68. How Can Juries Make A Difference?

Our Constitution guarantees individuals the right to a jury by peers should they be accused of a crime. On this episode, Connor and Brittany talk about the important role juries play in our legal system and how they can be empowered to ensure justice prevails.

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Links:

• Nullify Drug War, Empower Juries, Save Lives: All In a Day’s Work for This Heroic Defense Attorney
• Ensuring Justice through Juror Discretion

Here’s a transcript of our conversation:

Brittany: Hi Connor.

Connor: Hey, Brittany.

Brittany: So I got a very important letter in the mail today from my city, which told me that I was being pre-selected for jury duty or to be at least put in the bucket to be selected for jury duty. I know, I know. But I am very excited about this. So, our constitution, some people might know my guarantees, individuals that right to have a jury by their peers in case they get accused of a crime. What that means is people from your own city, people from your local area, if you are accused of a crime, they get to actually sit and hear all the details of the case. And along with what the judge gets to decide whether or not, you know, they think you are guilty, they get to deliver the verdict guilty or not guilty. Now, the cool thing about that is they have a lot more power than even they know. So I kind of wanna dive into why juries are so important, but I do have a question for you, Connor. Have you ever been picked for jury duty?

Connor: I’ve never been picked and I worry about, ever having the opportunity. Cuz the way it works if you want to be on a jury is they’ll typically say, you know, what do you do for a living? And who are you? And if I were to tell them, oh, you know, I’m a freedom fighter and I, run a think tank and all these things, the prosecution, the attorneys for the government, they’d be like, oh, we don’t want you on our jury, you know, too much. Or you’re, you know, you’re too passionate. They want people who aren’t very involved or very informed, just so that they’re kind of like neutral or a blank slate. So I’ve just come to the position that I’ll probably never have the experience. So hopefully you can have a good experience for the both of Us.

Brittany: I’m hoping so, of course, after they listen to this podcast episode, maybe not, because one of the things I wanna discuss is a really important thing that juries can do and that a lot of jury members like I said, don’t know they can do. It’s something called jury nullification. Now, nullification means to nullify, I think we’ve talked about this as far as it concerns state rights in an earlier episode, so kind of cancels out. So what a jury can do is, since a jury’s main task is to decide whether or not the defendant, the person being accused, or is on trial, uh, to find out whether or not that they really did break a law. So let’s say they did, but the jury decides that you know what, the law’s really unjust. In fact, the law might not even be constitutional. So instead of saying guilty or not guilty, they can say, yeah, the person broke the law, but this law shouldn’t exist at all. This is a bad law. And this sounds crazy, but this has actually been really empowering for, you know, all throughout American history and it’s helped change hearts and minds and the law across the country.

Connor: Yeah. And even before American history, one of its first really notable uses was in England. So the state of Pennsylvania is named for William Penn. And when William Penn, was in England, he was a Quaker, which is a certain religion. He was a preacher. And, he was arrested in the year 1670, for violating the law in England and this law, cuz there was an official church of England, right? It was the state, the government church, and the law prohibited religious assemblies or groups of people of more than five people. It was illegal and it was a way for them to try and them the government to punish people like William Penn who are trying to preach to the public and get converts to leave, the Church of England. So they made it a law that you basically couldn’t preach and, gather like this. And so, William Penn decides, you know what, I’m gonna break this law intentionally kind of like civil disobedience, which we’ve talked about before.

Brittany: Yes, we have.

Connor: He gathered a crowd of around 300 people right outside, the Church of England, one of their chapels, and started preaching to them. So of course, you know, he gets arrested and, ends up in a jury trying to make his case. And what’s really cool is the jury, in this case, they refused to convict him. Many of the jurors, were, you know, felt strongly that the law was unjust. And so they returned a verdict, which is the decision. And they said, oh, he’s guilty not of preaching. He’s, only guilty of speaking. Well, of course, speaking wasn’t a crime. and so, you know, that wasn’t illegal. So here’s what’s interesting. The judges, there was more than one judge in this case. the judges were really upset. And so the presiding judge, the main judge in charge, he told this to the jury, this was all written down. And so we have the notes here. This is what he told the jury. He said, Gentleman, you shall not be dismissed until we have a verdict that the court will accept. And you shall be locked up without food, drink, fire, or tobacco. You shall not think thus to abuse the court. We will have a verdict by the help of God, or you shall starve for it.

