Jury nullification advocate accused of jury tampering

March 1, 2011 1:11 PM

Scott Horton at Harpers.org writes about Julian P. Heicklen, a 78-year-old retired chemistry professor from New Jersey, now faces federal criminal charges for informing people entering the federal courthouse about the doctrine of jury nullification. Scott Horton's post is a response to the New York Times column on Mr. Heicklen.

According to Mr. Horton, "The fundamental question to put to the “tory” prosecutors who have brought the Heicklen case is simple: what about the First Amendment?"

shivohum brought up jury nullification a while back.

posted by fartknocker (102 comments total)

When issued a citation, Mr. Heicklen said, he sometimes intentionally dropped to the sidewalk and had even been taken to local hospitals, where he was examined and released.

In court on Friday, Judge Wood cited a written request by Mr. Heicklen that Muslims be “excluded from the jury” because he was Jewish and “Islam preaches death to Jews.” Because he was charged with a misdemeanor, she said, he was not entitled to a jury trial; and in any case, she said, jurors may not be excluded because of religion.

Mr. Heicklen has extended his protest to suing the government and various hospitals to which he was taken after being issued citations and falling to the ground.

“Plaintiff Heicklen,” he said in one suit, “has become an angry man.”
posted by SweetJesus at 1:16 PM on March 1, 2011

This raises all sorts of weird legal and philosophical questions. When does a jury start to exist, and at what point does it become possible to tamper with it? And how can a judge and a prosecutor prevent jurors from learning about the principle of jury nullification during a trial in which jury nullification is the contested issue?
posted by Faint of Butt at 1:20 PM on March 1, 2011 [6 favorites]

Heicklen has a history of protesting -- Smoke Outs and local elections among other things.
posted by backwords at 1:30 PM on March 1, 2011

“I don’t want them to nullify the murder laws,” he said. “I’m a big law-and-order guy when it comes to real crime.”

But, he said, there were other laws he wanted to nullify, like drug and gambling laws.

That's really the entire thing in a nutshell, isn't it?
posted by kafziel at 1:32 PM on March 1, 2011 [4 favorites]

"It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision... you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy"
-- First Chief Justice of the US John Jay, Georgia v. Brailsford (1794)
posted by jeffburdges at 1:33 PM on March 1, 2011 [12 favorites]

Funny how the Harper's article about the proud history of jury nullification doesn't talk about this:

...jury nullification has its origins in cases where all-white juries consistently refused to find white men who had lynched black men guilty of any crime.
posted by exhilaration at 1:35 PM on March 1, 2011 [7 favorites]

Wow, I never realized that Tom Batiuk was toning down the "crazy a-hole" when he created Crankshaft based on a real person.


kafziel:
But, he said, there were other laws he wanted to nullify, like drug and gambling laws.

That's really the entire thing in a nutshell, isn't it?"


Actually, given the aforementioned "written request by Mr. Heicklen that Muslims be “excluded from the jury” because he was Jewish and “Islam preaches death to Jews.”" there seems to be a whole lot of room for an extra helping of crazy in that nutshell.
posted by MCMikeNamara at 1:35 PM on March 1, 2011 [1 favorite]

So, if this goes to a jury trial, will the jury not be told what the trial is about?
posted by Panjandrum at 1:37 PM on March 1, 2011 [15 favorites]

From the NYT article:

Mr. Heicklen says that when he stands outside the court, he holds a sign that reads “Jury Info” to draw people to him. “Sometimes they think I’m official,” he said. He answers questions and advises that jurors have the right to nullify.

That's the part that gets me - the fact that people might think he's a court official, and is giving official guidance, when he's not.
posted by NotMyselfRightNow at 1:38 PM on March 1, 2011 [2 favorites]

In this case Mr. Heicklen does not have a right to a jury trial because he is charged with a misdemeanor. Also because the universe couldn't take the irony.
posted by 2bucksplus at 1:39 PM on March 1, 2011 [2 favorites]

Good news, everyone! Federal prosecutors have now officially run out of problems!
posted by Cool Papa Bell at 1:42 PM on March 1, 2011 [2 favorites]

I've long known about jury nullification, but I'm a bit confused about it's legal status. Presumably it is contempt of court to raise the concept as part of the defense at this point? Can a defendant who takes their own stand mention it? What would the charge be against the defendant who raised the concept?

It seems that either the concept is illegal, in which case the courts should be prosecuting jurors who attempt it. Or it is legal, in which case it should be a reasonable defense. Anything else smacks of considering the jury an obstacle to the legal system, instead of a cornerstone of it.
posted by meinvt at 1:43 PM on March 1, 2011

Panjandrum: "So, if this goes to a jury trial, will the jury not be told what the trial is about"

I am thinking that this establishes Gödel incompleteness in the legal realm. In order to be comprehensive, the law must be inconsistent, in order to be consistent it must have disputes it cannot judge.
posted by idiopath at 1:47 PM on March 1, 2011 [32 favorites]

A jury may not decide the law. Indeed, it does not hear the arguments on the law, it only gets the final jury instructions and must apply those jury instructions to the law. Georgia v. Brailsford (1794) is a civil case and inapplicable to the modern doctrine, which people often wish to apply to criminal cases.

This is how whitey gets off, people.
posted by Ironmouth at 1:48 PM on March 1, 2011 [2 favorites]

It seems that either the concept is illegal, in which case the courts should be prosecuting jurors who attempt it. Or it is legal, in which case it should be a reasonable defense. Anything else smacks of considering the jury an obstacle to the legal system, instead of a cornerstone of it.

As I understand it, nullification is a consequence of the jury system and double jeopardy, not a feature. If a jury acquits, that's it, the state is done, defendant is free to go. If the jury acquits because they think it's a stupid law, that doesn't matter, the defendant is still free.

However, in cases where jurors have argued for nullification, those jurors have been removed and cited for contempt, and there are some very limited grounds for judges to overturn jury verdicts. So effectively, if you want to nullify, you don't say "the law is shit", you just sit back and say "I have reasonable doubts" until everyone gets tired and votes to acquit.
posted by fatbird at 1:48 PM on March 1, 2011 [5 favorites]

...jury nullification has its origins in cases where all-white juries consistently refused to find white men who had lynched black men guilty of any crime.

No. All-white juries that refused to convict white murderers were an example of jury nullification; the concept and the practice go way further back than that.
posted by steambadger at 1:48 PM on March 1, 2011 [8 favorites]

Or perhaps they would try to get the jury to nullify the practice of jury nullification.
posted by idiopath at 1:48 PM on March 1, 2011

Who juries the jury when the jury only juries those who can't jury themselves?
posted by kmz at 1:49 PM on March 1, 2011 [4 favorites]

We don't have to worry about the state abusing its power to destroy people who inconvenience it as long as they only do it to old crackpots.
posted by Joe Beese at 1:50 PM on March 1, 2011 [21 favorites]

Georgia v. Brailsford (1794)

That oft-repeated quote may not mean what you think it does. Other cases from that same period suggest that it extends to nothing more than the jury's role in applying the law to the facts, not determining the validity or meaning of the law. One of the justices who heard the Brailsford case later wrote in Lyon's Case, 15 F. Cas. 1183 (C.C.D.Vermont 1798):

"You have nothing whatever to do with the constitutionality or unconstitutionality of the sedition law. Congress has said that the author and publisher of seditious libels is to be punished; and until this law is declared null and void by a tribunal competent for the purpose, its validity cannot be disputed. Great would be the abuses were the constitutionality of every statute to be submitted to a jury, in each case where the statute is to be applied. The only question you are to determine is, that which the record submits to you. Did Mr. Lyon publish the writing given in the indictment? Did he do so seditiously?"

