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In a London court in 1670, a judge, livid with the jury, locked them away for two days without food, water, or even a chamber pot. The jury’s offense? Defying the judge’s direction to convict William Penn – the future founder of Pennsylvania – and a fellow Quaker, charged with preaching sedition in the city. The foreman, Edward Bushell, would not yield; when the matter reached the chief justice of England, he ruled that no juror could be punished for their refusal to convict, entitling a jury to decide according to its conscience, whatever the bench directed. A plaque honors Bushell just inside the entrance to the Old Bailey Courthouse in central London so that jurors on their way inside may contemplate the man who secured their right to acquit.
This legal principle has held for three and a half centuries, and in my 50 years of practice I have witnessed many juries bring back “sympathy verdicts” (in other words, acquittals because they think a defendant has been oppressively or unfairly prosecuted). This is the way the legal system can show mercy to those who do not, in the jury’s opinion, deserve punishment. This right – “jury nullification” or “jury equity” – is at the heart of jury trial in Britain and has spread to Canada, the U.S. (remember that jury that acquitted John Peter Zenger), and wherever trial by jury is permitted. In authoritarian countries, trials by judges appointed by the state are generally biased against the defense (in Russia and China, the conviction rate is 99%).
That right sits, unacknowledged, at the center of the case of the Elbit Four, four young people sentenced six days ago to over 25 years combined in British prisons for a direct action against the largest Israeli arms supplier, Elbit Systems. The Elbit Four – Leona, a nursery teacher; Sam and Fatema, students; and Charlotte, a domestic-abuse caseworker – are the first direct-action activists to be sentenced as “terrorists.” The suffragettes who used violent political protest to obtain the vote for women were never described as such. To understand what was done to the Elbit Four is to understand what is quietly being done to Bushell’s legacy and what is done to the rights of freedom of speech and assembly by this pretense that peaceful political protesters are, in fact, terrorists.
