Archived column here.
One of the last (and very best) true investigative journalists is
William Norman Grigg. I have admired his work for years. A report he
recently wrote was covered by one of the very best (if not THE BEST)
newspapers in the country, The Eau Claire (Wisconsin) Journal. Grigg
writes, “When New Hampshire Governor John Lynch signed HB 146 into law
on June 18, the Granite State became the first in the nation to enact a
measure explicitly recognizing and protecting the indispensable right of
jury nullification.
“New Hampshire’s jury nullification law reads, in relevant part:
‘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.’
“There is nothing novel about the principle and practice of jury
nullification, which dictates that citizen juries have the right and
authority to rule both on the facts of a case, and the validity of a
given law. This is widely recognized in judicial precedents in both
American history and in Anglo-Saxon common law dating back to the Magna
Carta (or earlier). At the time of the American founding it was well and
widely understood that the power of citizen juries--both grand and
petit--was plenary, and that their chief function was to force the
government to prove its case against a defendant--and the validity of
the law in question.”
Grigg also writes, “The fact that the right to a trial by a jury of
one’s peers, which is supposedly sacrosanct, has become all but extinct
illustrates the extent to which the U.S. ‘justice’ system has become
Sovietized.”
See Grigg’s report in the Eau Claire Journal (you must subscribe) at:
When one wants to discuss the particular pillars protecting
liberty, jury nullification must be ranked near the top of the list.
Trial by jury should be regarded as one of America’s most precious and
sacred rights. Rightly did America’s founders enshrine the right of
trial by jury in Article VII of the Bill of Rights. I encourage readers
to read all of Will Grigg’s report mentioned above, as he very astutely
describes the manner in which today’s judges and prosecutors have
virtually expunged the true meaning of--and have taken the teeth out
of--a jury trial.
Yet, the right of a citizen jury to sit in judgment--not only of
the one accused of a crime, but also of the law that accused him--is
supremely important to the survival of a free republic. And as Grigg
properly notes, this doctrine of law and jurisprudence was commonly
understood by America’s founders--and by many subsequent generations.
First of all, the right to a trial by one’s “peers” is, all by
itself, a sacred doctrine with almost no meaning to modern jurists. One
of America’s most influential attorneys at the time of America’s
founding was none other than Patrick Henry of Virginia. He said this
about the right to a trial by one’s peers: “By the bill of rights of
England, a subject has a right to a trial by his peers. What is meant by
his peers? Those who reside near him, his neighbors, and who are well
acquainted with his character and situation in life.” (Elliot, The
Debates in The Several State Conventions on the Adoption of the Federal
Constitution)
Secondly, the rights and power of a citizen jury is also mostly
lost in modern courts. Such was not the case in Colonial America. John
Jay, America’s first US Supreme Court Chief Justice said, “The jury has a
right to judge both the law as well as the fact in controversy.” Samuel
Chase, signer of the Declaration of Independence and a US Supreme Court
justice said, “The jury has the right to determine both the law and the
facts.”
As late as 1902, US Supreme Court justice Oliver Wendell Holmes
said, “The jury has the power to bring a verdict in the teeth of both
law and fact.” Even later, in 1941, US Supreme Court justice Harlan
Stone said, “The law itself is on trial quite as much as the cause which
is to be decided.”
And, of course, earlier courts have consistently ruled that
unconstitutional laws have no merit and citizens are under no obligation
to submit to them. The famous Marbury vs. Madison decision in 1803
determined that “All laws which are repugnant to the Constitution are
null and void.” Other court decisions agreed.
In Miranda vs. Arizona, the court ruled, “Where rights secured by
the Constitution are involved, there can be no rule making or
legislation which would abrogate them.” In Norton vs. Shelby County, the
court decided,
“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”
“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”
On the other hand, modern courts have all but eviscerated the
time-tested and honored tradition of the right of citizen juries to sit
in judgment of the law. Judges do everything in their power to dissuade
juries from exercising their right to overturn prosecutions that are
based on unjust and unconstitutional laws.
In the above-mentioned report, Will Grigg illustrates how juries
are able to protect people from unjust prosecution: in Houston, Texas,
police found a man in possession of less than a gram of cocaine--an
amount equivalent to roughly half a sugar packet. He was arrested and
charged with felony narcotics possession.
According to Grigg, “The jury eventually acquitted of the charge.” Jurors later said that the evidence against the man was “weak,” but the defense attorney was a little more blunt. He said that “ weren’t going to make somebody a felon and ruin their lives over a gram of cocaine.”
According to Grigg, “The jury eventually acquitted of the charge.” Jurors later said that the evidence against the man was “weak,” but the defense attorney was a little more blunt. He said that “ weren’t going to make somebody a felon and ruin their lives over a gram of cocaine.”
Grigg notes, too, that, two years ago, right here in my home State
of Montana, a jury refused to convict a man for marijuana possession.
Grigg concludes his report by saying, “Hopefully this kind of principled
rebellion will become a nationwide epidemic.”
Neither Will Grigg nor I are advocating for violent criminals to
escape justice. But the truth is if we emptied America’s prisons of all
of the inmates who are incarcerated for “crimes” in which no one--not a
single person--was harmed, we could close a sizeable percentage of
prisons in this country. And one of the chief reasons for the explosion
of incarcerations in this country must be laid at the doorstep of
uninformed and ignorant juries who allow judges and prosecutors to blind
them regarding their responsibility to protect their neighbors and
fellow citizens from unjust, unconstitutional laws. And there is no
greater abuse of justice to be found today than in federal drug
laws--especially the marijuana laws. But, alas, that is a subject for a
later day.
For now, the great State of New Hampshire officially recognizes
jury nullification. In the interest of the preservation of freedom in
America, the rest of the “several states” should quickly follow suit.
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© Chuck Baldwin
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