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Nullify this!

Juries Can Acquit the Guilty, 9th Circuit Says, but 'There Is No Right to Nullification'

Advocates of jury nullification argue that jurors have both the power and the right to acquit a guilty defendant if they believe the law or its application is unjust. According to a recent ruling by a federal appeals court, they are half right.

USA v. Kleinman involves an operator of medical marijuana dispensaries in California who was convicted of federal drug charges and sentenced to nearly 18 years in prison. Among other things, the defendant, Noah Kleinman, argued that the judge had improperly instructed the jury regarding nullification. The U.S. Court of Appeals for the 9th Circuit agreed but said the error was harmless because "there is no right to nullification."

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Unfortunately for Kleinman, some of the actions to which he admitted, such as shipping marijuana to other states, clearly did not comply with state law.

This is one of those rights that predates the nation.

"Jury nullification of law", as it is sometimes called, is a traditional American right defended by the Founding Fathers. Those Patriots intended the jury serve as one of the tests a law must pass before it assumes enough popular authority to be enforced. Thus the Constitution provides five separate tribunals with veto power -- representatives, senate, executive, judges and jury -- that each enactment of law must pass before it gains the authority to punish those who choose to violate it. Thomas Jefferson said, "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."

The power of the jury to judge the justice of the law and to hold laws invalid by a finding of "not guilty" for any law a juror felt was unjust or oppressive dates back to the Magna Carta, in 1215. At the time King John could pass any laws any time he pleased. Judges and executive officers, appointed and removed at his whim, were no more than servants of the king. The oppression became so great that the nation rose against the ruler and the barons of England compelled their king to pledge that no freeman would be punished for a violation of any laws without the consent of his peers.

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Earlier in America jury nullification had decided the celebrated seditious libel trial of John Peter Zenger (Zenger's Case, 1735). His newspaper had criticized the royal governor of New York. The law made it a crime to publish any statement, true or false, criticizing public officials, laws or government. The jury was only to decide if the material in question had been published; the judge was to decide if the material was in violation of the statute. The defense asked the jury to make use of their own consciences and although the judge ruled that the truth was no defense, the jury acquitted Zenger. The jury's nullification in this case is praised in history textbooks as a hallmark of freedom of the press in the United States.

There's an old saying, “There are three boxes for freedom: ballot, jury, and ammo.” The jury box is useless unless the jurors can judge both the law and the accused. And yes, this has been subverted over the last few decades.

For further information, check out the Fully Informed Jury Association.


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