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Jury Nullification | 09 Nov 2013

-Jury Nullification and a Woman’s Memorable Vote


Portrait_of_Susan_B._Anthony_on_her_50th_birthdayIn this article, Carl M. Cannon discusses a historic attempt for conscientious acquittal by jury nullification. In 1873, suffragist Susan B. Anthony embarked on a whirlwind tour arguing passionately for jury nullification before standing trial for the crime of Voting While Female.

Election Day 1872 — and a Woman’s Memorable Vote

“Citizenship no more carries the right to vote than it carries the power to fly to the moon,” harrumphed the Rochester Union and Advertiser, the city’s leading Democratic Party newspaper. “If these women in the Eighth Ward offer to vote, they should be challenged, and if they take the oaths and the Inspectors receive and deposit their ballots, they should all be prosecuted to the full extent of the law.”

This advice was duly followed. Sylvester Lewis registered a formal complaint accusing Anthony with casting an illegal vote. The local U.S. attorney’s office charged her with a federal crime. This was precisely the discussion Susan B. Anthony had hoped to launch, and after being indicted (by an all-male grand jury) on Jan. 24, 1873, she promptly embarked on a whirlwind speaking tour in every corner of Rochester, quite consciously trying to open the minds of anyone who might happen to be seated on her jury.

Susan B. Anthony wasn’t coy about the result she was trying to bring about: jury nullification, and eventual ratification of her view by the U.S. Supreme Court.

“We ask the juries to fail to return verdicts of ‘guilty’ against honest, law-abiding, tax-paying United States citizens for offering their votes at our elections,” she said. “We ask the judges to render true and unprejudiced opinions of the law, and wherever there is room for a doubt to give its benefit on the side of liberty and equal rights to women.”

Then, as now, the prosecutor and the judge in this case were highly resistant to the concept of jury nullification, gaming the system to undermine Anthony’s campaign. The trial venue was changed, and the trial was delayed. Judge Hunt refused to allow Anthony to testify in her own behalf and explicitly directed the jury to render a Guilty verdict. Whether the jury lacked the desire or merely the fortitude to acquit is unknown, but they did comply with his instruction and convicted her. Anthony was sentenced to a $100 fine which to this day remain unpaid.

Moreover, by 1920, the United States passed the 19th Amendment extending the previous privilege of suffrage for men to women in all 50 states. It would be more than a half century longer with the 1975 Supreme Court ruling in Taylor v. Louisiana that women would also gain equal standing with men to serve on juries.