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Jury Nullification: More violent insurrections are expected if Trump is acquitted for his acts of sedition

As the U.S. Senate speeds toward an obvious Republican led acquittal of former President Donald Trump, Americans must be careful what they ask for. A not guilty verdict which is all but assured as only six Republican Senators even voted to rule the impeachment trial constitutional will lead to a new wave of violence by those who stormed the Capitol.

Back in 1870 and 1871 U.S. Senators grappled with a menacing anti-government, white supremacist threat. The first iteration of the Ku Klux Klan had been founded by former Confederate veterans in Pulaski, Tennessee and swiftly went about the business of terrorizing the formerly enslaved Black population throughout the South and any political leaders who supported them.

America’s first organized terrorist group was intent on controlling the political system in the south so that they would have free reign to maim and murder Black people. Flash forward to 2021 and a menacing force of similar minded people are lurking in the shadows.

There is one huge difference. The U.S. Senate of 1870 and 1871 passed strong laws to put in end to the threat and literally outlawed the Ku Klux Klan. This 2021 Senate has no such courage because a majority of Republican members are showing their support for the Capitol rioters by refusing to hold the former president accountable for what they endured on January 6, 2021.

I have watched the harrowing videos released during the impeachment trial and never imagined the violence was as bad as it was. Seeing Vice President Pence and his family running for their lives and Capitol police officers brutalized by the terroristic mob inside the halls of Congress is cringeworthy. Except if you are a Republican Senator who supports acquittal.

What a shameful day January 6 was. It will pale in comparison to the day when they acquit Trump. They will literally send a message to the people who stormed the Capitol that their ringleader, the president himself, is above the law.

Looking back at the Senate in the 19th century, a time when 4 million Black people were attempting to pick up and begin new lives as free people will somehow be progressive compared to where we are as a nation now.

The Enforcement Acts of 1870 and 1871 were critical pieces of legislation which put an end for decades to the terrorists in hoods. The documentary The Rise and Fall of Jim Crow provides info on what the laws did.

“Between 1870 and 1871 Congress passed the Enforcement Acts — criminal codes that protected blacks’ right to vote, hold office, serve on juries, and receive equal protection of laws. If the states failed to act, the laws allowed the federal government to intervene. The target of the acts was the Ku Klux Klan, whose members were murdering many blacks and some whites because they voted, held office, or were involved with schools.”

It was a bold set of acts that sent a clear message that the type of white supremacist violence of the time would not be tolerated. Instead of a Republican led Senate in the 1870s setting an example for the 44 members of Congress who will prevent the former president from being found guilty we will see the exact opposite.

As people around the country go on with their daily lives an injustice with no precedent will happen soon on Capitol Hill. A sitting president who incited a mob which attacked the U.S. Congress will get a free pass for his seditious acts.

There is a principal in law called jury nullification. It is widely condemned by attorneys but has been in play for most of the past century and a half. Juries have time and time again nullified the evidence of someone’s guilty or innocence and freed people who should have been convicted and conversely sent men and women to prison despite obvious evidence of their innocence.

A classic example of this principle playing out was the acquittal in Mississippi of the men who kidnapped and murdered 14-year-old Emmett Till on August 28, 1955. Their acquittal was a foregone conclusion the day were charged. Everyone knew that an all-white, all-male jury of their peers (literally) would never in a million years hold them accountable regardless of the evidence presented to them.

This was what many referred to as Negro Justice. The principal was in play across the country when Blacks were on trial, if they even made it that far by escaping lynch mobs. Likewise, those handful of Whites who had brutalized Blacks knew their “peers” would let them off the hook.

The closing statements in the trial of Roy Bryant and J.W. Milam in a Sumter, Mississippi court tells you everything you need to know. The prosecutor wanted a conviction and the defense demanded an acquittal. We all knew who had more sway in that segregated courtroom.

“They murdered that boy, and to hide their dastardly act, they tied barbed wire to his neck and to a heavy gin fan and dumped him into the river for the turtles and the fish.” – Gerald Chatham, Prosecutor

“Your ancestors will turn over in their grave, and I’m sure every last Anglo-Saxon one of you has the courage to free these men.” – Sidney Carlton, Defense Attorney

According to Hugh Whitaker, Sheriff-elect Dogan told jurors to wait a while before coming out to make “it look good.” They deliberated for 68 minutes and came back with a not guilty verdict. One juror later said: “We wouldn’t have taken so long if we hadn’t stopped to drink (soda) pop.” The men walked free and a year later were paid $1,500 each to give an interview to Look Magazine, confessing to exactly what they had done to Till. Double jeopardy protected them from a second trial and the federal government was not in the habit yet of filing civil rights charges against White murderers in the South at that time.

Jury nullification meant they ignored the testimony and was not swayed one bit by the gruesome nature of the crime. We are seeing the same thing play out in the highest level of the government and no one can do anything to stop it. This government is broken. When men and women sworn to uphold the law, can time and time again ignore the law, what value does it have. These are the same people who ran on so-called law and order platforms when elected to Congress.

The hypocrisy is palatable. Some will be surprised by Trump’s acquittal. They must have their heads buried somewhere. It is so obvious that we will be witness to a gross miscarriage of justice. How do you willingly allow this to happen and sleep at night.

I have heard some refer to these Republican supplicants of Donald Trump as evil. They are not. They are simply keeping a long tradition alive. Jury nullification is alive and well.

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Еrіk McGrеgоr

About The Author

Reggie Jackson

As an award-winning Senior Columnist for the Milwaukee Independent, Reggie Jackson covers a range of African American issues. He is also co-founder of Nurturing Diversity Partners, and volunteers as Head Griot for America’s Black Holocaust Museum (ABHM) in Bronzeville.