by
William Norman Grigg

Recently by William Norman Grigg: ‘Showtime
Syndrome’ Strikes Evansville, Indiana

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.

In contemporary
America, however, trial by jury has been all but abolished in practice.
Reviewing recent Supreme Court rulings, legal
commentator Adam Liptak of the New York Times observes
that in its just-completed term, the High Court “has turned its
attention away from criminal trials, which are vanishingly
rare, and toward the real world of criminal justice,
in which plea bargains are the norm and harsh sentences commonplace.”
(Emphasis added.)

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.

After the Bolsheviks
seized power in 1917, the jury system – which had been established
under Czar Alexander II in 1864 – was abolished and replaced
with “People’s Courts” composed of a judge and a panel of two to
six Party-appointed “assessors” who heard all of the evidence and
decided all questions of both fact and law. The assessors “became
known as `nodders’ for simply nodding in agreement with the judge,”
wrote federal Judge John C. Coughenour in
an article published by the Seattle University Law Review.
“People’s assessors virtually always agreed with judges; acquittals
were virtually nonexistent…. [U]nlike our adversarial system,
the Soviet inquisitorial criminal justice system neither prioritized
nor emphasized the rights of individual defendants, but instead
paid homage to the interests of the state.”

One very telling
measure of the Regime’s fear of citizen juries – especially
those informed of their right to nullify unjust laws – is found
in the efforts expended by prosecutors to prevent cases from going
to trial.

In his 1998
book (co-written with Lawrence M. Stratton) The
Tyranny of Good Intentions, Dr. Paul Craig Roberts points
out that “the vast majority of felony cases are settled with
a plea bargain….” Many, perhaps most, “felonies” today involve
no offenses against persons or property, no criminal intent, and
are usually a product of an opportunistic prosecutor’s malicious
creativity in confecting a criminal offense.

It is common
for prosecutors to multiply charges as a way of terrorizing an innocent
defendant into accepting a plea. Very rarely do we see a defendant
with the means to defend himself in such circumstances. For the
average citizen who finds himself targeted by an ambitious prosecutor,
a plea bargain usually seems like the only relatively palatable
alternative to the expense of a trial and the possibility of a long
time in prison. At the bargaining table, “I’m
all in” for the prosecutor means that, should he lose, he would
sacrifice a little prestige, with the taxpayers absorbing all of
the expenses; the defendant stands to lose everything and faces
the prospect of utter ruin.

This is why
so many innocent people are willing to deal. For the State, the
most attractive feature of such arrangements is the fact that it
keeps such cases away from juries. And we’re left with a “justice”
apparatus that functions, in the words of legal scholar John Langbein,
like “the ancient system of judicial torture,” which relied on self-incrimination
through duress, rather than conviction on the basis of sound evidence.

Some recent
developments offer encouraging signs that New Hampshire’s new law
is part of a growing public trend toward jury nullification.

Police found
Houston
resident Israel Rangel 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. When
prosecutors vetted potential jurors, they found that 50 of the 130
candidates said they would not vote to convict someone accused of
possessing such a tiny amount of cocaine.

The
jury eventually acquitted Rangel of the charge. Lou Ellen Wheeler,
who served on the jury, later said that the evidence against him
was weak. But as defense attorney Todd Dupont pointed out, other
jurors made it clear “they weren’t going to make somebody a felon
and ruin their lives over a gram of cocaine.”

Prosecutor
Julian Ramirez insisted that even though the amount involved was
minuscule, possession of cocaine is a crime because “It’s the law.”
However, it is the for the jury – not the trial judge, and
certainly not the prosecutor – to define the law, even if this
specific verdict merely reflected the poverty of a particular criminal
case.

This is at
least the second time a conscientious jury has nullified a foolish
drug prosecution. Two
years ago a Montana jury refused to convict a man for marijuana
possession. Hopefully this kind of principled rebellion will
become a nationwide epidemic.

(Cross-posted
from here.)

July
9, 2012

William
Norman Grigg [send him mail]
publishes the Pro
Libertate blog and hosts the Pro
Libertate radio program.

Copyright
© 2012 William Norman Grigg

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