Justice Story, one of the great early constitutional scholars, wrote in an 1835 circuit case, United States v. Battiste, 24 F. Cas. 1042 (C.C.D.Mass 1835):

"My opinion is, that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case, tried upon the general issue. In each of these cases, their verdict, when general, is necessarily compounded of law and of fact; and includes both. In each they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure.

On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court. This is the right of every citizen; and it is his only protection.

If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views, which different juries might take of it; but in case of error, there would be no remedy or redress by the injured party; for the court would not have any right to review the law as it had been settled by the jury. Indeed, it would be almost impracticable to ascertain, what the law, as settled by the jury, actually was.

On the contrary, if the court should err, in laying down the law to the jury, there is an adequate remedy for the injured party, by a motion for a new trial, or a writ of error, as the nature of the jurisdiction of the particular court may require. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not by the law as a jury may understand it, or choose, from wantonness, or ignorance, or accidental mistake, to interpret it."

My apologies for the lengthy quotes, but these early cases are not readily available online.
posted by jedicus at 1:55 PM on March 1, 2011 [7 favorites]

This is how whitey gets off, people.

me, in a previous discussion:
Forsyth also talks about this in the context of the old currency fraud laws where the only punishment was death. Juries just refused to convict. As he put it, "Thus it is that the power which juries possess of refusing to put the law in force has, in the words of Lord John Russell, `been the cause of amending many bad laws which the judges would have administered with professional bigotry, and above all, it has this important and useful consequence, that laws totally repugnant to the feelings of the community for which they are made, can not long prevail in England.'

Forsyth, W (1971) History of Trial by Jury pp.367-368

A slightly longer and more glorious history, then. Jury nullification in criminal cases actually stretches back almost a thousand years.
posted by jaduncan at 1:55 PM on March 1, 2011 [6 favorites]

Even if jury nullification were the purest quackery, and had never been used for anything but unmitigated evil; isn't it just a tiny bit frightening that you can be arrested for talking about it in front of a courthouse?
posted by steambadger at 2:20 PM on March 1, 2011 [21 favorites]

it is the duty of the jury to follow the law,

Would that be the same law that makes it illegal to sleep under a bridge, no matter if you are poor or rich?
posted by rough ashlar at 2:31 PM on March 1, 2011 [13 favorites]

Yes, I'd agree that John Jay was largely recognizing the de facto power of juries to nullify. And courts are rightfully jealous of the judges' authority over the law, preventing attorneys from asking juries for nullifications in particular. I'd imagine that'd turn courtrooms into rhetoric war zones where the more expensive attorney take the spoils.

We are not however discussing any act that took place inside the courtroom. We're discussing activism that occurred outside the court house. Activism may sway jurors politics of course, but that's fine.

If he chants "nullification" inside a courtroom, the judge should bar him from the court house. If he presents himself as an officer of the court at the door, then he should similarly be removed. If however a little yelling or leafleting can bring prosecutions to a standstill, well that's hunky dory. And maybe that particular law doesn't hold the legitimacy congress imagines it's will bestows.
posted by jeffburdges at 2:37 PM on March 1, 2011 [1 favorite]

This is how whitey gets off, people.

Nice appeal to racism.

I guess when a slaveholder who was part of the founders say ..it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. that too is just more whitey getting off?
posted by rough ashlar at 2:37 PM on March 1, 2011 [2 favorites]

When the people in charge want a particular outcome, generally speaking, they usually already know how to game the system to get their way. Jury nullification seems such an odd loophole to single out and be outraged over, given how many other loopholes have been written into legal codes and abused throughout history.
posted by Blazecock Pileon at 2:38 PM on March 1, 2011

A slightly longer and more glorious history, then. Jury nullification in criminal cases actually stretches back almost a thousand years.

Here's Forsyth earlier in the book, which is freely available online:

It has been strenuously maintained by some writers that the jury are entitled in all cases, where no special pleas have been put on the record, to give a general verdict, according to their own view of the law, in criminal as well as civil cases. That is, supposing the action to be brought for a libel or an assault, or the indictment to charge a felony or a misdemeanor, and the only plea is not guilty, they assert that the jury are justified in bringing in a verdict of acquittal, notwithstanding they are told by the judge that in point of law there is no defence, provided they think otherwise themselves. But it is impossible to uphold the doctrine. It is founded on a confusion between the ideas of power and right.

We shall have occasion to consider the subject with reference to questions of libel hereafter, and here it will be enough to say that, although juries have undoubtedly the power in such cases to take the law into their own hands, and so, it may be, defeat the ends of justice, or do what they believe to be substantial justice, they do so at a sacrifice of conscience and duty. The law cannot depend upon the verdict of a jury, whose office is simply to find the truth of disputed facts;—and yet such must be the result, if they may decide contrary to what the judge, the authorized expounder of the law, lays down for their guidance. This would introduce the most miserable uncertainty as to our rights and liberties, the misera servitus of vagum jus, and be the most fatal blow that could be struck at the existence of trial by jury.

Can it for a moment be contended that twelve men in a jury-box are to determine that not to be an offence which the law, under a penalty, forbids? May they pronounce that to be manslaughter or justifiable homicide which the law declares to be murder ? If so, then they may by their verdict abrogate, by rendering ineffective, every enactment of the legislature, and they become a court of appeal from the solemn decision of Parliament and the Crown. That they can do so is not disputed, but so can the judges give judgments contrary to law, if they choose to disregard their oaths, and yield to the influence of corrupt motives. In both cases the law presumes that men will act according to their duty.

Indeed, it is difficult to understand how any one acquainted with the principles and settled practice of the English law, can assert that it sanctions the doctrine which is here combated.

Basically, yes, as a practical matter juries can nullify laws, but they do not and never had the right to do so. Yet, punishing juries for engaging in the practice would endanger the legitimacy of the entire jury system, and so preventive measures are taken instead. Taken to the extreme, as they have been here, such measures may be worse than what they are meant to prevent.
posted by jedicus at 2:40 PM on March 1, 2011 [7 favorites]

If I were ever called to be a juror in a drug trial, I wouldn't vote to convict. I don't care if he was selling crack to pre-schoolers.
posted by empath at 2:44 PM on March 1, 2011

that too is just more whitey getting off?

I imagine it was a reference to the practice of jury nullification being used by white juries to improperly acquit those accused of crimes against blacks. Because of the historical exclusion of blacks from juries, the misuse of jury nullification has tended to benefit whites.

If I were ever called to be a juror in a drug trial, I wouldn't vote to convict. I don't care if he was selling crack to pre-schoolers.

Then the proper thing to do is to explain your position during voir dire. If potential jurors want to protest the injustice of a law, they should so by refusing to serve. It's a more public form of dissent anyway.
posted by jedicus at 2:50 PM on March 1, 2011 [2 favorites]

Jedicus: The law doesn't sanction it, no. This has been viewed as a feature rather than a bug. Forsyth doesn't like it; Baxi calls the juror who nullifies a "strategic critic and subverter...resisting, ambushing, waylaying, disorientating, the mega-structures" (and believes that this is a good thing, and had an important impact on the development of the English legal system). Both acknowledge the power of the jury to do so, and if you think that is a good or bad thing is seperate from the power of that jury to do so.

