The first chief justice of the U.S. Supreme Court, John Jay, said jurors had a right to judge the law.
There's an elephant in every courtroom. Prosecutors and judges won't show it to jurors, and even Virginia defense lawyers seem forbidden from mentioning this fact: If you think a law is unjust, you can acquit.
It's called jury nullification, and such Founding Fathers as John Adams and Thomas Jefferson venerated juries as "the last roadblock to tyranny," according to civil libertarian John Whitehead.
"The Framers of the Constitution were some of the greatest advocates for the power of juries to nullify," says Whitehead, the founder of the Albemarle-based Rutherford Institute.
Charlottesville citizens got a taste of how the government deals with an unpopular law last week when six potential jurors were dismissed when they said they wouldn't convict someone of marijuana possession because they thought the law was wrong. And even the judge noted that the last time she had a marijuana case, she couldn't get enough jurors.
"The jury has a right to judge both the law as well as the fact in controversy," said John Jay, the first U.S. Supreme Court chief justice. With such a pedigree, why has jury nullification gone underground?
"In large part it's because it's no longer taught in schools, and it's not favorable to prosecutors," says Kirsten Tynan of the Fully Informed Jury Association, a Montana-based nonprofit dedicated to reminding each American jury that it remains "an independent body that objectively interprets the law and considers the facts."
Many courts have interpreted a potential juror's disagreement with an unpopular law as a threat to justice. That's what allowed Albemarle Circuit Court Judge Cheryl Higgins to remove six drug law foes from the jury pool during the voir dire process for the two-pot-plant-possession trial of Philip Cobbs on July 18.
"That's a clear case of stacking the deck for the prosecution," says Tynan. "That's not what voir dire is meant to do."
Tynan asserts the juror interviews are intended to identify relationships that might pose a conflict for a juror, such as the accused being a family member or business partner.
"It's not to exclude anyone who disagrees with the prosecution," says Tynan, who notes that the governor of New Hampshire signed a law last month giving New Hampshire defendants something that Virginia defendants can only dream about: the right to tell the jury that they can consider the "application of the law" in addition to the facts of the case.
Tynan's organization encourages citizens to publicize their hidden right– even if that means handing out leaflets to potential jurors. Such efforts have been fought by officials, as in the case of Julian P. Heicklen. A retired chemistry teacher, Heicklen was arrested and charged with jury-tampering for leafleting outside a Manhattan courthouse. To the delight of nullification fans, that charge was dismissed in April by federal judge Kimba Wood, who noted that illegal tampering would target specific jurors rather than Heicklen's effort to provide the information to whomever would take it.
Jury nullification has a long, and sometimes proud, history in America, including the last days of the Fugitive Slave Act of 1850, when that federal law deemed slaves property that must be returned to owners. "Northern juries," says Whitehead, "refused to convict those accused of violating the law by harboring escaped slaves."
By the end of the 19th century, when juries refused to convict illegally striking workers and unions, the federal government clamped down on nullification, and a split U.S. Supreme Court ruled in 1895 that judges were not required to inform juries of their right to nullify unjust laws, says Whitehead.
In the ensuing decades, such unpopular laws as alcohol bans during the Prohibition era, the draft during the Vietnam War, and what Whitehead calls the "unjust, unconstitutional" War on Drugs have all inspired jury nullification.
More ominously, nullification also has been accused of abetting Jim Crow-era cases in which all-white juries would refuse to convict a white defendant accused of killing or raping an African American. However, jury nullification proponents point out that such injustices stemmed more from a jury's lack of racial diversity than with laws seen as unjust.
Death penalty cases are a high-profile example in which states such as Virginia and Texas have endorsed the practice of excluding jurors who say they can't follow the law, notes Hook legal expert David Heilberg.
"How fair is that for the defendant?" asks Heilberg. "I think jury nullification is protected by the Constitution."
And yet even the Rutherford Institute-affiliated legal team that defended Philip Cobbs in the case of the armed, helicopter-abetted, search-warrantless invasion of his property never told the jury about its right to send a message about potential misuse of drug laws. Lawyer Heilberg explains why.
"Lawyers have given an oath to apply and follow the law," says Heilberg. "I don't think it's proper for a defense attorney to ask a jury to nullify the law."
Perhaps, Heilberg suggests, the burden lies with citizens who serve on drug or other questionable cases, to think about the government effort pressing such a prosecution and then ask the question: "Is this the best use of your tax dollars?"