[Peace-discuss] Jury Nullification

[C. G. Estabrook]

      “The jury has the right to judge both the law as well as the fact in 
controversy.” —John Jay, first Chief Justice of the United States (& no radical)

Jury nullification is a jury's refusal to apply the law as written (i.e., to 
acquit) to a particular case because to do would result in in justice.

Juries have the power to refuse to apply the law when their consciences require 
that they do so.

The first notable instance of jury nullification in the colonial United States 
was the famous Zenger case of 1734. A jury refused to convict John Peter Zenger 
of seditious libel for publishing a newspaper critical of Governor William Cosby 
of New York.

Jury nullification appeared in the pre-Civil War era when juries sometimes 
refused to convict for violations of the Fugitive Slave Act.

During Prohibition, juries often nullified alcohol control laws, possibly as 
often as 60% of the time. Such resistance may have contributed to the adoption 
of the Twenty-first Amendment -- repealing the Eighteenth Amendment which 
established Prohibition.

Today many discussions of jury nullification center around drug laws that some 
consider unjust either in principle or because they are seen to discriminate 
against certain groups. A jury nullification advocacy group estimates that 3–4% 
of all jury trials involve nullification, and a recent rise in hung juries is 
seen by some as being indirect evidence that juries have begun to consider the 
validity or fairness of the laws themselves.

The present situation in the US, like so much of US politics, relies on keeping 
the public ignorant.  A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed 
the right of jury nullification, but also upheld the power of the court to 
refuse to permit an instruction to the jury to this effect. In 1972, in United 
States v. Dougherty, 473 F.2d 1113, the United States Court of Appeals for the 
District of Columbia Circuit issued a ruling similar to Moylan that affirmed the 
de facto power of a jury to nullify the law but upheld the denial of the 
defense's chance to instruct the jury about the power to nullify. In 1988, the 
Sixth Circuit upheld a jury instruction that "There is no such thing as valid 
jury nullification."  In 1997, the Second Circuit ruled that jurors can be 
removed if there is evidence that they intend to nullify the law, under Federal 
Rules of Criminal Procedure 23(b). The Supreme Court has not recently confronted 
the issue of jury nullification.

No one of course would argue that juries always arrive at a just result. I think 
the answers to your questions as to whether your three instances count as jury 
nullification are as follows:

      1) yes, although the result was clearly unjust;

      2) probably, although the result was clearly unjust, unless there was some 
basis in the statute for that argument; and

      3) no, Simpson was acquitted because of prosecutorial malfeasance: the 
prosecution did not present enough untainted evidence to the jury that he'd 
committed the murders -- although he probably did.  The LAPD tried to railroad a 
guilty man, and the jury rightly prevented them from doing it.

--CGE


John W. wrote:
> 
> ... 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