The Bundy occupation in Oregon and jury nullification

Written by Ethan Paul, undergraduate student at the Pennsylvania State University

This post is about the jury that exonerated Ammon and Ryan Bundy, along with their compatriots, after they had occupied a federal wildlife refuge in Oregon. Before we go to Oregon, though, first a little history is in order.

A little-known power accorded to juries in the American judicial system is that of nullification. When a jury believes the evidence presented against a defendant in question shows, beyond a reasonable doubt, that that defendant is guilty of having broken the law, they are not statutorily obligated to find the defendant “guilty.” Indeed, if they believe the circumstances surrounding the selected application of the law, or the law in its entirety, does not align with their view or sense of justice, they can vote “not guilty,” thus effectively nullifying the law they were meant to apply.

Jury nullification, as an institutional mechanism available to jurors, dates back to our nation’s founding. The most famous historical example is probably the 1735 trial of John Peter Zenger: Zenger, publisher of the New York Weekly Journal, was charged with libel after the journal published harsh and accusatory criticism of the royal governor, William S. Cosby. Although the judge instructed the jury to judge Zenger based on whether or not they believed he had printed the stories, and they indeed did believe that Zenger did so, they nonetheless returned a verdict of “not guilty” after 10 minutes of deliberation, effectively nullifying the libel law.

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The New-York Weekly Journal, February 1973

However, nullification has gradually become less significant over time, and today most jurors are not even informed of its existence. In the 1895 Supreme Court case United States v. Sparf, the Court ruled by a margin of 7-2 that judges do not have to notify the jury of their nullification abilities. Indeed, in most jurisdictions, judges instruct the jury that they are to consider the facts of the case exclusively, rather than the merits of the law and its application. More recently, many courts have ruled that judges have the ability to remove jurors that have expressed their intention to nullify the ruling. Through all of these changes and legal precedents, jurors have maintained the ability to block the application of a law if doing so would violate its fundamental spirit and intention, given the facts and context of the case.

That brings us to the ruling made by an Oregon jury on Thursday, October 8th, in which they found Ammon and Ryan Bundy, along with five other co-defendants, all not guilty, to the surprise of nearly everyone involved. They had been charged with conspiring to impede federal officers and for possessing firearms in a federal facility, following their armed occupation of Oregon’s Malheur National Wildlife Refuge that lasted 41 days before the last of the occupiers was put into custody. Prosecutors, according to The Oregonian, thought that the facts of the case were quite simple:

The refuge occupiers took control of a wildlife refuge that wasn’t theirs. The heavily armed guards that manned the front gate and watchtower during the 41-day takeover, in an of itself, was “intimidating,” and prevented officers from the U.S. Fish and Wildlife Service and U.S. Bureau of Land Management from carrying out their work.

Indeed, the jury was provided with evidence clearly showing both that the occupiers vowed to fight federal agents if they attempted to enter the facility and that they were indeed brandishing firearms. The jury certainly comprehended this evidence, yet jurors still felt compelled to hand down a not-guilty verdict.

How to best reconcile this inconsistency? Some have argued that, regardless of legal foundation or interpretation, the ruling will set a dangerous precedent that will ultimately serve to empower and inspire the more than 1,000 radical anti-government groups that have arisen during Obama’s presidency to take similar, extreme actions if their demands are not met. Emboldened by the Trump presidency that begins in January, 2017, such occupations might even become more normalized by an anti-government Commander in Chief.

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Supporters of the occupation pray to hear the outcome of the trial

Yet others have argued that the prosecution erred in its choice to level a conspiracy charge, which requires the proof of intent; supposedly, they sought to do this because conspiracy charges carried the heaviest of all available penalties. That concern is more serious when viewing the jury’s decision as a potential case of nullification. Perhaps the jurors ignored mostly-overwhelming evidence to find the defendants not guilty. Perhaps they viewed the U.S. government as exercising too much control over the conscience of the individual. Perhaps they viewed the conspiracy charge as overreaching federal authority and jurisdiction.

To consider whether this could count as nullification, several prominent examples deserve mention. One is the 1996 acquittal of Dr. Jack Kevorkian, who was being charged with assisting in the suicides of two individuals; although the court required a guilty verdict merely find that the Dr. had “in some way assisted” in the suicide, and although “that he had done so was never seriously disputed,” the jurors nonetheless found him not-guilty. This was largely based on the premise that the Dr. was being charged according to the Michigan Supreme Court’s interpretation of Michigan “common law”, which many saw as a vehicle through which the government could overreach their authority by retroactively prosecuting individuals for certain actions.

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Dr. Jack Kevorkian on the cover of Time Magazine, 1996

Another is the case of the 1980’s sanctuary movement: 11 religious activists, including two priests, a minister, and a nun, were charged with providing illegal “sanctuary” to unregistered refugees from Latin America. Jury nullification would’ve provided for the best defense in such a case, as the jury would’ve been able to consult their conscience regarding the justness of this particular application of the refugee law; yet, they were not made aware of nullification, and thus had no defense and were subsequently prosecuted. Yet another occurred in the case of Vietnam draft resisters: as the war progressed, and public anger with the war garnered more and more momentum, defense attorneys began to lobby jurors with a jury nullification argument; indeed, juries were reluctant to prosecute young-men who did not want seemingly-innocent Vietnamese blood on their hands.

The Bundy family certainly took dangerous actions that broke a number of laws and put the lives of federal officials in danger. For this, they deserved to be prosecuted, at the very least to prevent the creation of a precedent which promotes and destigmatizes such action. Yet, the jury’s acquittal of all the defendants can also be seen as an attempt by Oregon residents to block the federal government from enforcing a law with penalties of the highest order.

For those who find the particular verdict worrisome, it could be noted that the same jury power can be exercised to check government authority in cases ranging from the War on Drugs to mass incarceration of African Americans more generally. The virtue of nullification is, in all such cases, in the eye of the beholder.

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