It started out as a case of mistaken identity, and concluded with four lives ruined and a legal morass. As first reported in New Times of Phoenix, Arizona, U.S. marshals David Dains and Garry Grotewald were hunting for a 69-year-old man named Mickey Michael on April 7, 1988. The marshals turned up at the Phoenix residence of Bill and Virginia Span, aged 74 and 72, looking for Michael. The Spans had a son of that name, though he was only 39. When the fragile old man asked to see a search warrant, Grotewald, a burly 220-pounder, shoved him against a wall. Meanwhile, Dains tore the house apart. Span, left weeping on the kitchen floor, suffered contusions and other minor injuries. He died two months later.
A letter from another U.S. marshal to the prosecutor in the case pointed out that both men were known for starting fights like this one. The judge refused to allow the letter to be used as evidence for the Spans, and he instructed the jury: “Federal officers engaged in good faith and . . . performance of their duties may not be forcibly resisted, even if the resister turns out to be correct that the resisted actions should not, in fact, have been taken. The statute requires him to submit peaceably and seek legal redress thereafter.” (The Spans were right: the marshals wanted a different Mickey Michael.)
Originally juries were expected to judge the law itself as well as the defendant. Someone who was unquestionably guilty of a bad or unjust law might walk, thanks to a jury that voted their conscience. In 1670, for example, William Penn broke the law of England by preaching a sermon based on Quaker principles. His jury refused to find him guilty, even after being held as prisoners themselves, without anything to eat or drink, without anything resembling a lavatory. Four of the most obdurate were locked up for over two months. But they enjoyed that rarest and most satisfactory of results: vindication, in the form of an acknowledgment by Britain’s highest court that the government can’t punish jurors just because they turn in an “unsatisfactory” verdict. Those long-suffering jurors established, for English common law, the basic principle of jury nullification: “He may be guilty, but he’s guilty of breaking a lousy law–and we’re not going to convict him.”
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This principle arrived in the American colonies with British immigrants, and shortly before the outbreak of the American Revolution Alexander Hamilton got John Peter Zenger, who was charged with sedition, off the hook by arguing that the jury should let their collective conscience be their guide. Later John Jay, the Supreme Court’s first chief justice, wrote in Georgia v. Brailsford (1794), “The jury has a right to judge both the law as well as the fact in controversy.”
For more than six hundred years–that is, since Magna Carta, in 1215, there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws. –Lysander Spooner, 1852
According to Ken Prazak, FIJA’s Illinois state coordinator, the Fully Informed Jury Association was the brainchild of a group of libertarians from western states, but it quickly attracted a varied following of constitutionalists, tax resisters, hemp-legalization activists, populists, gun-rights activists, antilawyer groups, black groups (including chapters of CORE and the NAACP), and “a lot of people that have just had a very bad experience with the judicial system.”
