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The One Thing People Can Do to Keep Anyone Who Has an Abortion Out of Prison
Restoring the rights lost in Dobbs will require massive political mobilization–far more than any one person could possibly achieve. But one person is all it takes to stave off at least some of the most devastating harms of criminalization. A single juror’s vote of “not guilty” can spare a defendant—any potential parent, doctor, friend, or anyone else prosecuted and brought to trial—from criminal conviction. Regardless of the strength of the evidence. Regardless of what the judge believes. Regardless of how many other jurors disagree. It’s every juror’s super-power.
Jury nullification–or the power of jurors to vote to acquit even in the face of overwhelming evidence–is rooted in English common law and has been an American tradition since before the nation’s founding. For instance, in 1735, a journalist and printer named John Peter Zenger was charged with libel for publishing articles critical of New York’s colonial governor. Zenger did not deny publishing the articles. Instead, he argued that they were true. Although “truth” was not a valid defense to libel at the time, he asked the jury to acquit him on that ground nonetheless. They did. Other examples of nullification abound. Juries nullified prosecutions of abolitionists charged under the Fugitive Slave Act and businesspeople charged with alcohol-trafficking during Prohibition.
The courts have consistently upheld jurors’ “undisputed power” to nullify. In 1895, Supreme Court Justice Marshall Harlan ruled in Sparf v. United States, “(Jurors) receive the instructions of the judge; but they are not obliged to follow his instructions.” Twenty-five years later, in Horning v. District of Columbia, the high court again affirmed jurors’ “power to bring in a verdict in the teeth of both law and facts.” In United States v. Dougherty, the D.C. Circuit lauded nullification “as a necessary counter to case hardened judges and arbitrary prosecutors.” The Seventh Circuit agreed, noting, “tacit toleration of jury verdicts of innocence, in apparent contradiction to clear proof of guilt, affords adequate protection to the ‘conscience’ function of the jury.” As criminal prosecutions continue to swell in Dobbs’ wake, jurors’ willingness to exercise their “conscience function” will be as important as ever.
Nullification is not easy. Judges may remove jurors who openly acknowledge that they may not apply the law as instructed. Prosecutors peremptorily strike those whom they believe are likely to acquit. And, even as courts confirm jurors’ power to nullify, they condone judges’ refusal to educate jurors about it. As the D.C. Circuit explained, the fact that the jury retains the power to nullify “does not establish as an imperative that the jury must be informed by the judge of that power.” Instead, the court continued, “the jury must feel … so strongly that it must itself … independently initiate and undertake an act in contravention of the established instructions.” In other words, jurors have the power, but not the right to know about it.
https://slate.com/news-and-politics/2022/08/roe-v-wade-how-to-keep-women-who-have-abortions-from-going-to-prison.html
Jury nullification–or the power of jurors to vote to acquit even in the face of overwhelming evidence–is rooted in English common law and has been an American tradition since before the nation’s founding. For instance, in 1735, a journalist and printer named John Peter Zenger was charged with libel for publishing articles critical of New York’s colonial governor. Zenger did not deny publishing the articles. Instead, he argued that they were true. Although “truth” was not a valid defense to libel at the time, he asked the jury to acquit him on that ground nonetheless. They did. Other examples of nullification abound. Juries nullified prosecutions of abolitionists charged under the Fugitive Slave Act and businesspeople charged with alcohol-trafficking during Prohibition.
The courts have consistently upheld jurors’ “undisputed power” to nullify. In 1895, Supreme Court Justice Marshall Harlan ruled in Sparf v. United States, “(Jurors) receive the instructions of the judge; but they are not obliged to follow his instructions.” Twenty-five years later, in Horning v. District of Columbia, the high court again affirmed jurors’ “power to bring in a verdict in the teeth of both law and facts.” In United States v. Dougherty, the D.C. Circuit lauded nullification “as a necessary counter to case hardened judges and arbitrary prosecutors.” The Seventh Circuit agreed, noting, “tacit toleration of jury verdicts of innocence, in apparent contradiction to clear proof of guilt, affords adequate protection to the ‘conscience’ function of the jury.” As criminal prosecutions continue to swell in Dobbs’ wake, jurors’ willingness to exercise their “conscience function” will be as important as ever.
Nullification is not easy. Judges may remove jurors who openly acknowledge that they may not apply the law as instructed. Prosecutors peremptorily strike those whom they believe are likely to acquit. And, even as courts confirm jurors’ power to nullify, they condone judges’ refusal to educate jurors about it. As the D.C. Circuit explained, the fact that the jury retains the power to nullify “does not establish as an imperative that the jury must be informed by the judge of that power.” Instead, the court continued, “the jury must feel … so strongly that it must itself … independently initiate and undertake an act in contravention of the established instructions.” In other words, jurors have the power, but not the right to know about it.
https://slate.com/news-and-politics/2022/08/roe-v-wade-how-to-keep-women-who-have-abortions-from-going-to-prison.html
When an unaccountable Supreme Court justice cites a jurist who believed in witchcraft and that dreams were evidence, it is up to the people to act and nullify the crazy laws that spring forth from that insanity.
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