THE WIRE'S WRITERS COME OUT FOR FULL JURY RIGHTS

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[By Ed Burns, Dennis Lehane, George Pelecanos, Richard Price, David
Simon]

TIME - [Our] viewers, admittedly a small shard of the TV universe,
deluge us with one question: What can we do? If there are two Americas -
separate and unequal - and if the drug war has helped produce a psychic
chasm between them, how can well-meaning, well-intentioned people begin
to bridge those worlds?

And for five seasons, we answered lamely, offering arguments about
economic priorities or drug policy, debating theoreticals within our
tangled little drama. We were storytellers, not advocates; we ducked the
question as best we could.

Yet this war grinds on, flooding our prisons, devouring resources,
turning city neighborhoods into free-fire zones. To what end? State and
federal prisons are packed with victims of the drug conflict. A new
report by the Pew Center shows that 1 of every 100 adults in the U.S. -
and 1 in 15 black men over 18 - is currently incarcerated. That's the
world's highest rate of imprisonment.

The drug war has ravaged law enforcement too. In cities where police
agencies commit the most resources to arresting their way out of their
drug problems, the arrest rates for violent crime - murder, rape,
aggravated assault - have declined. In Baltimore, where we set The Wire,
drug arrests have skyrocketed over the past three decades, yet in that
same span, arrest rates for murder have gone from 80% and 90% to half
that. Lost in an unwinnable drug war, a new generation of law officers
is no longer capable of investigating crime properly, having learned
only to make court pay by grabbing cheap, meaningless drug arrests off
the nearest corner.

What the drugs themselves have not destroyed, the warfare against them
has. And what once began, perhaps, as a battle against dangerous
substances long ago transformed itself into a venal war on our
underclass. Since declaring war on drugs nearly 40 years ago, we've been
demonizing our most desperate citizens, isolating and incarcerating them
and otherwise denying them a role in the American collective. All to no
purpose. The prison population doubles and doubles again; the drugs
remain. . .

If asked to serve on a jury deliberating a violation of state or federal
drug laws, we will vote to acquit, regardless of the evidence presented.
Save for a prosecution in which acts of violence or intended violence
are alleged, we will - to borrow Justice Harry Blackmun's manifesto
against the death penalty - no longer tinker with the machinery of the
drug war. No longer can we collaborate with a government that uses
nonviolent drug offenses to fill prisons with its poorest, most damaged
and most desperate citizens.

Jury nullification is American dissent, as old and as heralded as the
1735 trial of John Peter Zenger, who was acquitted of seditious libel
against the royal governor of New York, and absent a government capable
of repairing injustices, it is legitimate protest. If some few episodes
of a television entertainment have caused others to reflect on the war
zones we have created in our cities and the human beings stranded there,
we ask that those people might also consider their conscience. And when
the lawyers or the judge or your fellow jurors seek explanation, think
for a moment on Bubbles or Bodie or Wallace. And remember that the lives
being held in the balance aren't fictional.

http://www.time.com/time/printout/0,8816,1719872,00.html

SAM SMITH, PROGRESSIVE REVIEW, 1990 - William Penn may have thought he
had settled the matter. Arrested in 1670 for preaching Quakerism, Penn
was brought to trial. Despite Penn's admitting the charge, four of the
12 jurors voted to acquit. The judge sent the four to jail "without
meat, drink, fire and tobacco" for failing to find Penn guilty. On
appeal, however, the jurors' action was upheld and the right of juries
to judge both the law and the facts -- to nullify the law if it chose --
became part of British constitutional law.

It ultimately became part of American constitutional law as well, but
you'd never know it listening to jury instructions today almost anywhere
in the country. With only a few exceptions, juries are explicitly or
implicitly told to worry only about the facts and let the judge decide
the law. The right of jury nullification has become one of the legal
system's best kept secrets.

Those who have endorsed the right of a jury to judge both the law and
the facts include Chief Justice John Jay, Samuel Chase, Dean Roscoe
Pound, Learned Hand and Oliver Wendell Holmes. According to the Yale Law
Journal in 1964, during the first third of the 19th century judges did
inform juries of the right, forcing lawyers to argue "the law -- its
interpretation and validity -- to the jury." By the latter part of the
century, however, judges and state law were increasingly moving against
nullification.

In 1895 the US Supreme Court upheld the principle but ruled that juries
were not to be informed of it by defense attorneys, nor were judges
required to tell them about it. Stephen Barkan, writing in Social
Problems (October 1983), noted that the attacks on nullification stemmed
in part from juries acquitting strike organizers and other labor
activists. And in 1892 the American Bar Review warned that jurors had
"developed agrarian tendencies of an alarming character."

Today, the constitutions of only two states -- Maryland and Indiana --
clearly declare the nullification right, although two others -- Georgia
and Oregon -- refer to it obliquely. The informed jury movement would
like all states to require that judges instruct juries on their power to
serve, in effect, as the final legislature of the land concerning the
law in a particular case.

For many liberals and progressives, who tend to be confident of the
beneficent nature of government power, such a challenge may be a bit
uncomfortable -- understandable in a case involving a peace protest,
less appreciated if invoked by a member of the National Rifle
Association. The libertarians argue that the two are of one cloth. As
government intrusion in individual matters has increased, the
libertarian view has gained influence, helping to tilt normal left-right
divisions on their side.

