Far-Right ‘Jury Nullification’ Concept Resurfaces in Marijuana Debate

[Cross-posted at Hatewatch.]

Can members of juries really stand in judgment of the laws they are sworn to apply? Can jurors really choose to acquit someone of a crime because they believe a law is unjust?

This concept – known as “jury nullification” – has been promoted in previous decades by far-right extremists who sought to “nullify” a variety of federal laws by encouraging jurors not to enforce them. The cases involved civil rights laws, tax statutes and criminal acts by white perpetrators aagainst black victims. It was avidly promoted in the 1990s by members of the antigovernment “Patriot” movement, particularly so-called “Freemen” in Montana who promoted the sovereign citizen ideology.

More recently, it has popped up in the context of the debate over marijuana legalization. It was signaled by a 2011 New York Times op-ed that advocated nullification in court battles over marijuana arrests, which disproportionately affect young black men.
A 2013 case, in which a medical marijuana dispensary owner was accused of breaking federal laws, gained even more attention after then-San Diego Mayor Bob Filner urged the jury to nullify the man’s arraignment. (The defendant eventually accepted a plea bargain.)

A 2012 case, in which a New Hampshire man accused of growing marijuana was found innocent by a local jury, is widely regarded as an instance of nullification. Recently, New Hampshire magazine ran an article examining the question titled “Understanding Jury Nullification” that presented it in a largely positive light. Executive Editor Rick Broussard told Hatewatch that the magazine – which mostly features lifestyle-oriented fare – included the piece because nullification had become part of an ongoing legal debate in the state.

Far-right activists also remain prominent promoters of the concept, which continues to percolate in anti-tax and antigovernment circles. The efforts to promote the idea were applauded by the Washington Times in an article last year, as well as in a John Birch Society magazine article. Most recently, a paleoconservative Republican from Alaksa sponsored legislation in the state assembly that would explicitly permit jury nullification, raising concerns in the law enforcement community.

So, what is “jury nullification” all about?

There is in fact a long history of jury nullification both in American and English law –  cases in which the jurors simply ignored the requirements of the law and set the accused free. However, it has primarily been viewed as a malfunction of the law, not as a principle to be embraced.

“Nullification is, by definition, a violation of a juror’s oath to apply the law as instructed by the court,” according to a 1997 ruling by Judge Jose Cabranes, who said jurors who reject the law should not be allowed to serve. An appeals court upheld the ruling but determined that only “unambiguous evidence” of a juror’s disregard of the law can justify dismissal.

Other jurists have been equally clear about the actual standing of jury nullification:

“It is a recipe for anarchy . . . [when jurors] are allowed to substitute personal whims for the stable and established law.” – Colorado circuit Judge Frederic B. Rodgers

“Jury nullification is indefensible, because, by definition, it amounts to juror perjury – that is jurors lying under oath by deciding a case contrary to the law and the evidence after they have sworn to decide the case according to the law and the evidence.” – D.C. Superior Court Judge Henry F. Greene

The leading proponent of jury nullification is a Montana-based outfit called the Fully Informed Jury Association (FIJA), which has attracted a substantial audience among libertarians and drug-war critics (a small splinter group, also based in Montana and with a similar name, was overtly extremist and closely associated with the Montana Freemen). Here’s how the group touts itself on its website:

The American Bar Association (ABA) wrote that FIJA drew its support from “a wide and unusual spectrum of political thought – from the National Rifle Association to gun control advocates, from abortion rights supporters to their opponents, and from backers of marijuana legislation to law-and-order types.” The appeal of FIJA crosses the full spectrum of American lifestyle and ideology because the FIJA goals reflect the goals of those who are alert to the fragile liberties of Americans.

In reality, FIJA’s origins and orientation are extremist and built on long-rejected legal theories adopted from the old Posse Comitatus movement. The Posse and their followers, who preached that taxes were illegal and that the IRS was an unconstitutional body, became extremely frustrated as their followers, beginning in the early 1970s, received hefty sentences for their mounting tax violations. Convinced that the legal system itself was corrupt and would never allow their view of constitutional law to see the light of day, they developed the idea of organized jury nullification: if they couldn’t get the courts to change, all they had to do was get one or two jurors to hang up the process.

The chief proponent of the concept in Posse circles was a Montanan named Red Beckman. He had a long and colorful career as a tax protester and anti-Semite; his book, The Church Deceived, described the Holocaust as God’s judgment on “the Anti-Christ Church” for worshipping Satan, and was noted for repeating the charge that Jews are Satan worshippers. He appeared as a keynote speaker at numerous Christian Identity events over the years. Beckman was an early and important influence on LeRoy Schweitzer, the leader of the Montana Freemen.

Beckman’s ideas about jury nullification became a cornerstone of his anti-tax strategy, and they quickly gained popularity, not just among the Posse, but among many elements of the far right that were coming into conflict with legal authorities. Not only could jury nullification solve problems related to tax cases, but juries could also potentially overturn charges ranging from malicious harassment to firearms violations and bomb building. As the Posse mutated into the Christian Patriots, who then became merely “Patriots,” the theories became more distilled and more widely distributed.

Jury nullification played a prominent role in several of the court cases involving “Patriot” movement leaders who were arrested for various crimes in the 1990s, including the 1996 trial of leaders of the Washington State Militia on charges of bomb building and conspiracy. Militia sympathizers attempted to hand out copies of the “Citizens Rule Book,” a pamphlet distributed by FIJA and other “Patriot” organizations that tells jurors they are “above the law” and have the right to judge the law, to members of the jury.

Jury nullification raised its head in the 1997 trial in Spokane, Wash., of the gang of three terrorist militiamen who called themselves the “Phineas Priesthood,” when that trial ended in a hung jury on an 11-1 vote to convict. It soon emerged that one of the jurors had been reading the “Citizens Rule Book”. When the three men – Charles Barbee, Robert Berry and Verne Jay Merrell – were retried a few months later, jurors were screened for having read the text, and the trial produced three convictions and life sentences.