|An Oath for Jurors|
Whereas, no person of good moral conscience can agree to the commission of an injustice;
Judges who say to jurors that, "you will be required to follow and apply this law," regardless of whether it seems just or not, might be asked if they would exercise this rule against Harriet Tubman (1820-1913), who violated the federal Fugitive Slave Laws by participating in the Underground Railroad for escaped slaves, or against Rosa Parks (b.1913), who was arrested in 1955 for violating the segregation laws in Montgomery, Alabama, by refusing to move to the back of the bus when the bus driver told her to give up her seat to a white passenger. If a judge bites the bullet and says that, yes, he would have to instruct juries to convict these women because the law is the law, he might be told that such blind obedience was not accepted as a defense during the War Crimes Tribunal at Nuremberg, when many Nazis claimed that they were just "following orders." A judge who participates in injustices because he is "following orders" might be similarly called to account.
The late Justice William C. Goodloe (1919-1997) of the Washington State Supreme Court, an advocate of jury nullification, suggested that the following instruction be given by judges to all juries in criminal cases:
You are instructed that this being a criminal case you are the exclusive judges of the evidence, the credibility of the witnesses and the weight to be given to their testimony, and you have a right also to determine the law in the case. The court does not intend to express any opinion concerning the weight of the evidence, but it is the duty of the court to advise you as to the law, and it is your duty to consider the instructions of the court; yet in your decision upon the merits of the case you have a right to determine for yourselves the law as well as the facts by which your verdict shall be governed.
Justice Goodloe was one of the rare judges who voluntarily surrendered part of the power that has improperly accrued to him in the interest of justice and of the system of trial by jury as this was understood by the Founders of the nation.
I was called to jury duty in the Van Nuys Superior and Municipal Courts in November 1999. I had to tell two judges that I could undertake to follow no law or instructions that would result in an injustice, or could swear no oath that would require me to act in such a way. I was quickly excused from both juries, though a Superior Court Judge actually called a sidebar conference with the attorneys to discuss me, and even called me over to clarify my answer -- as though this sort of thing had never been heard of before. I certainly didn't hear any similar responses from other jurors, which is frightening. The judge also asked if I had studied law, which, of course, was besides the point, since judgments of justice are not based on knowledge of the law but on knowledge of right and wrong.