Many local citizens, no doubt are unaware that the Founding Fathers gave Americans additional protection from bad laws and bad government through jury nullification. This occurs when one or more members of a jury decide that even though the defendant may have broken a particular law, he is innocent because the law, or application of it, is wrong. In preparation for this blog, I asked well-known New Smyrna Beach criminal defense attorney and former prosecutor William Hathaway where he stood on the issue and he answered that he favors it.
"It happens all the time,” said Hathaway, who has the reputation of being one of the finest attorneys in this area, so it is especially interesting and meaningful to find him on the side of jury nullification.
Not all lawyers or judges are in agreement on this matter.
The founding fathers gave every American the right to a jury trial in order to avoid being railroaded by government.
The lessons of history made them unable to trust government to enforce the laws.
Furthermore, they also didn’t trust government to make the laws. It is obvious from their statements that they regarded jury nullification as a last line of defense against bad laws and bad government.
Note that jury nullification exists whether the Founding Fathers approved of it or not.
It exists simply by the nature of the jury system. Probably many people who practiced it were unaware that people like John Jay and Thomas Jefferson had endorsed it.
To see that jury nullification was anticipated and approved of by the founding fathers we can turn to statements made by Jay and thn by Jefferson.
John Jay was the main legal authority in the writing of the constitution and therefore was subsequently appointed as the first chief justice of the Supreme Court by George Washington.
Jay said, "The jury has the right to judge both the law as well as the facts in controversy."
In a letter to Thomas Paine in 1789, Thomas Jefferson wrote: "I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its’ constitution.”
Historically, jury nullification has had an active past. Hundreds of years ago, in 1670 to be exact, it was jury nullification that got heresy off the books as a criminal offense.
That’s right, you could be prosecuted for disagreeing with church doctrine.
A brave jury dug in its heels and refused to find the defendants, William Mead and William Pitt, guilty of heresy and it eventually led to the removal of heresy as a crime.
Before the Civil War, jury nullification played havoc with the fugitive slave laws as many juries refused to enforce such laws.
The opportunities for beneficial jury nullification are developing all around us.
One particular ripe area is the field of crimes against the ecology. People have already been badly harassed for running over kangaroo rats and for developing their own property.
Before we laugh at the old English for having heresy as a serious crime, don’t forget that some of the environmental extremists have suggested that people who don’t believe in global warming should be prosecuted and punished severely.
While many Americans may not like the jury nullification that occurred in the O.J. Simpson trial, it acted as a valuable example of the fact that jury nullification exists.
Americans had better be aware and protective of this guard against bad laws and bad government because we will always need it.