July 30, 2010

Bushell’s Case

In my previous blog post, I noted that I was dismissed from jury duty by the judge. Judge Richard Klaus had a series of standard questions that he asked of all the potential jurors. I had heard the questions during my first day of jury duty, so I had had a chance to think about them when it came my turn to answer them mid-week. They included the basic tenets of innocent until proven guilty and that the defendant does not have to testify, which I agree with. There was a question about whether I would give equal weight to all witnesses, police officers included. Yes, indeed. Then came the question that I could not answer in the affirmative: would I follow the instructions of the judge and apply the law, whether I agreed with it or not? Honestly, no.

I believe in the rule of law. I do not think people should punch others in the face, much less rape or kill each other. Yet there are a lot of bad laws on the books; generally I try to challenge them through the political process. But there’s another way to challenge the law, and it is called jury nullification. If a juror or jury does not want to enforce the law, Bushell’s case from the 17th century provides a precedent for them to “nullify” the law, regardless of the judge’s instructions. Bushell’s case arose from a trial of the Quaker William Penn and his co-defendant, William Mead, in 1670 in London. They were accused of unlawful assembly. The jury in the trial returned a verdict of “not guilty,” which the judge did not like, so the judge had them locked up and fined! Most of the jurors, after several weeks, paid the fine, but Edward Bushell refused. He subsequently challenged the case in the Court of Common Pleas and Chief Justice John Vaughan ruled that the detention and fine were contrary to law.

I wrote an article about this case in 1981 called “Does Conscience Matter More Than Law?” in Update on Law-Related Education, when I worked for the American Bar Association in Chicago. I am being lazy here and quoting myself: “The liberty of the jury to decide as it sees fit–even if it decides differently than the judge would or ignores the law in coming to its verdict–is central to our system of justice. Juries introduce a wild card into the system, but one that is necessary if the system is to have public support.” I still agree with what I wrote thirty years ago (and with Judge Vaughan), so I told Judge Klaus that I might not follow his instructions. He said, “Ma’am, you may go.” I have to say, I was a bit disappointed.

Bushell’s case got quite a bit of attention in the 1960s when juries refused to convict draft resisters; of course, jurors could also ignore laws that I believe should be enforced–thus I am unsure (along with a lot of others) about informing jurors about Bushell’s case. It seems worth stressing, though, that the jury is a political as well as a legal institution. To quote myself again: “Jurors must, as the conscience of the community, be permitted to look at more than the mere letter of the law.”

Leave a Reply

Your email address will not be published. Required fields are marked *