Guest Post: Jury Nullification — A Prosecutor’s View
The following was sent to me by a prosecutor who wishes to remain anonymous. (No, it’s not AHCL.) I disagree with him — I think he’s missing at least one essential point (that jury nullification is the law, so that a nullifying verdict is a verdict “according to the law”) — but he’s not entirely crazy, and I thought I’d toss it out for discussion. Enjoy and comment (paging Clay Conrad). (Do I need to say that opinions expressed below the line don’t reflect my views?)
I just can’t leave this one alone.
I feel compelled to address the completely outrageous, legally andfactually unjustifiable act that you and the writers of The Wire are encouraging.
So let’s not discuss free will, etc. We’ll even leave out the admittedly dubious merits of the WoD for the moment. Let’s talk about one thing and one thing only: Jury nullification.
Can you please explain to me how jury nullification is not a gross and unconscionable violation of the juror’s oath? As you well know, in Texas (and I suspect most other states as well) the jurors must swear, prior to being impaneled, that they will “a true verdict render, based on the law and the evidence presented.” Read those words closely, and if I’ve left any out, please let me know. It doesn’t say “unless I disagree with the law in question,” or “unless I’m against the WoD.” It doesn’t mention jury nullification or even civil disobedience!
The Zenger case is often trotted out as the ultimate example of jury nullification. But somehow I doubt the jurors in that case ever took such a specific oath. Modern jurors are promising, in very specific terms, that they are going to render a TRUE verdict, based on the LAW and the FACTS presented. Jury nullification ignores all three of those things: The verdict will not be true, but will in fact be intentionally, knowingly, willfully and (I might add, to go outside of mens reas BLATANTLY false. The jury nullification verdict will not be based on the law, because it sets out to disregard the law because it is viewed as immoral, wrong, etc. Finally, the jury nullification verdict will most certainly not be based on the facts, because it chooses to ignore those facts as a matter of course.
How, then, do proponents of jury nullification justify their position that modern jurors are legally authorized to employ this fancifully archaic concept? Is it simply understood that the whole juror’s oath is but a subterfuge, and that the renegade juror must engage in this deception as a means to an end?
The writers of The Wire, in advocating the actions that they have, are essentially promoting the commission of a crime. Had they made the statements contained in the Time magazine article in Texas, then they would almost certainly be guilty of aggravated perjury. Outrageous, no? How dare I suggest that the exercise of their First Amendment rights could possibly constitute a crime? Pretty easily, actually. Just look at the law.
Perjury and aggravated perjury are defined as follows:
P.C. 37.02 Perjury
(a) A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning:
(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath
***
P.C. 37.03 Aggravated Perjury
(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:
(1) is made during or in connection with an official proceeding; and
(2) is material.
(b) An offense under this section is a felony of the third degree.
The writers of The Wire are telling their readers to premeditatedly violate this statute. By taking the juror’s oath, a juror who plans on engaging in jury nullification is making a false statement under oath, and the statement could hardly be more material to the proceeding! The elements of perjury are thus met. The violation is even more egregious since it is planned out in advance. The jurors enter the courtroom having already formed the intent to commit jury nullification in narcotics cases, regardless of the evidence (“save for a prosecution in which acts of violence or intended violence are alleged” of course, according to the sanctimonious and high-minded drivel put out in the article). Since it is premeditated, the jurors’ oath is false at the moment the jury nullification juror is taking it.
So how are The Wire writers guilty? Texas law further provides:
P.C. 7.02 CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.
(a) A person is criminally responsible for an offense committed by the conduct of another if:
***
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense
***
The Wire writers are, to put it bluntly, encouraging and directing their readers to break the law. And, let’s face it, that’s exactly what jury nullification is: Breaking the law. Not to mention breaking your oath, lying, and a host of other things your mother probably told you not to do.
In America, God bless her, we do have legitimate forms of protest. We have the right of free speech and we have the right of assembly. The series of tubes known as The Internets is probably the greatest vehicle ever for exercising both of these fundamental rights. Jury nullification is not a legitimate form of protest any more than robbing a bank is a legitimate form of protest against unfair lending practices or the subprime mortgage crisis. So what are we left with? you ask. What recourse do we have against the tyranny of the evil WoD?
Well, in America, God bless her, we also have something known as a democracy, and along with it the right to vote. We have elected legislatures whose precise purpose is to enact the will of the people. If you disagree with the WoD, the solution is to vote for a candidate who will cease that war and legalize narcotics. The solution is not to lie under oath and deliberately pervert the justice system. Jury nullification undermines confidence in the judiciary at a time when that confidence is already tragically low. It opens a whole range of unpleasant questions about inequities in its application. After all, if jury nullification is to be carried out in drug cases, then why not resisting arrest cases, DWI cases, or even murder cases? After all, those laws could be considered to represent a war on people with oppositional defiant disorders, alcohol problems, or anger management issues. Ask the defendants and their family members if THEY would prefer the jurors to ignore the facts. I’ll bet the candid ones would say yes in a heartbeat.
