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Jury Nullification:
There is an interesting column on FoxNews.com by Radley Balko on the provocative subject of jury nulification. Balko raises the issue in the context of two criminal prosecutions for the medical use of illegally possessed drugs.
The doctrine of jury nullification rests on two truths about the American criminal justice system: (1) Jurors can never be punished for the verdict they return, and (2) Defendants cannot be retried once a jury has found them not guilty, regardless of the jury's reasoning. So the juries in both the Rosenthal and Paey cases could have returned a "not guilty" verdict, even though Paey and Rosenthal were undoubtedly guilty of the charges against them.

This may sound radical, perhaps even subversive, but jury nullification serves as an important safeguard against unjust laws, as well as against the unfair application of well-intended laws. It's also steeped in American and British legal tradition.
Balko relies on the excellent book on the súbject by Clay Conrad, Jury Nullification: The Evolution of a Doctrine. Conrad's book is the most important writing on the subject since Lysander Spooner's 1852 book, Trial by Jury (available on line here). I recommend both.

(Hat tip to Glenn Reynolds who also links to his review of Conrad's book)

Update: Clay Conrad has a blog about juries called jurygeek. The reason I recommend his book so highly is that he is very sensitive to the variations on what jury nullification might mean, how it worked historically, the past and present legal treatment of it, and the practical implications of explicitly allowing it.

A.S.:
When I read this, my first thought was "can a lawyer participate in jury nullification"? It's been almost a decade since I became a member of the bar, but I remember some gobbledygook at the swearing-in ceremony about upholding the law, etc. And there's also all that "officer of the court" stuff. If I, as a lawyer, swear to uphold the law, can I ethically undermine it (even if I personally feel the law in question to be unjust)?
7.29.2005 11:47am
Randy:
A.S.

I have to run off to teach here now, but here is a very brief (and quick) response: Jury nullification, properly understood, is a "legal" component of our constitional system, and this power resides in the jury. The case for jury nullification, whether persuasive or not, is not a case for a general disobedience of unjust laws, which is a separate subject.
7.29.2005 11:56am
Citizen Jeremy (mail):
Other than the fact that a judge does not have to make his jury aware of their jury nullification rights, is there any reason why this right isn't regularly abused?
7.29.2005 12:19pm
stillers_fan:
I'm curious to get a sense of people's feelings on Paul Butler's thesis on racially based jury nullification. Essentially he advocates that black jurors should acquit non-violent criminally culpable young black males because they are better off (esp. in terms of rehabilitation) in their communities than being placed within the present criminal justice system.

Butler's article:
105 Yale L.J. 677
7.29.2005 12:29pm
G_G (mail):
"he advocates that black jurors should acquit non-violent criminally culpable young black males because they are better off (esp. in terms of rehabilitation) in their communities than being placed within the present criminal justice system."

Are their communities better off with non-violent criminals in them than within the present criminal justice system? Being too lazy to read law over the summer, I will merely pass on the snarky comment that Butler might change his position if the non-violent criminals were in his community.
7.29.2005 12:36pm
Knox Harrington (mail):
I remember the commentators at the O.J. Simpson trial saying that this was a case of jury nullification. I am glad to see that this article correctly understands nullification and what it means. The jurors in the O.J. case returned a verdict of not guilty - they didn't decide that convicting people of murder was wrong they just found him innocent. In these drug cases they are deciding that the person is guilty but that the law enforced in this case is unjust. The jury acts as a check on immoral prosecutions of just laws. Thanks for putting this post up - an important topic which needs to be addressed more.
7.29.2005 12:50pm
Wince and Nod (mail) (www):
I like Balco's point that prosecutorial nullification (aka plea bargaining) is routine and we have few judges who are fighting that.

Yours,
Wince
7.29.2005 12:56pm
arbitraryaardvark (mail) (www):
A.S., a defense lawyer probably has a duty to participate in jury nulification. As randy said, it's part of the law. It's one of the checks and balances of the system. More at fija.org Luckily, my state is one of several that has jury nullification specifically protected by the state constitution.
7.29.2005 1:10pm
Jurygeek [Clay S. Conrad] (mail) (www):
I think Butler had it wrong in thinking that racial solidarity was an appropriate reason to nullify. Black defendants would be at a significant disadvantage in such a scheme, as few jurisdictions have majority-black juries.

Moreover, Butler begs the question whether white jurors should vote to acquit legally guilty but morally innocent non-white defendants, and whether black jurors should vote to acquit legally guilty but morally innocent non-black defendants.

So while I admire Butler's testicular fortitude for coming out in front of this issue, I think his analysis is better recast in terms of just results than in terms of racial solidarity.

