Patterico has gone after Radley Balko for complaining about questions during voir dire that are meant to entrap potential jurors so that if they exercise their right nullify they will be guilty of perjury.
Patterico says that these questions are perfectly ok and that the real problem is people lying during voir dire. He gets very self righteous about this. I have a question for him if he was under oath in a German court in the 30s or 40s and he was asked a question that would have reveled that he was a Jew or a member of the resistance would he feel obliged to tell the truth? Would he tell the truth or is he a “liar.”
It is instructive that Patterico, like the legal profession as a whole, uses the legal French term voir dire for the process of eliminating jurors that the state and defense find inconvenient. This is because the English term for this process, jury packing, is perhaps to revealing.
Patterico cites one recent case by the California Supreme Court saying that jury nullification is bad. This opinion as Patterico quotes it does not cite precedent, only a law review journal article. He claims that this opinion is “the law” and that those who believe in jury nullification are subverting the rule of law. He claims that nullification is a power but not a right.
In fact jury nullification is a lawful power. The real precedent is clear and the exact opposite of the opinion of Patterico and the California Supreme Court. In one of the few jury trials before the supreme court in 1794 John Jay first Chief Justice of the United States instructed the jury as follows.
“It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay the respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.” Georgia v. Brailsford, 3 U.S. 1, 4 (1794)
This was not some fantasy of the Chief justice and a small majority of the court. Though the early court was notorious for adhering to the old English practice of each judge giving his opinion seriatim, the Chief Justice told the jury, “It is fortunate on the present, as it must be on every occasion, to find the opinion of the court unanimous: We entertain no diversity of sentiment; and we have experienced no difficulty in uniting in the charge, which is my province to deliver.” Id. In other words this is the opinion of the unanimous court.
The context within which this charge was given to the jury is even more revealing. The foregoing was not obiter dictum. According to the Chief Justice’s charge “The facts comprehended in the case, are agreed; the only point that remains, is to settle what is the law of the land arising from those facts; and on that point, it is proper, that the opinion of the court should be given.” Id. In other words there was no question of facr to put to the jury, only an uncompounded question of law, thus it was necessary for the court to consider the jury‘s power in coming to its instructions.
Nor does this opinion stand alone. In 1916 the Alabama Supreme Court held,
“One of the most valuable rights of a trial by jury in criminal cases, and that which distinguishes the right from that in civil cases, is the right of the jury to render a general verdict; that is, to say, "guilty" or "not guilty," no matter what the witnesses may say as to the evidence, nor what the judge may say as to the law. Of course the jury ought no more to arbitrarily disregard the instructions of the judge than they ought to arbitrarily disregard the testimony of witnesses; but they can do both, and ought to do so, when both are founded on, or are in, error. Jurors are not bound to follow what a witness says as to the facts, nor what the judge says as to the law; the two being only agencies to aid them in arriving at a "true saying," a verdict.” Warren v. State, 197 Ala. 313, 331 (Ala. 1916)
In 1849 the Vermont Supreme Court held,
“ From the earliest date, the supreme court, while they held jury trials in bank, were, as I have always understood, in the habit in criminal cases of charging juries, that they were rightfully the judges of the law as well as the facts; and I think the same has since been the general practice by the judges of the supreme court at nisi prius. The question in regard to the right of the jury was also incidentally before the supreme court in 1829, upon a charge of one of the judges at nisi prius, which it was contended, on the part of the respondent, was to be construed as having denied such right. It was conceded in the argument, that if the charge were liable to such construction, it could not be supported. The charge was held unobjectionable in that respect; but PRENTISS, J., in delivering the opinion of the court, remarks upon the question as follows:--"There is no doubt, the jury are judges of the law as well the fact. This is the true principle of the common law, and it is peculiarly applicable to a free government where it is unquestionably both wise and fit, that the people should retain in their own hands as much of the administration of justice as is consistent with the regular and orderly dispensation of it, and the security of persons and property. This power the people exercise in criminal cases, in the persons of jurors, selected from among themselves from time to time as occasion may require; and while the power thus retained by them furnishes the most effectual security against the possible exercise of arbitrary power by the judges, it affords the best protection to innocence." State v. Wilkinson, 2 Vt. 480. This opinion of a former chief justice of this state, of acknowledged legal ability and integrity, must be justly entitled to high consideration by this court.” State v. Croteau, 23 Vt. 14, 19-20 (Vt. 1849)
In 1841 the Maine Supreme Court held,
“But the presiding Judge erred, in determining that in criminal cases, the jury are not the judges of the law as well as the fact. Both are involved in the issue, they are called upon to try; and the better opinion very clearly is, that the law and the fact are equally submitted to their determination. It is doubtless their duty to decide according to law; and as discreet men, they must be aware, that the best advice they can get upon this point, is from the Court. But if they believe they can be justified in deciding differently, they have a right to take upon themselves that responsibility.” State v. Snow, 18 Me. 346, 348 (Me. 1841)
I could go on in this vain for hours, case after case. There is simply no doubt that at the time of the founding the jury had the right to decide fact and law. Perhaps Patterico believes in a “living constitution” in which case he may disregard the vast precedent against his position and embrace the attempt by courts during the last hundred years to subvert the jury system. The fact is however that this is not defending the rule of law, it is subverting BOTH the constitution and the rule of law.
To return to the question which began this argument, what should people do when they are being subject to the jury packing process by a judge, prosecutor, and defense attorney who are colluding to allow the judge to act Ultra Vires. If a truthful answer would help the judge in his usurpation of authority not granted to him by the constitution, then it is to his own conscience that each venireman must have resort.
I will say that my own behavior in the past has been to evade the question for as long as possible, usually by answering the letter, but not the spirit of the question for as long as possible. When I am pinned down by a question, I then try and answer fully so as to explain the right of jury nullification in a loud tone of voice so as to poison the whole venire pool. I am thus resisting to the largest possible extent the judges attempted usurpation and fulfilling my responsibility as a citizen to uphold and defend the laws and constitution of the republic. (Warning this often gets one threatened with contempt of court)