Brittany: Wow.

Connor: The judges repeatedly locked the jury up once even deny them food and water in hopes of getting a different result. But every single time the jury came back and gave the same verdict for the alleged crime of, preaching, they would say not guilty. And so, finally, William Penn himself was thrown in jail. The entire jury was forced to join him, and then they find all of the jurors. So anyways, as the story continues on, he’s let outta jail, he’s let go and coming out of that story, because William Penn did some civil disobedience because the jury stood their ground and said, we don’t think he’s guilty. That is one of the first uses of jury nullification. And where we get the principle in American law comes from this, the English law and this problem, the principle that a juror cannot be punished for his conviction before then judges, as you can see here in this story, you know, would lock people up and oh, that’s the wrong decision. Like, what’s the point of a jury if the judge can just say, Nope, you know, go back until you give us the decision we want that there’s no point? And so the independence of a juror, the ability, Brittany, for you, when, if you’re on the jury,

Brittany: fingers Crossed

Connor: For you to decide whatever you want, you know, guilty, not guilty, your independence to be able to do so, stems from this case with William Penn and, the right of all of us. Now, if we’re on a jury to vote our conscience and say, well, I don’t think he did it, so the government can’t punish me because we let him go. I just think it’s such a fascinating story. Well,

Brittany: What’s crazy about that though, and I’m gonna have to, I’ll have to find the link and put it in the show notes, but I believe in America, someone was punished for even talking about jury nullification because this is something that obviously the judges, as you kinda shared in your story, don’t always want people to know because they see it very black and white. This person broke the law, the laws the law, and they must be punished. But because some laws are unjust, a lot of people are trying to teach people about jury nullification and let make sure that juries know their rights. But somebody was passing out, I think it was like pamphlets or flyers about, you know, just bullet points about what jury nullification was, and they were arrested. And I don’t know what happened. So I can’t speak for how long they were in jail or what their punishment was, but I do know they were arrested for just talking about it, which is nuts if you think about it. I mean, absolutely bonkers. I don’t know if you heard about that story. It happened maybe, maybe five or 10 years ago.

Connor: There’s actually a few different examples of this happening. And every time it happens, a judge or a court will punish someone who’s passing out these pamphlets out front of the court for people like you who are reporting to jury duty. So you got some guy who’s standing out front of the court building, passing out literature saying, Hey, learn about jury nullification. You as a juror have the right to decide whatever you want. You can’t be punished for it. And so if you think someone’s not guilty, you can vote that way. And so these guys pass out these little pamphlets. That’s just what they do. And occasionally more than once, so not just the story you’ve heard about, but there have been other times as well that individual, like they’ll send the bailiff out, right? Or the police to go grab that person and arrest them, hold them in contempt of court, or interfering with an investigation or whatever. But every time that’s challenged, when that individual who’s passing out the literature says, you know what? I’m gonna fight this. They’ve won every single time.

Brittany: That’s what I was curious to know. So that’s hopeful so that they are getting off because they’re not doing anything wrong. So they should be getting off.

Connor: Yeah. But you can see the judges don’t like it. They don’t like that. when people know when jurors know that they have power, it’s very much this little battle between the jurors on a jury and the judge judges like to think of themselves, you know, all-powerful and kind of dictators in the courtroom. And so when a juror comes in and throws a wrench in that and says, eh, not guilty, right? That totally can change things. And so judges, what we’ve seen in, past decades is they actually try and fight attempts to let jurors know that they have this power. It’s, really interesting.

