the jurors to convict.  They did not.  They were threatened with starvation, they were held three days without food, drink, or toilet facilities, but acquitted anyway.  They were all fined a considerable sum.  Eight paid the fine, but four were imprisoned for refusing to pay.  One of those made out what was called a writ of Habeas Corpus ad Subjiciendum, which was decided 2 1/2 months later in their favor.  The opinion in  Bushell’s Case held no more than that a juror could never be punished for his verdict unless he delivered it in bad faith.” Id.

As a result, courts began to use “special verdicts.”  Id. at 28.  Nonetheless, juries insisted on returning general verdicts, especially in seditious libel cases where the law said that the fact of publication was the only element of a libel prosecution that concerned the jury.  Id. at 29.  Many pamphlets were published and distributed informing jurors of their right to judge the law. Id.  More conventional academic and legal treatise writers also began to accept and promulgate the doctrine of jury independence.  Id. at 30.

Alexander Hamilton argued “jury nullification” in Rex v. Zenger, How. St. Tr. 17:675 (1731). Id. at 32-35.  John Peter Zenger was accused of seditious libel in New York. Id. The jury acquitted Zinger after only brief deliberations. Id. at 36.  The reverberations of Hamilton’s arguments continued both in England and America for many years and prosecutions for seditious libel began to falter with increasing consistency. Id. at 36-38.  As a result, the English Parliament in 1791 passed Fox’s Libel Act which re-established the right of juries to render a general verdict in libel cases as in all other criminal cases. Id. at 41-43.  “Juries, by exercising the power implicit in the delivery of the general verdict, had demanded and received official recognition of their right to judge whether an alleged libel was in fact false, malicious and intentional.” Id. at 44.

“The founders of this country were in agreement as to the value of the trial by jury as an essential means of preventing oppression by the government. Their primary concern was more with the radical true law-finding power of the jury than with the jury’s power of amelioration.” Id. at 47-48.  Many prominent founders such as Theophilus Parsons, a member of the Massachusetts Constitutional Convention and Chief Justice of the Massachusetts Supreme Court, John Adams, Thomas Jefferson, and Alexander Hamilton argued for the rights of jurors to judge the law.  “The right of early American jurors to deliver a general verdict according to conscience was not a controversial issue during the early years of this country.” Id. at 52. Chief Justice John Jay, in a rare jury trial in front of the Supreme Court, instructed the jurors of their right to judge the law in the instructions he gave to the jury in Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794).  Id. at 52-53.  Other cases from the same period expressed the same conception of the role of the jury. Id. at 53.

That federal law continued to recognize the right of jury nullification is shown in Justice Van Ness’ instruction to the jury in United States v. Poyllon, 27 F.Cas. 608, 611 (D.C.D.N.Y. 1812), and by Chief Justice John Marshall’s instructions to the jury in United States v. Hastings, 26 F.Cas. 440, 442 (C.C.D.Vir. 1812): “That the jury in a capital case were judges, as well of the law as the fact, and were bound to acquit where either was doubtful.” Id. at 60-61.  For almost five decades following the adoption of the Bill of Rights, the right of jurors to judge both law and fact was uncontroversially accepted.  Id. at 60-63.

By the mid-nineteenth century, for several reasons, the prevalence of jury instructions charging jurors with the responsibility for reviewing both law and fact began to give way to increasingly constrained instructions.  Id. at 65.  For one thing, reducing the power of the jury to determine the law gave trial judges greater control in determining case outcome. Id.  Another factor was reduced perception of a need for jury independence. Id. Americans no longer had unjust laws foisted on them by a foreign power across the sea. Id.  Furthermore, most Americans were aware of their power to judge the law. Id.  Jury independence was rarely used “and most Americans thought it should only be used to curtail gross excrescences of the criminal sanction.” Id. at 66-67.

