You Are Above the Law

September 1st, 2009

That’s a bold thing for anyone to say, especially someone who used to be a peace officer, but I’ll repeat it:  you are above the law. I do not mean to say that you are free to injure people, far from it.  What I mean is that you are above the law when you sit in a jury box.

If you have ever sat in on a trial, you have probably heard a judge issue instructions to the jury that include something along of the lines of “you are to sit in judgment of the facts of the case only….”  To be blunt, this is not true.  I’d love to impeach every judge in this republic who has uttered that or a similar statement, but we’d probably be out of judges in pretty short order if we did.  Defense attorneys know what jury nullification is, as do prosecutors and judges.  And they (the defense attorneys) are regularly warned not to mention it in voire dire or within the trial itself, under threat of contempt of court.

The fact is, though, that as a juror, it is absolutely within your scope of power to not only sit in judgment of the facts of the case, but to sit in judgment of the law itself.  Without resorting to violence, it is your only real check on an abusive government that promulgates unjust law.  Jury nullification, which is what this activity is called, has existed under the English Common Law since the Magna Carta was signed (almost 1000 years ago).  For those who are not aware, our legal system is rooted in English Common Law, and we inherited much of it with the ratification of the Constitution.

As an activity within the legal system, the tradition of jury nullification has been practiced here from the very beginning.  The whole purpose of having a right to trial by a jury of our peers (the 6th amendment guarantees it) is so that we can be free of a potentially corrupt government official (the judge), at least insofar as determination of guilt is concerned.  Jury nullification was regularly used in the years leading up to the Civil War to acquit defendants in cases of harboring or aiding runaway slaves.  It was also used regularly during the days of prohibition.

You, as a juror, have every right to vote your conscience.  If you believe that an ordinarily good law is being misapplied in your particular case as a juror, or if you believe that the law itself is repugnant, you are under neither legal nor moral obligation to vote “guilty,” even if the defendant has done everything and more that the prosecution has alleged that he did.  To the contrary, you are obliged to vote “not guilty.”

Several years ago, I was summoned for jury duty on a case where the defendant was being tried for failing to report an address change as a sex offender, a felony which could have sent the defendant back to prison for life.  I had not been a police officer for 5 or 6 years, but the defense attorney, having learned of my background, used a peremptory challenge and got rid of me anyway.  If she had bothered to learn about my views on this law rather than just making assumptions, she would probably have picked me first.

This defendant had served out his prison sentence some years earlier and was no longer on probation or parole.  In my opinion, he had served his time and was a free man.  Free men do not tell the police where they live or when they are moving.  This is a dangerous law and sets a dangerous precedent for the police to be able to know the whereabouts of anyone.  No, I would not want him living next door to my daughter and me, or down the street from a school or a park, but that is not the point.  If sex offenders represent such a threat to the public that the police need to keep tabs on them after they are released, then perhaps they should not have ever been released from prison in the first place.  If the original law (sexual assault) had been upheld and enforced as it should have been, we would never have gotten ourselves to the point where we might even have a disagreement over whether or not to send him back to prison simply for failing to report an address change.  In order to argue for this law, it seems to me that you must have arrived at the point where you have given up on the utility of the original law regarding sexual assault.

In Texas, as most states, sexual assault carries a minimum of two years and a maximum of life in prison.  Rather than locking someone away for not telling Big Brother his wherabouts, how about let’s actually lock them up a long time for the original crime.  One may be inclined to ask “what’s the difference if we can get them locked up one way or another?”  The difference is that one law is largely beyond abuse, and the other gets the camel’s nose under the tent.  It would be one thing if this “tracking” law never increased in scope (I still would not agree with it), but governments have a nasty habit of assuming more and more power by whatever means available, and bad laws make it easier for the government to do so.

I’m reasonably certain that many readers are horrified at my position on this law, but I am also certain that many of you can find objectionable laws or objectionable applications of the law just as I do.  Exercise your RIGHT to jury nullification if you find yourself on a jury in such a circumstance.

For more information on jury nullification, I strongly urge you to check out The Fully Informed Juror’s Association.


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9 Responses to “You Are Above the Law”



  1. Harvey |

    Brian,

    As you might expect I am not only not horrified at your views — I generally applaud them.

    In this case I agree that “tracking laws” are a serious form of harrassment and are very seldom justified. Many people categorized as “sex offenders” are just freaks (voyeurs or flashers) who have never laid a hand on anyone and are not likely to start. Many others, however (the rapists and child molesters) are definately dangerous to society and should not even have addresses to change until they complete their long sentences, undergo serious rehabilitation while in a secure setting and then agree to chemical castration as a term of their release.

    When the law is applied correctly and intelligently it puts Big Brother out of business.


