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National View: Jurors can be heroes, too; follow consciences rather than law

Felony criminal mischief? Guilty. Felony conspiracy to commit criminal mischief? Guilty. Criminal trespass? Guilty. Several of the jurors dropped their heads and wept.

Kathleen Dean MooreThe defendant, Michael Foster, stood calmly. Foster is a climate activist and the father of two children who, last year, cut a lock and turned an emergency shut-off valve on the Keystone 1 pipeline to stop temporarily its flow of Canadian tar-sands oil. He was calling attention to the irreparable harm fossil fuels cause to the life-supporting systems of the planet.

For that he faced a possible 21 years in jail.

It didn't have to be this way. The jurors could have followed their consciences rather than the law. The practice is called jury nullification, when a jury fails to convict because at least one member believes a conviction would be unjust. It's a longstanding, though controversial, legal practice, seldom revealed to jurors.

So pass it on. When a jury member believes the letter of the law has not kept pace with the moral imperatives of the time or that the law's application to a particular set of circumstances would result in a cruel or unjust punishment, the juror has the legal right — and perhaps the moral obligation — to ignore the law in order to achieve a just outcome.

Jury nullification has a long and distinguished history. In 1768, John Adams defended John Hancock against smuggling charges, saying of each juror, "It is not only his right but his duty ... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

The Founders saw the jury as the last bulwark against tyranny. And so it proved. Prior to the Civil War, many northern juries refused to convict citizens who protected fleeing slaves in violation of the Fugitive Slave Act. During Prohibition, an estimated 60 percent of juries acquitted people charged with possessing alcohol. With acquittals, jurors signaled opposition to laws they didn't believe in.

Now, jury nullification has taken on a renewed importance. In a desperate and necessary effort to stop climate change, a growing number of people are turning to civil disobedience or direct action, as in Michael Foster's case. The government is cracking down harshly. In January, 84 U.S. representatives asked Attorney General Jeff Sessions to determine whether domestic terrorism laws cover activists who shut down pipelines.

The stage is set, creating the conditions when jury nullification most often occurs:

• A particular set of government laws and practices is widely seen as excessively harsh, unjust, or even corrupt.

• Conscience-driven people are calling out injustice by breaking the laws.

• The government is doubling down in response, charging (and often overcharging) the lawbreakers with serious offenses that carry long prison terms.

• And 12 jurors are left to decide what is just according to the law and the facts — and according to the dictates of their consciences.

This is the drama unfolding in courts in Minnesota, North Dakota, and elsewhere. Climate-change activists — terrified for their children's futures, determined to protect them, and stymied by the collusion of government agencies and Big Oil — reach the limits of lawful action and break the law. They act in opposition to laws that often are written by the industry itself and enacted by legislators heavily funded by the industry.

By challenging the fossil-fuel hegemony with courage and conscience, activists like Michael Foster will be judged by future generations as the heroes of our time. They are paying a heavy price.

But jurors can be heroes, too. They have the extraordinary power to reach a decision they believe is right.

Kathleen Dean Moore is a distinguished professor of philosophy emerita at Oregon State University and the author of “Pardons: Justice, Mercy, and the Public Interest.” She wrote this exclusively for the News Tribune.

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