Jurors play a prominent role in the criminal justice system. Although few cases go to trial — statistically as few as four defendants in 100 — jurors wield the same power as legislators and judges.

Being a juror is a form of democratic participation, applying and interpreting the law through the lens of the community's values and experiences, and acting as a check on government power.

Traditionally, the role of a juror is portrayed as merely the "finder of fact." Juries make crucial decisions on the credibility and believability of witnesses — they decide the facts. A trial judge determines and instructs jurors on the law, which the jury must follow. Through the determination of facts and the application of the law, decisions of guilty or not guilty are to be made.

However, it is not quite that simple.

Beyond determining the facts, a juror's conscience is also a protected element of the justice system. The act of jury nullification — when a jury returns a verdict of not guilty despite its belief that the defendant is guilty of the crime charged — is the final check on governmental power.

That check on power has grown so much more important at a time when the president of the United States is ignoring limits on executive power.

In 2004, conservative U.S. Supreme Court Justice Antonin Scalia acknowledged the role of jury nullification. He wrote, "(The jury) right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary."

Jury nullification is taking hold in places like Washington, D.C. Recently, over a period of three weeks, grand juries in Washington rejected three separate efforts by federal prosecutors to obtain an indictment against persons accused of felony assault against federal agents.

A grand jury rejecting an indictment is extraordinary. A grand jury needs only to find probable cause that a crime has been committed to move forward. Robert Morgenthau, a longtime Manhattan district attorney, said he could get a grand jury to indict a ham sandwich.

According to The New York Times, the pattern of failure to obtain indictments "(I)ndicated that the ordinary people called upon to sit on grand juries were pushing back against efforts by prosecutors to harshly charge fellow citizens who had encountered law enforcement officers on the streets."

Something similar happened in Los Angeles recently as federal prosecutors struggled to obtain indictments against protesters arrested during demonstrations against federal immigration actions. Justice officials told The Los Angeles Times that prosecutors have struggled to get several protest-related cases past grand juries. In some cases, prosecutors reduced charges against defendants to misdemeanors after repeatedly falling short at the grand jury level.

Then there is Kendall Diaz, who was found "not guilty" of assaulting a U.S. Border Patrol agent in Spokane, Wash.

Diaz was arrested by federal immigration agents, accused of elbowing an ICE agent in the eye during a struggle in his own front yard. While the agent emerged from the encounter with a black eye, it appeared the jury, which reached a verdict in less than two hours, determined that Diaz's conduct, although captured on video, was not an intentional assault.

Last week, a Washington, D.C. jury acquitted Sean Dunn — the "Sandwich Guy" — of assaulting a federal officer. Dunn became the symbol of defiance when he hurled a sub sandwich that hit the chest of an agent wearing body armor. He went to trial, admitting he hit the officer to divert his attention from fleeing protesters.

Jurors are, in a sense, speaking for their fellow citizens. They are challenging the government's overreaching, overcharging and overzealous prosecution of protesters who were expressing their displeasure with the government.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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