Plainsman1963

Juror asks: What right do you have to prosecute this defendant?
08-20-2008 | Examiner.Com | J.D. Tuccille

This past March, a remarkable thing happened. A juror in a federal trial in Massachusetts actually exercised his responsibility to question the government's authority to prosecute a defendant. Apparently pressed by fellow jurors to address his doubts to the bench, Thomas R. Eddlem sent a note to US District Court Judge William G. Young asking: "Where – if two-thirds of both houses of congress voted in 1919 that it was necessary to amend the constitution to give congress the power to ban mere possession of a substance (prohibition of alcohol in that case) – is the constitutional grant of authority to ban mere possession of cocaine today?"

Taken aback, Judge Young essentially replied that the government has the power because courts say it does -- based on the infinitely malleable Commerce Clause. Unmoved, Eddlem persisted, and was ultimately yanked from the jury for his troubles and replaced by an alternate.

It's impressive enough that a juror had the temerity to question the grounds for a prosecution -- most jurors today grudgingly serve their time as rubber stamps for the judge, doing what they're told and neglecting their role as representatives of the people in the courtroom.

Even more impressive is that Eddlem -- a radio talk-show host and former research director for the John Birch Society -- raised a valid objection that has been a legal sore point for many scholars. No less an authority than Supreme Court Justice Clarence Thomas raised a similar concern in his dissent (PDF) in Gonzales v. Raich:

So Eddlem's question to Judge Young is one that has been echoed at the highest level -- hardly a fringe concern. He exercised his responsibilities as a juror and did so in an extremely credible way. Nevertheless, Judge Young was so shocked that he penned a 41-page legal memorandum denouncing Eddlem's presumption, as well as the doctrine of "jury nullification" that he accused Eddlem of espousing.

Jury nullification is when jurors are so offended by a law or by the application of a law that they refuse to bring a conviction, even when a defendant is clearly guilty. During American history, juries have nullified (refused to enforce) laws against assisting runaway slaves, peddling alcohol in violation of Prohibition, dodging the draft and smoking marijuana, among other laws that draw the scorn of a sizeable portion of the population.

Young's memorandum cited chapter and verse about alleged abuses of nullification and the dangers it supposedly poses to American democracy -- though in doing so, he managed to completely ignore Clay S. Conrad's Jury Nullification, the definitive book on the subject, which ably addresses such objections. That's an odd omission, since Young does cite a minor article by Conrad as an example of political advocacy for nullification.

Eddlem denies that he supports nullification and, in fact, says he would have voted to convict in a state court -- his objections were constitutional in nature. But that clearly puts him in the tradition of a long line of jurors who have refused to do the government's bidding in cases of prosecutions they considered unjust.

But whether it was nullification or not, was Eddlem's action such a good idea?

Remember, every step along the way, all of the other participants in the criminal justice system exercise discretion based on their own sense of what's right. Police officers look the other way, prosecutors decide not to pursue cases, judges dismiss or reduce charges and pass down light sentences. These officials are all representatives of the state. It's only the jury, the representatives of the people in the court, that Judge Young and his colleagues say should behave like automatons. That makes no sense -- or rather, it makes an unfortunate self-serving sense when argued by a judge, whose power is diminished by independent jurors.

Really, there's every reason to recognize the jury's right to exercise at least as much mercy as the other participants in the criminal justice system -- especially given their role as the last check on the power of the state. That right was not just recognized, but celebrated by the founders. John Adams, the nation's second president, said it is the juror's "duty ... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

In fact, there's some evidence that more jurors than we usually realize appreciate their power to mitigate the impact of the law. In 1999, the Washington Post reported:

A hung jury is simply one in which the 12 men and women around the table disagree over whether to convict or acquit. But judges, lawyers and others who study the phenomenon suspect that more and more differences are erupting not over the evidence in these cases, but over whether the law being broken is fair.

Eddlem may have drawn the headlines, but jurors across the country are quietly exercising the discretion he publicly advocates.

carlover_36

If only more US citizens would understand, acknowledge, and stand by their beliefes, this country could perhaps become the ideal it was founded on. Sorry, sorry country we have become.

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Lit_Match

Excellent article!

I haven't served a jury yet, but if/when I do I'll be sure to let the others know they have the right and duty to reach of verdict of guilty or not guilty despite the evidence if they see just cause to do so.

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Buzzby

Are you suggesting that jurors should find a defendant guilty, even if the evidence does not prove his guilt beyond a reasonable doubt, because they don't like him for some other reason? That kind of undermines the whole idea of justice, doesn't it?

I served on a jury in a rape case. The defendant was a big ugly biker guy. The evidence did nothing to indicate, much less prove, that the sex that took place was anything but consensual. The "victim" already had a child by him. There were no witnesses - no screaming. No injuries to either party. My fellow jurors were ready to find him guilty, but when I questioned them they were coming from "he looks like the kind of man who'd do something like that". When I held their prejudice up in front of them, they changed their minds.

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Vicki

Thank goodness you were able to change their minds. I cannot believe they were ready to say guilty just because "he looks like the kind of man who'd do something like that."

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Those that forget the past are condemned to re-live it.
"If you have men who will exclude any of God's creatures
from the shelter of compassion and pity,
you have men who will deal likewise with their fellow man."
~ St. Francis of Assisi ~

GREENFOODGAMES

People need to remember how serious this is for the people who are on trial there life is in someone elses hands and with major consequences - you did a good thing Buzzby by not passing a biast judgement. Just think of it this way how would you feel wrongfully imprisoned.

LowRider

someone correct me if I'm wrong here, a judge or a defense attorney can't tell jury's of jury nullification?

KillerWeed420

Excellent thread. Jury nullification is true patriots in action. It only takes one. It would be better if this guy hadn't stood up and stated his beliefs. Its better to just quietly act on your beliefs.
This is why I keep trying to get young people to be sure and register to vote so you get on jury duty.