Fully Informed Jury Association

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Function of Juries & Jury Nullification | 26 Jan 2014

-Jury Nullification Is a Seldom-Discussed Safeguard


Jury BoxSome 43 years later and well beyond the statute of limitations for burglary, five of the eight peace activists who broke into an FBI office in Media, Pennsylvania on 8 March 1971 have come forward in the wake of the mass surveillance revealed by Edward Snowden’s leaks of NSA documents. The documents obtained through the Media burglary revealed the existence of the FBI’s Cointelpro program, designed to infiltrate and disrupt the civil rights, black power, women’s rights, and anti-war movements.

“Our government is again conducting mass surveillance of Americans and again lying to Congress. We hope that by coming forward we can contribute in some small way to a debate that is essential for the health of our democracy.” said Keith Forsyth, one of the activists whose efforts at Media brought Cointelpro to public attention.

Some law-breaking benefits society enough that it shouldn’t be punished, says David Kairys in this Slate article. One seldom-discussed safeguard that is built into our legal system is jury nullification, a tool which jurors used to acquit the Camden 28 peace activists in the same era as the Media burglary took place.

Learning From the FBI Media Burglars

While we don’t usually sanction illegal conduct, we are also usually hesitant to embrace unquestioned obedience to government officials or laws. When government or any powerful institution goes seriously wrong, and the institutional mechanisms for correction don’t work, we need nonviolent civil disobedience. The Media burglars were whistle-blowers, in the best sense of the word.

The details of their actions, and others who claim the same mantle, are what matter. Which laws did they violate, for what higher ideal? What dangers did they avoid or create? What were their tactics, and the consequences of their actions? Whistleblowing that performs a vital social function, and embraces illegality as a last resort, should be an occasion for limiting prosecutions and penalties.

I’m not talking about establishing a new legal defense for illegal acts of conscience, which could take the disobedience out of civil disobedience and render it less effective as well as less risky. That would be too hard to define and limit, or to distinguish from excusing illegal acts because of good intentions. But the law offers another seldom-discussed safeguard: jury nullification. Juries are empowered to render “not guilty” verdicts even though the person charged in fact violated the law. Juries don’t have to explain their verdicts, and not-guilty verdicts cannot be appealed. The best example of use of this defense for political civil disobedience is the Camden 28 case, in which I was lead counsel. Hoover’s FBI used an informer to set up a 1971 raid on the Camden, N.J., draft board under the mistaken belief they would capture the Media burglars. All of the defendants were acquitted, including two who last week revealed they were among the Media burglars, even though they had in fact broken the law by breaking into a draft board and destroying its records.