[Peace-discuss] Jury Nullification

[John W.]

On Mon, Feb 2, 2009 at 10:29 AM, Ron Szoke <r-szoke at illinois.edu> wrote:

There seems to be some vagueness here about what "jury nullification"
> actually
> means.  It seems to me that it does not  in any way erase or invalidate the
> law
> itself, but is a holding that the law has been misinterpreted or misapplied
> in a
> particular case  -- which the jury, as the trier of fact, can so determine.
>  The law
> still stands & remains in force, waiting to be applied or misapplied to the
> next
> case,  right?


Correct.  The law still stands and remains in force.  The hope is that if
ENOUGH juries refuse to convict defendants on a particular law, the law will
finally be recognized as unjust or unpopular and repealed or overturned.

But it rarely happens, because most jurors are unaware that they even have
the power to refuse to convict despite the law.  Defense attorneys are not
allowed to explain jury nullification to the jurors during their closing
arguments.  The judge can declare a mistrial if they do.



> That the jury is also the trier of law -- the legal norm alleged to apply
> to the case
> -- repeatedly appears in the statutes, but is obscure to me.  What does
> THAT
> mean?


The jury is NOT the "trier of law".  The law is explained to them - during
the trial, and especially at the end of the trial in the form of "jury
instructions" which are read to them by the judge - and they are expected to
"apply the law, as explained, to the facts before them".  During jury
deliberations, the jurors can ask the judge for clarification as to what a
certain law means.

When the outcome of a case is appealed, it can be appealed ONLY on the basis
that the law was somehow misapplied.  In other words, appellate courts will
rule only on matters of law.  They will NOT re-try the case, in the sense of
determining whether the jury got the facts right.

If all this is murky, it's because the law itself is murky.  There's often a
grey area in which "the facts" and "the law" are sort of intertwined.  And
there are certain situations in which, if your attorney failed to object to
something during the original trial, you can't appeal your conviction later
on that basis.  The attorney has to object in order to "preserve the right
to appeal".

Jury nullification is a fascinating subject.  It's usually only applied, in
my experience, in drug crimes.  [I find myself wondering if jury
nullification took place much in the era of Prohibition.]   I've never heard
of jury nullification being consciously used in a case of, say, murder or
rape, because everyone agrees that those things are clearly crimes.

That said, here are three questions for you, to test your understanding and
to illustrate just how murky the law can be:

1) Emmett Till, a Negro youth, is murdered by a couple of white men in the
south in 1955, for allegedly having whistled at a white woman.  The two
white men accused of the crime are found "not guilty" by an all-white jury,
despite a considerable amount of evidence that they committed the crime.  Is
that an example of jury nullification?

2) In 1962, a young woman claims that she was raped at a party by a young
man she barely knew, after having a few too many drinks.  The jury,
consisting mostly of males, finds the young man not guilty because, they
feel, the young woman was complicit by allowing herself to get inebriated
and by dressing provocatively.  Is that an example of jury nullification?

3) O.J. Simpson is accused of having murdered his ex-wife and her friend in
1994.  After a spectacular 6-month trial, he is found "not guilty" by a
mixed-race jury, on the basis of police racism and supposed planting of
evidence.  Is that an example of jury nullification?

John Wason
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