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Even though I may find the actions of the defendants reprehensible, if we sacrifice liberties to expedite social justice we will soon find ourselves in tyranny

Philadelphia: Jury Nullification and Natural Rights

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Posted by Damien on November 5, 2011 at 9:00 pm

In the film “Philadelphia,” Andrew Beckett was actively recruited by the Wyant and Wheeler law firm, one of the most prestigious law firms in Philadelphia. While employed for Wyant and Wheeler, Mr. Beckett contracts HIV and conceals his illness from his employers. Beckett showed great promise and was highly placed in the firm and was even placed at the head of a landmark copyright case whose outcome would have a major impact on the firm’s reputation. During the preparation for this important case, the formal complaint is lost with only minutes before the statute of limitations expires but is found “misplaced” in central filing. The firm used this as a reason to fire Mr. Beckett for incompetence. However, Mr. Beckett claims that his employer discovered that he had HIV, based on the appearance of Karposi’s Sarcoma lesions on his face. Based on this, Mr. Beckett sues the law firm in federal court for discrimination based on a handicap that did not prevent Mr. Beckett from performing the essential functions of his job with or without reasonable accommodation, which if true, would violate Title 42 U.S.C. § 12112. Mr. Beckett and his lawyer, Mr. Miller, used the Supreme Court case, School Board of Nassau County V. Arline (1987) as precedent that contagious diseases may be considered a handicap; however, employers may consider the contagious effects on others in determining the qualification of a person to perform essential functions by consulting the medical judgments of public health officials. The issue of this case is whether, in fact, Wyant and Wheeler law firm fired Andrew Beckett for incompetence or if they fired him due to their knowledge or belief that he had HIV. If the latter is found to be true, Wyant and Wheeler would need to prove that the judgments of public health officials show that Mr. Beckett is no longer qualified to perform essential functions of his job with or without reasonable accommodations.

There are two ways that I could approach this case. The more conventional approach of determining whether existing statutes and laws were adhered to would lead me to agree with the jury in the film Philadelphia, so long as the events took place after the passage of the American with Disabilities Act (ADA) in 1990. The defendants make no claim that Mr. Beckett was no longer qualified to perform the essential functions of his job at the time he was fired and the evidence suggests that their claims of incompetence are either grossly exaggerated or simply false. The events leading up to the firing shows that the firm had the highest confidence in Mr. Beckett and therefore must have had ulterior motives for his dismissal. The reason I specify the events of the case needed to place after to 1990 is because the ADA was not in existence prior to 1990 and its predecessor the Rehabilitation Act of 1973, used in the School Board of Nassau County V. Arline (1987) case, only applied to programs that received federal assistance and not to private companies. So again, if Mr. Beckett was fired after the passage of ADA and I strictly followed the letter of the law, then I would rule in favor of Mr. Beckett in agreement with the jurors in the film.

The second approach would lead me to disagree with the jury: jury nullification due to the statutory law usurping natural rights. In an essay titled, “The Rise and Fall of Jury Nullification,” James Ostrowski brings forth evidence, by citing the founding father both before and after the adoption of the Constitution and other legal scholars, that jury nullification was meant to be a part of our justice system. In other words, the jury not only judges the facts of case but also the law the case is based on. He points to John Adams, the Second President of the United States and also a chief justice of Massachusetts, who wrote in 1771:

Juries are taken…from the mass of the people, and no man can be condemned of life or limb or property or reputation without the concurrence of the voice of the people…Whenever a general verdict is found, it assuredly determines both the fact and the law…Should the melancholy case arise that the judges should give their opinions to the jury against…fundamental principles, is a juror obligated to give his verdict generally, according to this direction, or even to find the fact specially, and submit the law to the court? Every man, of any feeling of conscience, will answer, “No.” It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.

Thomas Jefferson expresses similar sentiments in his “Notes on the State of Virginia,” written between 1781 and 1782:

…if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case, of a combination of law and fact, it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their [jurors] discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertakes to decide both law and fact.

Ostrowski highlights similar statements by Alexander Hamilton, prominent lawyer and founding father, and the first Chief Justice John Jay. However, somewhere along the way modern jurisprudence has been hostile towards the idea of jury nullification and the federal court system has made several rulings against the practice. These rulings have prevented lawyers from advocating jury nullification, allowed judges to give instructions that condemn or claim to ban the practice of jury nullification, and put forth measures to dismiss jurors who intend to use jury nullification if it can be discovered in initial interviews. However, due to the way the jury system is set up, jury nullification can never be completely prohibited and may still be used by jurors informed on the practice.

The reason that I would advocate jury nullification in this case is due to the fact that that every individual has a right to self-ownership and as an extension a right to the fruits of their labor, private property. To compel a person to commit positive acts, such as giving their private property to another person in the form of wages for employment, against their will would be a violation of this right no matter how “ethical” or “necessary” this compulsion may seem. In this case, the “right” of the plaintiff to the defendants private property through continued employment against the will of the employer is a “spurious” right while the defendants right to dispense or utilize his private property according to his own will is a “genuine” right. Murray Rothbard, in “Ethics of Liberty,” explains it this way:

But one vital distinction between a genuine and spurious “right” is that the former requires no positive action by anyone except noninterference. Hence, a right to person and property is not dependent on time, space, of the number or wealth of other people in the society….On the other hand, an asserted right “to a living wage” is a spurious one, since fulfilling it requires positive action on the part of other people, as well as the existence of enough people with a high enough wealth or income to satisfy such a claim. Hence such a “right” cannot be independent of time, place, or the number or condition of other persons in society.

Due to the longstanding precedent, from English Common Law through the founding the United States, for jury nullification and the belief that the American Disability Act, no matter how noble its intentions, violates the fundamental rights of self-ownership and private property, I would advocate for jury nullification. Even though I may find the actions of the defendants reprehensible, if we sacrifice liberties to expedite social justice we will soon find ourselves in tyranny, whether the tyrant be a king or the majority. There are means to protect the victims of such actions consistent with natural rights, such as contracts or ostracization of “unethical” actors from a community; but we cannot compel someone to bestow their property to another individual against their will and still be true to natural rights and liberties.

Demme, Jonathan and Nyswaner, Ron. (1993). Philadelphia. Los Angeles, CA: Tristar Pictures.

Ostrowski, James. (Spring 2001). Journal of Libertarian Studies Vol. 15, no. 2. The Rise and Fall of Jury Nullification. Auburn, AL: Ludwig von Mises Institute.

Rothbard, Murray. (1998). Ethics of Liberty. New York: New York University Press.

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