COURT, COUNTY OF KING, STATE OF WASHINGTON STATE OF WASHINGTON, ) ) Plaintiff, ) No. ) v. ) DEFENDANT S MEMO ) IN SUPPORT OF MOTION FOR, ) JURY NULLIFICATION ) INSTRUCTION/DISCUSSION Defendant. ) ) FACTS On, defendant was arrested for. There was no victim nor property damage, therefore defendant requests the following jury nullification instruction be read to the jury because this prosecution is for a victimless crime: As jurors, in order to reach a just verdict, each of you has the responsibility to consider whether the defendant s actions have actually caused harm or otherwise violated someone else s rights. You may judge both the merits of the law under which the defendant has been charged, and the wisdom of applying the law to the defendant in this case. Even if a strict application of the law to the facts would indicate a guilty verdict, you have the authority to find the defendant not guilty. Exercise your judgment without passion or prejudice, but with honesty and understanding. If you decide that the defendant has broken the law, but that in good conscience you can not support a guilty verdict, you are not required to do so. ISSUES
I. DOES DEFENDANT HAVE A RIGHT TO A JUDGE S INSTRUCTION TELLING JURORS OF THEIR COMMON LAW RIGHT TO TRY THE LAW AS WELL AS THE FACTS OF THIS CASE? II. IF THE JUDGE DOESN T READ SUCH AN INSTRUCTION, DOES DEFENDANT S ATTORNEY THEN HAVE A RIGHT TO TELL THE JURY HIMSELF? 2
ARGUMENT I. RCW 4.44.260 (1869) relates to the oath of jurors. It states that an oath... shall be administered to the jurors... that they... try the matter... according to the law and evidence... given them... This oath does not inform juries of their ancient common law right to try the matter according to their own conscience, regardless of the law and evidence... given them... United States v. Moylan, 417 F.2d 1002 (1969); State v. Meggyesy, C.A. I, No s. 38133-4-I & 40395-8-I, 4-6-98, 98 WJ W.A.R. 154 (1998). Further, Washington s Constitution states that Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law. WA Constitution, Art. IV, Sect. 16 (1889). Yet juries have a right to nullify the law in all criminal cases. United States v. Moylan, 417 F.2d 1002 (1969). The only dispute is whether a judge must tell them of this right (or alternatively, whether judges must let defendant s attorney tell them), which American judges often did until 1895 when Sparf & Hansen v. United States, 156 U.S. 51 (1895) ended this old and venerated practice. This very old Anglo-American common law right of juries to judge the law as well as the facts in a case is summed up: For more than six hundred years--that is since the Magna Carta in 1215-- there has been no clearer principle of English or American... law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law and what was the moral intent of the accused: but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid that are in their opinion unjust... Lysander Spooner, An Essay on the Trial By Jury, p. 5-6 (1852) [emphasis in original]. 3
The great Magna Carta is the original source of a defendant s right to a jury and due process. A common translation of the relevant section of the Magna Carta (originally in Latin) follows: No freeman shall be arrested, or imprisoned,... or deprived of his liberties,... nor will we (the King) pass upon him, nor condemn him, unless by the judgment of his peers, or by the law of the land. Magna Carta, at Sect. 29. Hence according to the Magna Carta of 1215, while the King may charge a person with wrongdoing, the King may not deprive her rights unless by judgment of her peers. The history of the common law right of juries to veto a law is well documented. See Creagan, Jury Nullification: Assessing Recent Legislative Developments, 43 Case Western Reserve Law Review, 3, (1993); Scheflin, Merciful Juries: The Resilience of Jury Nullification, 48 Wash. & Lee Law Rev. 165 (1991); Green, Verdict According to Conscience: Perspectives on the English Trial Jury, 1200-1800, (Chicago: University of Chicago Press, 1985); Scheflin, Jury Nullification: The Right to Say No, 45 So. Cal. L.Rev. 168, (1972); Anonymous, Note: The Changing Role of the Jury in the Nineteenth Century, 74 Yale L. J. 170 (1964). That juries judged both the law and the facts was widely accepted in 17th and 18th century England. In Bushell s Case, 6 St. Tr. 999, 124 Eng. Rep. 1006 (C.P. 1670), the jury refused to convict William Penn (founder of Pennsylvania) for preaching his Quaker religion in public. The judge, incensed by the jury s refusal to convict even though Penn had confessed, ordered the jury to jail until they convicted. Still, after two days, they refused. Then the judge fined them and ordered them back to jail until they paid. Bushell and three other jurors refused, and petitioned for a Writ of Habeas Corpus. 4
