Tuesday, January 1, 2013.
Happy New Year and best wishes to all of you for a healthy new year.
I write today about jury nullification, the right that no one dare mention in a court of law.
Jury nullification is a term used to describe the inherent power of a jury to reach a verdict contrary to the evidence and the law.
I call it an “inherent” power because the jury has the power to decide the outcome of a case and its decision is not subject to challenge, so long as there is no evidence of jury tampering or improper influence. Even the deliberations themselves, including who said what to whom and whether they were right or wrong, inhere in the verdict and are not subject to scrutiny or challenge. Therefore, nothing prevents a jury from disregarding the evidence and the law in order to reach a verdict that produces what the jury decides to be a fair, proper and just result.
In addition, you will not find the term in any set of jury instructions. Also, counsel and the judge will never mention it when the jury is present in the courtroom. Merely mentioning jury nullification in the presence of the jury is sufficient for the court to order a mistral and hold the offender in contempt of court.
One might call jury nullification the best kept secret in American law.
Why is that so?
The answer is that justice, like beauty, is in the eye of the beholder.
Let us use the defendant’s legal predicament as an example. He is charged with murder in the second degree for killing Trayvon Martin.
Defense counsel has been trying the case in the Court of Public Opinion demonizing Trayvon Martin and constantly repeating the defendant’s self-serving narrative while ignoring all of his inconsistent and conflicting statements as well as the physical evidence and the forensics that conclusively refute his narrative. He has been pitching his case to potential jurors who are racists and gun nuts like the people who hang out at the conservative tree house and other websites aggressively defaming and attacking anyone who dares to challenge the defendant’s false narrative and his attorney’s propaganda.
Imagine the result that a jury composed of the defendant’s like-minded supporters would reach if they were informed that they could invoke the power of jury nullification, ignore the evidence and the jury instructions, and find the defendant “Not Guilty.”
Is this not what defense counsel hopes to accomplish with his aggressive pretrial propaganda campaign disguised as motions for discovery to clarify or to reconsider previous court rulings?
If this were to happen, jury nullification would be used to vindicate racism.
On the other hand, there are cases where I would enthusiastically support jury nullification. I am thinking of Private Bradley Manning, who is accused of espionage and faces a potential life sentence for allegedly blowing the whistle on improper and unlawful actions by the United States military in Iraq and other countries. He is a true American hero, as far as I am concerned, if he did what he is accused of doing and I absolutely oppose the military prosecution. He is a political prisoner and not a criminal in my book.
These two examples demonstrate the weakness and the power of jury nullification to affect outcomes.
Do you believe jurors should be advised that they have the power to nullify alleged wrongdoing and that lawyers should be permitted to argue for and against jury nullification?
DISCLOSURE: I have used jury nullification to obtain acquittals in several cases. One has to be very careful to pull it off, but it can be done and I did so without drawing an objection by opposing counsel or a warning from the judge. I support keeping the law the way it is.