My central point here is that it is disingenous to tie this only to Deep South racism by saying it helps whitey get off. There's a more important and complex question of if the jury should be viewed as a last ditch defender against unfair laws, and one which has a far longer history.
posted by jaduncan at 2:51 PM on March 1, 2011 [4 favorites]

Although advocacy of jury nullification could no more be flatly forbidden than advocacy of Marxism, nudism, or Satanism, we cannot think of a more reasonable regulation of the time, place, and manner of speech than to forbid its advocacy in a courthouse.

346 F. 3d 761 - Braun v. Baldwin
posted by warbaby at 2:58 PM on March 1, 2011 [1 favorite]

There's a more important and complex question of if the jury should be viewed as a last ditch defender against unfair laws, and one which has a far longer history.

Well, yes and no. The question is whether a juror should be permitted to act as a last ditch defender against what that particular juror thinks is an unfair law. Which is why the white juries thinking it's unfair to imprison a white man just for lynching a black man is a prime example of jury nullification, as much as any instance of someone refusing to convict on drug crimes.

Yes, juries have the power to nullify, and there's nothing that can be done to completely stop that. Just like people have the power to murder other people, and there's nothing that can be done to completely stop that, either. Doesn't mean we should promote it, doesn't mean we should tolerate it, and doesn't mean we should pretend that, just because we can't stop them, it's a thing they should feel free to do.
posted by kafziel at 2:58 PM on March 1, 2011 [1 favorite]

As for the "whitey gets off" criticism, I'll buy that one once selective prosecution and selective enforcement have been inshrined as legal defenses. There will almost surely exist vastly more cases of selective prosecution & enforcement than unjust jury nullification.

Yes, "whitey gets off" but we all know that's primarily the police. After them, the prosecutors, defense attorneys, and judges are all culpable for making race into a game. Juries themselves are almost always just haplessly following the rhetoric.
posted by jeffburdges at 2:59 PM on March 1, 2011

Well, yes and no. The question is whether a juror should be permitted to act as a last ditch defender against what that particular juror thinks is an unfair law.

Yes, it's the moral test by members of the community that are setting themselves against the superstructure, as I was mentioning Baxi stated.

Yes, juries have the power to nullify, and there's nothing that can be done to completely stop that. Just like people have the power to murder other people, and there's nothing that can be done to completely stop that, either. Doesn't mean we should promote it, doesn't mean we should tolerate it, and doesn't mean we should pretend that, just because we can't stop them, it's a thing they should feel free to do.

But (aside from the fact that the statements I was disagreeing with painted this as a Deep South thing) if we are setting up these historical tests, then let's be fair for the other side. English juries refused to convict for possession of counterfeit currency, because they viewed the capital sentence that would ensue as so unfair as to be unjust. Are you suggesting that was an immoral stance?

I would suggest that it was not an immoral stance, and is one that is distinctly seperated from the Deep South situation. To talk only about the Deep South is to reduce a complex history to one of simplistic good and bad, and I think that's oversimplification.
posted by jaduncan at 3:07 PM on March 1, 2011 [2 favorites]

But (aside from the fact that the statements I was disagreeing with painted this as a Deep South thing) if we are setting up these historical tests, then let's be fair for the other side. English juries refused to convict for possession of counterfeit currency, because they viewed the capital sentence that would ensue as so unfair as to be unjust. Are you suggesting that was an immoral stance?

I would suggest that as a stance actively counter to the fundamental concept of a rule of law, yes, it's grossly immoral. It doesn't matter what law you're objecting to, or why. The jury box is not the place to make your protest.
posted by kafziel at 3:11 PM on March 1, 2011 [1 favorite]

There's no point in having jury trials if they would always reach the same conclusion as bench trials.
posted by one more dead town's last parade at 3:16 PM on March 1, 2011 [7 favorites]

Just fyi, deliberative democracy asserts that any law's legitimacy should only from a large jury's evaluation of the arguments for and against it. You might for example replace the presidential veto by a large jury watching a debate among all the different opinions in the legislature, as well as the president's advocate. Btw, you'd jury selection issues by using several hundred member juries.
posted by jeffburdges at 3:22 PM on March 1, 2011

I would suggest that as a stance actively counter to the fundamental concept of a rule of law, yes, it's grossly immoral. It doesn't matter what law you're objecting to, or why. The jury box is not the place to make your protest.

I disagree, but I'd like to say why explicitly. Under this logic, any form of protest that infringes the law is also against the rule of law. When Rosa Parks sat at the front of the bus, she broke clear black letter law. This was, undoubtedly, her standing against that law because she believed it to be unjust, and challenged the rule of that law and, necessarily, the rule of law in general.

As much as she is now regarded as a heroine of the civil rights movement, and won the Presidential Medal of Freedom, the Congressional Gold Medal and the Spingarn medal, it seems clear that both legislature, executive and the affected minorities now view her actions as having been both moral and brave. I don't think her spirit of protest would have been less moral and brave were she in the jury box.
posted by jaduncan at 3:22 PM on March 1, 2011 [9 favorites]

The highest mandate of a jury is to do justice. If you think justice always corresponds to the outcome dictated by the law, then you are a fool. The law is a system that (I will say for the sake of the argument) is intended to operate in such a manner as to produce just outcomes. But no system (or, at least, no human system) operates perfectly all the time. In our system, the jury is the ultimate arbiter, so that some measure of power resides with the People (as opposed to the State). Thank God for that.

Jury nullification should be taught in all secondary schools (all sides of the issue). It should be made clear to anyone who might ever serve on a jury that the jury has the prerogative to judge the law and the facts and that the jury is not required to present a rationale for its decision.
posted by Crabby Appleton at 3:22 PM on March 1, 2011 [9 favorites]

I would suggest that as a stance actively counter to the fundamental concept of a rule of law, yes, it's grossly immoral. It doesn't matter what law you're objecting to, or why. The jury box is not the place to make your protest.

Right. Another example would be someone who assists another person fill out their ballot (e.g. because they are blind and can't read braille or what-have-you). Suppose the voter wants to vote for some truly repugnant candidate or proposition, and the assistant switches the vote. The voter has no ability to check the assistant or verify the vote, and so the tainted ballot will stand. It is a moral stance to oppose the repugnant candidate or proposition, but it is immoral to protest it by corrupting the democratic process.

There's no point in having jury trials if they would always reach the same conclusion as bench trials.

There's an important difference between saying juries shouldn't decide not to follow the law and saying that judges should be able to overrule acquittals. Juries have the power of nullification but not the right, and one can say jurors ought not engage in the practice without advocating for judicial review of acquittals.
posted by jedicus at 3:23 PM on March 1, 2011 [1 favorite]

The jury box is not the place to make your protest.

It is absolutely the place to make your protest.
posted by Bort at 3:24 PM on March 1, 2011 [14 favorites]

But no system (or, at least, no human system) operates perfectly all the time. In our system, the jury is the ultimate arbiter, so that some measure of power resides with the People (as opposed to the State).

