Judge Takes Issue with ‘Jury Nullification’ Shirt at Bremerton Man’s TrialJanuary 8th, 2010 by josh farley
A noteworthy legal issue emerged this week during the Kitsap County Superior Court trial of a Bremerton man accused of unlawfully possessing a firearm.
A man watching the trial in the courtroom wore a T-shirt that said something to the effect of “Jury Nullification is Constitutional.” Deputy Prosecutor Giovanna Mosca pointed the shirt out to Judge Sally Olsen, who took quick action.
She asked the man, who had previously been wearing a coat covering the shirt, if he would put the jacket back on. He obliged.
Olsen also made certain that the jury, which wasn’t in the courtroom when the man took off his jacket, had not seen the message. On the advice of Mosca, she called one juror in the courtroom to determine if he had come into contact with “anyone in the front row,” without specifically identifying the man. The juror said he had not.
But why did Olsen go to all that trouble over a shirt?
First, here’s a little background on the case: Luke T. Groves was ultimately convicted of two counts of unlawful possession of a firearm.
His gun ownership rights were revoked in 1990, when he was convicted of a felony for breaking into a Shelton school. He claimed that he was never informed that his gun-ownership rights were revoked for life and he argued that he wasn’t in possession of the guns, since they belong to his wife.
The prosecution’s case was straightforward; police found a rifle and pistol in Groves’ Hewitt Avenue home and he is a convicted felon, making him in violation of the law.
But there were many issues the jury was not allowed to consider in the case, notably the question of whether he was ever told that felons aren’t allowed to have guns. Groves’ defense attorney also was limited in her ability to argue the question of who “possessed” the guns.
In a roundabout way, those limitations and the instructions given to the jury in the Groves trial were behind the jury nullification t-shirt controversy.
Jury nullification is basically the idea that jurors can choose to disregard the law and acquit a defendant if they feel the law — or the way it’s being applied — is wrong.
There are many famous cases in which juries have chosen to “nullify” a law and acquit a defendant, but several decisions have affirmed our court system’s disapproval of it. (Here’s one.) In the Groves case, the instructions to the jury included the line: “It … is your duty to accept the law from (the judge’s) instructions, regardless of what you personally believe the law is or what you personally think it should be.”
And what about the man’s right to wear such a shirt in court?
For the answer, I drew on the expertise of Stewart Jay, a University of Washington law professor who specializes in constitutional law.
Put simply, Judge Olsen’s duty to ensure a fair trial overrides the man’s First Amendment right to express himself by wearing the T-shirt. Jay cites several examples of ways in which such speech is curbed: Campaigners aren’t allowed near polling stations for fear of intimidating voters, and the classic example of yelling “Fire!” in a crowded theater.
“A judge is always concerned with any attempt by a member of audience to influence a member of the jury,” he said.