“The laws establishing and protecting the institution of slavery and punishing those who aided fugitive slaves struck many Americans–including substantial numbers of Southerners–as cruel, unjust and fundamentally un-American.” Id. at 75.  Juries in Massachusetts began ending slavery by finding in favor of slaves who sued for freedom. Id. at 75. In one case, the fate of Quock Walker, a “runaway slave,” was debated in a series of civil jury trials, culminating in a decision that “The said Quock Walker is a free man and not the property slave of the defendant,” and Mr. Walker was awarded damages for injuries suffered when his former master, Nathaniel Jennison caught and beat him. Id. at 75-76.  Then, Jennison was found guilty of assaulting Mr. Walker and fined forty shillings in the case of Commonwealth v. JennisonId. at 76.

Chief Justice William Cushing, in his charge to the jury, instructed them that:

“As to the doctrine of slavery and the right of Christians to hold Africans in perpetual servitude, and sell and treat them as we do our horses and cattle, that (it is true) has been heretofore countenanced by the Province Laws formerly, but nowhere is it expressly enacted or established…  But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea had taken place with the people of America, more favorable to the natural rights of mankind, and to that natural innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses–features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal–and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property–and in short is totally repugnant to the idea of being born slaves.  This being the case, I think the idea of slavery is inconsistent with our conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract…” Id. at 76 citing ALBERT P. BLAUSTEIN & ROBERT L. ZANGRANDO, CIVIL RIGHTS AND AFRICAN AMERICANS, 45-46 (1991).  “The jury of white male landowners freely chose to convict, heralding the end of slavery in Massachusetts and delivering a fatal blow to the institution throughout the Northeast.” Id. at 77.

Although slavery continued in the South, The Unconstitutionality of Slavery, by Lysander Spooner, which argued the illegality and unconstitutionality of slavery, was widely disseminated both in print and by orators such as Frederick Douglass and lead to one of the most thorough jury revolts in history. Id. at 77-78.  The Fugitive Slave Act which was passed in 1850, one of the most infamous pieces of legislation ever passed by any United States legislature provided that a person accused of being a fugitive slave could, without due process of law, be brought before a quasi-judicial commissioner for a summary hearing without a jury. Id. at 79. The commissioner, if convinced of the claimant’s veracity, could return the slave to bondage. Id. The commissioner was paid ten dollars if the slave were returned, but only five dollars if the claim was rejected. Id.  The Fugitive Slave Act also provided imprisonment of up to six months and a fine of up to one thousand dollars for anyone convicted of interfering with the recovery of fugitive slaves, or who rescued or harbored fugitives. Id.  Any person with black skin could be seized as an escaped slave wholly on ex  parte testimony. Id.  The Act deprived those arrested under its auspices of the writ of Habeas Corpus. Id.

It is clear that, for whatever reason, jurors frequently refused to convict those who harbored or assisted fugitive slaves. Id. at 80.  In one case, twenty-four men helped a captured slave named Fredrick Jenkins (alias Shadrack) escape. Id. at 81. Prosecution of the participants in Shadrack’s rescue was dropped by the government after two acquittals and several hung juries. Id.  The second defendant, a black lawyer named Robert Morris, a descendant of slaves, was acquitted by a jury of twelve white men of assisting in the escape of a fugitive slave. Id. at 81-82.  According to one authority, “[h]is lawyer told the jury that they should judge the law as well as the facts, and that if any of them conscientiously believed that the Fugitive Slave Law was unconstitutional, they should disregard any instructions by the judge to the contrary.” Id. at 81.

Other evidence that jurors were freely granted the power to deliver an independent verdict during the nineteenth century include jury independence provisions inserted into several state constitutions and state statutes granting jurors the power to judge the law. Id. at 88.  Some of those survive until this day in one form or another, but in some states, courts restricted the role of jurors during the latter half of the nineteenth century, “often striking down or limiting earlier precedents and statutes.” Id. at 88-92.

In a sense, the United States Supreme Court rejected jury independence in Sparf et al. v. United States, 156 U.S. 51 (1895).  Id. at 99-108.  But the majority in Sparf “suggested no way of eliminating the power of juries, sua sponte, to nullify the law. Id. The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law. Id. The case did not hold that federal judges could not give jurors such an instruction.” Id. at 108.

In spite of Sparf, during the closing decade of the nineteenth century, the prosecution found it increasingly difficult to prevail in labor cases. Id. at 106-108.

