NEW HAMPSHIRE AND JURY NULLIFICATIONJuly 17, 2012
Many years ago I used to be a college professor, and one of the subjects I professed was mediaeval history. In that course, I took a great deal of time to go through the details of mediaeval jurisprudence, and in particular, English jurisprudence, and spent a great deal of time on the subjects of the petite, and grand, juries, and of the powers that really inhere in them. At that time, I pointed out to an unbelieving class that, under the English system - the basis of our own in America - a petite jury has the powers to (1) ask questions of witnesses directly (imagine a judge's reaction to that in the American courtroom...that's a measure of how far we've departed from the system designed to secure our liberties), (2) to try the facts of the case, and most importantly, (3) to try the applicable law in the case, and if in the jury's opinion the law is unjust or otherwise unapplicable under the circumstances, to nullify the law in question in that case.
At that time, the case of the auto manufacturer John Delorian - whose automobiles were popularized in the movie Back to the Future - was a recent memory, and Delorian's lawyers won the acquittal for their client by insisting that the jury in the federal trial be fully informed of their rights and powers as a juror. The jury, notwithstanding the federal law, basically acquitted Delorian by nullifying the law, and the federal entrapment that led to the case being brought to trial to begin with. At the time I was teaching mediaeval history, I had one of Oklahoma's most capable civil trial lawyers sitting as a student in my class, and as we covered all of this, I could see him chuckling. Afterward, he revealed his identity to me, and said that he wished more people - including lawyers - would understand this basic right.
Indeed, one wonders why such a concept isn't made the heart of every trial lawyer's defense strategy.
Well, enter New Hampshire, where the state motto, "Live free or die," is taken seriously:
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Read that one more time, and understand in it the profundity of this law vis-a-vis the Dummycrook-Republithug dialectic currently operating not only in our political processes, nor only in our legislative processes, but in our more-than-politicized and corrupt courts:
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."(Emphasis in the original)
Imagine the shock waves if this were rigorously applied, say, to all the silly government laws concerning people smoking marijuana... my bet is, not only would many people now in prison be free, but that juries would have sent a loud and strong message to the government regarding those laws: inapplicable, and unjust.
See you on the flip side.