Adam Serwer writes:

According to the law, Robert Morris was a criminal. The second Black lawyer in the history of the United States, Morris was among a group of abolitionists who, in 1851, stormed a Boston courtroom to free Shadrach Minkins, an escaped slave from Virginia. Minkins had been detained under the Fugitive Slave Act and was to be returned to his master.

Morris filed a writ of habeas corpus on Minkins’s behalf, but the effort failed because Minkins was property in the eyes of the law. After being rescued, Minkins escaped to Canada, where the arms of man stealers and flesh traders could not reach him. Morris was left to face the consequences and was indicted in federal court; his fate was left to a jury.

The law was clear, and under it, Morris was likely guilty—yet the jury did not convict. In modern parlance, some of the jurors “nullified” the case: They decided that a tyrannical law was not worth enforcing. And they were right.

Jury nullification is an old weapon against tyranny. America’s founding generation saw juries as charged with determining not just fact but also law—that is, jurors could decide to acquit the accused, even those who seemed guilty of what they were charged with, if jurors believed that the law itself was unjust. An 1895 Supreme Court case, U.S. v. Sparf, involving a murder at sea, officially stripped juries of the right to decide the law, ruling that they could consider only the facts of the case and how those facts relate to the law. Juries can still nullify, however, because judges have no authority to review a verdict of “not guilty.”

Jury nullification has long had a bad reputation because of the crime it was frequently used to cover up: lynching. For generations in the South, all-white juries nullified accusations of murder involving lynchings, many of which were carried out with the participation of a town’s politicians, law enforcement, and leading businessmen. Unable or unwilling to point to the culprits, coroners would describe the murders with the haunting phrase “death at the hands of persons unknown.” Whether out of fear for their own safety or in solidarity with the murderers, jurors who refused to indict ensured that extrajudicial killings in the South were rarely punished. A tool meant to prevent tyranny was instead used to enforce it.

Yet as the Morris case shows, the tool itself is not inherently evil. Jury nullification is neutral, its morality defined by the cause for which it is employed. Now that President Donald Trump is perverting the Justice Department into an instrument of political persecution, jury nullification may be one of the only mechanisms that everyday Americans have to protect the rule of law. [Continue reading…]