A panel of perspective jurors seems none too thrilled about a felony trial over a small amount of coke. Of course, I can promise you none of those who answered that they would nullify ended up on the jury.
12 thoughts on “Progress in Jury Nullification”
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I hope no one who said they would not nullify, and then does, can be found to have a history of favoring nullification or decriminalization. They could be charged with perjury by a vindictive prosecution. It has happened to people who weren’t even asked, but failed to volunteer the information.
It makes me sick that the State tries so hard to nullify Jury Nullification, either by filtering them out of the jury pool, or by going after them for perjury after the fact!
Make me sick, too, but what do we expect? Especially as the police-judicial complex faces continually lower crime rates, especially for “real” crimes. Can’t have layoffs at the court house, now, can we?
My question is, what to do about this. Especially when we’ve seen how state actors have gone after citizens not directly involved in a trial, e.g. the pain pill case in Kansas.
Actually, no they can’t. Jurors’ votes cannot be questioned. Besides, there’s always plausible deniability: sometimes the people who get on juries are complete idiots who will believe what they want to believe and can’t be convinced otherwise. If the prosecution can’t get someone impossible to convince off the jury, it’s their own fault.
As an criminal trial attorney, I have mixed emotions about this. On the one hand, nullification has a noble history, and yes, ultimately the people rule; that’s why we have juries in the first place. But on the other hand, nullification also has a very unseemly history, as white juries in the Jim Crow era would often refuse to convict whites of crimes against blacks, for example.
I can tell you that the judges in my jurisdiction would NEVER permit an attorney to ask a jury to nullify; it is specifically forbidden to ask a jury to find a verdict on anything other than the evidence presented. Violating that rule, as an attorney, would swiftly bring sanction. I recently won a DUI case in which the judge (smiling) said he thought I convinced the jury to nullify (I disagree, BTW; it wasn’t that at all). And in my jurisdiction, the jury would not know whether the charged offense is a felony or misdemeanor, nor what the penalties are, nor – typically – take any part in sentencing.
All that said, it does happen, and these kinds of reminders are very useful to prosecutors and the courts. We are ultimately answerable to the people, including that slice of people who make up juries (who are, BTW, not at all representative of the public as a whole). Whether that is what happened in this particular case is unclear from the story; it may have been simply a weak case.
Nullification is, however, very much a double-edged sword. Equal justice requires that the same law apply to all, and the place to change law is at the statehouse, not in a courtroom; otherwise, one would not have one law for everyone, no matter who they were, at all; rather, we would have law at the whims of jurors, unaccountable to anyone. That is no more just than law at the capricious whims of gov’t officials; they are at least accountable for their actions. If you don’t like the law, work to change it.
Like in so many circumstances: Be careful what you wish for.
I’ve written a bit on my views of jury nullification, though I can’t seem to find them presently. I generally don’t look favorably on a lone individual hanging a jury. I think for nullification to be proper there has to be a consensus among the jury to do it. If everyone else finds the law or application of it proper, I don’t think a lone individual ought to hang a jury.
But if a consensus can be built that the law or application of law is wrong, I don’t have a problem with it.
This is an anecdotal story, and only hearsay to me, but a woman who was the single person to hang a jury told me she did so, not for the purpose of nullification, but because the evidence in no way supported the prosecution’s case; however the judge had made it very clear he expected a conviction, and her fellow jurors had been angered at her because “the judge is going to be so disappointed in us.” It took some courage for her to hold out against that.
In any case, it is an example of one person properly hanging a jury, and also a bad example of why a jury might find “the law and the application of it proper; because they were told to.
Yeah, but it *might* be used by evil, racist whites to acquit KKK thugs and Neo-Nazis, therefore nullification is RACIST, period! (Nevermind the near impossibility of finding an all-white jury packed with nothing but Klan sympathizers, even in the deep south, in 2012).
Another bad analogy I guess, but I suppose we have to consider jury nullification like a gun; it can be used for good or bad purposes, and we have to do our damnedest to make sure the good prevails.
The important point is that jury nullification will always exist in the minds and consciences of individual jurors, who are not required to justify their positions, as long a jury unanimity in verdicts is required. What scares me are the proposals that are floated from time to time that only a majority, or a super-majority, be required for conviction.
I think that’s conspiracy to violate rights under the color of authority of law (Title 18 Section 242 federal law). It’s illegal to enforce illegal laws such as prohibition and it’s illegal to deny someone a trial by a fully informed jury.
I would expect any power to be a “double-edged sword”. Take pardoning, for example: it’s fantastic tool to use, when someone who is otherwise noble, but does something stupid or even evil. If I recall correctly–and I probably don’t–the doctor who set John Wilkes Booth’s broken ankle was eventually pardoned, so he could work on medical research.
On the other hand, it will come as no surprise to me if Obama pardons every person involved in the Fast and Furious Scandal, except for the whistle-blowers. Thus, it can be a tool for enabling sickening, illegal behavior.
On balance, though, I would rather that Presidents and Governors have pardoning power, than not, because I’m inclined to think that the good that can be done with it, can outweigh the evil.
And so it is with Jury Nullification.
It drives me nuts when the Judge says you can’t plead for your case in any way you want. As a Defense Attorney, you should be free to make the case that the law is wrong, or that it’s fantastic, but it doesn’t apply to your client for reasons X, Y, or Z, or that your client did it for noble purposes–and then it should be up to the Prosecution to derail these defenses, and explain why the law is good, and why it should be applied in this particular case.
A couple of years ago, someone was convicted for interfering with oil claim auctions. I was pleased with the conviction–we need the oil, we can get to it in environmentally safe ways, and the oil companies have the right to bid for the permits–but it annoyed me greatly that he wasn’t allowed to make the case that he did it “For the Earth”. Gosh Darn It, if the Prosecution can’t make the case that we’re not hurting the Earth by permitting oil drilling, then by golly, let the cretin go free!
Oh, and with regards to “If you don’t like the law, work to change it”: If you don’t know about the evils of a law until you are in a Jury box, sometimes the first act of working to change it, is to nullify it then and there; besides which, nullification is also there for the times where the law itself is good, but the circumstances of enforcing it is bad!