Brittany: So one thing I wanted to kind of talk about, instances that where this has actually worked in our country to change laws, and one thing that sticks out in my mind is prohibition. And I don’t think we’ve ever talked about prohibition in olden-day terms in modern day, maybe, but back in the 1920s, I believe, right? 1920s. When did it end? When did prohibition end? Yeah,

Connor: Yeah, Somewhere around then.

Brittany: 1920s. so alcohol was illegal. It was completely outlawed. and a lot of this was because a lot of moms and grandmas with the right, you know, their hearts were in the right place, saw what was happening when, when people were getting drunk and they said, let’s outlaw alcohol. Well, the government really shouldn’t be in the business of outlying what you can put in your bodies. And we’ve talked about that in a previous episode. It also didn’t stop anything. Alcohol was still getting made, but the alcohol was more dangerous because people were making it at home. And it kind of led to the rise of like the mafia, like mob bosses who were helping rent this. Well, anyway, people were getting caught with alcohol and they were having to go on trial, with a jury of their peers. But the jury had a hard time convicting them because they were all drinking quietly too, right? And they knew these people, this wasn’t just some stranger who was drinking alcohol and got caught. This was their neighbor Bob, who they were drinking with maybe two weeks ago. And they, you know, so they couldn’t really convict somebody because in good conscious because they knew they were doing the same thing. And it was so common that eventually, that helped get rid of prohibition, that helped led to the amendment that canceled it. So that’s a really cool example of how we’ve seen this happen, and we’ve seen it actually change the entire course of national history.

Connor: Wow. Another example, I was thinking of is the Fugitive Slave Act. And so, slavery’s kind of a dark mark on our nation’s history, and I’m sure those listening know all kinds of things about the issue. But this issue, this aspect isn’t really well known. The Fugit of Slave Act was a law passed by Congress that told law enforcement officers, that they could seize runaway slaves, in other words, those who have escaped from the south and made it to the north,  to free states. They had to seize these slaves and return them to their quote-unquote owners in the South. And it also required local law enforcement to cooperate and help the federal officers, of the law enforcement officers from the federal government. And so Congress passed this law basically saying, if you catch anyone, you have to, return ’em to the South. And so there was a man named Shadrack Minkins,

Brittany: That’s a cool name.

Connor: That’s a very cool name. Shadrack is a very biblical name. Yep. And, in 1850, he escaped from slavery, which was the same year that Congress passed the Fugitive Slave Act. And, you know, slaves weren’t granted the right to a trial by jury, under this Fugitive Slave Act. Their, fate as to whether they’d have to be returned or not to their owner was decided by a single commissioner, like a judge. But what’s even worse is that the law incentivized, in other words, encouraged that these commissioners would return slaves to their previous owners, because they were compensated twice as much when they would rule that a black person was in fact the alleged runaway slave as opposed to ruling against them. And so they were gonna get paid more if they went along and said, oh, return him, even if it was a missing case of mistaken identity, just the fact of them ruling that way, they would get paid more. Well, so here’s Shadrach Minkins, he’s caught. He can’t appeal to a jury, because the Fugitive Slave Act doesn’t give him that authority, but he still got an attorney, and he, he mounted a defense to the commissioner, this judge. But the trial in the courtroom was cut short because this crowd assembled outside. They forced their way into the courtroom in open violation of, federal law. You’re not allowed to do that. They overpowered the federal agents, the law enforcement officers that were detaining minkins, and allowed him to escape. And, they hid Shadrach in a nearby home and then helped him escape from Massachusetts. These people literally busted down the courtroom doors and freed this guy.

Brittany: That’s so cool.

