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.
Yes, I picked up on that. But I think the issue is broader. It begs the question of the law in the first place. The prosecutor insisted that the jurors had to ‘follow their oath’ to uphold the law, but tell me: What law? Does the US Constitution trump state law, or can state law just ignore the Constitution? The Second Amendment guarantees the right to keep and bear arms. It is an individual right. The Second Amendment is about personal rights, not states’ rights (That’s the 10th amendment) and it doesn’t say you have the right to keep & bear arms except when the state decides to take those rights away from you.
I don’t know about others, but I swore an oath to uphold the Constitution of the United States. I’m not aware of any ending date on this. As far as I know, it’s still valid. In this particular case I believe I would be within my oath to acquit this guy. I would never suggest such a thing where someone hurt someone else or destroyed or stole property, but in this case, there is no victim–except the family who now has no livelihood–and it was all done on principle.
Frankly, I thought the guy was nuts to not take the plea offered him, but I am also appalled that the judge censored a perfectly valid idea. Was the verdict more valid because the jurors were kept ignorant of the phrase, “Jury nullification is legal”? It seems to me full disclosure would demand that every juror be aware of the issue. Keeping jurors ignorant does not get you better verdicts unless, of course, you’re the prosecutor hot to convict someone regardless.
Another aspect of this case is bothersome. This guy called 911 because of a home break-in. What did the cops do? Run HIS numbers. In other words, if I request help from the police I become under scrutiny. This is not something that engenders trust of the authorities.
My sister wore an “I love Jury Nullification” t-shirt to jury duty in NYC. She discussed constitutional law in the judge’s chambers for 2 hrs and was dismissed, along with the 20+ other prospective jurors on the trial.