Today is Jury Appreciation Day!

It is a day to reflect upon the importance of our constitutional right to a jury trial and the right of jurors to vote according to their conscience in circumstances where they believe it would be unjust to convict the person on trial–even if it is clear that the person on trial broke a rule in the law books.

Why was September 5 selected to be Jury Rights Day? Because today was the day of a historic case involving William Penn, the man who founded Pennsylvania. Let’s remember that many people came to America to escape religious persecution in Europe. Penn was a Quaker when the Quaker religion was illegal in England. He was arrested after preaching to a group of Quakers–and that was no misdemeanor. In 1670, Penn was facing the death penalty for unlawful assembly, disturbing the peace, and riot.

It was an extraordinary trial. Penn and his co‐​defendant, William Mead, were gagged during the trial for making arguments that displeased the court. When the jury came back from deliberations and announced that they were divided–some for conviction, some for acquital, the judges ridiculed those who voted to acquit and sent them back. When the jury remained deadlocked, the court ordered them to prison with no food till they could reach a unanimous verdict. After two days without food, the jury returned with a “not guilty” verdict. Outraged, the court fined the jurors and ordered their imprisonment until the fines were paid. A higher court overturned that punishment and said a jury must resolve cases based upon their own understanding, not because of threats of punishment from the state.

Although the right to a jury trial is guaranteed by the American Constitution, it has been under a relentless attack over the years. Most Americans are unaware that 95 percent of the cases in our criminal justice system never go to trial. And, in the few cases that do go to trial, jurors are typically misled about their prerogative to acquit (“jury nullification”). In November, Cato will be re‐​releasing an e‑book, Jury Nullification: The Evolution of a Doctrine, by Clay Conrad. Glenn Reynolds reviewed the initial publication here.

Let me take this opportunity to report on several positive developments that will help to revive the doctrine of jury nullification in American law.

First, New Hampshire enacted a law last year that is designed to revive jury nullification in that state. More background on that here.

Second, last April, a federal district judge filed an important, 80‐​page scholarly ruling that acknowledges that the more modern precedents surrounding jury trial “are inconsistent with trial practices at the Founders’ time, and that these practices have eroded the Sixth Amendment jury trial right as the Framers understood that right.” Here’s another excerpt:

The Constitution was not designed, however, to be neat and efficient, but to protect individual liberty against government despotism. That the jurors’ lack of knowledge stems at least in part from the judicial exertion of power, and that the jury’s nullification power played an important role in criminal jury trials at the Founders’ time, counsels in favor of finding this evolution unconstitutional.… Because the common‐​law jury at the Founders’ time was in control of the judiciary by virtue of rendering the ultimate decision in its ve rdict, and because the court at the time of the Founders told the jury that the jury was the master of the law and of the facts, the Supreme Court and the Tenth Circuit’s precedent that the trial court should not instruct the jury about nullification seems inconsistent with the Framers’ intention in adopting the Sixth Amendment jury trial right. Moreover, the requirement that the court not allow the lawyers to encourage nullification is inconsistent with the practice at the time of the Framers, as exhibited by Hamilton’s conduct in People v. Croswell. While it is messy to openly talk to the jury about jury nullification in the modern American judicial system, the Constitution, thank goodness, is not always about efficiently convicting defendants.

As a good district judge, he refrained from simply ruling the way he thought best, explaining that, as a judge, he “must adhere to the established precedent until the Supreme Court explicity reconsiders it.”

Third, do check out & spread the word about the new jury nullification video project in the works by our friends at Flex Your Rights.

Lastly, our friends at Reason have a new video up on a recent jury nullification case here.