And when jury nullification is used for evil rather than righteous ends? When the will of the people, expressed via the enactment of just laws through the democratic process, is circumvented by a small, completely unaccountable group? Is that perfect operation? Jury nullification is not ultimate arbitration by 'the People.' It is ultimate arbitration by a very, very small group of people, quite possibly acting in opposition to the will of the People.

If 'the People' want to oppose a law, they should do so by the electoral process, by litigation in the courts, and by lobbying their representatives. Jury nullification is anti-democratic.

Rosa Parks

Parks engaged in civil disobedience. She publicly defied the law and accepted the (unjust) punishment for it in order to spark protest and challenge the law in court. Jury nullification is a coward's protest. Jurors who engage in nullification likely have to lie to get through voir dire, and once on the jury they are protesting anonymously, without explanation, and without fear of any consequence. And for all that, it's an extraordinarily weak form of protest, since it applies only in the one case and does little or nothing to overturn the allegedly unjust law.
posted by jedicus at 3:34 PM on March 1, 2011 [4 favorites]

Jury nullification is a coward's protest.

To believe that jury nullification is invariably immoral and somehow illegitimate protest (which is, I think, what you are implying, but if I am wrong I apologise - I don't want to misrepresent your views), it is nessicary to claim that all laws, no matter how prima facie unjust, must be followed by the jury when they make the findings of fact that determine guilt according to the charges brought.

Is it possible to concieve of any combination of law and jurisdiction that might render it legitimate for jurors to refuse to make the finding of guilty? I mean, let's say that jaywalking is deemed to be a capital crime, and one which is not subject to normal standards of proof but can be based on hearsay.

If you would refuse to find a defendant guilty on the basis that the hearsay of a possibly biased witness is not enough to kill someone (and you may extend the ludicrously exagerated harshness of the law; these are the situations in which jury nulification is most important) then you are not arguing that jury nullification is wrong, you are arguing about the circumstances in which it is justified.

If you would condemn a man to death because another unexamined witness claimed that he jaywalked, we may hold fundamentally different positions on how much a system of law can be claimed to be legitimate based on the fact that it is a system that administrates clearly unjust law.
posted by jaduncan at 3:38 PM on March 1, 2011 [3 favorites]

"The jury box is not the place to make your protest."

It is absolutely the place to make your protest.

Oh the irony of giving an unexplained blanket contradiction as an argument in support of jury nullification.
posted by jedicus at 3:39 PM on March 1, 2011 [1 favorite]

Jurors who engage in nullification likely have to lie to get through voir dire, and once on the jury they are protesting anonymously, without explanation, and without fear of any consequence. And for all that, it's an extraordinarily weak form of protest, since it applies only in the one case and does little or nothing to overturn the allegedly unjust law.

It would, of course, be possible to state after the trial is completed that you did so, why you did so, and to accept the consequences of that.
posted by jaduncan at 3:42 PM on March 1, 2011

If you would condemn a man to death because another unexamined witness claimed that he jaywalked, we may hold fundamentally different positions on how much a system of law can be claimed to be legitimate based on the fact that it is a system that administrates clearly unjust law.

The proper thing for a juror to do when confronted with manifest injustice is to refuse to pass judgment and ask to be excused as a juror. If the juror is not allowed to be excused, then the proper thing to do is to refuse to follow the order, be arrested for contempt, and thus engage in civil disobedience.

It would, of course, be possible to state after the trial is completed that you did so, why you did so, and to accept the consequences of that.

Yes, but there are no legal consequences for it at that point. The statement (and consequent recusal) should occur before the verdict is rendered, not after.
posted by jedicus at 3:44 PM on March 1, 2011 [2 favorites]

The proper thing for a juror to do when confronted with manifest injustice is to refuse to pass judgment and ask to be excused as a juror. If the juror is not allowed to be excused, then the proper thing to do is to refuse to follow the order, be arrested for contempt, and thus engage in civil disobedience.

This seems a sub-optimal solution if we care about the life of the defendant; it would produce a situation where jurors not prepared to cause death for a charge of jaywalking all ask to be excused, and the jury effectively self-selects for people willing to impose death. The specific case of manifest injustice cannot then be prevented, and the defendant dies.
posted by jaduncan at 3:47 PM on March 1, 2011 [4 favorites]

Yes, but there are no legal consequences for it at that point. The statement (and consequent recusal) should occur before the verdict is rendered, not after.

One of your criticisms was that it was an anonymous protest without explaination, and would thus not do anything to create a backlash against the wider law.
posted by jaduncan at 3:50 PM on March 1, 2011

jedicus, you seem to be in love with abstractions. I'd advise you to be careful with that. Abstractions have sharp edges; when you embrace them too tightly, those edges will cut you to ribbons.

The law is an abstraction. No abstraction can be mapped perfectly onto reality. Indeed, that's the definition of an abstraction—some aspects of reality are necessarily left out.

I absolutely prefer to trust the judgement of a jury of one's peers who learn a lot more about the particulars of the case at hand than that of someone blindly applying rules that are necessarily broad generalizations (or based on such) regardless of the context. I prefer the judgement of individual human beings to the judgement of a system of abstractions.

jedicus writes: And when jury nullification is used for evil rather than righteous ends?

In that case, I would consider the nature of the evil that the jury might do. The most a jury can do by refusing to convict is to allow an individual to avoid punishment for breaking a law. In many cases that might be regrettable, but it's nothing compared to the evil that might be done in some situations by blindly applying rules to result in ruining or literally destroying an individual's life. Any criminal going into court counting on jury nullification to get him off is in a pretty bad fix. The benefits of the jury's traditional power of nullification far outweigh any negative consequences.

When the will of the people, expressed via the enactment of just laws through the democratic process, is circumvented by a small, completely unaccountable group?

They are accountable to their consciences. Some would say that they are accountable to their God.

Is that perfect operation? Jury nullification is not ultimate arbitration by 'the People.' It is ultimate arbitration by a very, very small group of people, quite possibly acting in opposition to the will of the People.

I wish I hadn't capitalized "People". To you, "the People" is another sacred abstraction. I simply meant by it "individual real (non-abstract) persons". You seem to have a deep distrust of real individuals. I want to be judged by real, flesh-and-blood people, not by any abstract system.
posted by Crabby Appleton at 4:15 PM on March 1, 2011 [4 favorites]

fatbird: "So effectively, if you want to nullify, you don't say "the law is shit", you just sit back and say "I have reasonable doubts" until everyone gets tired and votes to acquit."

QFT. The system is essentially encouraging this strategy by not asking the jury to justify their decision.
posted by mullingitover at 4:22 PM on March 1, 2011 [3 favorites]

Can we try a different angle? What if a person was handing out pamphlets saying that the jury can convict for any reason they want as long as they keep quiet about it? Of course, unlike a verdict of not guilty, a judge can set aside a guilty verdict, but let's put that aside.
posted by cheburashka at 4:23 PM on March 1, 2011

Can we try a different angle? What if a person was handing out pamphlets saying that the jury can convict for any reason they want as long as they keep quiet about it? Of course, unlike a verdict of not guilty, a judge can set aside a guilty verdict, but let's put that aside.

