It was barely more than a year ago that I left Florida to begin practicing law in Montana, and I’m happy to say that the experience has been incredibly rewarding. Attorneys in this great state demonstrate a far higher level of professionalism and civility than I had grown accustomed to over nine years of practice on the other side of the country. This rings true for not only my co-workers, but for opposing counsel as well. Unfortunately, I stumbled on a recent statement by Joe Sullivan – president of the Montana Bar – that shocks the conscience and reminds me that there are lawyers throughout America all too eager to obliterate the distinction between the rule of law and the rule of government, which are quite different indeed.
In the May edition of The Montana Lawyer, Mr. Sullivan chastises the state legislature for a number of supposedly wrongheaded proposals and issues a call for greater “education” to avoid such blunders in the future. While this sounds wonderful in principle, the effrontery of Mr. Sullivan’s message becomes apparent in practice, specifically where he scorns the attempt to remind jurors of their sacred right to refuse to enforce unjust laws. This doctrine of “jury nullification” has a long and proud history in America stretching back to the famous trial in 1735 of John Peter Zenger, the publisher who relentlessly criticized New York’s governor to the point that the governor sought Zenger’s criminal prosecution for seditious libel. Andrew Hamilton, a lawyer truly worthy of the title, exhorted the jury to acquit by upholding the principle of free speech over the law as written. The jury agreed, exonerating Zenger and proving that the American concept of law flows up from the people and not down from the powerful. Ever since that time it has been a fundamental principle of American justice that a jury of private citizens forms the last line of defense against unjust laws and the government functionaries who enforce them. Jurors are entrusted with their power precisely because they are private citizens rather than government functionaries, the latter often having a greater interest in feathering their nests than in doing justice. Jurors have a right and a duty to judge not only the facts of a case, but also the law, and I would venture to say that the opportunity to vote in a jury is far more precious and meaningful than the opportunity to vote in an election. If a jury votes “not guilty,” neither the judge, nor the appeals court, nor the prosecutor, nor the governor, nor the president may force the jury to explain why. This is because in America the people are sovereign.
Oblivious to (or perhaps contemptuous of) all this, Joe Sullivan makes the following statement under the ironic heading “The need for education”:
Only once did I have a chance to serve on a jury, and it was for the trial of a man accused of drunk driving. During the selection process, the prosecutor insisted that the jury must vote guilty if it found the accused had a blood-alcohol content over .08 because the statute fixed this as the point of no return for impairment – it made no difference whether the jury thought the man was not truly impaired. I was not selected for the jury despite answering all of the voir dire questions fairly and honestly, but I made sure to inform the jury pool that what the prosecutor had told them was false. They, as jurors, had every right to acquit if they truly believed the accused was not impaired despite having a blood-alcohol content over the legal limit, and they took it to heart before I left the courthouse. With this column, I hope to accomplish the same for all of you. Ignore the state bar, ignore the Joe Sullivans of the world, and ignore every other person who tells you that the law belongs to a select elite rather than to you. Relish the chance for jury duty and make the most of it. A person’s life may hang in the balance, and you may make all the difference, which is far more than you can say for a general election.
In the May edition of The Montana Lawyer, Mr. Sullivan chastises the state legislature for a number of supposedly wrongheaded proposals and issues a call for greater “education” to avoid such blunders in the future. While this sounds wonderful in principle, the effrontery of Mr. Sullivan’s message becomes apparent in practice, specifically where he scorns the attempt to remind jurors of their sacred right to refuse to enforce unjust laws. This doctrine of “jury nullification” has a long and proud history in America stretching back to the famous trial in 1735 of John Peter Zenger, the publisher who relentlessly criticized New York’s governor to the point that the governor sought Zenger’s criminal prosecution for seditious libel. Andrew Hamilton, a lawyer truly worthy of the title, exhorted the jury to acquit by upholding the principle of free speech over the law as written. The jury agreed, exonerating Zenger and proving that the American concept of law flows up from the people and not down from the powerful. Ever since that time it has been a fundamental principle of American justice that a jury of private citizens forms the last line of defense against unjust laws and the government functionaries who enforce them. Jurors are entrusted with their power precisely because they are private citizens rather than government functionaries, the latter often having a greater interest in feathering their nests than in doing justice. Jurors have a right and a duty to judge not only the facts of a case, but also the law, and I would venture to say that the opportunity to vote in a jury is far more precious and meaningful than the opportunity to vote in an election. If a jury votes “not guilty,” neither the judge, nor the appeals court, nor the prosecutor, nor the governor, nor the president may force the jury to explain why. This is because in America the people are sovereign.
Oblivious to (or perhaps contemptuous of) all this, Joe Sullivan makes the following statement under the ironic heading “The need for education”:
[C]onsider legislation that would allow a jury to determine what law does or does not apply to a certain case. I give the people of Montana a lot of credit. They are both highly educated and have a lot of good common sense. However, I would not like the idea of being a party, in either a civil or criminal matter, where a group of twelve people not only decided the believability of the facts presented, but what law they are going to apply to those facts. If that type of uncertainty does not scare off business in this state, I do not know what would.In one fell swoop, Mr. Sullivan shows his own dire need for education; he mocks and misleads the people of Montana; and he broadcasts his preference for thirty pieces of silver over a bulwark of American justice. I am an attorney, and I am here to tell you that you can and should refuse to enforce laws that you, as a juror, find unjust. The law derives its legitimacy from you, not from judicial officers such as attorneys or judges. Even the brief description that The Montana Lawyer provides of the legislation is deceitful:
HB 332 would have restored the right of a ‘fully informed jury,’ allowing a jury to judge both the facts of a civil or criminal case and the applicable law. The State Bar opposed.Yet you require no legislation “allowing” you to judge both the facts and the law, for that right already is yours. It’s a disgrace that the legal profession opposes informing you of this fundamental right; worse yet, this opposition leaves in place jury instructions that are false because they charge the jury to apply existing law no matter what. Lawyers once defended the citizen against the government; now lawyers line up to support government power and dictate right and wrong to the citizen. Don’t let us get away with it.
Only once did I have a chance to serve on a jury, and it was for the trial of a man accused of drunk driving. During the selection process, the prosecutor insisted that the jury must vote guilty if it found the accused had a blood-alcohol content over .08 because the statute fixed this as the point of no return for impairment – it made no difference whether the jury thought the man was not truly impaired. I was not selected for the jury despite answering all of the voir dire questions fairly and honestly, but I made sure to inform the jury pool that what the prosecutor had told them was false. They, as jurors, had every right to acquit if they truly believed the accused was not impaired despite having a blood-alcohol content over the legal limit, and they took it to heart before I left the courthouse. With this column, I hope to accomplish the same for all of you. Ignore the state bar, ignore the Joe Sullivans of the world, and ignore every other person who tells you that the law belongs to a select elite rather than to you. Relish the chance for jury duty and make the most of it. A person’s life may hang in the balance, and you may make all the difference, which is far more than you can say for a general election.
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