Can criminal defense lawyers work towards a nullification verdict? In at least one unpublished case, the D.C. Circuit found that it was not ineffective to seek a nullification verdict in a case with no viable legal or factual defense. The court didn't address ethical issues, but predictably would have at least raised a question it had seen any thorny ones.
7.29.2005 1:15pm
Andrew McGuinness (mail) (www):
In the UK, the most celebrated recent case was in 1991 - Randall and Pottle had, years previously, helped the Soviet spy George Blake to escape from prison (and written a book about it in 1989). When prosecuted, they claimed that the case was politically motivated, and the jury aquitted them. Partisan account here:
http://www.greenleft.org.au/back/1991/19/19p13c.htm
7.29.2005 1:36pm
cfw (mail):
"A.S., a defense lawyer probably has a duty to participate in jury nulification. As randy said, it's part of the law. It's one of the checks and balances of the system. More at fija.org Luckily, my state is one of several that has jury nullification specifically protected by the state constitution."

I have seen a military judge threaten to hold a defense counsel in contempt for suggesting jury nullification. Judge also instructed jury (panel) it was misconduct for defense counsel to suggest nullification. Took the wind out of the sails of defense cousnel. Was the judge wrong? Not sure he was.
7.29.2005 1:44pm
Wince and Nod (mail) (www):
cfw,

Given that the Court has said that jury nullification is proper, I'd say the judge was not only wrong, he was engaging in misconduct himself. It can't be illegal for a lawyer to tell a jury that the jury is allowed to nullify, if in fact the jury is allowed to nullify.

I don't have a law degree, but that just is not logical.

Yours,
Wince
7.29.2005 2:03pm
JRL:
"This may sound radical, perhaps even subversive, but jury nullification serves as an important safeguard against unjust laws, as well as against the unfair application of well-intended laws."

I've always been more inclined to believe that convictions under "unjust laws" (or "unfair application" of just laws) are more likely to bring about necessary change through public awareness/outrage. I think in that regard, pushing for jury nullifaction is short-sided.
7.29.2005 2:03pm
Steve:
I think allowing defense lawyers to make a jury nullfication argument is the minority rule. I don't think most jurisdictions permit it.

One case addressing this issue is United States v. Moylan, 417 F.2d 2002 (4th Cir. 1969):

No less an authority than Dean Pound has expressed the opinion that "Jury lawlessness is the great corrective of law in its actual administration." However, this is not to say that the jury should be encouraged in their "lawlessness," and by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to insure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.

If state law permits it, a lawyer may well have a duty to argue for jury nullification in an appropriate case; but I don't see the logic that just because the jury is permitted to do something, counsel must be able to argue in favor of it. After all, a jury can return a verdict for literally any reason whatsoever, and there's nothing we can do about it, but not all those possible reasons should be encouraged. For example, if a white man was on trial for raping a black woman, we might not all be comfortable with the sort of jury nullification argument defense counsel might make.
7.29.2005 2:25pm
Hattio (mail):
A guy came to our school and talked about jury nullification quite a bit. He was a criminal defense lawyer, and therefore, most students kind of expected him to be a proponent of it. But after giving history and theory, he talked about his personal feeling near the end of the lecture. Basically, he said that it's hard enough to get a jury to take the "beyond a reasonable doubt" standard seriously. If it becomes common knowledge that juries can nullify laws they dont' agree with, criminal prosecutors would in effect be given a more likely than not standard. It was an interesting thought, that those in this country who support this the most probably have the most to lose by it. I'm still not sure I agree with him, but it made for interesting thinking. It also supports the earlier post that high visibility of an unjust law (or the unjust application of a just law) is much more likely to produce quick change.
7.29.2005 3:19pm
JRL:
uh, oops. short-sided = short-sighted.
7.29.2005 4:39pm
NR (mail):
Eric Muller makes a strong argument against encouraging jury nullifications (by jury instructions or otherwise) here and in the comments following the post.
7.29.2005 4:51pm
John R. Mayne (mail):
I disagree that jury nullification is allowed.

In a civil case, juror misconduct, inlcuding nullification, may be grounds for a new trial.

In a criminal case, juror misconduct, including nullification, in favor of the prosecution is often grounds for a new trial.

In a criminal case, jury nullification in favor of the defendant is wrong, but remedyless. California, like most states, bars nullification arguments. Any juror indicating they would be willing to nullify can be removed for cause.

Juror nullification is essentially dishonest; jurors here and in most states take an oath to apply the facts to the law and come to the appropriate legal conclusion. Nullification leads into very dangerous waters - remember the recent Linden, Texas case?