The person handing out leaflets? First amendement. He can't claim to be a court officer, obviously, but a personal opinion that juries should do so? Absolutely our right in a US jurisdiction, and indeed this is core political speech - "interactive communication concerning political change." Meyer v. Grant, 486 U.S. 414, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). I might disagree with his stance, but there it is. That hypothetical man, you or I can advocate that juries burn down the courthouse rather than make a verdict if we wish.
posted by jaduncan at 4:34 PM on March 1, 2011

We should kill this whole "whitey gets off" business once and for all : Racial biases are statements about race pure and simple, not the law itself. Ergo, racist acquittals aren't jury nullification.

In America, the two big historical jury nullification scenarios have always been refused to convict for violations of the Fugitive Slave Act and Prohibition. In fact, jury nullification had an enormous impact upon prohibition and contributed significantly to the repeal.


I'd imagine all the pro-nulification crowd here envisions themselves as a prospective juror for a marijuana possession trial, an egregiously unjust law, much like prohibition.

In that scenario, your moral duty is clearly to get yourself on that jury by not standing out and then work to prevent the jury from convicting. You should only announce yourself publicly once you're sure the prosecution cannot place the defendant in further jeopardy.

If you announce yourself, great maybe others will get the same idea, resulting in more marijuana acquittals. If you never announce yourself, fine you've still helped raise the costs of prosecution, decreasing their profit margin.


If jurors had received pro-conviction leaflets or tea bags, the judges might dismiss all jurors and postpone all cases until the next day, ironically defeating the leafleters goals. In fact, our courts often deal with far more pervasive poisoning of the jury pool by granting the defense a change of venue.
posted by jeffburdges at 4:34 PM on March 1, 2011

When the will of the people, expressed via the enactment of just laws through the democratic process, is circumvented by a small, completely unaccountable group?

This is a big assumption in many cases. Black voters only had 2/3 of a vote, for example, and that was where they had not been excluded by franchise tests.

In non-US jurisditions, the democratic process is sometimes completely absent.
posted by jaduncan at 4:39 PM on March 1, 2011

They are accountable to their consciences. Some would say that they are accountable to their God.

The first argument does nothing to help a victim who has been denied justice or to future victims, whether of a defendant who goes free or others who are emboldened by the acquittal. The second argument has no place in the US legal system.

To you, "the People" is another sacred abstraction.

Far from it. I only capitalized it because you did. I even put scare quotes around it to indicate my disdain for the notion of an abstract, sacred "People."

I want to be judged by real, flesh-and-blood people, not by any abstract system.

Every defendant is judged by real, flesh-and-blood people, whether jurors or judges. Furthermore, it's real, flesh-and-blood people who vote for the legislators and executives who enact laws, and they are themselves real, flesh-and-blood people. It's people all the way down, so I don't know what you mean by an abstract system.
posted by jedicus at 4:40 PM on March 1, 2011 [3 favorites]

This is a big assumption in many cases.

We're talking about the US system, so let's limit it to that. Consider a lynching case in which the defendant is improperly acquitted by a nullifying jury. One can't really argue that the underrepresented or disenfranchised black voters would have voted to make murder legal or somesuch. So which cases did you have in mind?
posted by jedicus at 4:43 PM on March 1, 2011

A jury exists to determine whether the law has been broken or not, not whether the law as it ought to be has been broken.

Nevertheless, I think that this prosecution is stupidly indulging the ego of a crank, giving him more attention and sympathy than he's probably had all his life and making a "martyr" of him.
posted by knoyers at 4:50 PM on March 1, 2011

So I think jury nullification is interesting and all, but to me the real story is this:

Federal prosecutors are trying a man for the content of core political speech in a traditional public forum!

Federal prosecutors. We're not even talking about some grubby DA somewhere trying to win an election. These guys are the elites of the profession. They got A's at Harvard or Yale or whatever. Fuckers are supposed to be toilet-trained! Let's casually flout the most important article of the Constitution because we're annoyed! I would impeach whoever's responsible in an instant.

Even if you think jury nullification is dangerous, what the prosecutors are doing is inexcusable.
posted by grobstein at 4:53 PM on March 1, 2011 [5 favorites]

. . . I'm a casual elitist . . . on the side of good!
posted by grobstein at 4:54 PM on March 1, 2011 [2 favorites]

Can we try a different angle? What if a person was handing out pamphlets saying that the jury can convict for any reason they want as long as they keep quiet about it? Of course, unlike a verdict of not guilty, a judge can set aside a guilty verdict, but let's put that aside.

How likely is it that 12 random people would decide to do that for no reason?

The argument "oh this was once used by evil white people in the south, therefore it should not be used by medical marijuana supporters today!" makes no sense. I heard the Klan also drove cars, should they be given up too?

A jury exists to determine whether the law has been broken or not, not whether the law as it ought to be has been broken.

A jury exists because the law requires people serve on Jury duty. Some people would like it to apply the law to the letter, while others prefer they go on the basis of justice. You can't say one view is "true" and the other not. They are just opinions.
posted by delmoi at 4:57 PM on March 1, 2011 [1 favorite]

We're talking about the US system, so let's limit it to that. Consider a lynching case in which the defendant is improperly acquitted by a nullifying jury. One can't really argue that the underrepresented or disenfranchised black voters would have voted to make murder legal or somesuch. So which cases did you have in mind?

OK, seems reasonable. One could certainly make the argument that the 1860's Black Codes could not have happened in states that allowed free expression of the black political will, especially since the white population was a minority in some.

Example: Mississipi's Black Code required annual contracts to be signed by negro workers, and males were apprenticed until the age of 21. Any freedman without a job could be arrested under vagrancy laws, and anyone feeding a person who left service were themselves guilty of a crime. These all seem like laws that are in the interest of only the white community, and indeed were all but explicitly formed to deny political agency to blacks and keep them under white control.

But again, we are back to saying that it is potentially legitimate when the law is manifestly unjust (since we are talking about precise laws) and then surely it's a debate about the point at which it becomes legitimate, not if it does.
posted by jaduncan at 4:58 PM on March 1, 2011

Federal prosecutors are trying a man for the content of core political speech in a traditional public forum!

This is true, and as mentioned above per Meyer v. Grant (1988) they are going to lose hard. It is quite surprising that they are bothering, unless there are further facts we don't know about such as pretending to be a court officer. I would guess not all the facts are public, as even the defendant admits he was sometimes thought to be an officer of the court. We'll see though, and if it really is only speech I hope he makes out like a bandit on the resulatant civil case.
posted by jaduncan at 5:04 PM on March 1, 2011

jedicus writes: The first argument does nothing to help a victim who has been denied justice or to future victims, whether of a defendant who goes free or others who are emboldened by the acquittal.

Jury nullification is sufficiently rare and enough of a crap-shoot that any criminal would be foolish indeed to feel "emboldened" by it. By the way, how many of these hypothetical crimes we're talking about actually have victims? In the 21st century, murder acquittals resulting from nullification are practically nonexistent, to the best of my knowledge. Being "denied justice" if that refers to someone else being acquitted is not a concrete injury. (On the other hand, being denied justice by virtue of having been forced to spend decades in prison for a crime one did not commit is definitely a concrete injury.)

Judges are real flesh-and-blood people, but, in the context of a court of law, they're running a program (another abstraction) drummed into them in law school and their subsequent careers. But you knew I was using the phrase metaphorically, didn't you?
posted by Crabby Appleton at 5:10 PM on March 1, 2011 [1 favorite]

So, if I took out a billboard advertisement advising people to never vote to convict if they are on a jury for in a marijuana case I could be arrested?
posted by ennui.bz at 5:13 PM on March 1, 2011

I much prefer the situation where it proves impossible to convene a jury - that makes the point far more dramatically, and legally, and honestly than an apparently perverse verdict. Sure, jury nullification sounds great in the context of drug laws and so forth - I understand that. But the exact same arguments are employed by people who refuse to acknowledge the existence of income tax and a raft of other laws. Only pointing out those cases which yielded a positive result is a bit self-serving.

