Ed “NJWeedman” Forchion hopes the Oct.18, 2012 not-guilty verdict a Burlington County, N.J.  jury rendered in his pot distribution trial plants a seed for other medical marijuana patients and sparks a change in the law.

“I expected to get one juror, but I got 12.”

It was a case of jury nullification, which Forchion hopes will be utilized in other court cases involving marijuana possession.

Forchion is the first defendant in New Jersey to be allowed to present his use of medical marijuana as a defense in a criminal trial. He possessed a pound of marijuana that he claimed he used for medicinal purposes. (He owns a medical marijuana dispensary in California.) He admitted that he will still face sentencing in January 2013 for possession, but believes that he will get probation on that charge.

The concept of jury nullification is nothing new. In the 1735 trial of John Peter Zenger, who was charged with printing libelous material about William Cosby, the Governor of the Colony of New York, a clearly guilty Zenger was found not guilty by a jury who sympathized with him. This is clearly a case where jury nullification foreshadowed present-day law where one can openly say something about a public figure without fear of prosecution because said figure was “offended.”

This change did not come without some fits and starts. “Honest Abe” locked up many politicians and editors who dared to disagree with his war. They had no such luck with the court system.

Tom Woods, in his excellent book Nullification, mentions Theophilus Parsons, who supported Massachusetts’ ratification convention in 1788 and who went on to become the Chief Justice of Massachusetts. He wrote: “An act of [government] usurpation is not obligatory–it is not law. Any man may be justified in his resistance to it. Let him be considered as a criminal by the General Government–yet his own fellow citizens alone can convict him. They are his jury–and if they pronounce him innocent, not all the powers of congress can hurt him–and innocent they certainly will pronounce him, if the supposed law which he resisted was an act of usurpation.”

Back to recent times: New Hampshire, on July 2, 2012, adopted jury nullification when HB 146 was signed into law by Governor John Lynch. The law reads: “Right of accused. In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

The concept and practice of jury nullification does not fare too well in other states like California, however. It requires jurors to inform on other jurors if one of them believes the act under consideration is unlawful. Any troublemakers are then marked for replacement. California defense attorneys who argue for jury nullification risk disbarment or other punishment for merely advocating for a practice that is legitimate under common law. I believe that this hamfisted treatment of California citizens–including defense attorneys–by the state’s legal system is shameful and unconstitutional. Kicking people off a jury because they happen to to be in agreement with a centuries-old legal right and practice is an affront to their judgment and amounts to jury tampering–molding a jury to become Stepfordlike–by the court itself!

So its the people be damned when something “larger” in the minds of lawmakers and judges is at risk. If jury nullification were to sweep the nation like a wildfire, the “war on drugs” would be reduced to an occasional skirmish on drugs, as many charges going to a trial would be tossed out by sympathetic juries, and still others would not even make it to trial. The courts would also be overwhelmed by the number of jury trials.

Jury nullification serves an important function in that it shines a light on bad laws and gives people–jurors–the opportunity to provide some push-back to those laws. Jury nullification can also serve as a springboard to garner support for its big brother–nullification of unconstitutional federal “law.” Generally it is easier for people to understand and act on clear, bite-sized concepts like jury nullification before they can digest the bigger idea and task of push-back against an out-of-control federal government. And participation in or the understanding of jury nullification will likely prompt people, as in the example of Ed “NJWeedman” Forchion, to look at the bigger picture where many bad laws are foisted on states.

Laws are created to serve the people’s interests. It’s high time that the people serve notice through the courts and the statehouses that they are the ultimate judges of what is right and what is constitutional.

The 10th Amendment

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