On granting the Writ, the English Court of Common Pleas in 1670 speaking through Chief Justice Vaughan, ruled: To what end must [the jury] undergo... if after all this they... must give a verdict by the dictates and authority of another man, under pain of fines and imprisonment... A man cannot see by another eye, nor hear by another ear, no(r)... infer... by another s... reasoning. Bushell, supra. In 1735, John Zenger, a newspaper publisher, was charged with printing defamatory information. The trial judge instructed the jury that even if the printed statements were true (note that the basic element of defamation is false information), it would no exculpate the defendant for libel. Mr. Zenger s attorney--quoting from Bushell--urged that if truth were not a defense, it ought to be, and that the jury should acquit anyway. And the jury did. J. Alexander, A Brief Narrative of the Case and Trial of John Peter Zinger, 100 Katz, E. (1963). Mr. Zenger s case and Bushell were catalysts in getting the 1st Amendment included in our federal constitution. The constitutions of 4 states, Maryland (Declaration of Rights, Art. 23), Georgia (Art. 1, Sec. 1, para. XI), Indiana (Art. I, Sec. 19), and Oregon (Art. 1, Sec. 16), provide that juries shall judge both the law and the facts. In Indiana, Holiday v. State, 257 N.E. 2d 679 (1970) held that the jury... (has an) obligation under Art. I, Sect. 19 of the Indiana constitution to determine both the law and the facts (italics original). Holiday at 682. The Oregon constitution provides that: In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the court as to the law... Oregon Constitution, Article I, Sect. 17. Washington State s Article IV, Sect. 16 states, on the other hand, that: 5
Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law. The Washington State constitution is thus silent on whether juries can judge the law as well as the facts. What juries may do, should do, or must do, regarding the law is left open. But in Article I, Sect. 21 we find that the right of trial by jury shall remain inviolate... By such a strong, absolutist word like inviolate, it would seem clear that the framers of Washington s constitution intended that traditional common law principles should be followed. In Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794), the Honorable Chief Justice of the United States Supreme Court, John Jay, charged the jury (when the Supreme Court still heard jury trials), as follows:... [I]t must be observed that... you have... a right to... judge both... the law as well as the fact in controversy... (W)e have no doubt you will pay that respect which is due to the opinion of the court: for as... it is presumed that juries are the best judges of facts; it is... presumable that the court are the best judges of the law. But still, both objects are lawfully within your power of decision. Throughout most of the 19th century jury nullification was commonly accepted by American courts and juries as a useful tool to end the harshness of unjust laws. For example, captured operators of the underground railroad in the pre-civil War border states were regularly charged with violating the Fugitive Slave Law of 1850. 1 Juries regularly voted to nullify this unjust law, acquitting defendants tried under it. Scheflin, Jury Nullification: The Right to Say No, 45 So. Cal. L. Rev. 168, 177 (1972). Note that: Jury acquittals in the colonial, abolitionist, and post-bellum eras of the United States helped... hamper government efforts at social control. Barkan, Jury Nullification in Political Trials, 31 Social Problems at 38, October 1983. 1 Juries may also have played a role in ending the Salem Witch Trials and Prohibition. 6
This all changed, however, in 1895. Sparf & Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273 39 L.Ed. 343 (1895) held that although juries have the right to judge both the facts and the law, they do not have the right to be informed by the Judge of this power. It is believed that the labor movement of the 1880 s and the corresponding social unrest that this caused fostered skepticism among legal scholars about jury nullification--a long and venerated institution in Anglo-American law up until Sparf. This is because juries at this time were refusing to convict their peers for violations of anti-strike laws that business interests had gotten passed, thus management sought to end this practice of jury nullification. Further, changes in federal civil service laws during this time fostered changes in the attitudes of federal judges. Hence, judicial contempt for the power of juries to second-guess judges grew. In Sparf, the defendants were charged with murder on the high seas under admiralty jurisdiction. Under admiralty law, if the jury convicted them of murder, death was mandatory. On the other hand, under common law, a jury