Paschall Ignites Jury Nullification Debate
by Ari Armstrong, October 8, 2003
Jefferson County Treasurer Mark Paschall is at it again.
Only what "it" is is a matter of heated debate: either he is defending liberty and justice, or he is abusing his office to promote dangerous, "extremist" views.
It is fitting that the Denver Post published an opinion by libertarian J.D. Tuccille on September 30, just one day before the latest Paschall-related controversy hit that paper. Tuccille quotes De Tocqueville: "If ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority." He then praises "stubborn restaurant owners who refuse to enforce local smoking bans, or librarians who erase records of borrowed books to keep them out of police hands, or jurors who free defendants who violated laws that shouldn't exist. Separately and together, these dissenters do their best to thwart democratic tyranny."
So that's Mark Paschall -- a Thwarter of Tyranny.
As Ann Schrader explains in her October 1 story, Paschall bought copies of the "Citizens Rule Book" and distributed them to Jeffco residents. The booklet reproduces the Declaration of Independence and the Constitution and includes a variety of quotes and comments about religion and jury nullification. Jefferson County Commissioner Pat Holloway told Schrader, "I don't think it is appropriate to pass these out in the treasurer's office in the county building." Holloway thinks the booklet is an inappropriate "combination of religion and government."
I see what Holloway means. For example, consider these inappropriate religious references: "When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitles them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among them are Life, Liberty and the pursuit of Happiness."
Indeed, it would be just terrible if any Jefferson County Resident were somehow swayed by these religion-tainted notions in Paschall's booklet.
But if Schrader ridiculously claims that the centuries-old doctrine of jury nullification is "a concept built upon since 1989 by politically conservative groups," she can be partially excused because of the quirky language of the booklet. The booklet sprinkles in numerous Biblical references, and its original text is amateurish. (Any publication riddled with BOLD CAPITALIZED WORDS and multiple exclamation points is automatically suspect!!!) Its political analysis of the Ten Commandments and the Communist Manifesto is laughable. Paschall can arguably be accused of diplaying bad taste.
The booklet also clearly links the concept of jury nullification to Christianity, even though historically and logically the two movements are distinct. Quite obviously (to everyone but some employees of the Denver Post and Jefferson County) one doesn't have to subscribe to Christianity in order to find favor with the concept of jury nullification, any more than one has to believe in a supernatural creator to agree with the views expressed in the Declaration of Independence.
In a follow-up article of October 2, Schrader's journalism evolves from inept to nasty. In a move similar to its previous attack on a local Jewish political activist, the Anti-Defamation League has turned to innuendo and character assassination to beat up somebody whom the group happens to dislike. Bruce DeBoskey, the regional ADL director, told Schrader, "The belief that he is espousing is consistent with extremist groups that we have concerns about... This is extremist, this is the Patriot movement, this is the anti-government movement... He is using his official position to add legitimacy to an extremist philosophy that undermines our government." If DeBoskey has evidence that Paschall is directly linked to a violent or racist organization, then let him bring forth the evidence. Otherwise, all his talk about views that are allegedly "consistent with" unnamed "extremist groups" that he has "concerns about" constitutes precisely what his organization is supposed to be defending against.
In an October 3 On Point editorial, the Rocky Mountain News sensibly replies, "[D]oes the ADL really want to condemn the very concept of jury nullification? We like to think that had it [the ADL] been active in the 1850s, it might have endorsed the idea when jurors were faced with trials brought under the Fugitive Slave Act."
Yet the next day, on October 4, the Denver Post editorial board completely ignored the historical point that jury nullification has been employed to help free slaves. In a shockingly bad editorial, the Post's writers instead refer to the "shameful, blood-stained place jury nullification holds in American history." The writers continue, "For the record, jury nullification was the mechanism by which Ku Klux Klansmen and other bigots escaped justice when they murdered African-Americans. Jurors becoming a law unto themselves paves the way for the total destruction of the laws that guarantee freedom for all Americans and that protect the few and the powerless from the many and powerful."
Yet perhaps the most celebrated case of jury nullification helped establish the freedom of press the Post's writers so glibly abuse:
No country values free expression more highly than ours, and no case in our history stands as a greater landmark on the road to protection for freedom of the press than the trial of a German printer named John Peter Zenger. On August 5, 1735, twelve New York jurors, inspired by the eloquence of the best lawyer of the period, Andrew Hamilton, ignored the instructions of the Governors's hand-picked judges and returned a verdict of "Not Guilty" on the charge of publishing "seditious libels." The Zenger trial is a remarkable story of a divided Colony, the beginnings of a free press, and the stubborn independence of American jurors.