Jury nullification, for all the noble prose and liberatarian philosophies behind it, has no place in the modern criminal justice system. As a prosecutor, I commit my jurors to following the law, and I ask if they can promise to do that and convict if I prove my case to them beyond a reasonable doubt. It’s a proper and appropriate question (even under Standefer ) and the people who are honest enough to say “No” get to go home. If you disagree with the WoD, that is your free gift from our justice system. You are hereby exempted from jury service. And there is no shame in it, either. I often ask my panelists if, for reasons of personal conviction or belief, they simply cannot follow a certain law. They have that opportunity to speak. (And for perjury enthusiasts, I should add that voir dire is conducted under oath, as well.) I do not ask anyone to enforce a law they are dead set against if it would violate their conscience to do so. There is nothing wrong with admitting that you cannot or will not abide by your oath and follow the law. What IS wrong is calculatedly concealing that fact for the purpose of subverting the legal process. That can and should lead to troubles that are — to borrow from The Wire writers again — far from fictional.
About The Author
Forcing a juror to swear an oath or even presenting an ABA approved pamphlet decrying jury nullification to a potential juror is tampering with a jury, plain and simple.
The early dialog in this thread had an unusually high quality. We saw a finely reasoned debate by a few armed with knowledge and witnessed some actual mind-changing (in the sense of absorbing new information and admitting it). Exemplary! Both the Guest and critics are to be complemented.
Sadly, the comments are spoiled midway by ignorant (in the sense of not having studied the laws of either Texas or the U.S., but fully armed with political and extra-legal opinions) people led here by an inflammatory headline in reddit, to wit “Texas attorney is a fascist moron, declares that merely advocating jury nullification is in itself a crime, and Time has broken the law by publishing article about The Wire”.
I ask all these, please shut up.
This discussion of jury nullification as a crime is interesting, but it has missed a major point. Texas Rule of Evidence 606(b), which is almost exactly the same as its federal counterpart, states the following:
Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury’s deliberations, or on any juror’s mind or emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict or indictment. Nor may a juror’s affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
Guest Blogger has failed to realize that a jury’s verdict is considered sacred under common law legal systems. Courts only call jurors to testify about what went in on in the jury room in extreme circumstances. One rationale is that jurors must be free to express their thoughts and opinions in deliberation without the fear that what they think and say will be later challenged.
Another policy reason is that if the government has the ability to subpoena jurors as witnesses, then a defendant could do the same. The result would be that masses of individuals convicted of crimes would subpoena each juror from their for impropriety in the jury room. While the government may find a few scattered instances of jury nullification, large numbers of defendants could successfully argue jury misconduct in their trial merits a reversal of their conviction. It is ironic that a prosecutor would advocate disturbing juries’ verdicts.
Additionally, even if Rule 606(b) did not exist, Guest Blogger’s substantive argument is weak. John Jay, the first Chief Justice of the U.S. Supreme Court, wrote, “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”. Georgia v. Brailsford, 3 U.S. 1,4 (1794). Of course, everyone knows that John Jay was an avid fan of the Wire.
Hi.
It’s one of The Wire writers you are discussing.
I was just in Austin, actually, just last week. Spoke at the University of Texas and got a nice award there and got to sit on the stage of Austin City Limits, hallowed ground where Johnny Cash once stood. Very exciting. The communications and film people were very cool. And in response to a question about what could be done to alleviate the nightmare of the ongoing drug war, I reaffirmed my commitment to never voting to convict anyone of a non-violent drug offense and urged all the good Texans within hearing to do the same if they no longer believed in the venal war against the poor that drug prohibition has become. Got a lot of applause on it, too. Don’t know if any of the people were from Harris County.
To be clear, I did not urge anyone to lie during voir dire or to in any way mislead anyone as to their views. I simply urged folks, if they should find their way onto a jury, to search their conscience for something more honest and resonant than the offense in question and to do what feels just. Will most such jurors not pass muster during voir dire? Probably. But even so, if more and more Americans refuse to collaborate with the drug war, then at some point it becomes harder for Pharoah and his army to seat a jury in non-violent drug offenses. At that point, well, perhaps it is the beginning of the end, or at least the end of the beginning for this ineffective, wasteful and brutal orgy of hypocrisy that, forgive me, only a lawyer could still defend.
If there is a penalty to such disobedience, the writers of The Wire accept that we will be obliged to pay such penalty for our stance. But frankly, no such penalty exists. unless we actually mislead anyone during voir dire, there is — to our own readings, and to the legal opinions we sought before penning the essay in Time — no penalty whatsoever that has ever been successfully imposed on either jurors or advocates with regard to jury nullifcation. American juries have had the implicit and explicit right to nullification in precedent as far back as the 17th Century.
Other than that, Texas was great. Had BBQ at the Salt Lick and Smitty’s over in Lockhart. Magnificent. Worth the trip, and would love to come back at some point, so if my schedule allows, let me know when and where you want me to stand trial. I should make it clear that I will require a comprehensive list of the best BBQ and Tex-Mex fare before setting foot in a given county.