could instead convict the defendant under a lesser charge, even if the evidence did not support it. In Sparf, the judge refused to give the lesser included instruction regarding manslaughter (which had no death sentence) requested by the defendants. During its deliberations, the jury gave clear indications--by way of colloquy with the judge--that it wanted to return a manslaughter verdict, but was advised against it by the judge s instructions. The jury finally returned a guilty verdict for murder. The United States Supreme Court upheld the conviction holding that juries must take the law from the court. The Sparf Court s paramount concern was with respect for judicial authority, even if it was erroneously exercised. This is apparently typical of admiralty cases. Dissenting Justices Gray and Shiras wrote: 7
Sparf, at 110.... (A)s the experience of history shows, it cannot always be assumed that judges will always be just and impartial, and free from the inclination, to which even the most upright and learned magistrates have been known to yield... And there is surely no reason why the chief... liberty of the citizen, the judgment of his peers, should be held less sacred in a republic than in a monarchy. The exceptions to Sparf lie in states with jury nullification clauses in their constitutions. In these four states--georgia, Indiana, Maryland and Oregon--lawyers are allowed to read to the jury from statutes and legal texts regarding jury nullification. See also Wilkerson v. State, 171 Md. 287, 188 A. 813 (1937); Griffin v. State, 154 Ga. App. 261, 267 S.E. 2d 867 (1980). The Sparf ruling exhibited a distrust for jurors who historically have dispensed justice through common sense instead of according to the law. By the court s ruling, jurors became subject to the inclinations of the court, when historically up to this point in time, the common law allowed them to view both the facts and the law in deciding to acquit or convict. The fundamental reason behind the right to trial by jury--which originated in the Magna Carta of 1215--was to protect individuals from the arbitrary injustices of Kings who often created political crimes out of otherwise non-violent and non-property violating acts. This last bastion of defense against a capricious King or arbitrary law--jury nullification--was now ended after Sparf because information was now screened from juries as judges now exclusively controlled the flow of that information. Nevertheless, the power of the jury to nullify a law and acquit a defendant, even against the great weight of the evidence has never been overruled. United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969); State v. Reed, 52 Or. 377, 389, 97 P.2d 627 (1908). In 1920, Justice Oliver Wendell Holmes acknowledged that,... the jury has the power to bring a verdict in the teeth of both the law and the facts. Horning v. District of Columbia, 254 U.S. 135, 138, 8
(1920). Further, attempts to have the above-mentioned state constitution jury nullification clauses declared unconstitutional have failed. Wylie v. Warden, Maryland Penitentiary, 372 F.2d 742, cert. denied, 389 U.S. 863, rehearing denied, 389 U.S. 997, (1967). Even under this authority and line of reasoning, juries do not, however, have the additional positive power to convict of charges not filed against a defendant. This jury veto power may only be exercised in the negative direction of acquittal or conviction of a lesser included offense. Nor can juries make up a new law to convict a defendant, or repeal a law for future cases; this remains the job of legislatures. Hamilton v. State, 12 Md. App. 91, 277 A.2d 460 (1971), aff d, 265 Md. 256, 288 A.2d 885, cert. denied, 409 U.S. 1006 (1972). Even so, as a matter of public policy, jurors informed of this authority to nullify will, by the very act of continued and repeated nullification of certain laws, help lawmakers determine which laws work and which ones do not. Likewise, jurors have been known to apologize to defendant for convicting them, and later become angry when they find out that they had the power to nullify, but were just not informed of it. Thus a juror s respect for a legal system that withholds information is reduced. We have had centuries of experience with jury veto power in Anglo-American law without an epidemic of juries letting defendant s off after committing non-victimless crimes against property or people. If jurors were regularly informed of their innate veto power, there is no reason to believe that juries would acquit on cases involving heinous, anti-social behavior. In other words, an epidemic of anarchy and free-wheeling law-breaking would not result from irresponsible juries. See Horowitz, The Effects of Jury Nullification Instructions on Verdicts and Jury Functioning in Criminal Trials, 9 Law & Human Behavior 25, (1985) that cites studies of the effects of giving jury nullification instructions to juries. These studies found that 9
