Julius Marke, St. John's University

Jury nullification, despite the role it played in the O.J. Simpson trial, has had a long and meaningful tradition.

In that context, the Seventeenth Century trial of William Penn, founder of Pennsylvania, and Bushell's Case which arose from it, played a dramatically inspiring role.

Prior to Penn's trial, judges could require juries in criminal trials to render a verdict not only on the facts in issue, but as well, on the applicable law. Questions of law involved in criminal cases, judges then maintained, were not so complicated as to excuse jurors from reaching a verdict.

Judges used many methods to force a jury to do as they charged. A jury could be locked up, without water, food, heat, tobacco, or light, until it returned a unanimous verdict or one the judge directed. Judges could also levy a fine against members of the jury if they brought in a contrary or "corrupt" verdict and even impose imprisonment until the fine was paid.

Penn was placed on trial in the Old Bailey Court in 1670 for the crime of "tumultuous assembly," because he preached a sermon in Grace Church Street in violation of the "Conventicle Act" which prohibited any meeting for worship other than those of the Church of England. The Court ordered the jury to find Penn guilty, for if they found the Quakers had met at all, the very meeting by itself was unlawful. The jury, however, found that the meeting had taken place, but refused to find the law had been violated.

Penn, at the time, was only 26 years old, and had to conduct his own defense, as accused persons in criminal cases in those days were not allowed counsel to represent them.

The trial is a dramatic example of the cavalier methods used by judges at the time. The jury consisted of twelve ordinary middle-class men selected at random from the jury rolls of the City of London. The ten judges who heard the case included the Lord Mayor, the Recorder (a Magistrate), and other representatives of government who were motivated to enforce the "Conventicle Act."

As we read the transcript of the trial (which Penn published in 1670 as the Peoples Ancient and Just Liberties, Asserted in the Trial of William Penn and William Mead. . . . Against The Most Arbitrary Procedure Of That Court.), Penn's logic and legal acumen must be admired. He baited the judges so skillfully on the role of the Common law, that they in turn tired to heckle and bully him. Finally, completely frustrated, they ordered that he be locked up in the bale dock. The bale dock was a locked cage, recessed below the floor level, located at the very end of the courtroom. There he could be heard but not seen by the jury.

When the jury returned a verdict of "guilty of speaking in Grace Church Street," the Lord Mayor shouted out, "was it not an unlawful assembly? You mean he was speaking to a tumult of people there?" The jury refused to so find.

The Recorder then angrily responded "Gentlemen, you shall not be dismissed till you bring in a verdict which the court will accept. You shall be locked up, without meat, drink, fire and tobacco. You shall not think thus to abuse the court. We will have a verdict by the help of God or you shall starve for it."

Penn objected: "My jury, who are my judges, ought not to be thus menaced. Their verdict should be free-not forced. The agreement of twelve men is a verdict in law. . . and if, after this, the jury brings in another verdict, contrary to this, I affirm they are perjured men."

At this point while Penn was still talking, the soldiers started to push the jury back to the juryroom and then occurred one of the most inspiring incidents in the annals of English jurisprudence.

Penn called out: "Ye are Englishmen, mind your privilege, give not away your right."

And the jury replied., "Nor will we ever do it."

The jury was kept for two days and nights, without food, water, and heat, but refused to change its verdict. Finally the court ended the trial abruptly, fining each juror forty marks and committing them to imprisonment until they paid their fines.

Bushell, the foreman, and the other jurors obtained a writ of habeas corpus from the Court of Common Pleas. Releasing them from their imprisonment, Chief Justice Sir John Vaughan held" . . for if it be demanded what is the fact? The judge cannot answer it: if it be asked, what is the law in this case, the jury cannot answer it." Although the judgment was later reversed on appeal because the Court of Common Pleas did not have jurisdiction in criminal matters, Bushell's Case established the right of trial juries to decide cases according to their convictions.

Andrew Hamilton, one of the foremost attorneys in the Colonies, used the case with telling effect as a precedent in Peter Zenger's trial in 1735 in New York, which established freedom of the press.

Zenger was accused of publishing a seditious libel in his newspaper defaming the Governor General of the Provence of New York. Though the Court ruled that the truth of a seditious libel could not be set up as a defense as a matter of law, Hamilton insisted, based on Bushell's Case, that it is for the jury to determine whether Zenger's comments were true. "The right of the jury," he argued, "to find such a verdict in their conscience do think is agreeable to their evidence, is supported by the authority of Bushell's Case beyond any doubt. . . "

The jury followed his advice, and despite the judge's charge to the contrary, acquitted Zenger.

Bushell's Case gave a new meaning to the jury system in that it made the jury an equal to the executive and legislative branches of the government in the enforcement of criminal law.

In this context, it is recognized as the power of the jury to nullify the law by reflecting in their verdict the "Conscience of the Community," and is considered "one of the most potent forces in the criminal law."

As brought out by Professor A. D. Leipold, in his article "Rethinking Jury Nullification," (82 Va.L.Rev. 253, March 1996) "Nullification occurs when the defendant's guilt is clear beyond a reasonable doubt, but the jury based on its own sense of justice or fairness, decides to acquit [against the evidence, the judge's legal instructions and a legislative definition of culpable conduct]. In terms of raw power, nullification has few parallels: rarely can a public entity, make such a critical decision with no obligation to justify its action and with no recourse for the aggrieved party."

Jury nullification has been praised, in that the acquittal reflects a democratic process by which the jury can interpose its own moral or political judgment in defiance of an unpopular expression of governmental action.

By the same process however, it has been denounced as an act of anarchy.

In addition to the Simpson Case, jury nullification has played a significant role in other recent high profile cases, in which despite the obvious evidence that the defendant committed the crime charged yet the jury disregarded the evidence and acquitted in whole or part. For example, those involving Washington D.C. Mayor Marion Barry (although the Mayor was videotaped smoking cocaine, the jury convicted Barry of only one misdemeanor count of drug possession, acquitted on another and deadlocked on the remaining twelve charges); Dr. Jack Kevorkian (although the evidence was uncontroverted that Kevorkian had assisted in the suicide of the deceased, in violation of Michigan law, still the jury acquitted him); and Oliver North, (a former White House aid, was acquitted of nine of the twelve charges against him, in that he lied to Congress, obstructed justice by diverting funds in the sale of arms to Iran and money to the Nicaraguan Contra rebels, despite the judge's charge that his claim that he acted on the orders of superiors, was not a defense, still the jury convicted him only on the charges that he acted alone).

In his book, "A Crime of Self Defense" (1996), Prof. George Fletcher, thoughtfully adds: "Although jury nullification seems to stand in conflict with the rule of law [still] careful reflection underscores the power of the jury not to defeat the law, but to perfect the law, to realize the law's inherent values!"

Julius J. Marke

Distinguished Research Professor of Law,

St. John's University; Professor of Law Emeritus, New York University