Hook ‘em horns…
David Simon
Baltimore, Md.
Herr prosecutor neglects to acknowledge that juries in the United States have the power and the right to determine not only the facts in a case but also the law. They are not required to blindly follow the law as interpreted by the state (which includes the judge), but are indeed empowered to decide whether a particular statute is in keeping with the Constitution and common sense. The courts are not able to peek into a juror’s mind to assess his intent either prior to or after a verdict. Therefore, absent any collusion with the defense or prosecution, any verdict is “true.”
Rather than the high priest(s) of the “justice” system fainting away at the audacity of the little people to disobey their oath, why not discuss the elephant in the room – Why are jurors compelled to swear (affirm) an oath that goes against the law? Why is the right/power of jury nullification not allowed to be discussed in the courtroom?
It seems obvious to those not in a position of power in the justice system that it is a threat to the carefully controlled power heirarchy and cannot be tolerated in an age when citizen means consumer.
The argument seems like so many unethical, but “legal” arguments – if we assume that people are bound by an unlawful oath then the following house of cards can be built on that foundation…
“But somehow I doubt the jurors in that case ever took such a specific oath.” Yes, exactly.
Just one point here. Since the oath in question claims that a juror will uphold the law, and since the right of jury nullification is a part of established law, then you cannot be considered breaking the oath (let alone lying or committing perjury) by upholding your legal right to nullify.
All the arguments about perjury, then, are simply a red herring.
[...] clipped from bennettandbennett.com [...]
Since these jury “oaths” were made up lawyers and legislators and required of jurors, why even have a jury? Might as well send people straight to jail if the juror is not allowed to make up their own mind about the lack of evidence, criminal and or heavy handed prosecutors and abuses of the system. I will never convict anyone for violation of drug laws, but then I usually get out of jury duty because I believe that a human being’s life is their own and I reserve the right to eat, drink or take whatever food, liquid or drug I chose. I can’t wait until we start going after criminal judges and prosecutors. Maybe their attitude would change about criminal behaviour.
One more comment, by fighting our right to jury nullification, I believe that judges and prosecutors collude to commit FRAUD upon the American public.
[...] to this Texas prosecutor who wisely chooses to remain anonymous, what I just wrote was a crime. That’s right. In Texas [...]
[...] to this Texas prosecutor who wisely chooses to remain anonymous, what I just wrote was a crime. That’s right. In Texas [...]
[...] to vote their conscience in certain cases. That article has, in turn, sparked a debate over at the Defending People blog. A Texas prosecutor started the debate with an anonymous post against jury [...]
To the anonymous prosecutor:
Everything turns on the underlying justice and morality of law the prosecution is trying to enforce. If the law is unjust and immoral, the court system has no right to ask the jurors to swear to uphold that law. And thus to lie in that circumstance is not immoral.
To illustrate my point, let’s suppose the law the prosecution is trying to enfoce makes it a death penatly crime to critize the President. Protester Bob says that the President mismanged the war in Iraq. The feds arrest Bob. Moore Thomas is summoned to appear as a juror in Bob trial. He is informed about the nature of the case. Moore rightly determines the prosecution of Bob is immoral and unjust. Moore is asked to swear he will render a “true” verdict according to the law and facts. Moore can refuse to do so and not get seated on the jury, or swear to the oath with the intent of rendering a not guilty verdict, regardless of the facts.
What is RIGHT thing for Moore to do? I bet your mother told you to stick up for people that were being treated unjustly.
What is the greater evil: lying to someone that has no right to ask you the question or telling the truth and as a consequence do nothing you when you could have saved a man that was unjustly accused?
If Moore swears to the oath, acquits Bob (who accoridng to the facts and law is guilty), and then gets prosecuted for perjury, that perjury prosecution is just as unjust and immoral as the underlying prosecution of Bob.
Weren’t the Patriots of 1775 “jurors”?
Did they not render a verdict on the laws of the King?
If they had no right to do this, then we are not a legitimate nation then.
I guess, jury nullification is a right of the people for as stated in HURTADO 110 US 516, laws are only presumed constitutional, which means, they can be prsumed to be unconstitutional.
Sounds about right.
I think I can say without bragging that I’ve done more research into the history, purpose and practice of jury nullification than any other lawyer in Texas. I’ve written several academic articles, a book (Jury Nullification: The Evolution of a Doctrine) and many articles for professional and general audiences.
I do not advocate that jurors nullify: I advocate that they consider nullification and act upon their own best judgment to render a just, and thus true, verdict, according to the law, the facts, and their sense of justice and common sense — things the state often asks jurors to remember! This verdict often will be “not guilty,” even if the accused “done it.”
Remember that judges have discretion. Cops have discretion. Prosecutors have discretion. Why shouldn’t jurors, the people themselves, have discretion? Obviously, they do, the Founders intended for them to have that discretion, and no Texas Penal Code provision can take it away.
