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.
(Hat tip to Glenn Reynolds who also links to his review of Conrad's book)
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.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.
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.
(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.
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.
Butler's article:
105 Yale L.J. 677
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.
Yours,
Wince
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.
http://www.greenleft.org.au/back/1991/19/19p13c.htm
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.
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
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.
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.
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
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:
People v. Williams (2001) 25 Cal.4th 441, 463.
"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