[Peace-discuss] what about jury nullification?

[Ricky Baldwin]

So the juror's instructions currently given out in
Champaign County clearly state that jurors must follow
the law even if they disagree with it.  (I am on call
for jury duty and received my orientation this
morning.)

My understanding is that this is wrong (see 'jury
nullification' below).  But my question is more
specific.  I understand that a judge will ask whether
jurors can do this when swearing in the chosen ones. 
The purpose is clearly to exclude anyone who might be
up for 'jury nullification' (see below).  So - if a
person wants to be truthful, but also wants to
safeguard a defendant's rights - then what is there to
do?

In other words, telling the truth will get you kicked
off the jury, along with everyone else who believes in
the right of jury nullification, so it effectively
blocks the option.

I do think this is a worthwhile question for all of us
who are potential jurors to think about, but since I
am currently on call for jury duty, I am also taking
advantage of the highly educated and/or highly ethical
minds in the peace and justice communities.

Below is a short synopsis that will be good enough for
folks who haven't heard of it before.  There's a lot
more you can find easily if you want more.  I'll just
add that a much earlier case that those below involved
Wiliam Penn of Pennsylvania fame/infamy before he
immigrated from England.  And that Alexander Cockburn
of The Nation is a big defender of jury nullification
- but he doesn't answer my question.

What do YOU think?
Ricky


Jury Nullification
by Doug Linder (2001)

What is jury nullification? 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 that are charged with
deciding.

When has jury nullification been practiced? The most
famous nullification case is the 1735 trial of  John
Peter Zenger, charged with printing seditious libels
of the Governor of the Colony of New York, William
Cosby.  Despite the fact that Zenger clearly printed
the alleged libels, the only issue the court said the
jury was open to decide as the truth or falsity of the
statements was ruled to be irrelevant, the jury
returned with a verdict of "Not Guilty." 

Jury nullification appeared at other times in our
history when the government has tried to enforce
morally repugnant or unpopular laws.  In the early
1800s, nullification was practiced in cases brought
under the Alien and Sedition Act.  In the mid 1800s,
northern juries practiced nullification in
prosecutions brought against individuals accused of
harboring slaves in violation of the Fugitive Slave
Laws.  And in the Prohibition Era of the 1930s, many
juries practiced nullification in prosecutions brought
against individuals accused of violating alcohol
control laws.

More recent examples of nullification might include
acquittals of "mercy killers," including Dr. Jack
Kevorkian, and minor drug offenders.

Do juries have the right to nullify? Juries clearly
have the power to nullify; whether they also have the
right to nullify is another question.  Once a jury
returns a verdict of "Not Guilty," that verdict cannot
be questioned by any court and the "double jeopardy"
clause of the Constitution prohibits a retrial on the
same charge.

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. 

Judicial acceptance of nullification began to wane,
however, in the late 1800s.  In 1895, in United States
v Sparf, the U. S. Supreme Court voted 7 to 2 to
uphold the conviction in a case in which the trial
judge refused the defense attorney's request to let
the jury know of their nullification power.

Courts recently have been reluctant to encourage jury
nullification, and in fact have taken several steps to
prevent it.  In most jurisdictions, judges instruct
jurors that it is their duty to apply the law as it is
given to them, whether they agree with the law or not.
 Only in a handful of states are jurors told that they
have the power to judge both the facts and the law of
the case.  Most judges also will prohibit attorneys
from using their closing arguments to directly appeal
to jurors to nullify the law.

Recently, several courts have indicated that judges
also have the right, when it is brought to their
attention by other jurors, to remove (prior to a
verdict, of course) from juries any juror who makes
clear his or her intention to vote to nullify the law.

If jurors have the power to nullify, shouldn't they be
told so? That's a good question.  As it stands now,
jurors must learn of their power to nullify from 
extra-legal sources such as televised legal dramas,
novels, or articles about juries that they might have
come across.  Some juries will understand that they do
have the power to nullify, while other juries may be
misled by judges into thinking that they must apply
the law exactly as it is given. Many commentators have
suggested that it is unfair to have a defendant's fate
depend upon whether he is lucky enough to have a jury
that knows it has the power to nullify.

Judges have worried that informing jurors of their
power to nullify will lead to jury anarchy, with
jurors following their own sympathies.  They suggest
that informing of the power to nullify will increase
the number of hung juries.  Some judges also have
pointed out that jury nullification has had both
positive and negative applications--the negative
applications including some notorious cases in which
all-white southern juries in the 1950s and 1960s
refused to convict white supremacists for killing
blacks or civil rights workers despite overwhelming
evidence of their guilt.  Finally, some judges have
argued that informing jurors of their power to nullify
places too much weight on their shoulders--that is
easier on jurors to simply decide facts, not the
complex issues that may be presented in decisions
about the morality or appropriateness of laws.

On the other hand, jury nullification provides an
important mechanism for feedback.  Jurors sometimes
use nullification to send messages to prosecutors
about misplaced enforcement priorities or what they
see as harassing or abusive prosecutions.  Jury
nullification prevents our criminal justice system
from becoming too rigid--it provides some play in the
joints for justice, if jurors use their power wisely.

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