Nullifying law from the jury box
On Tuesday, Aug. 22, in U.S. District Court, presided over by Chief Judge Gloria Navarro, a federal jury refused to convict four defendants tried for the second time over federal weapons and assault charges stemming from the 2014 standoff on the Bundy Ranch near Bunkersville. The Bundy family dispute over payment of grazing fees came to a head in 2014 when the feds came with mercenary cowboys to seize Bundy cattle. They were met by hundreds of armed supporters, causing a tense standoff that was resolved when the feds stood down. Charges were later filed against many of those involved in the standoff. These defendants’ first trials resulted in hung juries.
Ricky Lovelien and Steven Stewart were acquitted of all 10 charges they faced, and the jury delivered not-guilty findings on most charges against Scott Drexler and Eric Parker. Federal prosecutors will retry Drexler and Parker on those charges that the jury could not reach a verdict on. In addition, there are 17 other participants who face charges related to the incident who have not been tried yet.
Constitutional conservatives believe the trial verdict was the result of jury nullification. They say Judge Navarro cut off defense witnesses and would not allow discussion of the First or Second Amendment during the trial. Defendant Parker’s testimony was ordered stricken in its entirety because of federal rules of evidence. Trial observers believe the jury saw through these tactics and concluded the judge and prosecutors were working in collusion and voted to acquit.
The right of juries to nullify the law is an un-enumerated right widely recognized in 1791 but not explicitly protected in the Bill of Rights. It is grudgingly acknowledged by the courts that jurors can vote not guilty based on their belief that the law as enacted and given by the judge is unfair, even if the accused did commit the offenses charged. Judges and prosecutors refuse to formally acknowledge this right, and defense attorneys are not allowed to explicitly seek nullification, although they can quietly strategize for it.
One time I was called to jury duty in Reno, and the judge directly alluded to nullification when, during jury selection, he said, approximately: There are some in Montana who call themselves constitutionalists who believe that juries have the right to disregard the law as it is given by the judge. I don’t know if this idea has reached Nevada, but do any of you hold this belief?
The folks in Montana the judge referred to are the Fully Informed Jury Association (FIJA), an organization located in Helena that has kept the torch of jury nullication burning for decades. FIJA activists have sometimes been arrested and falsely charged with jury tampering just for distributing their fliers on courthouse steps. Jury nullification helped establish freedom of speech and press in the British American colonies, to defeat the Fugitive Slave Act and end alcohol prohibition. Jury nullification should be seen as a second chance for citizens to vote, this time not for candidates, but on the laws that those candidates, once elected, may pass. Twenty state constitutions recognize jury nullification in libel cases, four states in all criminal trials.
Constitutional conservatives may be surprised to learn they have an ally in Supreme Court Justice Sonia Sotomayor, who has publicly stated that there has to be an official acknowledgement of the right of jury nullification. FIJA wants judges to instruct jurors that they have the right to judge the law as well as the facts of the case. The judge’s instructions to the jury on the law should only be a guideline, not a mandate.