Wake up, New York! Did you pay attention to the Trump trials? Did you realize how your rights as a citizen have been abrogated by the New York legal system? Please read the post-trial Trump jury charge and watch the New York juror orientation video.
In past years, Chief Judge Judith Kaye’s orientation video depicted the 1735 John Peter Zenger case, which New York schoolkids learned about in pre-woke days. That video told jurors of our inalienable right to find a defendant not guilty if jurors thought the law in the case was immoral, wrong, wrongly applied, or just plain unjust. Jurors could nullify a judge’s jury instruction, which would otherwise give the jury no choice but to find the defendant guilty.
That Kaye video has been replaced by new videos and memos that discuss implicit bias. Why the change? Because jurors must follow orders and not think for themselves on pain of being called biased, a racist, or worse.
The “Jury Nullification Rule” and the Zenger case are summarized here:
Zenger was tried for seditious libel, and, under British law … truth was no defense to the charge. … Zenger’s lawyer, Andrew Hamilton, argued to the jury that Zenger should not be punished for true statements criticizing the government. In the end, the jury agreed with Hamilton — ignoring the existing rule under the English common law and refusing to convict Zenger. This was an early example of jury nullification, with the jurors refusing to convict a guilty defendant (in this case, Zenger) for violating laws that the jurors deemed unjust. The case … came to stand for a core principle … that true statements criticizing the government cannot be punished.
On November 5, 2024, the U.S. electorate acted like the Zenger jury and nullified President Trump’s political lawfare persecutions. Was the “implicit bias“ jury orientation video designed to deny jurors information about their Zenger nullification right? A January 23, 2025 N.Y. County Lawyers Association panel explored “Causes for Public’s Eroding Faith in NY Legal System.” No surprise that some panelists “weighed whether that lack of faith was elucidated by President Donald Trump’s criticism of the Manhattan trial court justice who handled his criminal trial.” Another panelist said “prosecutors’ ‘inexcusable’ lack of discretion in deciding to raid Trump’s home was partly to blame for the perceptions.” It seems that the panel ignored or was unaware of the N.Y. juror orientation video and the absence of the Zenger Nullification Rule.
The panelists also seemed to miss the November 5, 2024, verdict of the ultimate jury — the voters — who followed Zenger and nullified the “get Trump” lawfare spawned in N.Y. and D.C. The voters knew that if “it” could happen to President Trump, it could happen to them. The New York legal and judicial systems have been criticized, and many would say accurately.
Replacing the juror orientation video about the Zenger Jury Nullification Rule, which empowers the individual juror, with the “implicit bias” video illustrates how too many on the N.Y. County panel — and too many in the NYC legal community — view the NYC judicial system: as the embodiment of a Wilsonian woke left-wing DIE and social outcome philosophy that makes heroes out of criminals, illegal aliens, racists, and antisemites instead of unbiased common sense and competence- and merit-based constitutionally legal outcomes.
Those who have been summoned to jury duty know they are likely to be asked if they can or cannot follow the judge’s instructions. Those who paid attention to the Zenger video, and some lawyers called to jury duty, would know to raise their hand and to ask to approach the bench. Why? If a juror said out loud that the Zenger case allowed the juror to disregard the judge’s instructions, other jurors might repeat that in order to be excused. The juror faces a dilemma if the judge refuses to allow the juror to approach the bench to say this privately to the judge.
A 2023 Forbes article elaborated: “Although you cannot be held legally responsible for following a jury nullification strategy, talking about it with your fellow jurors may be enough to get you removed from the jury. Sometimes, even knowing about jury nullification is enough to keep you from being picked as a juror in the first place.” A University of Missouri–Kansas City 2001 article about the Zenger trial explains:
Jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding. … Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: “You have a right to take upon yourselves to judge [both the facts and law].” In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.
Zenger appears to have been overturned by the 1895 Sparf v. United States 5-4 decision. The question in 1895 was who decides what the law is — the judge or the jury with input from the judge. The dissent in the 1895 Sparf case said, “It is our deep and settled conviction … that the jury, upon the general issue of guilty or not guilty in a criminal case, have the right, as well as the power, to decide, according to their own judgment and consciences, all questions, whether of law or of fact, involved in that issue” (emphasis added).
As in Sparf, the Trump judge’s “instruction had the direct tendency and the actual effect of inducing the jury to return a verdict of guilty of the higher crime.” The Trump judge did not include anything in his charge about the jurors’ nullification right. N.Y. jurors are no longer shown the Zenger video, so, absent including Zenger in a jury charge, how would jurors know of their nullification right?
The Sparf dissent examined the historical roles of judges and juries and said that a 101-year-old 1794 Supreme Court case, Georgia v. Brailsford, “established, the right of the jury … to determine the law as well as the fact in controversy.” Many may agree with the 1895 Sparf dissent that “opinions expressed more than a generation after the adoption of the Constitution [as in Sparf] have far less weight than the almost unanimous voice of earlier and nearly contemporaneous judicial declarations and practical usage [as in the 1794 case].”
The Sparf dissent added that “a person accused of crime has a two-fold protection — in the court and the jury — against being unlawfully convicted. … [T]he court can never order the jury to convict, for no one can be found guilty but by the judgment of his peers. … [T]he court in this case went beyond this, and distinctly told the jury that if they found that a felonious homicide had been committed by the defendants, they could not properly convict them of manslaughter, which was equivalent to saying that if any crime was proved, it was murder. This instruction had the direct tendency and the actual effect of inducing the jury to return a verdict of guilty of the higher crime” (emphasis added).
If New York wants to survive as — or some would say again become — the legal capital of the world, serious changes must be made. Why not start with the N.Y. juror orientation video to instruct jurors about their inalienable Zenger nullification right, as well as to remind jurors not to be prejudiced in advance of hearing all the evidence? Lawyers must also be allowed to refer to the jurors’ nullification right and to argue if the facts in the case support nullification of a judge’s instruction.
Voters woke up in November 2024 and understood this. NYC judges and lawyers need to come down from Mt. Elite and rejoin their peers.
Stephen I. Siller is a Manhattan-based international business lawyer, instrument-rated pilot, open-water scuba diver, and accomplished glass artist. His views are personal and not those of any firm or other organization with which he is affiliated.
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