by Fernando Bracaccini
This month may have been decisive for the exercise of freedom of speech, protest, and assembly in the United States. A criminal trial against anti-Trump J-20 protesters took place earlier this month, requiring jurors to assess the proper meaning of civil liberties in order to decide the case. The jury verdict may well be decisive for the government’s attitudes towards protests in the future.
The J-20 protests case
In January 20, 2017, massive demonstrations took place throughout the United States on the occasion of Donald Trump’s presidential inauguration. According to reporters, almost half a million persons marched under Anti-Trump mottos in Washington D.C. that day. The police had established security checkpoints at various points around the city. Reporters indicate that a small group of individuals destroyed public and private property and hurled objects at the police. In response to those isolated events, the Metropolitan Police Department blocked off a large perimeter encircling thousands of protesters, kept them trapped in that area, and used force against them. Using non-lethal but very invasive weapons like tear gas, water cannons, and explosive devices known as “sting grenades,” the police arrested a total of 234 persons—including journalists and medics—under charges of rioting, destruction of property, and injuring six police officers. While some defendants were charged with having direct participation in the incidents, many were charged with conspiracy because they marched while felonies were being committed by others.
From the initial group of defendants, twenty pleaded guilty of lesser charges and another twenty had their charges dropped before the first trial took place last December. Seven J-20 protesters faced charges in that trial; all were acquitted by the jury. After this defeat, the Office of the Attorney General dropped charges against 129 of the remaining 188 accused protesters. According to the A.G. Office, prosecutorial efforts will focus on the 59 demonstrators who allegedly are “most responsible for the destruction and violence” that took place during the protests. Nonetheless, it is still unclear what prosecutors mean by “most responsible,” and they could still be charging demonstrators who did not directly create the disturbance, which may impinge on their right to protest.
The 59 accused demonstrators faced trial earlier this month. The A.G. Office claimed to be confident that the evidence is sufficient to convict them (though most were acquitted). However, strong objections to the charges were presented by the defendants and civil society organizations, arguing violations of First Amendment rights. It has also been argued that the government’s reaction toward J-20 protesters is unprecedented, since similar protests have not been followed by such hostile prosecution.
The role of juries in protecting civil liberties
One of the core issues discussed in the June trial is the actual meaning and breadth of freedom of speech and assembly. In a case like this, defining the criminal liability of offenders necessarily requires assessing the extent of those constitutional liberties, since the charges are in strong tension with them. But, the question is, who will be in charge of making this assessment?
In response to…isolated events the Metropolitan Police Department blocked off a large perimeter encircling thousands of protesters, kept them trapped in that area, and used force against them.
There is a lively discussion among scholars and judges regarding this question since it invites further inquiry into the role and power of juries in criminal trials. In particular, a question arises as to whether jury nullification—the power of juries to acquit defendants when the evidence indicates they have committed a crime because they consider a conviction unfair or unconstitutional—is itself constitutional. In these cases, a clash arises between the solution indicated by the law and the judgement of the jury regarding how the case ought to be decided.
Courts have offered different and contradictory answers to this question. For example, the Supreme Court of New Jersey in “State v. Ragland,” opined that allowing juries to nullify legislation is inconsistent with democracy, since allowing twelve jurors to evaluate the merits of the law contradicts the idea that we should be governed “by the rule of law and not of men.” The Court also argued that jury nullification implies that the law will not be applied in a case, which contradicts the principle of equal protection under the law. In contrast, the United States Court of Appeals for the District of Columbia circuit ruled in “United States v. Dougherty” that the power of the jury to acquit in disregard of the evidence is a practice anchored in the common law. Moreover, the Court considered that juries functioned as mechanisms for the protection of the people, a role that was unfit for judges who were removable and appointed by the king. There is also a diversity of opinions among scholars regarding this issue: those who oppose jury nullification contend that it is undemocratic, while others support it as a mechanism for the protection of minorities, and to resist arbitrary prosecutions.
The regulation of juries in the Constitution
There are strong constitutional arguments supporting the power of juries to acquit against the evidence when convicting a defendant would entail violating constitutional rights. This power has been reserved to the juries in order to protect the liberties of the people.
As Alexis de Tocqueville noted in his visits to the United States in the nineteenth century, juries are not merely judicial institutions, but also political ones: they are meant to embody ideals of self-government, federalism, and civic virtue. The jury is so rooted in U.S. legal tradition that deprivation of trial by jury to the people of the thirteen colonies was one of the reasons given in the Declaration of Independence for the separation from Great Britain. Juries were introduced in the Constitution, and later in the Bill of Rights, as devices for the protection of the people from judicial misbehavior, to limit unfair prosecutions, and to allow local communities to resist attempts at oppression by the federal government. The framers were well aware of the risks of political prosecutions and of the abilities of juries to constrain them, since they were familiar with the eighteenth-century Zenger trial, in which a jury acquitted a journalist prosecuted for libel because of his criticisms of the colonial governor of New York.
