Jury Nullification, or Jury Discretion and The Second Amendment

1/3/2016

FIJA and the Second Amendment
by Don Doig (date unknown)

We frequently hear the proposition that in the line of defense of our liberties, first is the ballot box, then the soap box, then the jury box, and finally, failing all else, the cartridge box.

The latter two really are the enforcement mechanisms for the Constitution and the Bill of Rights.

An informed jury can and should be the means by which the right to freedom of speech is defended, as in the case of John Peter Zenger. An informed jury could protect against improper search and seizure, secure free exercise of religion, the right peaceably to assemble, and freedom from excessive fines and cruel and unusual punishment. Trial by jury also protects all those rights not specifically enumerated, but covered by the Ninth Amendment.

An informed jury can also act to secure the right to keep and bear arms, by protecting citizens against prosecutions which would deny that right. I have read where there are something like 20,000 gun control laws on the books, all or nearly all of which are arguably unconstitutional.

In many jurisdictions peaceful citizens who use firearms to defend themselves against armed robbery, home invasions, carjackings or rape are prosecuted for violating local or state gun control laws. In some cases they are expected to run away or otherwise not resist, even in their own homes. Clearly these prosecutions are ripe for the conscientious application of jury nullification by fully informed jurors.

In other cases, gun owners face prosecution for owning various kinds of prohibited, politically incorrect (yet certainly constitutionally protected) firearms, even without having used them in self defense. People carrying firearms for protection run afoul of various laws, and gun owners in some locations are prosecuted for failing to register their guns.

Business people licensed as Federal Firearms License dealers are subject to constant harassment, trumped-up charges, and prosecution for minor technical violations of arcane and unconstitutional firearms laws and regulations. If jurors believe that these laws are unconstitutional, if they believe these laws clearly conflict with the Second Amendment, they have the power to choose to acquit the defendant, and in so doing, defend the Constitution itself.
In the course of the ATF’s attack on the Branch Davidian church at Waco , four agents were shot and killed. The jury, in a case that FIJA was involved in, found the defendants “not guilty” of murder on the grounds of self-defense. (The jurors did convict the defendants on what they thought were minor charges, thinking the sentence would be minimal, but Judge Walter Smith imposed the maximum, and several are still in prison. The jury forewoman tried to get the sentences reduced.)

In another outrageous showcase of federal power run amok, the attack by federal marshals on the Weaver family at Ruby Ridge in Idaho, which resulted in the deaths of Sammy Weaver and Vicky Weaver. Kevin Harris was charged with murder and several other federal felony counts for the death of a federal agent. A jury found him not guilty on all counts. Randy Weaver was charged with eight federal felony counts, and the jury found him not guilty on all counts. He was acquitted on the charge which involved a sawed-off shotgun, which had been the whole point of the fiasco in the first place. Weaver was found guilty of failing to appear in court and of violating his bail conditions.

A literature search turned up a few recent cases in which a prosecutor saw fit to charge a gun owner with murder or something similar, but the jury saw it as self defense. An article from the Fort Wayne, Indiana, News-Sentinel on April 17, 2003 reported that Shane Douglas shotgunned an assailant who had threatened to shoot him for supposedly ‘messin’ with his girlfriend. There was local controversy over the fact that the circumstances were not clear cut—and Douglas was white and the deceased was black and it was an all-white jury, but the News-Sentinel pointed out that the previous week, another largely white jury acquitted a black defendant of aggravated battery and manslaughter of a white man.

In another case the Delaware News Journal on April 26, reported that a Wilmington man was acquitted by a jury of murder, attempted murder and two weapons charges in the shooting death of his downstairs neighbor. He had claimed self defense because the neighbor and his girlfriend had lunged at him and he felt threatened.
And finally, according to Yahoo News on March 21, a Texas jury acquitted a man whose assailant threatened to “carve up his face” because he resembled a member of the band ‘N Sync. Richard Brown shot Eric Acosta because he feared Acosta had a knife when he made the threat. Great reason to threaten to cut someone—Acosta sounds like a candidate for the Darwin Awards.

Repeated failure of juries to convict under controversial and arguably unconstitutional laws sends a powerful message to the legislature and to the executive branch that the law is not being supported by the community. Acquittals and hung juries are expensive and politically embarrassing to the prosecutor, legislature, executive, and most judges (who are very often not as neutral and impartial as the myth would have us believe). Never underestimate the effect acquittals have on the system. Jury nullification is the most effective and potent power the citizenry has within the political and legal system, extending even to the level of the individual juror.

Of course, if a prospective juror gets removed during jury selection, that juror is never going to be able to vote according to conscience, and will be unable to provide the defendant with the kind of protection envisioned in the right to trial by jury. It is a mistake to imagine that by mentioning jury nullification in the process of getting yourself kicked out of the jury pool, you are doing much good. Recognizing that the present broad latitude allowed the prosecutor and other lawyers during voir dire is most certainly an invasion of a person’s privacy, you may not have much choice if they pin you down, but try to avoid volunteering information of any kind. It’s none of their business. In any case, what you say is up to you and your conscience.

Be alert for any suggestion of the possibility of reasonable doubt, and cling to it tenaciously once in deliberations. It is very, very difficult for them to prosecute a juror for being less than forthcoming during jury selection, but they might be able to kick you off the jury in some jurisdictions, unless you discuss reasonable doubts concerning the evidence, witnesses, or police tactics. If you do that, then you can also discuss the power of the jury to vote its conscience. It helps if you are not alone in your opposition to a conviction.

It is up to local FIJA volunteers and/or gun owners groups to spread the word in local media regarding the power of the jury, and to work with the defense in discussing effective trial strategies.

Several years ago, an imperial judge in California announced, with regard to FIJA’s work, “This is rebellion!” Ah, the pretensions of power. Talk about thin skin! If jurors exercising their traditional, constitutional right to vote their conscience constitutes rebellion, we should ask how preferable is it to defend the Second Amendment peacefully, without resorting to the necessity of invoking the Second itself in defense of the right to keep and bear arms?

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