Rep. Sortwell authors Jury Nullification Bill

FROM: Rep. Shae Sortwell
DATE: February 5, 2020
RE: Co-Sponsorship of LRB-3725 relating to: duties of a jury and jury determinations as to the application of law.

Dating from Magna Carta forward, common law has held the right of the accused to trial by jury. The basic principle of the jury system is that the state alone may never deprive an individual of their life, liberty, or property. Only the people themselves – in the form of a jury of their peers – may do that. Thus, for over eight centuries, juries have played a crucial role in tempering overzealous or mistaken prosecutions or laws.

At common law, juries have the authority to decide not just the facts, but the law itself. They have authority to acquit if sentencing will yield an unjust result, or if the law itself is unjust. There are many examples throughout history, dating back in America at least as far as the 1735 Zenger trial, a man prosecuted for sedition for merely criticizing the colonial governor of New York.

A local recent example is the Hershberger case. In short, the state went after Hershberger with a litany of charges related to selling raw milk. While most would agree that the facts showed Hershberger violated the law, the jury returned not guilty on three out of four counts. Subsequent statements by the jurors clearly demonstrate that they found the law and the prosecution unjust.

The Supreme Court and Wisconsin Supreme Court have both found that juries indeed do have the power to judge the facts and the law – but that jurors do not have the right to be informed of this power. (Sparf v. United States, State v. Bjerkaas)

LRB 3725 aims to codify the right of juries to be informed of their nullification power.

Under the bill, the court must provide, both written and orally, the duties of a jury – which include their authority to find a defendant not guilty if a guilty verdict will yield an unjust result.

This authority has been all but lost in our modern justice system, but is still remembered in the American psyche in the statement, “no jury would convict him.” It is time state law recognizes the authority juries have always had.