[note: this is a letter I sent to NH Senators. Please feel free to re-use]
Please vote tomorrow to pass the most important piece of Civil Rights legislation in the Legislature this year, HB 146, “relative to the right of a jury to judge the application of the law in relationship to the facts in controversy.”
In the 1850’s, prosecutions under the Fugitive Slave Act were largely unsuccessful because juries refused to convict runaway slaves under an unjust law. They judged not the guilt or innocence of these men under the law, but rather the law itself. Undoubtedly, every New Hampshire legislator would today vote against a Fugitive Slave Act, but what I’m asking you to do tomorrow is to vote to ensure that such bad laws will always be defeated.
The jury as the last means of defense against unjust laws is a well-established tradition, predating the United States in English Common Law, and strongly upheld through modern times.
The US Supreme Court has consistently found this power to be essential, throughout the Country’s history:
"The jury has a right to judge both the law as well as the fact in controversy" - John Jay, Chief Justice 1789 "The jury has the right to determine both the law and the facts." -Samuel Chase, Justice 1796 "The jury has the power to bring a verdict in the teeth of both law and fact." - Oliver Wendel Holmes, Justice, 1902 "The law itself is on trial quite as much as the cause which is to be decided." Harlan Stone, Chief Justice, 1941
I have some personal experience with the tragedy of the status quo in the New Hampshire courts. Two years ago I was called to jury duty in Sullivan County Superior Court in Newport. After packing citizens in an overheated room like sardines, we were forced to watch an industrial video about the courts for quite a long time. It was riddled with half-truths, inaccuracies and falsehoods about the nature of the courts, the New Hampshire and US Constitutions, and the powers of juries (I noted at least forty). The worst of these was an indication that the Judge in the case be the final arbiter about the law. We were then told that if we had any problems with anything in the video we were to come to the Judge as each case was called. So, I did.
Successively, he called people selected as jurors and asked if there was any reason they could not serve. As a matter of conscience I approached the bench each time. I explained to him that the video made a travesty of our system of justice and that it was especially wrong about the powers of juries. He demanded to know where I got the gumption to question the Court, so I cited the aforementioned Supreme Court decisions. I was dismissed in each case and returned home, ‘merely’ having wasted a day.
“The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge,” the Court wrote in United States v. Dougherty, 473 F. 2d 1113 – Court of Appeals, Dist. of Columbia Circuit 1972. I recommend a reading of the entire decision for a good modern interpretation of the powers of juries.
Wouldn’t it be grand if the governments were immune from passing bad, unjust, and immoral legislation? Yet, each time a bad bill is repealed, we have the judgment of the Legislature that it previously erred. Between the time a bad bill is passed and the time it is repealed, we have the juries to protect our civil rights. Letting them know that they have this essential power isn’t too much to ask.
Thank you for your consideration.