MISSOURI COMMENTARY: JURY NULLIFICATION: ROAD TO ANARCY

What philosophical view do the following individuals and groups share in common: Bernard Goetz, William Kunstler, the Branch Davidians, the John Birch Society, the National Rifle Association, the CATO Institute, the Montana Militia, Judge David Bazelon, the Ku Klux Klan, O.J. Simpson, Terry Nichols, the Aryan Nation and John Peter Zenger?

Answer: Jury nullification.

What's that? All of the above share the notion that despite whatever the judge instructs on the law of a given case, the jury can decide on its own what it deems to be the proper result according to "community standards" of justice and the jury's sense of "what is fair." Those who believe in jury nullification advocate that the judge specifically instruct the jury in such a manner, namely that the law in that particular case is what each juror determines it to be based on his or her view.

In the colonial era, John Peter Zenger, a New York printer, was charged with seditious libel under British law. Zenger's attorney told the jurors that they had "the right beyond all dispute to determine both the law and the facts." Zenger was acquitted and his victory was viewed as an important blow against British oppression. But by the end of the 19th century, the Supreme Court decided with the British king long gone, that there would be no right to jury nullification in the federal system. The Court was unwilling to legalize lawlessness.

Juries sometimes do in fact nullify the court's instructions. Juries in fugitive slave prosecutions, prohibition cases, selective service and anti-war trials, and similar matters have acquitted defendants because they found the law they were called upon to apply to be distasteful or, in the case before them, grossly unfair.

The jury nullification movement seeks to convert what has occurred sporadically into standard, everyday practice. The movement seeks to institutionalize jury rebellion. Each panel is to be an independent legislature to decide, as it sees fit, what laws are to be honored or ignored. In criminal trials especially, the effort now is to persuade at least one juror to ignore the judge's instructions so as to cause a hung jury.

The Ku Klux Klan wants white juries in the South to have the legal authority to apply "community standards" in cases where white defendants are accused of crimes against blacks. O.J. Simpson believes that a predominantly black jury has the right to determine its own rule of law in his trial. National Rifle Association people want juries to nullify the enforcement of gun laws. The way-way out extremist wing of the anti-abortion movement wants juries to apply a "higher law" and to acquit individuals who murder doctors who perform abortions.

Jury nullification fits in neatly with our overall anti-government mood: We hate the president. We hate the Congress. We hate the courts. It is yet another weapon in the anti-government arsenal.

There is an organization called the Fully Informed Jury Association. It is headquartered in Helmville, Mont. (population 32). FIJA has caused bills to be introduced in half of the state legislatures and some of these bills are moving along in the legislative process, especially in some of the gun-toting Western states. One of FIJA's more zealous adherents puts it this way: "The most important role of the jury is to judge the law. It is their duty to overturn any law they don't like. Judges who lie to them and refuse to tell them that are criminals. I hate judges. I hate them."

Nullification zealots run ads in newspapers telling prospective jurors to ignore the law and even to lie to judges in order to get on juries.

Randy Weaver of Ruby Ridge, Idaho, against whom the highly controversial FBI operation was conducted, set forth the underlying contemporary nullification credo when he ran for sheriff a few years ago: "I intend to enforce only the laws that people want." Accordingly, jurors would follow only those laws they liked and ignore the ones they didn't like.

Once upon a time, the notion of jury nullification was in the gentle hands of professors who wrote about it from a historic and an academic prospective. Now it is in the hands of the kooks who have kidnapped the concept as they march on the road to anarchy. It's an attempt by the wacko fringe to further their anti-government agenda by using the jury system as the ultimate determinator of public policy. Jury nullification is part of the militia movement's march to chaos and political disorder.

~Tom Eagleton is a former U.S. senator from Missouri and a columnist for the Pulitzer Publishing Co.