One of those “ha-ha” emails landed in my inbox a couple of weeks ago. It was a notarized affidavit, hand-written by a guy named Erik from Montana, explaining why he should be excused from jury service.
In addition to being angry, declining to “participate in this crap,” not believing in our justice system and not wanting to have a “goddamn thing to do with it,” Erik explained how serving on a jury was a “complete waste of time” and how he would “rather count the wrinkles on my dog’s ba**s than sit on a jury.”
Apart from what Erik’s stated preference to jury service says about him and his relationship with his dog, he couldn’t be more wrong about being a juror. As much as—if not more than—voting, serving on a jury is the closest any of us can come to making a real dent in this, our representative republic.
Because it is only in a courtroom, in front of a jury of one’s peers, that the laws passed by our elected officials get put to the test by We the People. Are the laws just? Are they fair? Do they reflect our values? These are questions, along with the guilt or innocence of the defendant, that you weigh in on as a juror.
Back in the Good Old Days, a judge would usually inform the jury of its right to judge the law and the defendant. And if the judge didn’t tell them, the defense attorney certainly would. By exercising this right, ordinary citizens led the way to big changes that their elected officials were either too afraid or too out of touch to make.
History books praise juries that refused to convict people of violating the 1850 Fugitive Slave Law and hold those cases up as examples of the anti-slavery sentiment that preceded emancipation.
Later in that century, the Supreme Court in a split-decision said courts were not to inform juries they had the power and authority to judge the law. The ruling was the result of pressure by large corporations that had lobbied Congress to make going on strike illegal. Juries simply refused to convict workers of organizing unions. Not only that, juries also were awarding huge settlements in damage suits brought against corporations; a practice that was scaring the crap out of the corporate attorneys. They were losing control of the “free market” they had so carefully rigged in their favor (sound familiar?). Jury nullification is also credited with ending prohibition; citizens had had enough and were refusing to return guilty verdicts in liquor-law trials. Today, juries are increasingly refusing to convict people of breaking marijuana laws.
Still, jury nullification is rare, largely because judges don’t tell jurors of their power to judge the law. In fact, juries are usually instructed to only consider the facts of a case, not the fairness of the law, when rendering a verdict. And woe unto the loose cannon lawyer who even hints that nullification is an option in his or her closing arguments. Such blasphemy is today grounds for a mistrial.
Moreover, uppity, informed citizens who understand that they have such power are usually weeded out in the selection process. They are asked if they could find someone guilty of breaking the law in question or whether they think the law itself is fair. Answer no, and you’re one of the first ones off the island.
Despite all this, you, as a citizen, sitting on a jury, can vote any way you want and for any reason you want without ever giving an explanation. You most certainly can judge the law, and you should. It’s your duty. Because if a law is unfair, and the men and women who made that law did so because they were lobbied by groups or corporations wanting to tip the legal scales in their favor, We the People are the last line of defense against such injustice.
So if you get called for jury duty, be a true patriot and help make our government of/by/for the people work the way it should. Just know that you have the right and the power to judge the law as well as the defendant.