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Jury Nullification

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Jury Nullification  

I know this kid who was caught by the cops with some pot and thrown into jail.  Makes sense, so far, but he had only one gram.  Didn’t we Californians vote to decriminalize that?  California Health & Safety Code 11357 says that possession of 1 ounce (28.5 Grams) or less is punishable by a maximum $100 fine.  So it’s a ticket, like running a red light, but with a much smaller fine.  But this kid was looking to buy a car earlier that day and he had a few hundred dollars in his wallet.  Even though he had no baggies or scales or prior record of any kind, the police figured they snagged some big-time pot dealer - with one gram of pot.  They took his cell phone from him and checked out his text messages.  Sure enough, some of his friends were asking if he could get some pot for them too.  Even though there was no evidence that this kid sold anything, he was charged with possession with intent to sell – a felony involving extensive State Prison time.  So they took all his money and off to jail he goes with bail set at $10,000.  Under what authority did the police examine the phone text messages?  Was this kid arrested for having a gram of pot?   If not, the police needed a warrant, not a hunch.  Unless, of course, they use the police wildcard: “Patriot Act,” subtitled: “Police Can Do Anything They Want To American Citizens In Loving Memory Of The 9/11 Victims Act.”  In which case, our young pot smoker, the very antithesis of a terrorist, is off to state prison at taxpayer expense.


All of which brings me to the subject of today’s article: “JURY NULLIFICATION.”

Let’s just say that you are on a jury in a criminal case, you’ve heard all the evidence, and you know that the defendant is guilty as all get-out, but you feel that the penalty is just too much for the crime; or you don’t agree the law is a good one; or that you feel the police overstepped their authority; or that you feel the defendant is truly remorseful and probably won’t do that again.  What can you do?  You can say, “Not guilty.”  That’s right. “Not guilty.”  In defiance of a judge’s instructions and the preponderance of the evidence – even if a defendant admits guilt – the jury can still say, “Not guilty.”  Our Constitution gives a criminal jury the absolute and discretionary power to decline to convict and insures that such discretionary exercises of leniency are final and non-reviewable.  The judge cannot overrule the jury and your decision is irrevocable due to the “double jeopardy” clause in the 5th Amendment.  While the judge can ask members how he or she voted, he cannot, under any circumstances, compel the jury to explain their reasoning. 

John Adams (1771) "It is not only his right, but his find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."  4th Circuit Court of Appeals (United States v. Moylan, 1969): "If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence...If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."  John Jay (1st Chief Justice, U. S. Supreme Court, 1789): "The jury has a right to judge both the law as well as the fact in controversy." 

As always, Google it: “Jury Nullification.” 

(Thank you, Steve Elliot for the heads-up on this.)

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Mike Kirchubel writes a weekly Progressive/Economic column for the Fairfield, California Daily Republic and is the author of: Vile Acts of Evil, a look at the hidden economic history of the United States. Vile Acts of Evil almost wrote itself. (more...)
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