The criminal trial jury—also known as a petit jury—is expressly introduced in Article III, Section 2 of the Constitution, as well as in the Sixth Amendment. Both clauses affirm that criminal cases should be tried by a jury of the local community, but neither clause distinguishes nor limits the kind of judgments, factual or normative, with which jurors can engage. The framers could have made such a distinction, but chose not to. They made that distinction elsewhere, for example, in the Seventh Amendment, which emphasizes civil juries to judgments of facts, and in the Judiciary Act of 1789 passed by the First Congress. One wonders, then, why the framers refrained from making such a distinction for criminal petit juries.
A plausible explanation is that they remained silent because they intended to assign juries the power to judge both facts and norms. This seems wise, since declaring a person guilty or not guilty of a crime requires engaging in both factual and normative analysis. A typical example of the necessity of engaging in normative analysis in order to make a verdict in a criminal case are self-defense cases. In such cases jurors are required to interpret the meaning of the legal standard of reasonableness to evaluate whether a defendant has reasonably believed that she was the object of a threat that allowed a defensive action. Similarly, professor of law Akhil R. Amar argues that in cases of police abuses, the idea underlying a jury trial is that the members of the local community can establish the standards of police behavior they deem adequate for their communities. Jurors are thus not only allowed to interpret the law, but are required to do so.
The power of juries to assess the law implies a power to judge the constitutionality of criminal legislation. The Constitution does not force jurors to reproduce injustices, nor to tolerate the subjugation of the civil and political rights that constitutional texts aim to protect. On the contrary, it equips jurors with the power to acquit defendants when convicting them would be unconstitutional, thereby preventing government abuses directed toward citizens. This conclusion is consistent with the text of the Constitution and with the role assigned to juries at the moment the Constitution and the Bill of Rights were created.
This conclusion should not alarm the reader: the jury is not the only institution entitled to free someone who has committed a crime. The Constitution gives the president the power to pardon convicted felons, and allows Congress to acquit impeached officials even when they commit an offense. Moreover, prosecutors and police are entitled to refrain from charging culpable wrongdoers at their discretion. For their part, juries embody the collective reasoning of twelve women and men who represent the plurality of the community. This incentivizes impartiality and rational deliberation prior to their decision, which makes them—generally speaking—up to the difficult task assigned by the Constitution. These are good reasons to think juries are suitable for the job.
The Constitution does not force jurors to reproduce injustices, nor to tolerate the subjugation of the civil and political rights that constitutional texts aim to protect.
Of course, juries should exercise this power in a reasonable and cautious way. That is what is expected of a body that has been trusted with the power of deciding whether a person is guilty or not guilty of a crime. But the same reasonableness and caution, however, is expected from the president and the Senate, and from prosecutors and the police. There are no strong reasons to think that juries are less likely to comply with their duty in a responsible way. Rather, the collective design of juries operates as an incentive for jurors to execute the task with prudence.
The role of the jury in the J-20 trial
Last December, juries decided that six J-20 protesters should not be held criminally liable for their acts. It is unclear whether that was because there was no evidence that proved the charges, if they considered the acts of the defendants shielded by the Constitution, or both. In any case, the trial presented a new opportunity for a jury to assess the proper balance between constitutional rights and the criminal charges presented in this case.
The J-20 trial jurors faced questions regarding facts and norms. Setting aside matters of evidence, jurors had to evaluate (i) whether the acts of the protesters were under the protection of freedom of expression and association, and (ii) whether the prosecution is or is not politically biased. If they find that defendants are protected by the First Amendment, or that they are being prosecuted because of their political thoughts, jurors should acquit the accused.
Jurors are not only allowed to interpret the law, but are required to do so.
A critical issue to be decided by the jury is how far the conspiracy offense can be extended. What is the proper meaning of conspiring to riot or destroy property in the context of a public demonstration? How far can conspiracy charges go? In their analysis, jurors are required to evaluate the particular circumstances of the case in light of the right to freedom of expression, protest, and assembly.
That is what the Constitution demands: a jury of twelve members of the community deciding fundamental questions for democracy in the United States. There are good reasons to believe that the task is in good hands.
Fernando Bracaccini is a JSD (Juridical Science Doctor) candidate at Yale Law School, where he recently pursued an LLM (Master of Laws degree) as a Fulbright-MEDN fellow. Fernando’s research agenda includes the intersections of criminal law and political theory. His doctoral dissertation concerns the impact of the theory of deliberative democracy on the permissibility of State punishment under a retributive rationale. He also studies the impact of democratic theory in the design of criminal justice institutions. Fernando was born in Buenos Aires, Argentina, where he obtained his law degree at University of Buenos Aires (UBA). Before moving to the US, he taught courses related to legal theory, criminal law and constitutional law in UBA and University of Palermo. He also clerked in criminal courts, worked in legislative institutions, and in a civil society organization. He can be contacted here, and followed in twitter at @ferbracaccini.
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