Jury Nullification – People Stripped of Their Power
|June 28, 2006||Posted by Dave S. under Constitution, Courts, Laws, Legal|
This is a follow on to my earlier article urging people to write their congress persons in support of H.R. 2679, Public Expression of Religion Act of 2005.
What I want to talk about here is how the people have been stripped of their right to have a jury judge the law – commonly called jury nullification – and have a judge’s opinion substituted for that of a jury of peers as intended by the constitution.
Jury nullification is a jury’s refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented. Instead, a jury bases its verdict on other grounds.
The people have been stripped of this right to be judged by a jury in federal constitutional rights cases by the prevalent practice of seeking only injuctive relief (technically less than $20 in damages) and using exhorbitant attorney fees as a proxy for punitive damages. Punitive damages are explicitely intended to have a chilling effect on the cause of action. Legal fees are not supposed to be punitive damages but simply reimbursing of legitimate expenses to the prevailing party. But when legal fees hit the seven figure ballpark as it did in Kitzmiller v. Dover School Board they cease being a legitimate expense and become a proxy for punitive damages.
The constitution preserves the right of a defendant to request a jury trial when damages (actual and punitive) exceed $20. That’s because in all but the most trivial of cases the people have wanted to have the right to be judged not by an elite federal justice but by a jury of their peers from their local community.
If you object to judicial activism this is the way to fix a lot of the abuse of it. Simply treat legal fees the same as damages in determining whether the right to a trial by jury is preserved. I’m supremely confident that had there been a jury trial in Dover even had the complainant prevailed, the jury would not have allowed a million dollar punishment against the school board. The ACLU would have had to live up to its specious billing as a non-profit group and actually do the work pro-bono.