Ferner jury didn't know it could acquit

7/20/2006

OF THIS there can be no doubt: Mike Ferner believes passionately that America's war in Iraq is morally wrong. Disagree if you wish with his tactics for demonstrating his displeasure; defacing public property is not something we defend or recommend. But give the man his due: he feels as strongly about war - he hates it - as he did when he served as a Navy corpsman in Vietnam more than three decades ago.

He believes it enough to have engaged in a destructive act of vandalism that yesterday produced the predictable result: conviction on two low-level felony counts by a jury.

Whether it was a jury of his peers we do not know. We don't know because the jury was not advised of an enduring principle in jurisprudence known as jury nullification.

The principle is as simple as it is important. It holds that a jury, when rendering a verdict, has the right to disregard the law in the interest of justice if it believes the law is unjust. It has been utilized as far back in our history as 1735 in the famous John Peter Zenger trial, which helped establish the concept of freedom of the press.

Much more recently, we can point to a pair of contemporary cases, each notorious in its own right. Many legal experts believe that the jury in the O.J. Simpson murder case a decade ago applied the principle and found Simpson not guilty, despite a heavy preponderance of evidence, because of other issues, including racism in the Los Angeles Police Department.

Perhaps a better example would be the first five trials of Jack Kevorkian. Though his involvement in assisted suicides was not in doubt, juries refused to convict him because he had merely helped others to take their own lives. Only when he became proactive and injected a critically ill individual - even videotaping the act for television - did a jury convict him of murder.

Kary Moss, a prominent constitutional lawyer in Michigan and executive director of the Michigan chapter of the American Civil Liberties Union, agrees that juries can refuse to apply a law they feel is unjust, though few get the chance. Ms. Moss believes the concept could have applicability in a graffiti case because some courts have found over the years that such expression, even on public buildings and infrastructure, is the only way to express political dissent.

The problem is that the courts, and judges, generally do not explain to juries their rights in this regard. In fact, respected Toledo attorney Richard Kerger says that judges don't charge their juries on the point and that the legal principle is seldom recognized. "The jury's ability to deviate from the law is rarely explained," he points out.

It's little wonder that the Ferner jury voted so swiftly to convict. The evidence was clear.

But would some jurors have voted differently had they known they had the right to acquit based on the strength of one man's commitment to a worthy cause?

Would jurors have overlooked his defacement of public property given his nobility of purpose in courageously protesting a morally wrong and undeclared war?

Instead, Ferner is looking at jail time of up to one year on each of two counts and fines up to $7,500. The prospect of incarceration probably doesn't bother him. He has shown a willingness to starve himself, sit in, and even travel to Iraq to show the depth of his commitment.

Is society better off because Ferner's jury didn't know it didn't have to convict him? The clear answer is no. I wish the jury had been advised of its power and made a statement of its own.

Thomas Walton is Editor and Vice President of The Blade.