KERRY THOMAS OPINION & COMMENTARY

Citizen Jurors Must Know Their Powers

by Kerry Thomas

November 3, 2003

In the realm of electoral politics, we seldom think of a judge in terms of being a political figure. Few, if any, of us take the time to consider the powers of our judges, until a time when we come face to face with the legal system for one reason or another.

With the announcement of Judge Mohr's retirement from the Vilas County court we might take a minute to think of such matters, as his successor dons the robe and blindfold of Justice here in the Northwoods. Will our next judge be mindful of our precious Constitution and the laws and acts that are supposed to be enacted pursuant to it?

Will our next judge embrace the rights of the individual property owners here in the North, or will the judge prefer to side with the purveyors of the concept of eminent domain, wherein the all-powerful State is granted the authority to dictate the uses of one's private property? Will the deeds giving us claim to our own lands be honored, or will more State agencies be allowed to claim title to our lands, our waters and our skies? Will we remain the masters of our own domains, or will we be reduced to the role of feudal serfs and peasants, working the lands as mere occupants, for the benefit of the State?

It will be the power of the judge to decide on such matters, as our system of jurisprudence is now practiced in America. It would do our judges, and ourselves, well to remember the tenants upon which our Country was founded, that the powers of our government are granted to it by the People, through our elected representatives. And our Constitution was not designed to spell out the powers of the People, but, rather, to place limits on the Powers of our government.

With new legislative acts being enacted daily in America, it falls principally to our judges to interpret these acts, which must adhere to our Constitution. And occasionally, we, the people, are called upon to do so as well. It's called jury duty.

It's ironic that most judges today conveniently forget to inform jurors of their powers to judge not only the facts of the cases they are deciding, but also the very laws under which a defendant is being charged. Any single juror has the power to determine any law as invalid, and render a "not guilty" verdict. A jury's guilty verdict must be unanimous, but it only takes one juror to override the pronouncements of the entire legislature, the governor, the President, and the judiciary, by voting "not guilty."

Don't just take my word for it. Consider that, as recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))

Earlier, in the February term of 1794, the Supreme Court conducted a jury trial in the case of the State of Georgia vs. Brailsford (3 Dall 1). The instructions to the jury in the first jury trial before the Supreme Court of the United States illustrate the true power of the jury. Chief Justice John Jay said: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision....you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy".

And the U. S. Court of Appeals for the District of Maryland ruled "We recognize 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. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. 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 of passion, the jury has the power to acquit, and the courts must abide by that decision." (US vs Moylan, 417 F 2d 1002, 1006 (1969)).

These decisions still hold true today. And while most of us won't have to face such monumental decisions, those of us who will be called upon to do so should know the judicial powers they have. Our next judge should do no less.

Former Vilas County Judge Tim Vocke Disagrees

(Click Here to read Vocke's original November 11, 2003 letter in the Vilas County News Review)

One of your readers last week wrote a letter claiming that “jury nullification,” whereby jurors disregard the law in the state of Wisconsin, is a viable theory.

Your reader confuses the power to disregard laws with the right to disregard laws.

Every time one of us gets behind the wheel of a motor vehicle, we have the power to disregard the traffic laws; we do not have the right to disregard traffic laws.

Jurors have no more right to disregard the laws of the state of Wisconsin than do drivers.

The concept that jurors do in fact have the right to nullify laws that they do not agree with falls into the category of urban legend.

For a summary of the law in the state of Wisconsin, simply read State vs. Bjerkaas, 163 Wis.2d 949, 472 N.W.2d 615 Court of Appeals 1991, in which the court indicates “a defendant has no right to have a jury decide his or her case contrary to law or fact and has no right to jury nullification.”

Minocqua Woman SaysThomas Is Right

Chomingwen Pond of Minocqua, in a letter to the Lakeland Times, on November 18, 2003 wrote

"... Also, thanks to Kerry Thomas for the excellent letter on the legal doctrine of “Jury Nullification,” a right won for us initially by the English jury that refused to convict William Penn of illegal street-preaching – despite his being locked up (if I remember correctly) “without food, water, or chamberpot” until they brought in a guilty verdict.

It was confirmed for us by a New York jury that, in the face of similar treatment, refused to convict a newspaper editor for printing the truth about political corruption. A jury’s primary responsibility is to see that justice is done. Jury nullification is the citizens’ defense against legal tyranny. The jury may acquit if they deem the law unjust. (They may not, however, convict only because they believe the law is unjustly lenient.)

Thomas is correct that a judge should inform the jury of their judicial rights."

Jury Powers

While Tim Vocke is technically correct, that "Jurors have no more right to disregard the laws of the state of Wisconsin than do drivers" they have no less right to do so either. A Juror has the Power (as opposed to the right) to disregard the judge's instructions, and render a "not guilty" vote for ANY reason, including a fundamental disagreement with the law under which a defendant is charged.

Even the case cited by Vocke, stating “a defendant has no right to have a jury decide his or her case contrary to law or fact and has no right to jury nullification,” is technically correct. A Defendant does NOT have the RIGHT to have a juror vote "not guilty." But a JUROR DOES have the Power to do so, without fear of recriminations of any sort from the judge or the legislature for such a vote.

This is about the POWERS of a JUROR, not the rights of a defendant. Vocke tries to confuse the subject by putting it in terms of rights, instead of powers. A Juror's POWER to vote "not guilty," for ANY reason, cannot be abridged, as it is the underlying concept behind trial by jury.