(THE WASHINGTON BLADE on September 16, 1993)
The recent decision by a D.C. jury to acquit two Gay men charged with oral sodomy despite clear guilt based on the facts in the case ("Jury 'nullifies' sodomy charge against Gay men," Aug. 27, Blade) is the latest in a long tradition, now sadly losing its pre-eminence, that casts jurors as the protectors of liberty against repressive state action.
As Thomas Jefferson put it, "I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution." The Webster's dictionary current in Jefferson's time defines a jury as a group of citizens impaneled to judge both the facts and the law in both civil and criminal cases. Jury "nullification," or the voiding of a law by juries who judge it to be immoral or repressive or simply wrong, is part of our legal heritage.
The concept of jury nullification may be an effective weapon in the fight against anti-Gay sodomy laws, particularly since legislatures show reluctance to repeal these laws.
President John Adams once noted that "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." As recently as 1972, the D.C. Court of Appeals ruled that the jury has an "unreviewable and irreversible power ... to acquit in disregard of the instruction on the law given by the trial judge. The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge; for example acquittals under the fugitive slave law."
Two famous cases illustrate the importance of jury nullification.
William Penn, the Quaker leader, was charged in an English court with unapproved preaching of a non-established religion. The judge told the jury that since the facts were clear, they must return a conviction; if they did not convict Penn, the judge said, he would hold the jury in contempt of court and send the jurors to jail. Yet, at great personal risk to their safety and liberty, these jurors -- who knew that the English tradition gave jurors the right to judge the law as well as the facts -- refused to convict Penn.
About a century later, New York printer and publisher John Peter Zenger was hauled into court and charged with printing seditious reports about government officials. The law and the facts were clear; Zenger had indeed criticized the officials. Again, the jury knowing its rights, refused to convict Zenger.
These two cases provided the foundation for the freedom of religion and freedom of the press clauses in the U.S. Bill of Rights. By rejecting these repressive laws and refusing to use them to convict righteous citizens, the juries weakened the laws and began the chain of events leading to legislative recognition of citizens' natural right to religious and political dissent. Jury nullification strengthens the constitutional protections of minorities against the caprice or malice of political, ethnic, and sexual majorities.
Unfortunately, contemporary judges seldom inform jurors of their right to judge the law in a case; prosecuting attorneys often object to defense lawyers who try to inform jurors of their rights, and judges almost as often sustain these objections.
Since jury nullification is such an important tool in combating repressive laws, as a Libertarian candidate for the Virginia House of Delegates, I will support legislation that will require judges to inform jurors of their full rights. In this, I will be guided by model legislation written by the Fully Informed Jury Association (Box 59, Helmville, MT 59843), which has worked to get such requirements placed into the laws of several states.
By rendering sodomy laws and other anti-Gay laws unenforceable (and protecting the right of AIDS and cancer patients to use therapeutic marijuana despite Drug Enforcement Agency objections), juries can perform an important function in preserving and expanding liberties for all Gay men and Lesbians, indeed for all Americans. It seems to me that the pro-Gay public interest law firms should vigorously pursue this strategy. They can be sure of my support in this effort, as well as the support of the Libertarian party throughout the United States.
In short, the rarity of this recent decision by a D.C. jury to acquit two men charged with sodomy should be diluted by more frequent nullification of bad laws by juries that have been fully informed of their traditional rights.
Richard
E. Sincere, Jr.
Candidate, 49th District
Virginia House of Delegates
Arlington, Va.
Gays and Lesbians for Individual Liberty was founded in February 1991 to advance the ideas of economic and personal freedom and individual responsibility. It has members across the United States and in several foreign countries. For more information, visit http://www.glil.org or telephone 202-903-5555.
-30-
This
Page Last Updated on
Saturday, 6 July, 2002 21:43