responsible jury verdicts were the norm. Id. Further, the rate of obedience to the remaining laws, and respect for the judicial system as a whole, would probably increase under a judicial system tolerant of jury nullification instructions if for no other reason than that those convicted will know that they were truly and fairly judged by their peers. It is easy for the public to ignore an unjust law, if the law operates behind closed doors and out of sight. But when jurors have to use a law to send a man to prison, they are forced to think long and hard about the justice of the law. And when the public reads newspaper accounts of criminal trials and convictions, they too must think about whether the convictions are just. As a result jurors and spectators alike may bring to public debate more informed interest in improving the criminal law. Any law which makes many people uncomfortable is likely to attract the attention of the legislature. The laws on narcotics and abortion (this was written pre-roe v. Wade) come to mind--and there must be others. The public adversary trial thus provides an important mechanism for keeping the substantive criminal law in tune with contemporary community values. (Parentheses added.) David Bazelon, The Adversary Process--Who Needs It?, 12 Annual James Madison Lecture, NYU School of Law (April 1971), reprinted in 117 Cong.Rec.5852, 5855 (April 29, 1971). 10
II. If the Judge will not read the jury a nullification instruction, then in the alternative, defendant s attorney should be allowed to briefly inform the jury of their common law right to judge the law as well as the facts, since this prosecution is for a victimless crime. Accused persons in Washington have certain rights that are guaranteed. Washington Constitution, Art. I, Sect. 22. In criminal prosecutions the accused shall have the right to... defend... Id. Encompassed within this right to defend one s self against state accusations is a defendant s right to a fair trial. Id.; United States Constitution, 5th and 6th Amendments. And within the due process right to a fair trial, a defendant has a right to argue his theory of the case. Id.; Mt. Vernon v. Quezada-Avila, 95 WJ W.A.R. 250, C.A. I, No. 32945-6-I, 5-5-95; City of Yakima v. Irwin, 70 Wn. App. 1, 851 P.2d 724, 730 (1993) citing State v. Mark, 94 Wn.2d520, 526, 618 P.2d 73 (1980); State v. Dania, 73 Wn.2d 533, 439 P.2d 403 (1968); Short v. Hoge, 58 Wn.2d 50, 56, 360 P.2d 565 (1961); Smith v. McDaniel, 53 Wn.2d 604, 610, 335 P.2d 582 (1959). By denying defendant the right to tell the jury her/his theory of the case, or at least one of her/his theories of the case--namely that her/his present prosecution for a victimless, political crime can and should be nullified by this jury--violates his/her due process and Art. I, Sect. 22 rights to a fair trial and to present her/his theory of the case. 11
CONCLUSION It should be clear that while judges may declare the law and advise jurors as to its interpretation and the methods of its application, they may not require jurors to blindly accept the judge s version of the law whether the jurors agree with it or not. All jury instructions, including those in the WPIC, at variance with this conclusion are themselves contrary to the common law of this state and nation as well as defendant s due process right to defend himself against state charges. In the case at hand--a prosecution for a crime where no victim or property was injured whatsoever--defense counsel will take exception to any and all jury instructions which require the jury to blindly follow the law as given. Further, a vigorous objection will be lodged against any voir dire question which implies that jurors must follow and obey such an instruction pursuant to an alleged constitutional duty. Such a duty does not exist under the laws of the State of Washington or the United States of America. Sparf v. United States, supra, a 19th century case, should be overruled by this court. There is persuasive authority at common law since the Magna Carta and more recently in four states. Further, two federal cases have explicitly questioned the ruling in Sparf. United States ex rel. McCann v. Adams, 126 F.2d. 774, 775-76 (2nd Cir. 1942); United States v. Sisson, 294 F.Supp. 520, 524-25 (D.Mass. 1968). Since this case involves a completely victimless act, defendant s jury nullification instruction should be read to the jury, or in the alternative defendant s attorney should be allowed to tell the jury about jury nullification in order to exercise defendant s rights to put on his/her theory of the case and to receive a fair trial. Respectfully submitted, 12
DATED this day of,. JEFF E. JARED # 23961 Attorney for Defendant 13