[Peace-discuss] what about jury nullification?

[C. G. Estabrook]

Q.: Can you follow the law, even if you disagree with it?

A.: Sometimes yes, sometimes, no: it would depend on the specifics.  For 
example, I don't think the law should limit the amount of money that can 
be contributed to a political candidate, but since the community has 
decided to impose such limits, I could vote to convict someone who 
violated them.  But on the other hand, I could not in good conscience 
have voted to convict someone who violated a Fugitive Slave Law, when 
such laws were on the books. --CGE



Ricky Baldwin wrote:
> 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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