Meanwhile, I can't buy the argument about an 'interactive communication regarding political change,' since a not guilty verdict may be surprising but has no effect on precedent. In any case, the administration of law is a judicial matter, not a political one. Political change is expressed by voting in elections, not trials, because a republic is governed by its elected representatives. Judicial rulings on constitutional questions do not involve the use of a jury.

A cold abstraction? Surely. Some of us would rather rely on such standards than on the emotions of 12 people. If I were to be falsely accused of a heinous crime, my instinct is that I'd much prefer a bench trial than to have 12 strangers pondering whether or not they like my face. Consider how many people have received guilty verdicts on incredibly flimsy evidence, including for crimes like dealing drugs.
posted by anigbrowl at 5:14 PM on March 1, 2011 [1 favorite]

Meanwhile, I can't buy the argument about an 'interactive communication regarding political change,' since a not guilty verdict may be surprising but has no effect on precedent.

Just to avoid misunderstanding there, I was referring to the act of disseminating of leaflets advocating jury behaviour of one type or another, not the behaviour itself.
posted by jaduncan at 5:17 PM on March 1, 2011

Gah, my syntax is suffering from 01:20 syndrome.
posted by jaduncan at 5:21 PM on March 1, 2011

jaduncan et al: this is a great debate; thanks for having it in a public forum!
posted by artof.mulata at 5:27 PM on March 1, 2011

"So, if I took out a billboard advertisement advising people to never vote to convict if they are on a jury for in a marijuana case I could be arrested?" Good luck getting such a billboard up in a metro area. I bet you could collect donations for it being put up. While it may not be illegal, the billboard company is not required take your money.

On a side note, if one is interested in jury nullification, and is also looking to avoid jury duty; you're in luck! Just mention your interest in jury nullification when being questioned for your suitability to sit on a jury.
posted by el io at 5:28 PM on March 1, 2011 [1 favorite]

Oh good god. Yes, let's all vote according to how we feel. You know how many jurors feel regarding, oh, say, an accused sex offender? "Let's say he's guilty cause I couldn't live with myself if he really did it and went free." Dude. The things I read in jury cases of the jurors who AREN'T chosen make my hair curl. The courts make it clear that it's about the facts for good reason - because people are easily swayed by emotion, and cases need to be decided by facts.
posted by agregoli at 5:35 PM on March 1, 2011 [2 favorites]

Be sure if you are going to protest to do so in the least effective manner possible so as to provide as much convenience as possible to all those who oppose your protest, so therefore, if you are a advocate for nullification be sure to inform all the proper officials during jury selection to ensure you will never have the opportunity to engage in your belief.
posted by Shit Parade at 5:35 PM on March 1, 2011 [1 favorite]

I think the last time I got voir-dired, the question was asked along the lines of "Jurors are to decide the facts of the case, not the law. Does anyone have any issues doing that?", so as not to clue everyone else in that there was either an easy out or to keep your fool mouth shut and go along, depending on your proclivities...
posted by mikelieman at 5:51 PM on March 1, 2011

But what if you don't believe in jury nullification until you're in the jury box (and see some injustice about to be done, i.e. you profoundly disagree with the jury instructions). Since you are in contempt (possibly literally feeling contempt for the court), can you stay silent under the 5th?
posted by 445supermag at 5:58 PM on March 1, 2011

They got A's at Harvard or Yale or whatever.

How dare you refer to Stanford that way!
posted by one more dead town's last parade at 6:37 PM on March 1, 2011 [2 favorites]

metafilter: where whitey gets off
posted by The Emperor of Ice Cream at 6:59 PM on March 1, 2011 [1 favorite]

Jury nullification is still alive.

Last year there was a woman who was popped by the police for some sort of drug offense. She was told by the police that they would have the DA dismiss her case if she was able to get them someone else for a much more serious crime. She worked as a housekeeper for a 72 year old man who had no criminal record at all. She knew that he had a prescription for some sort of pain killers. She told the police this and they said if she could get him to sell her at least five pills that he could be charged with trafficking and her case would be dismissed.

She made up some story and told the 72 year old man that she desperately needed some pain medication. He sold her twenty of his pills. The state charged the man with trafficking in opiates. The case went to the jury.

On direct, the man was asked whether he had any record and whether he was a drug dealer. That was about it. During the closing, the defense attorney stood before the jury and held open the general statutes book that contained the appropriate law. He read the law out loud to them, and then added, "If you find Mr. Jones guilty of this offense, he will serve an active sentence of 90-117 months in prison. It is a mandatory sentence and the judge will have to sentence him to that amount."

The defense attorney sat down. The jury found the man not guilty in less than twenty minutes.
posted by flarbuse at 7:27 PM on March 1, 2011 [1 favorite]

One could certainly make the argument that the 1860's Black Codes could not have happened in states that allowed free expression of the black political will, especially since the white population was a minority in some.

Was there a problem with jury nullification in Black Codes cases? It would be very strange for a (likely) all-white jury to invoke jury nullification to aid a (presumably) black defendant in such a case. Basically what I'm looking for is an example of nullification being used in a case where the law in question was not duly enacted through the normal political process. In other words, a case where nullification was actually serving as a check on a corrupt or illegitimate political process.

I can't think of any examples. Nullification in drug cases doesn't qualify, for example, since the drug laws were passed through the normal political process, enjoyed strong popular support at the time, and are slowly being dismantled through the normal political process (e.g. medical marijuana laws) as they lose popular support.
posted by jedicus at 8:50 PM on March 1, 2011

If I were ever called to be a juror in a drug trial, I wouldn't vote to convict. I don't care if he was selling crack to pre-schoolers.

WTF is wrong with you? Drug laws are bad when they penalize adults who just want to alter their state of mind and don't want to harm anyone, not when they stop dealers from selling crack to children.
posted by Dasein at 8:59 PM on March 1, 2011

Maybe in that particular case we could find one or more laws that the drug dealer broke that are not drug laws. Can you think of any?
posted by Crabby Appleton at 9:10 PM on March 1, 2011

Oh good god. Yes, let's all vote according to how we feel. You know how many jurors feel regarding, oh, say, an accused sex offender? "Let's say he's guilty cause I couldn't live with myself if he really did it and went free."

No, no, you've got it all wrong, see: juror nullification is awesome, because Metafilter likes it. It lets you talk about the legal system while also sounding rebellious. Therefore, it can only be used to achieve awesome results that Metafilter likes, like acquitting defendants of marijuana charges. None of your "unintended consequences"!
posted by John Cohen at 9:31 PM on March 1, 2011

Jury nullification refers only to acquittals. Therefore no conviction can be a consequence (intended or otherwise) of jury nullification.

