[Peace-discuss] what about jury nullification?

[John W.]

Thus far, Ricky, despite the erudition of your readership, I haven't seen a 
particularly comprehensive response to your question.

1) You by yourself cannot engage in "jury nullification".  That's something 
the jury as a whole would do, after deliberation.  The best you yourself 
could do, as an individual, would be to hang a (criminal) jury by refusing 
to make the verdict unanimous, and perhaps persuading other jurors of your 
point of view, as Henry Fonda did in "Twelve Angry Men" (which was NOT, 
incidentally, an example of jury nullification because, as Carl pointed out 
with reference to the O.J. Simpson case, the jury was not concluding that 
the law against murder was unjust).

2) A jury comes back with a verdict.  To my knowledge it does not have to 
explain its verdict.  So the jury foreman wouldn't say, "Your honor, we 
find the defendant not guilty by virtue of jury nullification."  He or she 
would simply say, "Not guilty."

3) Since prospective jurors in most states, including Illinois, are 
screened for precisely this factor of jury nullification, it's extremely 
rare for it to happen in modern times.  The examples given below are just 
about all quite old.  Again, the best that can be hoped for is that one or 
two jurors would slip through and hang the jury.

4) When there's a hung jury, the defendant does not go free.  There's 
simply a new trial.  The exception to this rule would be if there were, 
say, two hung juries in a row, the prosecutor might decide that it wasn't 
worth prosecuting the case a third time.

5) With regard to whether you should lie about your belief in jury 
nullification, I can only ask you how badly you want to be a juror, and 
whether you can justify lying in the service of a greater justice.  If you 
do harbor a belief in jury nullification (and it appears that you do), keep 
it to yourself.  :-)

If you have any further questions, please don't hesitate to ask.

John Wason



At 01:00 PM 4/16/2007, 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.