“Jury independence is a snapshot in the law, appropriately flaring up when the criminal law exceeds the limits of social consensus, dying away when the law has been reformed, only to flare up anew when the legislative ambition [and now judicial ambition] again overtakes its legitimate bounds.”  Id. at 108.  It is not debated that the laws which prohibited alcohol manufacture, sale, and consumption were routinely rejected by independent American juries. Id. at 108-115.  In some areas of the country as many as sixty percent of alcohol-related prosecutions ended in acquittals. Id. at 109.  “Prohibition has been described as a ‘crime category in which the jury was totally at war with the law.’” Id.  “Jury independence . . . was still a strong aspect of American culture and many jurors were aware of their powers and willing to exercise them when appropriate.” Id.  “Where juries did convict, they often delivered ‘compromise verdicts’ which resulted in reduced sentences for the accused.’” Id. at 111.

“During prohibition, John Henry Wigmore defended trial by jury on several grounds: that it prevented unpopular distrust of official justice, provided necessary flexibility in legal rules, educated the citizens of the country about the administration of the laws and improved verdicts by requiring that, even after the decision in Sparf et al., juries were deciding cases based both on judicial instructions and their own views of equity:

“Law and justice are from time to time in conflict.  That is because law is a general rule (even the stated exceptions to the rules are general exceptions); while justice is the fairness of this precise case under all its circumstances.  And as a rule of law only takes account of broadly typical conditions, and is aimed on average results, law and justice every so often do not coincide. * * *

“The jury, in the privacy of its retirement, adjusts the general rule of law to the  justice of the particular case.  Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved.

“That is what the jury trial does.  It supplies that flexibility of legal rules which is essential to justice and popular contentment.”

Id. at 112 citing John H. Wigmore, A Program for the Trial of Jury Trial, 12 J. AM. JUD. SOC. 166, 169-171 (1929).

Clarence Darrow, America’s most famous criminal defense lawyer of the period and a great opponent of Prohibition and supporter of jury nullification, stated, “Since men began making laws, the favorite form of repeal is by non-observance.  It was in this way that Christianity conquered the Roman Empire.  If Christians had obeyed the laws of Rome their religion would have died at its birth.” Id. at 114 citing DARROW, THE STORY OF MY LIFE, 293, 294 (1931).

“By the early twentieth century, it seemed that jury independence had become a doctrine of the past, anachronistically surviving in a few isolated jurisdictions and watered down and disparaged where it remained.  Rejected by the federal courts and most state courts, it served as interesting fodder for an occasional law review article.  Jury independence was not advocated openly, nor had it been a particularly lively topic of discussion since the demise of slavery and the repeal of the Fugitive Slave Act in 1850.  The political nature of jury independence allowed the doctrine largely to hibernate until the 1960s when the Vietnam war cases brought it to the forefront as a tool of social protest.

“However, as the last quarter of the twentieth century approached, the rapidly increasing number of academic law journals required an increasing number of articles, in order to fill the equally increasing number of pages.  Articles on jury independence found their way onto many of those pages.  For the first time in 88 years of history, the doctrine of jury independence had established a life of its own, apart from any particular issue or policy.” Id. at 140-141.

Juries are still nullifying the law. Id. at 143-153 (examples given: e.g., defendant found not guilty of two counts of marijuana cultivation where he admitted to growing more than 40 plants in his home and his sole defense was that smoking and eating marijuana alleviated the nausea and weight loss associated with AIDS; a Michigan jury refused to punish Dr. Kevorkian for his role in helping Thomas Hyde commit suicide; a Colorado jury refused to convict a man for assisting his mother who requested his help because her suffering got to be too much in committing suicide; cases where juries refuse to convict women who have killed their batterers, not in self-defense, after years of abuse).  Others categories of cases in which independent juries are likely to nullify the law include abortion protest cases, gun owner cases, and, should Roe v. Wade, 410 U.S. 113 (1973) ever be overturned, it is unlikely that independent juries would enforce laws criminalizing abortion.  Id. at 152.  In fact, against all reason, it seems to the attorney for defendant that the average “Pro-Choice” person is far more likely to nullify the law in the appropriate case than the average so-called “Pro-Lifer” many of whom have bought the liberal lie that “I am Pro-Life and would never have an abortion, but I don’t think the government should legislate morals.  It ought to be up to the pregnant woman.”  That reasoning would require the abolition of all our criminal laws.  I represented an abortion clinic sidewalk counselor in Austin.  At trial, the jury would have nullified the law and convicted had not the judge granted defendant’s motion for a directed verdict.  After talking with the jurors after trial, it was apparent that the jurors had lied during voir dire so that they could get onto the jury.  It was also apparent that they were angry because the judge followed the law and granted defendant’s motion for directed verdict after the close of the state’s evidence.