The anonymous (and thus cowardly) prosecutor knows nothing of what he writes about. A juror, at the time he takes his oath, knows very little of the case before him. How it could ever be shown that a juror intended to nullify at the time he took his oath, instead of developing that intention after hearing the law and evidence? It simply cannot be shown.
Again, I have always said that the decision to nullify should never be made until the case is closed, and the juror begins to deliberate. At that time the juror should seek to render a just verdict. If prosecutors did the same (instead of merely seeking to accumulate scalps on the wall) maybe fewer jurors would need to nullify to do justice.
Moreover, I note this prosecutor hasn’t taken Mr. Simon or his co-authors to a grand jury… cowardice, Mr. Prosecutor? Or do you simply realize that your response is mere hyperbole?
HOWEVER, the most significant fault in this diatribe is that it is thoroughly a-historical. What, exactly, was the trial by jury the Founders had in mind when the Constitution was written? (Or do you think Texas Penal Code Sec. 37.07 somehow trumps the Sixth Amendment?) Even Justice Samuel Chase wrote that “An act of legislature (for I cannot call it a law) contrary to the great first principles in the social compact, cannot be considered a rightful exercise of legislative authority.” (Calder v. Bull, 3 US 386 (1798)).
Is an attempt to outlaw jury nullification contrary to those great first principles? Undeniably so.
Clearly, the Founders recognized that the jury plays a political, as well as a fact-finding role. Numerous quotations from the Founders establish this fact. Justice John Jay noted in Georgia v. Brailsford that the jury may decide both law and fact should it choose to.
Both Noah Webster’s Dictionary of the English Language (1st Ed., 1812) and Jacob’s Law Dictionary (1782) note that the criminal trial jury has the right to judge both law and fact. Jacob’s was the leading law dictionary during the time of the Founding, and Madison owned a copy at the time he drafted the Sixth Amdnement.
What was meant by judging law and fact? We must remember that Natural Law theory prevailed at the time of the Founding. Judging the law meant judging the justice of the law. THIS is the trial by jury the Founders intended to bequeath to posterity.
So, we have another prosecutor more interested in advancing a pro-state agenda than in the Constitution, or the intent of the Founders. What a surprise!
p.s. An interesting sideline note : most jurors do not actually take the oath. They listen to it being read, hold up their hand, but say nothing. They get on juries anyway because the oath is pro forma, and not taken seriously by lawyers or courts. How can you ever show that any juror actually TOOK the oath?
p.p.s. The use of jury nullification in civil rights cases is hugely overblown. As I pointed out in an article in the Cornell Journal of Law and Public Policy, Scapegoating the Jury, civil rights cases were often tried by prosecutors who did not want convictions, before judges who did not want convictions, with cops who were often themselves Klansmen as witnesses — and the juries were then scapegoated for the results. Federal civil rights cases, with juries selected from the same communities, routinely ended in convictions, due to the differences in the investigators, judges and prosecutors. The juries based their verdicts on the evidence brought before them.
Jury Nullification is in the U.S. Constitution.
I find it highly disturbing that this prosecutor believes that the U.S. Constitution is not the law of Texas.
Jury nullification is the final word in a Democratic society which putatively seeks to maintain a nation of the people, for the people, and by the people. When fat cat treasonous lawyers band together with treasonous and fascist politicians, the will of the people can (admittedly rarely) overcome the criminals that seek to oppress us through the venue of nullification.
When a Jurist finds that a law is unjust or that there was overwhelming mitigating circumstance, he or she is NOT committing perjury, he or she is engaging in his or her duty as an American citizen to stand up and fight for what’s right.
Increasingly in this theofascist State under the Bush regime’s thumb, Americans are finding that the video camera is the tool to fight fascism with, and increasingly the fascist State is disallowing videotape acquired by victims and by eye-witnesses to be introduced or applied in criminal and civil courts of law. (Fascists demand that there is no trail of evidence and that video shows only what one wants video to show.)
At the same time the fascist State is free to introduce any video and any evidence they wish.
Jury nullification offers a reasonable and lawful counter to the corrupt legal system which denies collaborative evidence which proves undeniably an individual’s innocence but which is ruled by Judges to be inadmissable. Nullification allows juries to weigh the truth of a matter rather than weigh just the one-sided evidence that the fascist State allows.
The problem is, that the jurors should not be forced to swear to ignore consideration of the validity of the law. Such a requirement was put into place by the “the State is always right, even when it wrongs” people. It ignores common law precedent.
There is no reason to have a jury system if that jury cannot rule on the law itself — a panel of judges or experts could verify “facts” better than a jury preselected, via vor dire, to be as nearly ignorant as possible. A large part of the jury system’s function is to incorporate humanity into the operation of the law.
Interesting picture here, though:
1. A prosecutor rants against jury nullification, a prerogative even he admits they have, in order to try to persuade people that it is illegal.
2. A large discussion ensues. In it, jury nullification is discussed, and by far the consensus is that it is lawful. The discussion is covered nationally, in blogs far away from Houston, Texas.
