Swimming in the Jury Pool

As the old saying goes, no good deed goes unpunished. The chronicling of my courtroom rant against drug laws has prompted a few readers to question my libertarian bona fides and label me as statist, self-righteous grandstander.

My piece has given these readers a reason to take their eye off the state for the moment and focus their energy on the real enemy: me. For example, one reader calls for me to repent and search my soul. He has even produced graphics to spread all over the Web the describe me as an evil menace to society, the very cause of the tyranny of our times.

By way of background, as explained in my piece last week, I was called to jury “duty” for a marijuana case. I told the judge outright that to my mind, no crime occurred, that I would not convict and, further, that I would attempt to nullify that laws that would otherwise convict the defendant. The incident created a notable courtroom stir. I was not chosen for that jury.

One reader writes in:

“Your piece in Laissez Faire show how you knowingly and willfully abandoned your fellow man to the thugs and their gulag. Why should anyone be on a jury to rescue you when you come into their cross hairs for one of the ‘three felonies a day’ that you commit? You self-righteously abandoned that kid and allowed aggressors to ruin his life forever… How will we ever have juries nullify anything if we are unwilling to suffer the crap necessary to rescue our fellow man? I hope you get charged with some federal crime and some ‘libertarian’ juror openly abandons you. Closing your heart toward this innocent man is despicable. You need to repent and write him a public letter of apology and circulate it to everyone that read your article in Laissez Faire.”

In the view of my interlocutor, my mission was to lie under oath, like those in the French underground. He is sure that I would be selected for the jury, despite there being less than a 25% chance. Then, once on the jury, I would need to lie under oath again. Next, my job would be to steer 11 other Southerners who oppose the legalization of marijuana into believing that it should be legalized. I would then talk them into defying the judge’s order and risk a contempt of court charge. Presto, after all of those stars have lined up, the marijuana trafficker is found not guilty, the drug war is over, and we all live happily ever after.

That’s his scenario. I suspect that this writer and those who sympathize with him have never stepped foot in a courtroom. But I may be wrong and I invite them to write in and tell us their jury nullification stories. How is it done in the real world? What did you say to the 11 other jurors to make them see it your way and risk a contempt of court charge?

Sure, if you don’t nullify, at least you can hang the jury and make the state try the case again. Again, you risk a contempt charge, all for delaying the inevitable. If you think that’s a good use of your time, great, go for it when you have a chance. But why take me to task for telling the truth? There are occasions when a nullification scenario can work, and I defended nullification to the judge. But it really is a matter of judgment and it varies case by case.

Regardless, I didn’t write the piece to pat myself on the back. More than a few people liked the story. Maybe they too have the fantasy of telling a judge, “The law is an ass.” It sounds easy on paper. Put yourself in a position to do it sometime. See if you pull the trigger. Those settings can be extremely intimidating.

Some question why I showed up in the first place, implying that its risk-free to just throw the summons away. But it’s not. Again, you risk a contempt of court charge. And besides, if libertarians think they can do good in the world, maybe it’s by providing a reasoned voice to a jury.

In the second week of jury duty, despite my admissions and outburst, I was still picked for a jury. It was a rape case. Go ahead and stop reading if you think that 1) I should be ashamed of providing slave labor to the state or 2) I should have worked to nullify rape laws.

The prosecutor told us repeatedly the case was simple. It was anything but. The state made it hard. The evidence offered prompted as many questions as it answered. Key witnesses provided testimony that was impossible to follow. We all wanted to raise our hands and ask questions during the proceedings, but that is not allowed. The state didn’t provide certain key witnesses or even inspect the crime scene.

So 12 strangers were left to sort this out. A man’s future was at stake. The state was at best lazy or at worst incompetent in its investigation and prosecution of the case. However, this didn’t matter. After two hours of spirited discussion, the group couldn’t have been further apart. I wondered how we could ever arrive at a verdict. When we left for the evening, the group was almost equally split. The state’s shoddy work was enough to convince more than half the jury.

The next morning, we began deliberations again. The same points were made all over (and over) again. After a sleepless night, three jurors had a change of heart. Another vote was taken, introducing a third verdict option. The group was still very far apart. We had deliberated for four hours. More discussion ensued, positions softened.

Ultimately, after five hours, a dozen strangers came to a verdict all could live with. We will likely never see each other again. But over two days, 12 reasonable people, although untrained, listened, considered, and came together to do a job.

The 12 people on that jury had nothing in common. Yet under the most difficult circumstances, they worked together as reasonable people to complete a task. They did this despite, not because of, the state-sponsored venue — a wonderful microcosm of the possibilities of leaving matters of justice and adjudication to society, rather than nationalizing the process to the state. The same decorum and reason should be common to those who purport to love liberty.

Yours,

Douglas French

Original article posted on Laissez-Faire Today