The history of jury nullification suggests there is little to fear. In
those states where the concept is respected to some degree it has had
minimal effect on the overall functioning of the law. Nullification has,
on the other hand, played a little noted but significant role in the
advance of religious and press freedom, the abolition of slavery and the
building of a labor movement. Even in the face of hostility by
contemporary courts, it has cropped up in political protest trials of
the past few decades. And it might have surfaced more frequently absent
that hostility. As one of the jurors said following the conviction of
the Berrigan brothers in 1980:

"We convicted them on three things, and we really didn't want to convict
them on anything. But we had to, because of the way the judge said the
only thing that you can use is what you get under the law... I would
have loved to hold up a flag to show them we approved of what they were
doing. It was very difficult for us to bring in that conviction."

The nullification principle involves the power to say no to the excesses
of government, and thus serves as a final defense against tyranny. As
Thomas Jefferson put it to Tom Paine in a 1789 letter, "I consider trial
by jury as the only anchor ever yet imagined by man, by which a
government can be held to the principles of its constitution."

"If a juror feels that the statute involved in any criminal offence is
unfair, or that it infringes upon the defendant's natural god-given
unalienable or constitutional rights, then it is his duty to affirm that
the offending statute is really no law at all and that the violation of
it is no crime at all, for no one is bound to obey an unjust law." --
Chief Justice Harlan F. Stone

"For more than six hundred years-- that is, since Magna Carta, in
1215--there has been no clearer principle of English or American
constitutional law, than that, in criminal cases, it is not only the
right and duty of juries to judge what are the facts, what is the law,
and what was the moral intent of the accused; but that it is also their
right, and their primary and paramount duty, to judge the justice of the
law, and to hold all laws invalid, that are, in their opinion, unjust or
oppressive, and all persons guiltless in violating, or resisting the
execution of, such law." --Lysander Spooner, The Right of Juries

If the jury feels the law is unjust, we recognize the undisputed power
of the jury to acquit, even if its verdict is contrary to the law as
given by a judge, and contrary to the evidence. -- 4th Circuit Court of
Appeals, US v Moylan, 1969

Every jury in the land is tampered with and falsely instructed by the
judge when it is told that it must accept as the law that which has been
given to them, or that they can decide only the facts of the case. --
Lord Denham, O'Connell v Rex (1884)

The jury has the power to bring in a verdict in the teeth of both the
law and the facts. -- Justice Holmes, Homing v District of Columbia, 138
(1920)

When a jury acquits a defendant even though he or she clearly appears to
be guilty, the acquittal conveys significant information about community
attitudes and provides a guideline for future prosecutorial
discretion...Because of the high acquittal rate in prohibition cases in
the 1920s and early 1930s, prohibition laws could not be enforced. The
repeal of these laws is traceable to the refusal of juries to convict
those accused of alcohol traffic. -- Sheflin and Van Dyke, Law and
Contemporary Problems, 43, No. 4, 1980

It is not only the juror's right, but his duty, to find the verdict
according to his own best understanding, judgment and conscience, though
in direct opposition to the directions of the court.-- John Adams

FULLY INFORMED JURY ASSOCIATION
http://www.fija.org/

SAM SMITH, PROGRESSIVE REVIEW, 1999 - The October issue was late because
your editor was tied up in a six-hour voir dire for a double-robbery
case. In the end, I maintained my perfect record of having never sat as
a through a full trial. As a Coast Guard officer I was bounced from two
courts martial, and I have been dismissed from three jury panels. In the
one case in which I was seated, the first two witnesses -- US Park
Police officers -- identified the defense counsel as the defendant. The
trial was over in 20 minutes.

In the most recent case, the judge's impressive if tedious effort to
obtain a fair jury resulted in a long series of bench conferences as
citizens told of their connections to crime and law enforcement. For my
part I mentioned my USCG background, three house burglaries, one office
break-in, one stolen car, being detained at Washington National Airport
as a suspected terrorist due to a defective computer-screening machine,
and the fact that one of my brother's in-laws had been killed in a drug
store robbery.

Then I explained to Judge Michael Rankin that, while I doubted it was
relevant in this case, I had been advised that I should reveal my long
public advocacy of the right of juries to judge both the law and the
facts. I noted that this view had upset some judges.

Judge Rankin said it didn't bother him although he didn't mind debating
the issue and had done so with Paul Butler, the black lawyer-scholar who
has promoted nullification as a form of protest. I told the judge that I
didn't think Butler's arguments were effective because they were based
on ethnicity rather than history, which offered a much stronger case. I
then began a brief spiel the subject citing Learned Hand, Oliver Wendell
Holmes and Thomas Jefferson.

While previous US Attorneys had expressed hostility towards my views,
this one merely asked whether there were any legal principles that I
would uphold. I asked for an example and Judge Rankin said, well, you
would support the presumption of innocence wouldn't you? I said, of
course, and then -- brazenly rapping my hand on the judge's bench to
punctuate the point -- said my concern was that the jury remain our last
defense against tyranny, the final legislature deciding the law as it
pertained to the case under consideration. To my amazement, Judge Rankin
said, well, you'll get no argument from me. The judge and both attorneys
agreed that the case under consideration did not raise such issues and
that was the end of the matter. I was later dismissed on a peremptory
challenge.

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