3. The end result of the prosecutor’s effort: thousands of people are caused to think about nullification, and as a result may be more likely to exercise this prerogative when they are next called for jury duty.
Great work, GB!!! Keep it up!!!
Jurors have a RIGHT to do anything lawful as they see it. No mere judge can order a jury to do anything for the judge is only there by privilge. Judges have the power to determine what the rights of juroros are?
What, judges still have Royal Immunity as granted to them by the King of England?
Surely judges don’t get immunity from the Constitution for it is not there.
Immunity is a mere privilege, it is not a right.
Jurors have rights, judges mere privileges.
What exactly is the legal definition of a “true verdict”? Not a lawyer (obviously), but and interested layperson. Poking around findlaw and a few other places didn’t turn anything up, but maybe I was doing it wrong.
The oath itself is unconstitutional as a jury by definition is a tribunal, and trial by jury requires they have that right.
Thinking about this more, does a “true verdict” differ between states and/or Fed law? Is this definition explained to jurors commonly in jury instruction?
I ask this, only because I know common use and legal use frequently diverge, I’m curious, and it occurred to me that “false verdict” seems much easier to define, from a layperson’s perspective. And we’re almost by definition talking about lay people. It has to be defined in at least one place, somewhere.
I don’t know about Texas, but in most of the country we’ve still got the remains of the common law, under which juries have the duty to judge the law as part of their verdict. In Maryland, where The Wire is set, it’s even part of the state constitution. Judges and especially prosecutors mostly don’t like it; no surprise there. Nor is it surprising that some Texan prosecutor wants to be both self-righteous and anonymous at the same time.
An oath is a religious test, and contradicts my religion, and I wouldn’t take one, but I do understand that the state wants me to agree to render a true verdict if I end up on a jury. I’ll be happy to listen to a judge’s explanation of the law, because usually judges know more about it than I do – but the Constitution’s pretty straightforward, and if a law violates it, that law isn’t the Supreme Law of the Land. State constitutions aren’t usually as well written… but back when I lived in Jersey, the Constitution there guaranteed the public the rights to life, liberty, and the pursuit of happiness. Drugs probably won’t give you happiness, but they can be kind of fun, and it’s your right to pursue that if you want. And having the state running a war against them has real problems with freedom of religion, and the typical penalties violate my beliefs about what the Bill of Rights says about excessive fines.
As a layman I can only express my own thoughts.
From the the beginning of the introduction of the rule of law as noble as it’s intention and it’s necessity. Coupled with the advent of jury trials there have always been those who had the power to manipulate both.
And sometimes, in some circumstances it only through the juries balloting for what is right in their conscience as opposed to the letter of the law can justice be served.
Oaths and laws can only be required in pursuance of the Constitution.
Show me where an oath of a juror is required by the Constitution.
There is none.
As there is no judicial immunity for judges in the Constitutioin, there is no oath required for jurors.
“… I concede that there are situations where jury nullification could conceivably be appropriate.” -Guest Blogger
As a juror, G.B. would know while taking the oath that he did not plan to keep that oath if the situation turns out to be one where he felt it “appropriate” to do so.
The expected rarity of the “appropriate” situations, does not change the fact that G.B. would be telling a lie in taking the oath that requires, without exception, for him to return a “true” verdict.
“A lie is a lie is a lie, and the ends DO NOT justify the means.” -Guest Blogger
So the Great Clay S. Conrad finally weighs in, only to pronounce me a coward and take me to task for not bringing the Wire writers before a grand jury. In what state, Clay? Apparently your extensive research into jury nullification did not include anything about venue or jurisdiction.
My anonymity is borne of discretion, not cowardice, and that decision has only been validated by the crackpots you see posting on this site calling for my scalp. Suffice to say this much: You know me, and I know you, and while you seem like an okay guy and I prefer not to make this sound like an ad hominem attack, I feel pretty comfortable about how our legal knowledge stacks up against each other.
Having said that, I’ve never written a book on jury nullification and I have no doubt that on this subject you have me at a disadvantage. But from your post it sounds like you didn’t really read any of the preceding posts very closely, (including the original one and the article by the Wire writers that started it all.) You say:
“Again, I have always said that the decision to nullify should never be made until the case is closed, and the juror begins to deliberate.”
But isn’t that precisely what the Wire writers are advocating? They are not interested in the law, facts, or justice of any individual case, only in rendering acquittals in narcotics cases. Again, they are advocating a position that Texas jurors cannot adopt without violating their juror’s oath.
Many of the posters here have lauded jury nullification as the ultimate democratic safeguard in our society. (One moron from NYC even said it’s in the Constitution. Care to show me where? Somehow it didn’t show up in my copy.)
I’ll give you credit for one thing, Clay. You posited the one argument FOR jury nullification that is most difficult for prosecutors to counter: Discretion. You are correct that police officres, prosecutors, judges and others have discretion over what violations they will prosecute and how. I don’t think we’re really vested in this law so much as given it de facto. i.e. someone’s got to make the call, and no one else has time to micromanage every decision we make. That’s why I can’t in good conscience say that EVERY instance of nullification is wrong. I’m comfortable that, in principle, it is wrong, but I can’t rule out that there might be a situation out there where it could be required.