I hope you're not a lawyer.
posted by Crabby Appleton at 9:46 PM on March 1, 2011

well said john, case closed

but seriously, how can we even begin to ask humans to determine facts, i mean like what is even objectively true anyway?

is it a bit disingenuous for some judge to be all like, you're only here to determine if A, B and C are true, damn the consequences, because, like, you're just sitting here in court, so it is easy to just not even think "oh wait, A + B + C = 10 years in jail for that d00d" i mean no one with any sort of MORAL BACKBONE could possibly let something like that get in the way of their civic duty in the greatest democracy in the world

oh, but i forgot, the prosecutor has already weeded out of the juror pool anyone capable of even spelling nullification, and the judge will just submit a bunch of true/false questions (i was always so good at those) and he must be trustworthy because, i mean come on, he IS a judge and the public defender will be all like held in contempt if it even tries to suggest otherwise and this post alone might be enough to indict me for jury tampering it's a good thing i'm behind like eight proxies right now

JK! judges aren't all men
posted by lulz at 9:57 PM on March 1, 2011

"Juries themselves are almost always just haplessly following the rhetoric."

Why would you want to trust interpretation of the law to people who can't help but be gulled by rhetoric over facts?

(Like copyright infringement, jury nullification is great when I agree with it and awful in all other instances.)
posted by klangklangston at 10:05 PM on March 1, 2011

Crabby Appleton writes "Maybe in that particular case we could find one or more laws that the drug dealer broke that are not drug laws. Can you think of any?"

I bet they didn't collect sales tax.
posted by Mitheral at 10:32 PM on March 1, 2011

Well THANK GOD they are going after the most dangerous of terrorists!
posted by hal_c_on at 11:27 PM on March 1, 2011

Was there a problem with jury nullification in Black Codes cases? It would be very strange for a (likely) all-white jury to invoke jury nullification to aid a (presumably) black defendant in such a case. Basically what I'm looking for is an example of nullification being used in a case where the law in question was not duly enacted through the normal political process. In other words, a case where nullification was actually serving as a check on a corrupt or illegitimate political process.

I can't think of any examples. Nullification in drug cases doesn't qualify, for example, since the drug laws were passed through the normal political process, enjoyed strong popular support at the time, and are slowly being dismantled through the normal political process (e.g. medical marijuana laws) as they lose popular support.

Oh, I see. I thought you merely wanted laws that might justify it.

Cases where it actually happened and this was good:

Zenger's Case, 1735. A jury rejected the argument that truth was not a defence to libel by refusing to convict after having explicit judicial instruction that they were only to consider if the act of publication had occured. This is, for obvious reasons, regarded as extremely important in the history of US press freedom.

The Fugitive Slave Acts were notoriously hard to gain a conviction under in the northern states, largely because people believed that it was immoral to send back other citizens to a life of slavery.

Both of these laws were later changed, partly down to jury pressure.
posted by jaduncan at 2:57 AM on March 2, 2011

single link newman

You know, so much of the time we're just lost. We say, "Please, God, tell us what is right; tell us what is true." And there is no justice: the rich win, the poor are powerless. We become tired of hearing people lie. And after a time, we become dead, a little dead. We think of ourselves as victims, and we become victims. We become... we become weak. We doubt ourselves, we doubt our beliefs. We doubt our institutions. And we doubt the law. But today you are the law. You ARE the law. Not some book, not the lawyers, not the, a marble statue... or the trappings of the court. See those are just symbols of our desire to be just. They are... they are, in fact, a prayer: a fervent and a frightened prayer.

posted by crayz at 4:55 AM on March 2, 2011

Jury nullification refers only to acquittals.

Technically, I suppose; but there's a jury phenomenon that's akin to, and probably much more common than, nullification. The only jury I've ever served on was a trial for possession with intent, and the state didn't have a case. The police had confronted the defendant in the street, claiming he matched the description of a robbery suspect (he didn't, at all). He ran, and they chased him into an apartment, where they found a bag of crack vials sitting on a dresser. It wasn't his apartment, and nobody saw him anywhere near the drugs. The judge all but instructed us to acquit. But, the thing is, the guy probably was a sleazeball of some kind. He dressed and talked the part, and he was arrested in a known crack house, and most of the jury wanted to convict him on general principle. The most vociferous advocates for conviction were a pair of elderly black women, who lived close to where this guy was busted. The drug trade had devasted their neighborhoods, and the defendant was probably involved in that, and they wanted him to go to jail for it; and I can't say I blamed them. We argued for two days, got a dynamite charge and everything; and in the end, ten jurors voted to convict. I was one of the holdouts, and it remains one of the hardest things I've ever done. I was twenty-two, and all of these people obviously knew a lot more about this stuff than I did, and I can't guarantee I wouldn't have caved if I'd been the only one. Based on that experience, I'm willing to bet a lot of people go to jail for things they haven't done, because juries suspect they deserve it; and that makes me a bit leery of the whole jury nullification thing. Although I can imagine circumstances where it might be the right thing to do, I'd rather not see it adopted as standard practice.

On the plus side; having helped to hang a jury, I've never been selected since.
posted by steambadger at 6:29 AM on March 2, 2011 [3 favorites]

Zenger's Case, 1735

Was the law of libel not duly enacted, presumably through the common law process? I mean, were there some corrupt judges along the way or something? I agree that it's a very good thing that truth is a defense, but I'm not sure the case qualifies as an example of jury nullification being used against an illegitimate law.

The Fugitive Slave Acts

Alright, that seems a fair example. Were blacks not disenfranchised (i.e. in some universe where slavery was legal but slaves could and did vote), then the Fugitive Slave Acts would almost certainly never have become law, so I suppose in that case jury nullification in favor of black defendants did serve a legitimate purpose. I'm not convinced that it wouldn't have been more legitimate to refuse to serve on the jury in protest or to announce one's determination not to convict before deliberating, but if any instance of jury nullification could be said to be legitimate it would probably be that.
posted by jedicus at 6:49 AM on March 2, 2011

In other words, a case where nullification was actually serving as a check on a corrupt or illegitimate political process.

It's not a US case, but in Canada R. V. Morgentaler was case where an jury nullified an abortion case. The government appealed and it made it's way to the Supreme Court of Canada and the law was stuck down.

R. v. Krieger is also interesting. It was a medical marijuana case. The defendant plead not guilty, admitted the facts and asked for trial by jury. The judge directed the jury to find him guilty, even though doing so forced some of the jurors to go against their conscience. On appeal the conviction was overturned, the judge found that by directing the juror to bring back a guilty verdict he took away Mr. Krieger's right to trial by jury. The judge noted the following:

It has since then been well established that under the system of justice we have inherited from England juries are not entitled as a matter of right to refuse to apply the law — but they do have the power to do so when their consciences permit of no other course.
posted by papercrane at 6:51 AM on March 2, 2011

The basic problem with jury nullification is that it undermines the principle of equality before the law. The flip side of nullification, as pointed out above, is juries convicting because they don't like who the defendant is and ignoring what the defendant did.

Lord knows it's hard enough for anybody to get a fair shake in the courts, but if nullification was widely accepted, equal justice would no longer even be a vague notion. It would no longer exist even as a concept.

Since the basic principle of nullification is that juries can ignore the facts and the law, what then becomes the objective basis for justice?

If you look deep enough into the history of FIJA, you'll find that Doig and Dodge got the idea from Red Beckman. Yes, that Red Beckman. And he's still active.

Beckman's whites supremacist version of common law pseudo-legalism is still promoted on FIJA's website through videos of Beckman lecturing.

