[Peace-discuss] Jury Nullification

[C. G. Estabrook]

Yes, from Wikipedia -- often a good place to start. --CGE

John W. wrote:
> 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 
> <mailto: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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