The Post's reasoning is atrocious. It is abundantly obvious that jury nullification has been and can be used for good or for ill. A reasoned rejection of jury nullification would require the sort of nuance that sometimes eludes the Post's editorial board. Reasonable advocates of jury nullification must admit that, yes, it has been abused, but argue that, on net, it works to protect people's liberties and just laws. Reasonable critics must admit that, yes, jury nullification has been used to achieve justice, but argue that, on net, it works to undermine the rule of law and people's rights.
Similarly, does the Post's terrible editorial of October 4 somehow imply every editorial published by the Post is terrible? No. (Indeed, the Post sometimes publishes competent, reasonable, and useful editorials.) Does the fact that the First Amendment regularly is abused somehow imply the doctrines of free speech and the free press are suspect?
In an October 7 letter to the Post, Rich Olver follows the editorial board into the same logical fallacy. He adds, "When I ran against Mark Paschall for Jefferson County treasurer last year, he correctly pointed out that I was a novice... I must once again thank Paschall for offering a continuing education program for myself and other political newbies. Our latest class is about jury nullification -- something, I'll admit, I'd never heard of before." Olver thus demonstrates he is an ignoramus unqualified to serve in any capacity of governance.
Fortunately, Reggie Rivers of the Post regularly offers a dose of clear thinking. In his October 3 column he writes, "I've been an advocate of jury nullification for years. I believe it's our only real hope of ending the disastrous war on drugs. We need jurors in drug possession or 'intent to distribute' cases to simply refuse to convict. With widespread jury nullification, prosecutors would stop bringing cases that seemed unlikely to get a conviction, cops wouldn't pursue arrests in which there would be no convictions and the legislature might respond to public pressure by relaxing the laws. I'm with Paschall all the way on jury nullification. Does that mean that I'm becoming more conservative?"
That bastion of extremist anti-government conservatism, Oxford University, published the following account of juries:
A criticism made of English juries is that they too often reach "perverse" verdicts. The term "perverse" is apparently used to signify a verdict with which the speaker, usually a government official, does not agree. The assumption of the critics seems to be that the sole function of the jury is to determine factual guilt. But this cannot be so. Otherwise, cases in which there were no disputed facts would not reach the jury. A judge may direct a verdict of acquittal, but in neither England nor America can a judge direct a jury to return a verdict of guilty, no matter how strong the evidence of factual guilt. A jury in a criminal case does far more than decide issues of fact. It has the power to extend mercy where mercy is called for, and to mete out individualized justice. It has the power, although not necessarily the right, to nullify -- that is, to return a verdict of not guilty even though a strict application of controlling legal principles to the facts would seem to require a verdict of guilty... [I]t may decide that the law itself is unjust. Thus it might acquit where a defendant is charged with violating a law requiring enforced segregation of the races... The strength of the jury lies in the fact that it is not totally circumscribed by legal rules; and that it has the practical power to do what is right, and not just what is technically required by law. While this power may on occasion have been abused, its proper exercise presents the jury in its finest light. (James J. Gobert (Professor of Law, University of Essex), The Oxford Companion to the Supreme Court of the United States, 1992, pages 879-880)
By the way, it might be worth noting that Colorado's state government spent tax dollars to cast jury nullification in a favorable light. If you go to the visitor's center at Golden Gate Canyon State Park, you will find a large plaque stating in large type, "No Jury Would Convict a Bootlegger." The explanation reads, "The remote valleys and gulches in this area provided clear water and thick cover -- the perfect setting for making bootleg whiskey... It was said that so many locals were involved in making 'moonshine' that 'not a jury in Gilpin County would convict a bootlegger.' ... After the repeal of Prohibition in the early 1930s life in the Golden Gate area again returned to ranching and farming." The text at a listening station reads, "Being neighborly meant something else during Prohibition." The audio recording states, "The bootleggers took good care of the ranchers, and the ranchers took good care of the bootleggers." So even a state-run center links jury nullification to "being neighborly." And of course the practice helped end the scourge of alcohol prohibition.
The history of jury nullification is fascination, inspiring, and, yes, sometimes disturbing. But to learn that history, don't rely on Paschall's booklet, and certainly don't rely on the Denver Post's editorial board. Here are a few alternatives. The Fully Informed Jury Association is holding a conference in November. Vin Suprynowicz has written quite a lot about the issue. Clay Conrad published a book in 1998 (which I haven't read yet) titled, "Jury Nullification: The Evolution of a Doctrine."