September 5, 2024

The calendar doesn’t say there’s anything special about Sept. 5, but it is a special day. It’s Jury Rights Day, a day dedicated to the right of juries to acquit a person even when the evidence says guilty. Several of our First Amendment guarantees can be traced to this right. It’s called jury nullification.

Consider the rights to freely assemble and to worship as we choose. Now consider the 1690 trial of William Penn.

Penn was arrested and tried for preaching the Quaker faith, a crime in Britain at the time. Making matters worse, he was preaching to what was called “an unruly assembly.”

The facts were clear. He was guilty of doing just that, violating the written law of the land. But four of the jurors voted to acquit which infuriated the judge. So, the judge threw the four in jail and tried starving them to change their vote.

Three of the jurors caved in but one, William Bushell held out and, somehow, his case went to the Court of Common Pleas. There, the chief justice ruled in favor of Bushell and said jurors can’t be punished for their votes. Bushell and Penn were free men.

Jump head 45 years to 1735. John Peter Zenger, a publisher, was accused of seditious libel for being critical of the royal governor of New York, a crime under British law, at least here in the colonies. And the evidence was clear, in his own written words. But Zenger’s criticisms were rooted in truth and the jury acquitted him despite the trial judge’s charge that truth was no defense and that the jury was only to decide whether the material had been published. Zenger was acquitted and freed. Freedom of the press and speech.

Years later, after the colonies won their independence and became the United States, juries in the northern states voted to acquit people tried for aiding runaway slaves. A Massachusetts lawyer named Lysander Spooner wrote in 1852 that the law “was so obnoxious to a large portion of the people, as to render a conviction under it hopeless….”

And while there’s nothing definitive, some people argue that women could have won the right to vote in 1873, decades before the passage of the 19^th Amendment.

It was in that year when Susan B. Anthony was tried for registering to vote in a federal election. The judge directed a guilty verdict, and the jurors obeyed despite several wanting to acquit her.

Early judges, and even John Adams, our second president, here in the once young United States when liberty was seen as a virtue argued in favor of the right of jurors to vote their conscience. As Adams said, “It is not only [the juror’s] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

But there is something a little more recent. It comes from an opinion of the Fourth Circuit Court of Appeals in the case of U.S. 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.” [Emphasis added.]

Remember those three boxes some of us were taught, the ammo box, the ballot box, and the jury box. Sept. 5 is a day to remember and revere the jury box and the power of the jury to nullify bad laws. Happy Jury Rights Day.