But the premeditated, planned out exercise advocated by the Wire writers is definitely not one of those situations. In its own way, it is a blanket call to insurrection and anarchy.
Let’s consider, for a minute, exactly what jury nullification, which everyone on this liberal site seems to hallow and revere, is:
1. It is a lie. A deliberate, conscious subversion of fact and reality.
2. It is undemocratic. It requires the substitution of 12 people’s (or 1 person’s if you include mistrials due to individual nullification) judgment for everyone else’s. In essence, you are saying that the judge, the prosecutor, the grand jury, the investigating officer, the elected legislature, and a majority of the people are wrong.
3. It is arrogant — for all the reasons stated above. What could require more hubris than that? To take it upon yourself, simply because of your political views, to ignore the violation of a law enacted by the duly elected representatives of the people?
4. It is unfair. What about all the people who ABIDE by the law and expect its enforcement? What about those defendants who DO NOT enjoy the undeserved benefit of jury nullification?
5. It undermines confidence in the judiciary. After all, if one person can substitute their individual judgment to decide the consitutionality of a law (which, contrary to some posters here, is NOT the province of a jury) then why can’t anyone? This is how injustices are born and why people don’t trust our system.
Although it’s obvious some of the posters here don’t like it, we live in a society that has rules. Most people abide by those rules. A (thankfully) small minority do not. Our society is built on an expectation that people will obey the law. That’s why it functions. Is it really all that fascist or totalitarian to suggest that (a) we follow those rules, and (b) we acknowledge it when others have not followed those rules?
Our founding fathers enacted numerous safeguards to protect our freedom. The right to a trial by jury is one of them. Jury nullification, however much it was seemingly acknowledged or alluded to, is not one of them. If they had intended it to be so, they could have easily codified it in the Bill of Rights. We have plenty of other safeguards as well as remedies for dealing with laws we don’t like.
The Wire writers could just as easily have advocated a much more democratic (and possibly more effective) position by telling their readers to stand up during jury selection and simply tell the judge that they will not follow the law and convict unless the case involves violence. It would render them challengeable for cause, but if enough people agreed with them and did it, we would start busting panels and have difficulty forming juries for narcotics cases. That would be an effective means of protesting, would send a clear message, and would not involve perjury, subterfuge, or violating your juror’s oath.
But, alas, they chose to advocate an archaic, misunderstood, overly romanticized and thoroughly disapproved (in the modern legal system) method of protest that is ethically and legally wrong for all the reasons stated above.
And perhaps most telling of all, Mr. Conrad, is the fact that you, the authority on the subject, chose to attack me rather than defend their position. Instead, you appeared to distance yourself as much as possible and even timidly pointed out that you aren’t advocating nullification, only that they “consider” it. Well, the Wire writers went too far, and I called them on it.
If you think I am as benighted as you suggest, then feel free to get a copy of your book to Mark Bennett. (What am I thinking, he probably owns 6 copies?!) He can get it to me. I “swear” I’ll read it with an open mind. Or on second thought, maybe I’ll just raise my right hand and not say anything. Good enough for you?
GB, meet the Ninth Amendment. Ninth Amendment, GB.
While we’re making introductions, GB, meet Texas Code of Criminal Procedure Article 13.01.
If you throw around the word “liberal” here without explaining what you mean, you get held up to ridicule. While Defending People has readers across the political spectrum (you can be exhibit “A”), the blog itself is about as liberal as those famous lefties, Samuel Adams and Thomas Jefferson.
I’ve ordered a copy of Clay’s book. I’ll loan it to you after I’ve read it.
Let’s look at where GB errs:
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Hardly. There is no lie in a decision to nullify. It is a decision that justice requires an acquittal. It is a far more honest verdict than to declare someone “guilty” whom the jurors believe is morally innocent.
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It is the most democratic of actions: it is direct democracy, allowing the people themselves to directly judge whether to brand one of their fellows guilty. It is certainly far more democratic than the actions of the typical legislature.
Remember that all laws are, by necessity, general. It is up to the jury, and the jury alone, to consider the individual defendant, their individual circumstances, the individual facts leading up to those individual charges, etc.
Yes, the jury is saying the prosecutor is wrong: when the jury acquits due to nullification, it is saying the prosecutor violated his oath in seeking an unjust conviction. Ditto for the cop. The judge is stuck with the law as written; not saying he’s wrong. The grand jury only hears from one side, so they don’t have a dog in the hunt. Obviously, they are saying that the legislature did not adequately account for the circumstance at hand, or that the law is simply wrong. As for the majority of the people — let’s be real. Unless the law was passed by initiative and referenda, which we don’t have in Texas, btw, then the majority of the people never voiced an opinion on the law. (Consider that 80% of the populace thing marijuana should be legal for medical purposes, yet the federal law and the laws of most states have yet to catch up.)
