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THE PAST It started in 1670, when William Penn was tried for preaching a Quaker sermon, despite the Anglican Church being the only legal church in English territory, which was critical for inbred kings being allowed to divorce their wives when they couldn’t behead them. The jurors in Penn’s trial refused to convict and were imprisoned for four days without food or water. (Take these urban legends with a grain of salt; none of the jurors died, so they were either inhuman, as the Crown claimed; or had water, as I claim; or just weren’t detained as long as liberal, sympathetic historians claimed.) One of the then-scofflaws, now-hero, Edward Bushell, brought his case before the Court of Common Pleas which ruled that jurors could not be punished for their verdicts, even when they were right, holding, “[T]rial by jury is the only anchor … by which a government can be held to the principles of its constitution.” A century later, the U.S. Supreme Court would echo this principle in Georgia v. Brailsford. “The jury has a right to judge both the law as well as the fact in controversy.” Over time, the courts, fearing for their own power, epistemologically nullified jury nullification: they stopped telling jurors they had a right to disregard the judge’s instructions and make their decision by their own criteria. Consider the typical jury instructions: “As judge, it is my duty to instruct you concerning the law applicable to this case. It is your duty as jurors to apply the law as I state it to you.” Sort of implies that that’s the only way it works, doesn’t it? In juries, the people have perhaps their only say over the law. We’re never going to have completely honest presidents. Our politicians will never be absolutely trustworthy. Congress is lost to us. And even the president is actually elected by the Electoral College, which is not obligated to vote alongside the “voters” themselves. It’s there to ensure the masses won’t vote in a Communist or Michael Jordan. (The College only strayed from the voters’ decision once, in 1976, when Ronald Reagan received a vote belonging to Gerald “watch your step” Ford as a retroactive protest to Ford’s never having been elected as Vice President. It can happen. It did.) THE PRESENT I used to just think that the people are dumb. Now I also suspect that the system is smart, really smart. Here are the people peerless in their powerlessness, awestruck that in a few weeks, we will lose another chunk of our checks for a nuclear umbrella that is giving us about as much comfort as it is al-Qaida. Here are the people with this one power, and they are too ignorant or too indifferent to use it. In high school, I remember thinking, as I threw up after hearing the OJ Simpson verdict, “At least jury nullification will become well known.” Under more auspicious circumstances, I would’ve gone on to think, “At least the people will find out that, in extreme cases, they have the final say-so in exonerating defendants.” But OJ hacked, I hacked it up and Americans are still hacking their rights away. The same phenomenon smears our dignity when the young, the poor and the minorities vote in the least numbers. Those who need change the most are, paradoxically, those who invest the least in changing the power structure. Those who are the most invested in the status quo vote — for instance, senior citizens — vote to keep things the same. Amazing: when they take your money away from you just to give it back later (which they probably won’t), you don’t vote; once they return it to you, you set up AARP and suddenly all politicians want to kiss the blue hair populace as much as they do the babies. You’d think that law students might prove an exception, but they can be the worst. I walked to the law school to interview a few about their opinions on the matter. Soon as I hit the lounge, I overheard one complaining, “Damn! I got jury duty. I’m still running around for interviews. I don’t have time for this crap. I’ll tell them I’m racist just to get out of it.” I left. Americans have become so used to being civically impotent that they are too domesticated to use their powers of legal rebellion. THE FUTURE Jurors decide questions of fact. Courts believe they are in a better spot for judges’ deciding questions of law. Juries, known to everyone in the courtroom but the jurors themselves, can decide the law itself by determining its efficacy. Too good to be true. I know, it would be sloppy. Chaos would run amuck. Favoritism would run rampant. The law would be associated with prejudice rather than justice. Wait a second … I know, it would be unfair. The law would be viewed as arbitrarily contrived, unpredictable in application, and court cases would only be construed in terms of their practical effect, not justice. Wait a second … . Nowadays, those in power buy their justice through superstar lawyers and campaigning politicians. The law being reconsidered on a case-by-case basis couldn’t turn out much worse. In fact, empowerment would increase jury participation and morale, and make the people accountable for their own laws. The laws would then be as good as the people. Today, the law is as good to you as you are rich, white and lawyered. The first step is for jurors — those not too indifferent to show up and not too clever to figure a way out — to know that, in cases where the law is not abiding by its collective principle, they can follow their own principles. This is my part. Telling you that a juror can be proactive, not just reactive. Telling you that jurors can have the final say-so on the legality of euthanasia; medical marijuana; recreational marijuana; the death penalty; draft-dodgers (it’ll happen again, and this article will be current); squatting; free speech for cults; and, just like they did in 1670, deciding on jury nullification for themselves, by themselves. In 1670, no one needed to tell them. Free-lancer Mitch Artman is a frequent contributor to law.com. His e-mail address is [email protected]

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