Chapter 15

 

Jury as a Political Institution

 

Introduction

          1. Role of jury is to reflect society’s values

          2. Is fact finding all that juries do?

 

15.1 Duncan v. Louisiana, 391 U.S. 145 (1968)

          Facts: D convicted of assault.  In Louisiana, that’s a misdemeanor, with a maximum 2 year sentence.  He was convicted, got 60 days in jail.  He asked for jury but judge denied request.

          Issue: Does D have a right to a jury for a misdemeanor with a two year maximum sentence?

          Holding:  Yes.  Due process requires states to grant juries in same circumstances as federal courts.

          Reasoning:  Fourteenth Amendment and Sixth Amendment both reflect strong tradition of fair trials, usually by jury.  Jury trial comes from long tradition from both England and the early colonies.  Juries protect against unfounded charges.  They also act as a check on judges who may be too beholden to superiors in government.  Studies show juries do “get” the cases, and usually come out the same way a judge would.  When they disagree, it is usually for the legitimate reasons we have juries, rather than just being dumb.

 

15.2 Trial by Jury in the U.S., Alexis de Tocqueville

          Jury is a political institution, not just judicial.

          Jury is very republican, in that real power resides with the people, not the government.

          Jury’s values impact on all aspects of society.  That is especially true in civil cases.  It is always visible, and always impacts on decision making.

          Jury helps to eliminate sense of selfishness and alienation.  When you judge someone else, you fell a part of the system.  Also, you judge as you would want to be judged.

          People learn about the law and how it works when they serve on juries.  Also, the legal pros have to always be able to explain what they are doing to the common man.

          In an almost contradictory way, the jury invests powers in judges and the judicial system.  People trust it more when ordinary people are involved.

 

15.3 Jury Nullification-The Right to Say No, Scheflin

          Jury nullification is the power of the jury to disregard the judge’s instructions and find the defendant not guilty.

          Zenger case.  New York, 1735.  Zenger was a publisher.  He published unsigned articles critical of the government.  Grand jury refused to indict. Government put him on trial anyway.  Lawyer argued that jury has right to determine both law and facts, and they should acquit.

          Colonial juries would also not enforce the navigation acts.  The acts would channel all trade through England.  Brits established admiralty courts with no right to jury.

          General verdict allows this.  Special verdict, where jury finds on particular questions of fact weakens the power of nullification.

          Roscoe Pound.  Jury lawlessness is the last great corrective, last chance to avoid unjust use of government power.

          New York police protest.  They went out and gave tickets for every offense possible.  People refused to convict.

          Jury nullification limits what government can do in violation of the beliefs of the people.

 

15.4 Merciful Juries: The Resilience of Jury Nullification

          Should jurors be told of the right to jury nullification?

          Only Maryland and Indiana tell jurors of right to nullify.

          Nullification made a big comeback on in the late 60’s as anti-war tactic.

          Recent examples of nullification: Marion Barry (drug use), Oliver North (Iran Contra), Bernhard Goetz (subway shootings). 

          Is jury nullification anarchy?

         

          Recent political movement to advise jurors of their rights.

          See list, end 406

          Anti-abortion activists publicizing jury nullification rights to keep protestors out of trouble.  Leaflets given out at San Diego trial of Operation Rescue protestors.  Also done in Mississippi.  Marshal warned of possible juror tampering, and judge gave special instruction to disregard leaflets.

          Should informed jurors be thrown off?  Should jurors “play possum” and imply they do not know about nullification?

          Some advise to lie to court.  Jury pools are being tainted by misinformed jurors.

          If judges do not advise on nullification, then court runs risk of nullification for improper reasons.

          Authors advise an instruction that jurors represent community values.  They are not rule on procedure or constitutionality, but they can consider whether their verdict reflects justice and community values.

 

15.5 Jury Instructions

          California.  The jury must apply the law.  Disregard public opinion, passion, etc.

          Maryland.  Jury judges both the law and the facts.  Legal instruction is not binding on you.

 

15.6  Call to Resist Illegitimate Authority, Bedau

          1. People are resisting Vietnam War and draft

          2. We believe war is illegal and immoral

          3.  Violates international law

          4. Religious liberty and equal protection should allow people to resist

          5. People in military or draftees face punishment for resistance

          6.  We should encourage resistance to illegitimate authority

          7.  We will raise money for legal resistance 

          8.  We must continue the fight, even if the courts resist

          9.  We ask others to join us in the fight

 

15.7  U.S. v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972)

          Facts:  D.C. 9 broke into Dow Chemical’s offices in D.C. and destroyed property there.  They were charged with burglary and malicious destruction.  The juror acquitted on burglary but convicted on lesser charge of unlawful entry.

          Issues:  Should defendants have been allowed to represent themselves.

                   Should jury receive instruction on nullification?

                   Did instructions given coerce jury to find guilty?

 

          Holding:  No need to inform of jury nullification, and no right of defendant to present that as a defense.

          Reasoning:  There is a history of nullification.  However, over time the need for democracy to make laws in the legislature was recognized.  Right of each jury to do what it wants undermines the rights of the democratic majority.

          By 1895, courts held that jury should not do whatever it wants.  

          Risk of anarchy, not freedom and democracy.  

          Juries do learn of their right to justice informally.  That is not duplicitous.  Democracy would be paralyzed if every jury was a mini legislature.  Also, puts too much pressure on juror to judge the law.

          Bazelon, dissenting.  We can trust juries with knowledge of nullification.  Allowing nullification calls attention to unjust juries, like fugitive slave laws and lynching defendants.