People v. State

Despite writing about jury nullification yesterday, I forgot that yesterday, January 19th, was also the birthday of Lysander Spooner, the patron saint of jury nullification and this blog. I want to take this auspicious occasion to make a couple observations:

First, I want to acknowledge that I’ve perhaps been too harsh in my implicit criticism of Julian Heicklen for planning to represent himself in a criminal case charging him with jury tampering for allegedly distributing pamphlets about jury nullification outside a federal courthouse. There may be some method to his madness. He’s stated that he plans to represent himself “because I can and will say and do things that could disbar any attorney.” But by that he may “just” mean what he meant when he later explained:

In essence, I want to discuss the jury’s right to nullify the law IN FRONT OF A JURY. . . . My position is that neither jury nullification is or that I am on trial. My position is that the judiciary is on trial. Jury nullification needs no defense. It is the law of the land.

I get it. Because he knows that juries, including his jury, have not only the power but also the right and the duty to nullify the law when it works an injustice, he naturally wants to inform the jury that will be deciding his fate of this fact, and to argue to them that even if they believe he violated the State’s jury tampering law as written they should still acquit, because it would be unjust to convict him and the jury’s duty is not to follow the “law” but to see that justice is done. He also knows that a licensed attorney will not do this for him because by doing so the attorney would risk, if not disbarment, suspension or some form of “discipline.” Now, the “law” that allows judges to forbid attorneys from arguing nullification to the jury also applies to pro se defendants, but the fact remains that a pro se defendant has both more to lose and less to lose than an attorney in this context. It’s interesting to speculate on what measures the court in Julian’s case can or is likely to take to muzzle Julian when he insists on making a nullification argument to the jury (particularly when the main evidence against him will be jury nullification brochures and the jury will therefore necessarily be exposed to such arguments anyway), but I’ll leave that to Julian and his advisers.

Second, I want to take this occasion to “qualify” my firm conviction that juries have not only the power but also the right and the duty to nullify an unjust law or an unjust application of a law by acknowledging that juries are only as good as the people who make them up, and that a lot of people suck. Julian might get to make his jury nullification argument to the jury and still get convicted, even though he should be acquitted based on the facts and the law even apart from any nullification. But even a sucky jury can’t unjustly convict a person until a sucky legislature, prosecutor and/or judge has enabled it to do so, and so the right of a jury to do the right thing in the teeth of the “law” remains an essential, if not the essential, check on government injustice.

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