by Malcolm Macdonald, June 5, 2013
Ye Old Mendocino County
One hundred thirty-two years ago a Little Lake coroner’s jury reached a finding that my great grandfather’s horse had justifiably shot and killed Benjamin Frost on the trail between Mendocino and Willits. A judge sat at the inquest, but it was a jury who brought in the verdict. Those jurors may have suspected that my then 11-year-old great uncle actually did the shooting and reached their verdict to protect him. The bottom line amounted to: the Robertsons (my great grandfather and great uncle) were law-abiding, hard-working folk, the Frosts were more or less the opposite. If a Frost was shot dead in the presence of two Robertsons, the Little Lake jury possessed enough common sense to recognize which party was in the wrong. Having a rearing horse to pin things on made the jury’s decision all the easier. The jury’s verdict was an indirect statement to the lawless Frost clan: If one of your ilk gets shot down, so much the better, and to further the message we are going to say that he was shot by a horse and the equine’s actions were justifiable.
Fourteen years after our family’s horse shot Ben Frost and got away with it, the United States Supreme Court ruled that judges did not have to instruct jurors about the concept of jury nullification (voting your conscience not the letter of the law). The Supreme Court in Sparf v. U.S. (1895) did not state that judges could not tell jurors about voting their conscience it merely said judges were not required to make such instruction. Sparf v. U.S. also did nothing to take away the right of jury nullification. Jury nullification has broken down discriminatory laws and, conversely, flown in the face of clear evidence of guilt in hate crimes. The acquittal of Emmett Till’s murderers in Mississippi comes to mind as a negative outcome of jury nullification.
The concept goes back to our constitutional founders. John Adams wrote that a juror must decide a case based on the juror’s “best understanding, judgment and conscience, though in direct opposition to the direction of the court.”
The German judges of the Third Reich who defended themselves at the Nuremburg trials with statements equating to, “I only followed the letter of the law,” provide obvious reasons for upholding a juror’s right to vote his or her conscience regardless of a judge’s instruction on “the law.”
In the past few years federal and state prosecutors have taken a new tactic, charging anyone who publicly advocate’s jury nullification with jury tampering. One of the most recent cases involves Mark Schmidler, who passed out flyers enumerating the rights of a juror outside an Orange County courthouse. Schmidler is currently serving 141 days in county jail.
Repressive judges are actively trying to subvert a juror’s individual rights. For those who missed Bidder 70 at the recent Mendocino Film Festival, readers should be aware that the film’s subject, Tim DeChristopher, was put on trial for successfully bidding on public lands in Utah’s redrock region. The 2008 auction for Bureau of Land Management (BLM) property was intended to sell gas and oil rights. Devoid of capital, DeChristopher nevertheless won bids for 77 parcels to protect each from oil and gas exploration. The federal government threw the book at him. At DeChristopher’s trial for violating the Onshore Oil and Gas Leasing Reform Act, Judge Dee Benson demanded that potential jurors be willing to reach a verdict according to the law, even if the prospective juror’s conscience told them to do otherwise. DeChristopher went to prison for two years.