Conclusion

At times, jury nullification is necessary to assure that justice is done.  A judge can allow the defense lawyer to argue jury nullification.  A judge can, but is not required to instruct the jury of its power of nullification.  To deny the jury the right to be fully informed – by either the defense lawyer or the judge or both – of its power of nullification in an attempt to prevent it from exercising the full extent of its proper function will likely result in an injustice in a case where the letter of the law and justice conflict.  Sometimes, as history demonstrates, law and justice do not coincide.

Respectfully submitted,

____________________________________

Jerald C. Finney
P.O. Box 1346
Austin TX  78767
Tel. & FAX: (512)385-0761
State Bar No.:  00787466
ATTORNEY FOR DEFENDANT

VERIFICATION

STATE OF TEXAS                      §

§

COUNTY OF TRAVIS                 §

BEFORE ME, the undersigned authority, on this day personally appeared Jerald Finney who, upon being duly sworn, upon oath did acknowledge and state to me as follows:

“My name is Jerald Finney.  I have read the above and foregoing statements and they are to my personal knowledge, true and correct.”

SIGNED this ____ day of _______________, 200___.

______________________________

Jerald Finney

SUBSCRIBED AND SWORN before me on this ______ day of _______________, 201__.

______________________________

Notary Public, State of Texas

______________________________

Printed Name of Notary

My Commission Expires:_________

No. ______________

 STATE OF TEXAS               §              IN [Name of Court]
§
VS.                §                OF
§
[NAME OF DEFENDANT]          §               [Name of county] COUNTY, TEXAS

DEFENDANT’S REQUESTED INSTRUCTION NO. ___

TO THE HONORABLE JUDGE OF SAID COURT:

                                             , defendant in this action, before the Court has presented the charge to the jury and in the time and manner required by law, requests that the Court include in the charge to be submitted to the jury the following instruction.

INSTRUCTION NO. ___:

It is presumed that juries are the best judges of fact.  Accordingly, you are the sole judges of the true facts in this case.

I think it requires no explanation, however, that judges are presumed to be the best judges of the law.  Accordingly, you must accept my instructions as being correct statements of the legal principles that generally apply in a case of the type you have heard.

The order in which the instructions are given is no indication of their relative importance.  You should not single out certain instructions and disregard others but should construe each one in the light of and in harmony with the others.

These principles are intended to help you in reaching a fair result in this case.  You should give them due respect.  Moreover, justice will ordinarily be done by applying them as a whole to the facts which you find have been proven.  You should do just that if, by doing so, you can do justice in this case.

Even so, it is difficult to draft legal statements that are so exact that they are right for all conceivable circumstances.  Accordingly, you are entitled to act upon your conscientious feeling about what is a fair result in this case, and acquit the defendant if you believe that justice requires such a result.

Exercise your judgment without passion or prejudice, but with honesty and understanding.  Give respectful regard to my statements of the law for what help they may be in arriving at conscientious determination of justice in this case.  That is your highest duty as a public body and as officers of this court.

Respectfully submitted,

____________________________________

Jerald C. Finney
P.O. Box 1346
Austin TX  78767
Tel. & FAX: (512)385-0761
State Bar No.:  00787466
ATTORNEY FOR DEFENDANT

This requested instruction, having been duly and timely requested, is hereby ________________ and exception allowed.  [State modification, if any]:

SIGNED this ________ day of _____________________________, 201__.

___________________________________
JUDGE PRESIDING


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