Juror asks: What right do you have to prosecute this defendant?

This past March, a remarkable thing happened. A juror in a federal trial in Massachusetts actually exercised his responsibility to question the government's authority to prosecute a defendant. Apparently pressed by fellow jurors to address his doubts to the bench, Thomas R. Eddlem sent a note to US District Court Judge William G. Young asking: "Where – if two-thirds of both houses of congress voted in 1919 that it was necessary to amend the constitution to give congress the power to ban mere possession of a substance (prohibition of alcohol in that case) – is the constitutional grant of authority to ban mere possession of cocaine today?"

Taken aback, Judge Young essentially replied that the government has the power because courts say it does -- based on the infinitely malleable Commerce Clause. Unmoved, Eddlem persisted, and was ultimately yanked from the jury for his troubles and replaced by an alternate.

It's impressive enough that a juror had the temerity to question the grounds for a prosecution -- most jurors today grudgingly serve their time as rubber stamps for the judge, doing what they're told and neglecting their role as representatives of the people in the courtroom.

Even more impressive is that Eddlem -- a radio talk-show host and former research director for the John Birch Society -- raised a valid objection that has been a legal sore point for many scholars. No less an authority than Supreme Court Justice Clarence Thomas raised a similar concern in his dissent (PDF) in Gonzales v. Raich:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

So Eddlem's question to Judge Young is one that has been echoed at the highest level -- hardly a fringe concern. He exercised his responsibilities as a juror and did so in an extremely credible way. Nevertheless, Judge Young was so shocked that he penned a 41-page legal memorandum (PDF) denouncing Eddlem's presumption, as well as the doctrine of "jury nullification" that he accused Eddlem of espousing.

Jury nullification is when jurors are so offended by a law or by the application of a law that they refuse to bring a conviction, even when a defendant is clearly guilty. During American history, juries have nullified (refused to enforce) laws against assisting runaway slaves, peddling alcohol in violation of Prohibition, dodging the draft and smoking marijuana, among other laws that draw the scorn of a sizeable portion of the population.

Young's memorandum cited chapter and verse about alleged abuses of nullification and the dangers it supposedly poses to American democracy -- though in doing so, he managed to completely ignore Clay S. Conrad's Jury Nullification, the definitive book on the subject, which ably addresses such objections. That's an odd omission, since Young does cite a minor article by Conrad as an example of political advocacy for nullification.

Eddlem denies that he supports nullification and, in fact, says he would have voted to convict in a state court -- his objections were constitutional in nature. But that clearly puts him in the tradition of a long line of jurors who have refused to do the government's bidding in cases of prosecutions they considered unjust.

But whether it was nullification or not, was Eddlem's action such a good idea?

Remember, every step along the way, all of the other participants in the criminal justice system exercise discretion based on their own sense of what's right. Police officers look the other way, prosecutors decide not to pursue cases, judges dismiss or reduce charges and pass down light sentences. These officials are all representatives of the state. It's only the jury, the representatives of the people in the court, that Judge Young and his colleagues say should behave like automatons. That makes no sense -- or rather, it makes an unfortunate self-serving sense when argued by a judge, whose power is diminished by independent jurors.

Really, there's every reason to recognize the jury's right to exercise at least as much mercy as the other participants in the criminal justice system -- especially given their role as the last check on the power of the state. That right was not just recognized, but celebrated by the founders. John Adams, the nation's second president, said it is the juror's "duty ... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

In fact, there's some evidence that more jurors than we usually realize appreciate their power to mitigate the impact of the law. In 1999, the Washington Post reported:

The most concrete sign of the trend is the sharp jump in the percentage of trials that end in hung juries. For decades, a 5 percent hung jury rate was considered the norm, derived from a landmark study of the American jury by Harry Kalven Jr. and Hans Zeisel published 30 years ago. In recent years, however, that figure has doubled and quadrupled, depending on location. Some local courts in California, for example, have reported more than 20 percent of trials ending in hung juries. Federal criminal cases in Washington, D.C., averaged 15 percent hung juries in 1996 (the most recent year for which data were available), three times the rate in 1991.

A hung jury is simply one in which the 12 men and women around the table disagree over whether to convict or acquit. But judges, lawyers and others who study the phenomenon suspect that more and more differences are erupting not over the evidence in these cases, but over whether the law being broken is fair.

Eddlem may have drawn the headlines, but jurors across the country are quietly exercising the discretion he publicly advocates.

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