  2. Tom |

    Brian, thanks for an very informative article. I’ve always felt that jury nullification was one of the most effective tools available to correct injustices and curb overzealous prosecutions. In most jurisdictions, if not all, lawyers are forbidden to argue jury nullification directly, as you indicated. I think that’s wrong; juries should know the full limits of what they can and cannot do.

    I agree, in general, that administrative tools should never be allowed to replace judicial (and jury-based) decisions. It’s flat wrong to indefinitely confine some offenders in hospitals or prisons after they’ve served their sentences; to put offenders on public lists after they’re released from prison; and to give parole officials and other administrative officials the power to deny freedom. Hate-crimes legislation is also wrong because it elevates certain classes of victims above others, with decisions based on the unknowable question of what the perpetrator was thinking at the time of the crime. The same with three-strikes laws and severe limits on judicial discretion in imposing sentences. All legal punishments visited on citizens should be based on an individual trial of a citizen with a judge and jury operating on the basis of due process and with the power to impose the most appropriate sentence in that specific case.


  3. doris |

    Never heard of it, good to know. I just wish that freak who took Jaycee, that 11 year old, and hid her in the backyard for 18 years had been made to serve his sentence. How does 11 years get to be time enough served for his 50 to life and life for 2 separate rapes and kidnapping? He is and was a stalker and a simple peeping tom, first, then a rapist. These guys who peep and expose do sometimes turn into rapist and killers. The registry is to allow us to know if one of those non-humans is living near us. Yes, there are less guilty in these categories, but if one girl, maybe yours or mine is saved, do I care about these sexual preditors rights–NO. We have definitely lost confidence in our justice system, so many get out and reoffend. No the registry is not perfect, but we do need something to be done, and more stiff sentences. As the studies, no I can’t show you one but I have read them, say they cannot be repaired or rehabilitated. Castration only makes them hateful, but chemical castration seems to help, but they say they never lose the urges, just can control them better with the chemical castration. I am not horrified, I would expect this opinion from you, due to the loss of rights to anyone, but some don’t even deserve the right to our air, but I do not agree with you about the registry. Imagine that?


  4. Elizabeth Barrette |

    Bless you for pointing out these crucial facts about jury rights and the danger of tracking laws. I’m going to post about this myself, and refer people back here.


  5. Brian Bagent |

    Tom, I don’t have an issue with 3 strikes laws in general, just in their misapplication. On the case I mentioned above, they were going to enhance this fellow’s punishment through our recidivism statute and faced a minimum of 25 years. We had absurdity stacked upon absurdity in this case.

    If this guy had been a habitual burglar, robber, rapist, or auto thief, and the evidence supported the prosecution, you can bet I’d have voted to send him to prison for life.

    In my mind, the reason for prison has nothing at all to do with rehabilitation or punishment (though if those things occur, it is a bonus). We send people to prison because they’ve demonstrated that they cannot live as peaceable people in a peaceful society, and need to be segregated from it.

    As to the reason that defense attorneys are forbidden from broaching jury nullification, the courts cynically hold that we are supposed to know our rights and do not need to be advised of them, yet in supreme irony, the same courts uphold Miranda v Arizona.


  6. doris |

    Totally for the 3 strikes. This lets the otherwise ignorant, of past crimes, judge know that this is a habitual criminal and he/she needs to be removed from society. Otherwise a criminal could commit the same crime over and over and go to trial as a first time offender with a much less severe punishment that he obviously hasn’t been rehabilitated from or discouraged from repeating the other 2 times he was imprisoned. Not knowing his past crimes doesn’t do any kind of justice.


  7. Tom |

    That’s not what three-strikes laws are about. They vary in different states, but basically they mandate that judges impose very severe sentences on people who commit a third felony. In California, for example, it’s been possible to get a 25 years to life sentence for shoplifting if it’s a third felony offense. It has nothing to do with judges knowing about past crimes; it’s about judges being required to impose certain sentences without the ability to exercise discretion.

    There are lots of sources of information on this. Here’s one.


  8. doris |

    I read that, Tom, and the previous crimes were either burgulary with a knife or a violent robbery. If a person commits 2 previous robberies, is he learning or stopping? No, he is a habitual criminal and going in and out of prison, a huge and costly venture. Plus, bad for the victims of their robberies and other crimes. If they get out after their third robbery and rob you, don’t you think it would have been better if they were still in prison, and not out committing the same or similar crimes? Your own link said, it was not the norm for the 3 strikers to go back for 26 years for small infractions. I’m still for it, even after that info — I read it all.


  9. Empower a Fully Informed Jury | Gaiatribe |

    […] was reminded of this topic by a recent post over on Opinion Forum, “You Are Above the Law,” which I have quoted […]


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