Like the Tea Partys and "free speech" debates over holocaust denial (for two really obnoxious examples), nullification is another example of infiltration and subversion by the extremist right. FIJA and right-wing tax resistance overlap to a large extent.

You don't like laws, then legislate.
posted by warbaby at 7:34 AM on March 2, 2011

The flip side of nullification, as pointed out above, is juries convicting because they don't like who the defendant is and ignoring what the defendant did.

The flip side, however, is not symmetrical. Most notably, the jury's power is only final if it issues an acquittal. If a jury votes to convict, the defendant can still go free. In addition, the legal standard (reasonable doubt) and the voting system (unanimity required for conviction) make it much easier to filibuster for acquittal than for conviction.

Lord knows it's hard enough for anybody to get a fair shake in the courts, but if nullification was widely accepted, equal justice would no longer even be a vague notion. It would no longer exist even as a concept.

Since the basic principle of nullification is that juries can ignore the facts and the law, what then becomes the objective basis for justice?

A lot of people are writing as though jury nullification is the line we have to hold to stave off anarchy -- if juries sometimes exercise legal discretion, then there is no right and no wrong anymore! Sharp rules or total chaos! In fact, there's a lot of discretion in the system already. Judges have it. Prosecutors don't have to try anyone, even if the case against them is airtight. They're free to say, I don't care that this statute was duly enacted by Congress or that the evidence is overwhelming, I just don't think it's that important to try the mayor's daughter. Conversely, they're free to try whomever they want,* regardless of whether it's important or fair. Indeed, one function of nullification might be to counterbalance the misexercise of discretion by other actors -- for example, if Heicklen's case somehow got to a jury.

But seriously, if -- and this happens all the time in our system -- everyone else has hardened their heart, and failed to grant mercy where it is clearly due, then the jury is the last realistic hope. To say that the outcome must be fixed because it is determined by law is not really true -- it is determined by law and by the exercise of power and discretion by a string of actors along the way. To say that it's not the jury's place to grant mercy is ultimately question-begging. The institutional role of the jury is exactly what's being contested here.

I don't think that punctilious adherence to . . . whatever supposed principles you're invoking . . . supplies a justification for putting someone in jail who doesn't deserve to go to jail.

-----
*Assuming they meet the applicable standard of suspicion and, in some jurisdictions, can convince a grand jury of this fact. This is a low barrier, though, because almost everything is illegal.
posted by grobstein at 8:27 AM on March 2, 2011 [2 favorites]

(I left out the democratic legitimacy arguments for brevity, it being morning in the office. I may get back here later; no need to remind me that Congress is a legally constituted panel of "the People" or whatever.)
posted by grobstein at 8:29 AM on March 2, 2011

Jury nullification seems such an odd loophole to single out and be outraged over, given how many other loopholes have been written into legal codes and abused throughout history.

But jury nullification is the alpha/omega of legal loopholes. It's the will of the people (the jury) overturning unpopular laws. If that is allowed, the whole system crumbles.

As crazy and bigoted as he might seem, this guy is doing good work.

If 'the People' want to oppose a law, they should do so by the electoral process, by litigation in the courts, and by lobbying their representatives. Jury nullification is anti-democratic.

So is revolution, but nobody was rooting for Mubarak, eh? If the Egyptians wanted to replace their leader, they should have done so by the electoral process, right?

Jury nullification is an anti-democratic response to anti-democratic law.
posted by mrgrimm at 8:31 AM on March 2, 2011

You don't like laws, then legislate.

Good idea. This guy might be able to help.
posted by mrgrimm at 8:32 AM on March 2, 2011

So is revolution, but nobody was rooting for Mubarak, eh? If the Egyptians wanted to replace their leader, they should have done so by the electoral process, right?

Obviously a lot of this goes out the window if the government is illegitimate. My comments were limited to the US system, which for all its many faults is still a legitimate government. I specifically asked for examples of jury nullification being used to oppose laws that were enacted through an illegitimate or corrupt process. The Fugitive Slave Acts are a good example, since they were not enacted legitimately because they almost certainly would not have become law if blacks could have voted.
posted by jedicus at 8:39 AM on March 2, 2011

Like the Tea Partys and "free speech" debates over holocaust denial (for two really obnoxious examples), nullification is another example of infiltration and subversion by the extremist right. FIJA and right-wing tax resistance overlap to a large extent.

Guilt by association! Are you a prosecutor?
posted by grobstein at 8:52 AM on March 2, 2011 [1 favorite]

So much for the "time and place" restrictions on speech. Westboro Baptist Church just got the OK from the Supremes.

grobstein - no, I'm a guy who spent a lot of time investigating and reporting on right wing domestic terrorism. FIJA and jury nullification were and continue to be very popular recruiting points for white supremacists.

The most widely distributed jury nullification handbook pops up a lot in domestic terrorism cases. Like in this guy's pocket when he was arrested.

What I am saying is that evil people promote jury nullification for bad purposes. Turn a blind eye if you like, but when I see that literature around here, I find white supremacists.
posted by warbaby at 9:13 AM on March 2, 2011 [1 favorite]

But jury nullification is the alpha/omega of legal loopholes. It's the will of the people (the jury) overturning unpopular laws. If that is allowed, the whole system crumbles.

Yes indeed. I'd guess that where jedicus, you and I would probably agree is that it is a bit of a judicial nuclear weapon, and one not to be used lightly. Personally I would say that nullification is a good last ditch defence, should be kept in the system, isn't something we should be afraid to talk about, and at the same time should almost never be used.

I hesitate to repeat the soap box, ballot box, jury box meme (it really is mostly used by scoundrels who also write terrible poetry), but it is true. Democratic remedies should always first be argued or voted for until that option is removed; I wasn't advocating a breakdown of the rule of law. If the country has chosen to impose a certain law in a free and fair election then it becomes a lot harder to justify nullification as opposed to refusal to participate.

There's just a relationship that is now being implictly identified by all three of us between (probably democratic) legitimacy of the form of government, the resulting legitimacy of the rule of law that results, and the respect that must then be paid to the statues produced under it. YMMV for how much this applies in the specific jurisdictions that happen to be under consideration.

The above certainly isn't an argument for domestic terrorism or racial supremacy, and that's why I originally had an issue with an oversimplification of the principles invoved as 'whitey gets off'.
posted by jaduncan at 9:16 AM on March 2, 2011 [1 favorite]

My comments were limited to the US system, which for all its many faults is still a legitimate government.

I agree that is the rub. However, legitimacy is not always so simple to determine. And as warbaby attests, viewpoints on legitimacy differ wildly.
posted by mrgrimm at 9:27 AM on March 2, 2011

Jury nullification is still alive.

Last year there was a woman who was popped by the police for some sort of drug offense. . .

Interesting, flarbuse. In what jursidiction did this occur? Could you provide a link to a story about it? Thanks.
posted by Dolukhanova at 12:19 PM on March 2, 2011

And when jury nullification is used for evil rather than righteous ends?

And when government is used for evil rather than righteous ends?

Or is it only when the gent has the label "Republican" do they get called out as a member of the lizard people? Seems that basically the same 'evil' is being done now and a whole lot less people are calling those actors 'lizards' - just the one who served under Nixon/Bush.

still a legitimate government.

Yup - All political legitimacy comes from the barrel of a gun.
posted by rough ashlar at 6:51 AM on March 3, 2011 [1 favorite]