The Jury as the Fourth Branch of Government

by Don Doig and Stewart Rhodes

Citizens in our (once) free republic founded under the English common law system, have both the power and the right to vote according to conscience when they sit on a jury and can vote not guilty even in the face of the law and in the face of the evidence. The defendant also has a right to expect that his jury will be fully informed of their rightful power to vote "not guilty" if they believe justice requires it, regardless of the evidence. Anything less is not a real jury trial.

The jury issues no opinion, gives no explanation of its decision. It simply renders its verdict, and if the verdict is "not guilty," that acquittal cannot be questioned or overturned by any court. It is telling that a conviction can be overturned, but an acquittal cannot – the deck is stacked on the side of the liberty of the individual on trial. While a judge can overturn a jury conviction that in his judgment is unsupported by the evidence, or where the jury harbors prejudicial animus toward the defendant, the judge cannot overturn an acquittal even if the evidence is overwhelming – even if the defendant admits on the stand that he did the actions of which he is accused.

A landmark case in jury history is that of William Penn, the Quaker preacher who would later found Pennsylvania. He was put on trial in England for the "crime" of preaching a non-government approved religion on a public street corner. He did not deny that he had preached as a Quaker. He proudly proclaimed it. There was no doubt that English law at the time considered his actions criminal. That too was plain. And yet, the jury acquitted him in spite of the obvious, undisputed facts, and in the face of the clear law. That jury was initially held in contempt and jailed by the trial judge, but on appeal, the English appellate courts ruled that the jury has an absolute power to acquit despite the facts and in the face of the law, and that it cannot be punished for exercising its power. That acquittal helped to establish the free practice of religion.

The same was true in the celebrated Zenger trial in the American colonies, where Zenger, a newspaper editor, did not deny he had published an editorial severely criticizing the royal governor. The facts were undisputed. Under English law at the time, mere criticism of government officials, even if true, was still considered libel, and could be punished. And yet, despite both the law and the facts being abundantly clear, the jury acquitted Zenger. That acquittal helped establish legal protection for freedom of the press, and freedom of speech, such that only knowingly false statements can be considered libel.

The Fugitive Slave laws criminalized the underground railroad. Abolitionists accused of helping runaway slaves were often set free by sympathetic jurors voting according to conscience, nullifying the law.

One way to think of the jury is that it is effectively a fourth branch of government, sovereign in its own realm. Separation of powers requires that its powers and immunities remain inviolate. In this sense, the jury has as much a power to set even a "guilty" man free as a governor using the power of clemency, or as a President using his "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment" under Article II, Section 2 of the Constitution. That power is also absolute, except in cases of impeachment.

It’s telling that modern power elites don’t scream and yell about governors and Presidents having such an absolute power to set even a clearly "guilty" man free. When fellow elites within government do it, it is accepted. But when the people, as a jury, do precisely the same thing, elites gnash their teeth and shrilly warn of impending chaos and anarchy (as if that were a bad thing!), crying crocodile tears about all the supposed injustice that will result if the jury does something similar to what governors and presidents do at will.

The plain fact is our entire legal system was originally designed to favor liberty, with discretion built in at every level, from the beat cop, to the prosecutor (who has a responsibility to see that justice is done, and that sometimes means not prosecuting even in a clear case), to the jury, to the judges who can overturn an unjust conviction (such as by ruling the law to be unconstitutional as applied), to the governor and/or President who can overturn even a "just" conviction and set a certifiably guilty man free. As Hamilton stated in Federalist 74, in reference to the power of Pardon:

The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.

Just so. And as it is with the power of pardon, so it is with the power of the jury.

The scales of justice are meant to be tipped on the side of liberty, with "easy access to exceptions in favor of unfortunate guilt" built in at each step.

Read the rest here.