[Peace-discuss] Jury Nullification

[John W.]

Carl, did some of the discussion below come from some other source, like
Wikipedia?  It's very good.  Comments below.


On Mon, Feb 2, 2009 at 10:31 PM, C. G. Estabrook <galliher at uiuc.edu> wrote:

  "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)


Interesting.  Is this the holding in a case?  Or dicta?



> 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 injustice.
>
> 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.


This is interesting, because we didn't even have a Constitution yet, with
its Bill of Rights and its First Amendment.  Seditious libel must have been
a feature of English common law or the Magna Carta or something.



> 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.


That answers my question about 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.


And this corroborates what I said about the defense attorney not being
allowed to tell the jury about their power 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


Excellent discussion, and good answers to my three questions, for which
there are no absolute right and wrong answers.  I would debate only #2, and
not very vehemently.  In 1962, while the jury would undoubtedly feel that a
clear-cut case of rape was criminal, a defense attorney could easily create
reasonable doubt as to the criminal intent of the red-blooded young male, by
arguing complicity and a certain willingness on the part of the young
woman.  Today, in a climate where "no means no", that would be much more
difficult to accomplish.


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
>>
>
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