The Zenger trial, as pictured by an artist.

Nearly 300 Years Ago, Jury Nullification Saved Press Freedom

On August 5, 1735, twelve jurors deliberated on the fate of a German immigrant in a trial that would make legal history, and, indeed, American history.

The story starts almost four years before when in early August, 1731, one of greediest and meanest political figures in American history, William Cosby arrived on the shores of the American colonies. He had been appointed by the crown as Royal Governor of New York.

He immediately set about enforcing oppressive British rule upon the colonists while enriching himself at the expense of his subjects. When his victims tried to bring him to court, he made sure that the cases were heard in the Supreme Court, where there was no jury. He replaced any independent thinking judges with his own lackeys.
At the time, there was only one New York newspaper. Cosby, the deranged governor, made one of his sycophantic henchmen editor, ensuring a steady stream of positive press spin.

Though many knew the truth, only one man was willing to speak up, John Peter Zenger. He started his own paper, The New York Weekly Journal, to provide balanced news coverage.

Despite not being able to get a Grand Jury to indict Zenger, Cosby used his attorney general to do an end-run around the law. He had Zenger arrested for libel. When the case went to trial, Cosby did all he could to affect the outcome, even having Zenger’s lawyers disbarred.

In the end, Zenger’s court appointed attorney could make almost no case, and Zenger did not contest that he had printed the articles in question. Before the jury went to deliberate, the judge gave very clear instructions, it was for the jury only to decide whether “Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.”

Since Zenger had admitted to publishing the papers in question, there was little doubt what the jury would decide. Despite this, the jury shocked the court, coming back with a “Not Guilty” verdict. The jury had nullified the case.

From that point on, jury nullification has played an important role in American legal practice. When the United States attained freedom from Britain (a bold move prompted, in no small part, by the plight Zenger had faced), jury nullification was enshrined as a necessary check on the power of the law makers.

“It is not only the juror’s right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
US Supreme Court Chief Justice John Jay in Georgia v. Brailsford

Not every case of arguable legal merit makes it to the Supreme Court, and so another step was seen as necessary to prevent to passage of bad laws. For example, in the mid-19th century, the Fugitive Slave Law forced northerners to return escaped slaves to bondage in the South, but a number of abolitionists used jury nullification in order to prevent this unjust law from being applied.

Perhaps the greatest hour for jury nullification was the period from 1920 to 1933, when alcohol was illegal in the United States. Though the state was constantly bringing Americans up on charges of selling alcoholic beverages, over half of the verdicts came back “not guilty” even when the facts were as clear as in the Zenger case. People were simply unwilling to convict their peers of engaging in an activity that nearly everyone took part in and enjoyed.

The pressure on the prosecutors from nullified juries was so great that eventually the state gave up on enforcing Prohibition and the 21st Amendment was passed, bringing Prohibition to an end.

However, the glory days of jury nullification were soon to pass. Just as it could be used to uphold liberty, nullification could be used to abrogate justice. In the turbulent 1950s and 60s (and in some cases earlier), all white juries would nullify cases against their racist peers who lynched blacks.

A number of appellate court decisions, inspired by such despicable uses of jury power, ruled that judges have no responsibility to inform a jury of its right to nullify. Sparf v. U.S., one of the very few cases where the Supreme Court has addressed nullification, confirmed these decisions and has even been cited to allow judges to remove jury members who are suspected of planning to nullify a verdict.

However, despite its restrictions, the courts continue to uphold the ability (albeit unmentionable) of juries to nullify a verdict.

Now it is nearly impossible to find a judge who is supportive of jury nullification. And it’s a shame. It’s understandable that judges are concerned about juries using their nullification powers to miscarry justice, but in the more tolerant atmosphere today, it seems like the need for jury nullification outweighs the risk of its misuse.

“ The jury has the right to judge both the law as well as the fact in controversy.”
~ Thomas Jefferson

With more and more legislation slowly eroding the liberties of Americans, it is necessary for the people to step in where legislatures and activist judges have failed.

Americans need to use their power as jurors to ensure that fellow citizens are not being punished under bad and oppressive laws. But, since nullification is not spoken of in a court room, Americans must learn about this latent power of theirs in other ways.

As Thomas Jefferson, one of the main architects of the U.S. Constitution and the third President, said: “The jury has the right to judge both the law as well as the fact in controversy.”

Some good sources for more information about jury nullification are: The Fully Informed Jury Association (fija.org) and the Jury Education Committee (jurypower.org).

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