Connor: Yeah. And so here’s where jury nullification comes in. Well, Shadrach escaped, but, the federal government wanted to enforce its new law, the Fugitive Slave Act. They didn’t wanna be made look like fools as a result of this whole thing. And so the agents, the federal law enforcement officers, they arrested several men who had helped Minkins Escape. Now, in some of these cases, they didn’t have enough evidence. And so not all of the cases proceeded all the way. but there were some defendants, some individuals who were very clearly participants in helping Shadak escape. But the federal prosecutors, in other words, the lawyers for the government who were trying to go after these, these people who helped Shadrak, they could not get a single conviction because the juries kept saying no. They kept saying not guilty, even though these people were technically guilty, they had conspired, to release a slave. They had actually assisted, they had violated the Fugitive Slave Act. They, they, they broke the law. They very clearly did. And yet these jurors said, no, you know what? Not guilty not because he is not technically guilty, but because that is the way that we can let that person escape from punishment from the government because punishing them for doing something right would be wrong.

Brittany: I like that you said it like that because a lot of times we think simply what the law is right and everything else is wrong. But I like the way you put it that way because it, goes back to doing what your conscience tells you to do. And I think we’ve talked about that in other episodes, on doing what’s right, not necessarily do, doing what is the law. Right? There’s one thing I wanna point out because there’s a really, really cool lawyer, a friend of mine, her name’s Catherine Bernard, who’s actually using this today. So we’ve talked about historical examples, but this is a woman who’s actually getting people or preventing people from going to jail, people who really don’t deserve to be there. There was one gentleman in Atlanta or somewhere near Atlanta who got tricked by a police officer into selling him some drugs. So, he, the guy who was caught was out of work for months, and a cop disguised as a construction worker approached him and said, Hey, I have a job for you. The problem is, in order to get this job, we have to sell our new boss drugs, or he’s not gonna hire us. So imagine if you’re in that position and you think, oh my goodness, I just need a job. And so he, got a hold of what they wanted and he sold the officer drugs, and then he found out it was an officer and ended up getting arrested. Now, he was supposed to serve five years in jail, and this would’ve been terrible because he wasn’t a bad man. He didn’t have any prior record. but Katherine Bernard, the attorney, was able to use jury nullification and tell the jury, she looked into the jury’s eyes right before she, made her case and said, you know, this is a man just like you. What would you do if you were in this position? You know, vote your conscience. And they did. And he is not in jail, and this is helping to change laws slowly. In fact, Atlanta decriminalizes the drug. He was caught selling, just a couple of years ago. So this is really, really cool because we’re seeing modern real-world examples about how attorneys are being really heroic and helping to get people out of jail or keep them from going to jail. And I think that’s exciting.

Connor: It is. And, I like how you pointed out it’s a way to change the law, because if the government sees that they can’t win in court when it comes to a particular law, I mean, there’s even cases of things like raw milk, right? Going after Amish, people who are selling cream and butter in violation of, you know, laws that prohibit raw milk. And, you know, if, those laws can’t be enforced, if every time that person goes to court, the jury says not guilty, then that creates pressure for the legislature to go in and just change the law because the public isn’t willing to support it. The law is clearly out of sync with what the public wants or thinks is just, in addition to, a story on, your attorney friend that we’ll link to. We’re also gonna link to a little policy brief for the parents who are interested in learning more about this issue that we put together a few years ago at Labors Institute that shares the story, you know, the Fugitive Slave Act, William Penn, and many others to learn more about this issue. It’s very important in our system of trial by jury, that we make sure that jurors know what their powers are, that they are kind of the last check on justice to make sure that the government is doing things right. And tragically, we live in a system, maybe we’ll talk about this another time, where the majority of people take what’s called plea deals. In other words, they never see a jury. They agree with the government and say, oh, if you just drop the punishment a little, then I’ll accept the punishment. But they never face a jury. And when you have a system of government that kind of almost removes the jury, I think we end up with a lot of problems if the public can’t participate in that process and determine what is right and what is wrong, um, and hold the government accountable. So, super fun topic, head to Tuttletwins.com/podcast. Check out the show notes page. You can find those resources. This is a topic that excites me in particular, I think there’s a lot of work to be done on it. So, your attorney friend, among many others is doing some heroic work and trying to make sure that the issue, remains active and remains alive. So until next time, Brittany thinks is always for chatting.

Brittany: Talk to you next time