WASHINGTON, Aug. 17, 2015 — More than 100 reporters and photographers descended on a downtown court in New York City as GOP presidential candidate Donald Trump reported for jury duty. “It’s a system, and we go through it. And it’s a great system, it’s a system that works,” Trump told reporters.
Well, yes and no.
There is little doubt of the power of the American courts. In fact, they can be downright dictatorial. A fundamental check on the courts and on the legislators who draft and pass the laws is the jury.
In New York State, a confrontation between a clever lawyer and a jury upset the accepted understanding of how a jury should act under the guidance of the bench.
The year was 1733. The case involved John Peter Zenger, publisher of the New York Weekly Journal, who was charged with criminal libel for criticizing the English king’s appointed governor, William Cosby.
Gov. Cosby went so far as to issue a proclamation condemning Zenger for his “false and seditious reflection.” A grand jury agreed and charged the publisher with seditious libel.
Throughout the trial, Zenger’s attorney, Andrew Hamilton, spoke to the jury, suggesting they were the final arbiters of justice and not His Honor.
Hamilton even suggested the court was resurrecting the dead and corrupt use by the crown of star-chamber courts as a political weapon.
“Mr. Hamilton, the Court have delivered their opinion, and we expect that you will use us with good manners. You are not permitted to argue against the opinion of the Court,” said Judge James DeLancey.
But Hamilton did just that in his summation to the jury:
“The question before the Court and you, Gentlemen of the Jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under the British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty.”
This was said 42 years before Thomas Jefferson penned the Declaration of Independence and 54 years before the 13 original states ratified the Constitution of the United States.
The jury, ignoring judge Delancey’s instructions, acquitted Zenger.
And so, “jury nullification” became a fundamental safeguard of American liberty. Northern juries, for instance, refused to convict those who clearly violated the Fugitive Slave Act of 1850.
Needless to say, the courts hate the doctrine.
In a 5-4 ruling in Sarf and Hansen vs. United States (1895), the U.S. Supreme Court ruled that judges are not required to inform jurors of their right to judge the legitimacy of law and not just the facts in a case.
I have never served on a jury. Every time a judge or prosecuting attorney has asked a group of prospective jurors, of which I am part, if they have any objections to receiving judicial instructions, mine is the only hand to rise.
In each case, the judge has asked the other jurors to stand outside the courtroom while I explain my objection.
In one case, after I told a judge that it is the juror’s solemn duty to stand as a last defense of the accused against the overwhelming power of the state, the judge exclaimed, “You are excused and you may leave the building!”
Donald Trump can probably get out of jury duty and back to his presidential campaign by simply telling a judge that jury nullification is an idea he might like to discuss with the American people at a time the nation is under assault by a tyrannical judiciary.