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How about the arrogance of passing a law that is aimed not at social protection, but at social control? Can’t top that for arrogance, can you?
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Partial justice is to be preferred to uniform injustice. A decision not to enforce an immoral law, or a law that is immoral in its individual application, does not harm anyone — it improves the level of justice in society. Is it unfair that not all juries are aware of their nullification prerogative? Yes. They all should be. They should learn it in junior high civics.
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Actually, I’m not talking about constitutionality, I’m talking about justice. And if one prosecutor can decide not to prosecute a case in the interests of justice, I don’t see why one, or twelve, jurors can’t decide not to convict in the interests of justice.
Seems alot of this is sour grapes that the jurors are able to grade the prosecutors papers and decide that prosecutors are pursuing cases that should not be pursued.
Consider it from this angle: the defendant who chooses to pursue a nullification strategy has decided to put the justice and righteousness of his or her actions before a jury of the citizens from the district in which the crime was committed.
The prosecutor who attempts to defeat the juries prerogative to nullify fears having the justice and righteousness of his or her actions judged by a jury of his or her employers — citizens from the district in which the crime was committed.
Seems like cowardice to me.
BTW, again, your failure to study history shows through. As I pointed out, the concept of a criminal trial jury familiar to the Founders included the prerogative of nullification. The Sixth Amendment right to trial by jury (as well as the Art. III right) therefore includes that prerogative.
In fact, if you went back to read the impeachment record of Samuel Chase, you’d see that one of the counts against him was that he allegedly denied the authority of the jury to judge both law and fact — an allegation Chase denied, acknowledging that the jury had exactly that prerogative.
There is nothing archaic or overly romanticized about jury nullification: it is a prerogative jurors have. Remember that the purpose of trial by jury, as recognized by the Supreme Court, is to prevent oppression by the government. (Duncan v. Louisiana). This is hardly “archaic.” It is alive and well, and accounts for more verdicts than you probably would care to realize.
This post, and my past, thoroughly addressed the issues. If you imagine that I’ve attacked you, and not simply stated the facts as I see them (including believing that if you believed what you wrote, you’d put your name to it, and that not doing so is cowardly), then you haven’t read what I’ve written (and it doesn’t seem that you have, because you haven’t grasped the fact that jury nullification is included in the Sixth Amendment.)
And one final note: my book was not self-published, it was published by the Cato Institute and Carolina Academic Press. I do not have extra copies of the book to give to Mark or anyone else. It is, however, available through Amazon, the Cato Institute, Barnes and Noble, and elsewhere.
I am just a little guy in oklahoma but isn’t the key word here “reasonable” dought. What any one person considers reasonable is for their own definition. When I sat on a juty and hear Dr,’s prfessionals, or even subbimited athorities, on any subject testify, it is up to my own reasoning to determine if there is reasonable dought. So when it may appear that some one is guilty I have the right to feel there is reasonable dought to the same persons guilt. Isn’t that why we panal and pick 6 or twelve citizens randomly. So if their opinion is there is reasonable dought in anybodys testimoney that is reason for aquittal.
Jury Nullification – A Prosecutor\’s View…
Jury Nullification – A Prosecutor\’s View…
[...] it’s about jury nullification. Via Radley Balko I found this post guest blogged by a Texas prosecutor who claims jury nullification is manifestly illegal. [...]
I don’t know where the quotes went. I saw them in my posting, but they disappeared! They referred to GB’s points 1-5, which I responded to seriatim.
Jury nullification is a long-established part of the common law, and no amount of prosecutorial posturing is every going to change that.
Guest Blogger:
There are only two possibilities with regard to the juror’s oath:
1) That a juror voting for nullification as described in The Wire article is *not* a violation of their oath; or
2) That it does indeed violate the juror’s oath.
Since your premise requires the latter case for validity, let’s focus there.
According to the Supreme Court: “The [jury trial] clause was clearly intended to protect the accused from oppression by the Government. * * *.” Singer v. United States, 85 S.Ct. 783, 788 (1965).
Hence the law of the land states, in a relatively recent verdict, that the intent of the jury is to protect the accused from government oppression. How then, can a state court requiring jurors to swear an oath to uphold government laws be considered constitutional?
It is clear that the oath itself, if it would seek to prohibit a juror’s conscientious verdict (which must be the case for your premise to be valid), is unconstitutional as applied and therefore void ab initio.
Although I consider myself a fiscal conservative, and a social moderate, I would rather be a freedom loving Liberal, than an evil social conservative. Social conservatives are hateful and bad people.
A point about majority oppression, I believe the founders of the Constitution feared oppression of the majority. That is why as a citizen it is your right to disagree with unconstitutional laws and laws biased toward the majority. America is NOT a Democracy, it is a Constitutional Republic where the citizens have a right and a duty to nullify heavy handed and retarded laws.
“My anonymity is borne of discretion, not cowardice.”
Cowards are notoriously discreet.
