In Part One I related a very brief history of the “jury pardon”, and how the old English right to a jury trial was adopted by our founders as part of the basic structure of out federal government. Part Two was a description of that structure and how We the People retain the ultimate power in the federal criminal justice system. This Part Three will explain how that ‘power’ differs from a ‘right’, and how you as an individual can use that power to restrain the federal government.
Put simply, the ‘jury pardon’ is not a ‘right’, it is ‘power’. Nowhere does the Constitution, nor do any statutes, recognize the ‘right’ of a jury to refuse to convict an accused regardless of actual guilt like the William Penn jury did. Yet that jury, and you as an individual, have that ‘power’.
When you report for jury duty you won’t be told about your power. If you are chosen to sit as a juror in a criminal case you won’t be told about it then either. Nor will you be told by the Judge when he gives the jury final instructions before sending you out to deliberate. But you will have that power the nevertheless.
Not only won’t you be told about your power, the jury instruction will tell you otherwise.
The Judge will instruct you that “it is your sworn duty to follow the law”, and “it is your duty to apply the law… regardless of the result”. In simple terms that means that if the evidence supports conviction you should vote to convict, “regardless” of your belief about the justice of the case, or the sinister motives of the government behind the prosecution.
You will be repeatedly told you “must follow the law”, which is true. You just won’t be told the law includes your inherent power to say, “Screw the law, I won’t vote to convict the accused regardless of the evidence”. It’s the same power William Penn’s jurors had.
Penn was clearly guilty of “unlawful preaching” under the law at that time. But the jurors neither liked the law, nor the fact Penn was singled out by the government to be made an example of (like Michael Flynn). So they refused to convict him despite their “sworn duty” to “follow” and “apply” the law.
You will be instructed by the Judge that it is your duty to “base your verdicts only on the evidence, without prejudice or sympathy. That is the promise you make and the oath you take.” Meaning the fact you are sympathetic to the accused because of how the government is doing the defendant wrong is not a factor you can consider in rendering unto Caesar. But at no time will you be instructed about the power of We the People over the government, which includes the power to tell Caesar to go pound sand.
One instruction you will receive tacitly hints at your power. You will be told that if the evidence convinces you the of the defendant’s guilt, then you should find him/her guilty. But if the evidence does not convince you then you must find him/her not guilty. Notice that in the first instance you should convict, but in the second you must acquit. That’s the closest the Judge will come to revealing the power of the jury to give the government the middle finger.
Historically, when jurors are questioned (voir dire) about serving on a federal jury they are not required to reveal any intention to exercise their juror pardon power. Nor is it a violation of their oath to “follow the law” if they exercise that power.
Jurors refusing to abide by an oath to “follow the law” even has a name — “pious perjury”. Despite the incriminating sound of that phrase, jurors can’t be prosecuted or held in contempt for exercising their power to refuse to follow their oaths.
Understand, though, while a federal judge is not likely to lock jurors in the jury room without food, water, or heat like Penn’s judge did, judges will do all within their authority to dissuade you from exercising your individual ‘pardon power’. (Notice I said the judge is “not likely to”. Given the way some federal judges are abusing their authority recently – such as in the Michael Flynn case, a 21st century version of the Penn prosecution – I’m reluctant to say it absolutely won’t happen.)
The history of the Penn trial does not reveal if all 12 of his jurors refused to convict him. The assumption by historians is that they were unanimous in their obstinate refusal to be coerced to convict.
But unanimity of an acquittal verdict is not necessary to thwart the government’s abuse of power. It only takes one juror. Criminal jury verdicts, guilty or not guilty, must be unanimous. The United States Supreme Court reaffirmed that doctrine just last year. They stated plainly, “[A] single juror’s vote to acquit is enough to prevent a conviction.”
If you are on a juror, you — a single individual — have the power to stand up to the government. You are the “tank man” in that famous photo from Tiananmen Square in 1989.
The difference is the US government won’t shoot or run over you (at least not yet). The government not only lacks authority to retaliate against you, it can’t even ask you to explain yourself. If the government, or the Judge, asks for an explanation of your refusal to convict, a polite respectfrul declination to answer would be in order. You can’t be held in contempt for refusing to convict, or for refusing to explain yourself.
If even one juror prevents unanimity of the jury, the result is a ‘hung jury’, in which case the trial ends. If the government still wants to prosecute, then a new trial with a new jury must be convened. But the government has no way to keep the same thing, a lone juror refusing to convict, from happening again. A single juror in any successive trial can prevent conviction.
The effect of this ‘power’ to refuse to convict is that individual citizens, serving as jurors, have the lawful ability to bring the federal criminal justice system to a screeching halt. And there’s not a damn thing the government can legally do about it.
In Part Four, we will consider why the “jury pardon power” is so critical now and in the future.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.