Jury Nullification-The Law You Won't Be Told

Some years back, I lived in Kansas City, KS, when I was called for jury duty. There were two cases for which jury selection was being held, both criminal. One was a case of property crime or assault, I forget which. The other was a case of criminal defamation.

Criminal defamation or criminal libel is an old common law offence which is distinguished from defamatory libel, which most people think of when they hear the term 'libel'. Defamatory libel is a civil matter, with possible monetary damages.  Criminal defamation, on the other hand, under Kansas law, is punishable by up to one year in the County Jail, with an optional, additional fine (KSA, 21-4004).

Criminal defamation has been abolished in most jurisdictions as impinging on freedom of speech. The thinking is that the civil procedure is effective if libel or defamation has been committed. Not so in Kansas.

This particular case was egregious in that the publisher and the editor of a newspaper had been charged. Here is an excerpt of an article from the legal website, FindLaw, written by John Dean, Counsel to President Richard M. Nixon.

Is criminal defamation a viable concept for the Twenty-first Century, or an ancient relic that should be scrapped? That is the question raised by the case of Kansas v.Carson - and a question the U.S. Supreme Court will probably ultimately have to resolve.

In the Kansas case, David W. Carson (age 85) and Edward H. Powers (age 61) were prosecuted for, convicted of, and sentenced for criminal defamation. Their crime? Using false words as weapons against the mayor, by publishing their political feelings in a tabloid called The New Observer, of which Carson is the publisher, and Powers the editor.

The entire article is informative of just how deep the corruption was in Kansas City, KS and Wyandotte County at the time. The District Attorney who filed the charges was tainted and recused himself after filing the charges. A judge had to be imported from another county to try the case, since the mayor's husband was a judge in Wyandotte County, thus creating doubt as to the impartiality of his colleagues. That judge immediately recused all of the staff attorneys in the District Attorney's office for possible conflict of interest.

After trial, the defendants were convicted, each sentenced to a $700 fine and one year of unsupervised probation.

So what does this have to do with my call to jury duty? Well, the lots fell such that I was selected for the pool on the property or assault case. In the voir dire, I was asked if I would have any problem believing the testimony of a police officer. I answered yes, because years before, I had been the victim of an armed robbery. In that case, the police tried desperately to get me to identify a specific person as the thief, showing me his mugshot over and over, and trying to subtly hint that he was obviously the perpetrator. The problem was that the person they wanted me to identify was my roommate! Yes, he was entirely capable of armed robbery, but he was not the person who robbed me! Based on this, the judge dismissed me with instructions to go to the Clerk of the Court to be placed in a pool for a civil case. Symptomatic of the County at the time, there were no civil cases on the docket!

At any rate, I was then dismissed, missing my chance to become a footnote in legal textbooks in years to come. Why, you ask, would I have become a footnote? Because of the law discussed in the video below. Jury nullification is a concept where members of a trial jury can vote a defendant not guilty if  they do not support a government's law, do not believe it is constitutional or humane, or do not support a possible punishment for breaking a government's law. Since I firmly believe that the criminal defamation law on the Kansas Statute books is unconstitutional under the First Amendment to the United States Constitution, tho' not necessarily under Section Eleven of the Bill of Rights in the Constitution of the State of Kansas, I would have argued strenuously for acquittal because the law is an evil law, detrimental to a free press.

For those who would like to learn more about jury nullification, there are over a thousand articles on the subject at FindLaw.