Again, juror nullification is not a right, is not appropriate, and in most cases has a remedy. Only because of double jeopardy rules does it not have a remedy for acquittals; otherwise it is legally barred and has a remedy.

Soliciting jury nullification generally strikes me as a deeply misguided position.

--JRM
7.29.2005 4:59pm
Randy:
The conventional legal wisdom has long been against jury nullification, so it is not surprising to read posts here opposing the idea. And it is certainly not ordinarily permitted explicitly by courts. I posted the link to Clay Conrad's book, however, because I think even opponents of jury nullification should confront the most powerful defense of it before registering their opposition. The book is short, well-written, and inexpensive. I urge those who may be interested in this historical check on government power to read it before making up their minds.
7.29.2005 5:14pm
Steve:
John R. Mayne makes several good points; but I would point out that it's not quite as cut-and-dried as he makes it. In a civil trial, for example, jury nullification can only be reversed if the result is a verdict that no reasonable jury could have reached. If the evidence could fairly support a verdict for one side or the other, it makes no difference if the actual reason the jury makes its decision is nullification; the jury's verdict cannot be impeached, so long as some reasonable interpretation of the evidence would support the result. So it's entirely possible for the jury to get away with nullification in contexts other than letting a criminal defendant go free.
7.29.2005 6:13pm
Patterico (mail) (www):
JRM has it just right, I think.

Reasonable people can debate whether nullification is wise, but the courts are quite clear that jurors must follow the law. Here's a representative quote from the California Supreme Court:

Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law. As one commentator has noted: “When jurors enter a verdict in contravention of what the law authorizes and requires, they subvert the rule of law and subject citizens–defendants, witnesses, victims, and everyone affected by criminal justice administration– to power based on the subjective predilections of twelve individuals. They affect the rule of men, not law.” (Brown, Jury Nullification Within the Rule of Law, supra, 81 Minn. L.Rev. at pp. 1150-1151, fn. omitted.) A nullifying jury is essentially a lawless jury.

We reaffirm, therefore, the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is “unable to perform his [or her] duty” as a juror (§ 1089) and may be discharged.



People v. Williams (2001) 25 Cal.4th 441, 463.
7.29.2005 6:37pm
Tom Perkins (mail):
John R Mayne completely ignores the essential advantages of jury nullification, in that it continually tests the satisfaction of the community with the law and the personalities executing it, without which satisfaction, the law has no legitimacy.

"I disagree that jury nullification is allowed. "

Here he is generally correct.

"In a civil case, juror misconduct, inlcuding nullification, may be grounds for a new trial."

A comment supporting the first, but one begging the question of whether jury nullification CAN BE juror misconduct.

"In a criminal case, juror misconduct, including nullification, in favor of the prosecution is often grounds for a new trial."

As before.

"In a criminal case, jury nullification in favor of the defendant is wrong, but remedyless. California, like most states, bars nullification arguments. Any juror indicating they would be willing to nullify can be removed for cause."

Really. You know it’s wrong a priori? Such a juror may be removed, yes, but whether the misconduct is their's or someone else's is reasonably open to question.

"Juror nullification is essentially dishonest; jurors here and in most states take an oath to apply the facts to the law and come to the appropriate legal conclusion. Nullification leads into very dangerous waters - remember the recent Linden, Texas case?"

It cannot be more dishonest than requiring of jurors that they promise to abrogate their duty to judge the facts, law, and the application of the law to the case. Here, one baseless demand deserves perfunctory lip service. Jury nullification exposes us to waters no more dangerous than the jury pool at large, upon whom no improvement can legitimately be made.

"Again, juror nullification is not a right, is not appropriate, and in most cases has a remedy. Only because of double jeopardy rules does it not have a remedy for acquittals; otherwise it is legally barred and has a remedy."

If it is not a right, defend the notion that William Penn should have been convicted on all counts, and that slaves should have been remanded to the slave hunters, and further that the jurors in these cases should have had punishments inflicted on them.

You also assert it is legally barred.

I assert this. Given that the constitution is the written basis for legitimate law, that no amendment has been passed affecting the common law doctrine of jury nullification, and that the Framers had no qualms with jury nullification but in fact praised and magnified it, I assert that all actions of the courts taken to forfend jury nullifiaction are incontrovertible examples of the denials of due process; incontrovertible, at least, to reasonable and intellectually honest people.

"Soliciting jury nullification generally strikes me as a deeply misguided position."

Subverting the common law protections of due process is deeply misguided, sir.

Yours, Tom Perkins,
ml, msl, &pfpp
7.29.2005 7:09pm