CHARLESTON, W.V., (Jan. 22, 2016) – A bill in the West Virginia State House would require judges to inform juries of their right to nullify.
Introduced by Rep. Ray Canterbury (R – Greenbrier, 42) and two cosponsors, House Bill 2600 (HB2600) would require “a judge to instruct a jury regarding the availability of jury nullification and protecting the right of a criminal defendant to present evidence and testimony in support of jury nullification.” It reads, in part:
The jury is the exclusive judge of the facts. The jury is bound to receive the law from the court and be governed thereby, except if a jury determines that a defendant is guilty according to the law and that the law is unjustly applied to the defendant, the jury may determine not to apply the law to the defendant and find the defendant not guilty or guilty of a lesser included offense.
The bill also requires that a defendant be allowed to inform the jury about nullification, the failure of which would constitute grounds for a mistrial.
Known as the Fair Trial Act, HB2600 is a critical piece of legislation, as it would bring to light the indispensable right of last resort for regular Americans sitting in the jury box to stand up against laws that violate their rights.
Jury nullification is the ability to declare someone not guilty in a case, even when it is clear he has violated the law in question, when the law itself is unjust, immoral, or unconstitutional. This power is one of the most untapped, unknown, and powerful of any at the disposal of ordinary citizens to stand up to tyranny.
An example of this occurred in New Hampshire when Doug Darrell was arrested and charged with felonies for cultivating marijuana for religious and medical purposes. If convicted, he would have likely faced many years in prison. He was guilty by the letter of the law, but the jury decided to acquit him anyway.
As this case shows, it doesn’t matter what law the feds pass and enforce. If there are jurors who are willing to nullify, their vote has more power in a court trial than all the power of the state and federal government.
The first Chief Justice, John Jay, stated the following to the first jury in Georgia v. Brailsford, the first Supreme Court trial held in the United States:
It may not be amiss, here, gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are the best judges of facts; it is, on the other hand, presumable that the courts are the best judges of law. But still, both objects are lawfully within your power of decision.
Thomas Jefferson also defended jury nullification, writing that “if the question relates to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right, which is casual only, is less dangerous to the State, and less afflicting to the loser, than one which makes part of a regular and uniform system.”
The reason most Americans don’t know about this right is because, not surprisingly, they aren’t taught about it at any public education institution, nor are they informed about it when given jury instructions in court. While the Supreme Court admitted in Sparf v. U.S. that juries have the right to ignore a judge’s instructions in regard to law, they also ruled that the court is not legally bound to inform them about it.
In the 1969 case of United States v. Moylan, the Supreme Court yet again acknowledged the “undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence.”
Jury nullification played a noble role in combating federal slavery laws prior to the Civil War, as northern juries regularly refused to convict individuals for violations of the 1850 Fugitive Slave Act. In one instance, a large crowd broke into a Boston courtroom and rescued a runaway slave. When the government indicted three of those involved, an acquittal and a series of hung juries forced the government to drop the charges.
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