Because I’ll be talking about the case of Crown v. Peter Zenger, you know this blog post will be fun.
What? You’ve never heard of Peter Zenger? Well, read on.
William Cosby served as the British colonial governor of New York from 1732 to 1735. New Yorkers despised him. He was described as “spiteful,” “greedy,” “jealous,” “dull,” and “haughty.”
When New York’s chief judge, Lewis Morris, issued a judicial opinion that Cosby disliked, Cosby removed Morris from office and replaced him with a judge who was loyal to the king and would do Cosby’s bidding.
In response, Morris and two other lawyers founded a newspaper, The New York Weekly Journal. They promptly began publishing cartoons and satire ridiculing Governor Cosby. They accused him and his administration of tyranny and violating the rights of the people.
Governor Cosby vowed to shut down the newspaper. He went after Peter Zenger who printed the paper. Zenger was one of the few skilled printers in the colonies. The idea was that without Zenger, the newspaper could not be published.
Cosby tried to get two different grand juries to issue an indictment for violating the Sedition Act of 1661, but both refused. (The Sedition Act of 1661 made it a crime to say or write something that might incite hatred or dislike of the king. By the eighteenth century, the Sedition Act applied to government officials.)
Because Cosby could not get a grand jury to issue an indictment, he charged Zenger instead with an information, an alternate procedure that doesn’t require input from citizens.
Cosby brought Zenger to trial where Zenger stood accused of violating the Sedition Act. Zenger was defended by Andrew Hamilton of Philadelphia, said to be the most renowned lawyer in the colonies. As part of Hamilton’s closing argument to the jury, he made a stirring appeal.
The judge ordered the jurors to convict Zenger if they believed he had printed seditious articles. The fact that Zenger had printed the articles wasn’t in dispute. However, in under ten minutes, the jury returned a verdict of not guilty. The spectators burst into applause. The story spread throughout the colonies. Colonists hailed Zenger and Hamilton as heroes who stood up to and defied the hated Governor Cosby who, in turn, represented the British rule the colonists were coming to despise.
After the jury found Zenger not guilty, there was an “explosive growth of satirical attacks on various colonial governments.” Zenger’s trial didn’t establish new law or change existing law, but after Zenger’s trial, no British officer dared take a satirist to court in the colonies.
Zenger trial stands as a testament to the growing rebelliousness of the colonists. It shows how the colonists felt about freedom of the press and the freedom to criticize government officials. It also shows how a group of ordinary citizens stood against a hated tyrant.
Mostly the Zenger case illustrates why early Americans were in love with juries. Thomas Jefferson, said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
Someone said this to me:
I’ve heard a grand jury will give prosecutors anything they want. I’ve heard a grand jury will even indict a ham sandwich.
Yup. Defense lawyers say that. It could be because grand juries are nothing more than rubber stamps. Or it could be because prosecutors know better than to go to a grand jury without evidence or with transparently politically motivated case.
Early Americans, who knew firsthand what it felt like to live under a monarchy, so revered juries that the right to a jury is included in 4 separate places in the Constitution. The Fifth Amendment guarantees the right to indictment by a grand jury. The Sixth Amendment offers the right to an impartial jury in criminal cases. (The procedures for how to do that would fill another blog post.) The Seventh Amendment guarantees the right to a jury in civil cases.
Article II says this:
The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.
The “where the crime was committed” part also has roots in the colonists’ feelings about the British. When British officers were accused of committing crimes in the colonies, the colonists wanted them tried in the colonies. The British wanted them tried in England, where they were more likely to get a sympathetic jury. The idea behind the clause in the Constitution is that defendants stand trial in the place where they broke the law.
The Zenger trial also brings us to the idea of jury nullification. This is when a jury knowingly and deliberately rejects the evidence or refuses to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness. As with Zenger’s case, the jury returns a “not guilty” verdict even if they believe beyond a reasonable doubt that the defendant broke the law.
Some critics say the very idea of jury nullification is misguided because a person’s conviction should rest on the law and the facts. Prosecutors obviously don’t like jury nullification. But jury nullification has often been used as a way of sending a message about unjust laws. For example when Congress passed the Fugitive Slave Clause, which compelled citizens of all states to assist law enforcement “with the apprehension of suspected runaway slaves,” abolitionists used the jury system to protest. Juries refused to convict people accused of helping people who escaped enslavement. Similarly, Prohibition laws were unpopular, so juries often refused to convict a person of possessing alcohol.
I can imagine grand juries refusing to indict women who cross state lines for an abortion, or petit juries refusing to convict a woman who had a “questionable” miscarriage. Thus grand juries (and petit juries) can serve as grounds for citizen protests.
Jury nullification works because jurors are protected regardless of their verdicts, and because a jury’s assessment cannot be overturned on appeal. Only legal errors in the trial can be appealed.
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