“Brave, brave, Guest Blogger,…”
Those opposing jury nullification bring out a good point that in order to rule on the context of the law the jury needs to be knowledgeable of the law. This highlights a critical problem in our educational system. When you look at all of the nonsense that consumes time and space in the educational system one has to wonder why juries aren’t knowledgeable in the law.
It should be mandatory from about grade 5 up that American students learn the framework and content of the laws in this country. The principles are not that difficult. Also, I believe students should learn the framework and details of how “money” is created and flows through the society. This should help keep banking more honest which is one of the points of emphasis of the founders.
“Feel free to justify for me, using whatever ideology or morality you subscribe to, to swear falsely, break your jurors oath, ignore the law and the facts, and nullify the conviction of a defendant who has been proven guilty beyond a reasonable doubt.”
Wow, this is really easy. Let’s say I’m in Nazi Germany in 1940, and am named a juror for someone accused of harboring Jews. The moral thing to do would be to take any oath they tell you and then refuse to convict.
You have made a God out of the law. That is called idolatry, my friend.
CowardlyProsecutor writes:
“1. It is a lie. A deliberate, conscious subversion of fact and reality.”
Lying can be moral — for instance, lying to thugs who would kidnap someone for growing a relatively harmless weed.
“2. It is undemocratic.”
So was helping Christians escape from the lions — the majority of Romans were quite into that!
“In essence, you are saying that the judge, the prosecutor, the grand jury, the investigating officer, the elected legislature, and a majority of the people are wrong.”
And here we see the epitome of democratic “morality” — if all those folks want, say, blacks enslaved, well, then, better enslae ‘em!
“3. It is arrogant — for all the reasons stated above. What could require more hubris than that? To take it upon yourself, simply because of your political views, to ignore the violation of a law enacted by the duly elected representatives of the people?”
Yes, yes! Never, ever, follow your own conscience! The authorities say kill Socrates, better kill him!
“4. It is unfair. What about all the people who ABIDE by the law and expect its enforcement?”
If they are ABIDING by unjust laws, their expectations deserve to be dashed.
“5. It undermines confidence in the judiciary.”
A judiciary that would enforce, say, today’s marijuana laws deserves no confidence.
[...] Discussing Jury Nullification 1 04 2008 You’ll remember my post about jury nullification in the drug war. The TIME article sparked some fascinating conversation among some lawyers, prosecutors and others over at Mark Bennett’s blog. [...]
A system as broken as the current Texas and US Federal system deserves support to reform and change.
I will never vote to convict for drug laws, anti-gun laws, anti-speech laws, forfeiture laws, most traffic laws or any law empowering the state or contravening a strict, simple interpretation of the Bill of Rights.
GB wrote: “someone’s got to make the call” over what violations they will prosecute and how. If the idea is to avoid abuse of power, what better than to have the people, in the form of the jury, “make the call”?
[...] at the blog of criminal defense attorney Mark Bennett, a Texas prosecutor has put up an astonishing guest post arguing that merely advocating for jury nullification is in itself a crime, and that the authors of [...]
I’m still confused about what constitutes a lie by a prosecutor. In one Texas case where the prosecutor lost his case ,to save face , he appealed the judges decision to the appellate court (located in his home town). The (“victim’s”)recent violent acts and bouts of rage had been attributed to his abuse of self-administered doses of anabolic steroids ,smuggled from old Mexico . according to the defense .
In his oral presentation to the appellate judges , the prosecutor said “An autopsy was performed on the “victim” and that no steroids showed up in the autopsy results” . Both these statements were factual , but misleading .The trial transcripts told a different story . The forensic examiner had testified that the technology he uses in his laboratory would not pick up steroids and he didn’t know one way or another if steroids were present .Was the prosecutor lying to the appellate judges or simply trying to mislead them ?
I happy to see so many people striving to find the form of common law freedom that was intinded for this nation from the very beginning.I personally fill pivileged to have found web site.And to those few bloggers who are contrary to the popular belief of this site.I pray to my creator that your thoughts be comfounded on your coquest to hang on to a statutory system that is robbing us of our liberties.
Prosecutor in Texas,
I am an attorney in Texas albeit a business transaction guy with a fondness of Constitutional Law.
You asked right off the bat, “Can you please explain to me how jury nullification is not a gross and unconscionable violation of the juror’s oath?”
I will tell you EXACTLY how, with no hard feelings attached.
Scenario 1: When a legislature/executive signs a law that encroaches on our natural and inalienable rights. i.e. when those branches neglect their own oaths to the Constitution when they took office.
Scenario 2: During the law enforcement phase, enforcement is applied against the intention and policy of the enacted law, in a manner that is a detriment to the community it serves, well prejudicial enforcement, etc. This occurs when the law enforcement officer has already breached his oath to the Constitution and the law.
It seems to me that in either of these situations, it is the jury’s duty to stop them in order to MAINTAIN their own oath. In so doing, the jury of ones peers retains the power to keep both of these in check. They don’t set precedent, but in that specific scenario they can “call foul”, but again, Do you not trust your own community to be able to make that call?
I do.
FYI:
http://www.joebageant.com/joe/2008/06/jury-nullificat.html