A reader sent me this video:
I have been hearing about Jury Nullification since before the Assault Weapons Ban of 1994. Initially I found it an interesting concept: Somebody gets prosecuted because of a bad law and the Jury comes to the rescue, ignores the evidence and the law and frees the Defendant. Ain’t that a story worth being part of?
But what the proponents of Jury Nullification do not tell you is how it can be used to abuse your fellow man. How many cases do you think we had in which the evidence against a defendant was so weak and the prosecutor failed to prove his case, but the defendant was found guilty anyway because he was black? The obvious verdict was ignored and a decision via Jury Nullification was given.
I know, the official definition is when it returns a Not-Guilty verdict only. That is a self-serving and naive view to obscure the fact that the process can be used to actually find somebody guilty with the same procedure. The process is simple: a Jury ignores both the law and the evidence (for reasons) and delivers a verdict outside the legal expectation of the trial. As painful and slow as it is, the best way (til somebody finds a better one) is to kill a bad law in the same location it was created: The legislature.
The reason “jury nullification” that swings guilty is ignored is because a guilty verdict can be overturned on appeal, and it can be overturned by a judge, not a jury, finding that the law was not held to and the defendant was convicted unfairly. “Jury Nullification” that swings guilty is *not* the last step in the process for the defendant, there are still a few more checks that can overturn the decision of the jury, so they are not the final word.
But when a Jury declares “not guilty” that is it, case over; no judicial review, no “appeal” for prosecutors, no nothing. The defendant is free and clear regardless of how badly the law or procedure was ignored. The jury is the final word.
Yes, if you have a jury racist (or other-ist) enough to falsely convict then the rest of the judicial system is unlikely to be any better, but the point is the jury is not the *only* party responsible for upholding the conviction, there are several other levels of review that will be just as culpable. Only in a case of “not guilty” will the jury retain sole responsibility for the disposition of the defendant.
One way to help address bad laws would be to require every law lower than a Constitutional amendment, have a sunset clause.
Bad laws will self-repeal eventually … which isn’t perfect but does cap the damage potential. Also, the legislature would be busy enough re-passing the good and useful laws, it would be harder to increase the overall amount of legislation.
The late Senator Ted Stevens of Alaska was on the receiving end of exactly that type of bias. Not because of his skin color, but because of his political party. The jury found him guilty of some seven felony charges. All charges were dismissed soon afterward. Not on appeal or anything like that, outright dismissed, effectively erasing the trial and conviction.
That’s not the real risk with jury nullification.
And we actually have plenty of experience with that risk, where someone can have iron clad evidence of their guilt presented, and a bigoted jury lets them off scot free because of *who* they (or their victim) are. Like all-white juries miraculously failing to convict Klansmen who murdered blacks.
Yes, but of course there we were also dealing with criminals supported by the local government. This is why the right to armed self defense is important.
As I said earlier (below), it’s a tool, and like any tool it can be misused. That doesn’t mean it is impossible to use properly.
I recommend to everyone “An essay on the Trial by Jury” by Lysander Spooner, free download at http://www.gutenberg.org/ebooks/32984.
It seems to me that the notion of juries ignoring the law to find a person guilty is a false analogy. For one thing, if the evidence was overwhelming, the DA should never have brought the case to begin with. The point about appeal is also significant.
The argument I would use is a familiar one here. We know there are tools that can be misused. But that doesn’t mean the tool is a bad one, or should be banned. This applies to guns, and it applies to juries.
Jury nullification would not even have raised an eyebrow some centuries ago, as Spooner explains very clearly when he examines the history of the jury over the centuries. Apart from that, it has an important and honorable place in the history of abolitionism.
Interesting article!
https://invertedlogicblog.wordpress.com/2020/05/08/a-numeric-argument-for-jury-nullification/