Feb 1, 2010

the case against nullification

[Regarding the March/April jury nullification topic.]

As furnished by a three-judge panel in the 2nd Circuit Court of Appeals, U.S. v. Thomas No. 95-1337.
We take this occasion to restate some basic principles regarding the character of our jury system. Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court--in the words of the standard oath administered to jurors in the federal courts, to "render a true verdict according to the law and the evidence." FEDERAL JUDICIAL CENTER, BENCHBOOK FOR U.S. DISTRICT COURT JUDGES 225 (4th ed. 1996) (emphasis supplied). [8] We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

We are mindful that the term "nullification" can cover a number of distinct, though related, phenomena, encompassing in one word conduct that takes place for a variety of different reasons; jurors may nullify, for example, because of the identity of a party, a disapprobation of the particular prosecution at issue, or a more general opposition to the applicable criminal law or laws. We recognize, too, that nullification may at times manifest itself as a form of civil disobedience that some may regard as tolerable. The case of John Peter Zenger, the publisher of the New York Weekly Journal acquitted of criminal libel in 1735, and the nineteenth-century acquittals in prosecutions under the fugitive slave laws, are perhaps our country's most renowned examples of "benevolent" nullification. See United States v. Dougherty , 473 F.2d 1113, 1130 (D.C. Cir. 1972) (Leventhal, J. ); see also David Farnham, Jury Nullification: History Proves It's Not a New Idea , CRIM. JUST., Winter 1997, at 4, 6-7.

More generally, the very institution of trial by jury in a criminal case, as Judge Learned Hand observed, "introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions." U.S. ex rel. McCann v. Adams , 126 F.2d 774, 776 (2d Cir.), rev'd on other grounds , 317 U.S. 269 (1942). This is so because, as Judge Hand explained, "[t]he individual can forfeit his liberty--to say nothing of his life--only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. . . . [S]ince if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove . . . ." Id. at 775-76.

As courts have long recognized, several features of our jury trial system act to protect the jury's power to acquit, regardless of the evidence, when the prosecution's case meets with the jury's "moral[] disapprov[al]." Since the famous opinion in Bushell's Case , 124 Eng. Rep. 1006 (C.P. 1670), freeing a member of the jury arrested for voting to acquit William Penn against the weight of the evidence, nullifying jurors have been protected from being called to account for their verdicts. Moreover, and in addition to the courts' duty to safeguard the secrecy of the jury deliberation room (discussed in greater detail below), the several rules protecting the unassailability of jury verdicts of acquittal--even where these verdicts are inconsistent with other verdicts rendered by the same jury in the same case, United States v. Carbone , 378 F.2d 420, 423 (2d Cir.) (Friendly, J. ) (recognizing link between upholding inconsistent verdicts and protecting juries' power of lenity), cert. denied , 389 U.S. 914 (1967)--serve to "permit[] juries to acquit out of compassion or compromise or because of their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." Standefer v. United States , 447 U.S. 10, 22 (1980) (internal quotation marks omitted).

But as the quotation from the Supreme Court's opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to "nullify" or exercise a power of lenity is just that--a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent. Indeed, although nullification has a long history in the Anglo-American legal system, see Dougherty , 473 F.2d at 1130-33; Farnham, supra , at 4, and the federal courts have long noted the de facto power of a jury to render general verdicts "in the teeth of both law and facts," Horning v. District of Columbia , 254 U.S. 135, 138 (1920); see, e.g. , United States v. Trujillo , 714 F.2d 102, 105-06 (11th Cir. 1983), courts have consistently recognized that jurors have no right to nullify. See, e.g. , United States v. Kerley , 838 F.2d 932, 938 (7th Cir. 1988) ("[J]ury nullification is just a power, not also a right . . . ."); see also Sparf v. United States , 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact, "it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them"). As a panel of the Court of Appeals for the District of Columbia Circuit--composed of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg--explained:
A jury has no more " right " to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant "guilty," and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.
United States v. Washington , 705 F.2d 489, 494 (D.C. Cir. 1983) (per curiam) (emphasis in original). Indeed, as we noted above, the exercise of this de facto power is a violation of a juror's sworn duty to "apply the law as interpreted by the court." United States v. Boardman , 419 F.2d 110, 116 (1st Cir. 1969), cert. denied , 397 U.S. 991 (1970). [9]


Corey said...

I don't really see how saying that juries don't have a right to do something means that it is unjust to do it.

Jim Anderson said...

Corey, you are correct. Most of the opinion establishes the legal context; the actual argument against nullification, is found toward the end. In Bader-Ginsburg's words, nullifications are "...lawless, a denial of due process and constitute an exercise of erroneously seized power."

drock said...

Hey Jim, do you think it would be reasonable to argue that, in order to stand suspected of a crime in front of a jury, the crime you are suspected of committing has to be serious because if it was just a misdemeanor or a simple crime it would be dealt with in lower courts that don't have juries

drock said...

and the extension would to that would be that too much information that doesn't have to do with innocence or guilt is objected to in trial and therefore withheld from the jury meaning that the person standing on trial is probably not a character worthy of sympathy

Jim Anderson said...

drock, I'd agree with the idea that jury nullification is reserved for mostly serious cases, because small claims aren't dealt with in jury trials. However, I'm not sure we can make the leap to having a lack of sympathy for defendants, in general, on that basis. Consider another fact: the vast majority of convictions--over 90%--are secured through plea bargains. For all sorts of reasons, prosecutors push hard for defendants to accept pleas; one reason is that trials are an expensive, time-consuming process, and there's always a chance that the guilty person will walk. Defense attorneys often urge guilty clients to take a plea, because the risk is also there that a trial verdict will be much harsher.

This means that the person who goes to trial either really sincerely feels / knows they're innocent, or are confident their attorney can mount a solid legal defense. So is the defendant deserving of sympathy? The best answer is likely, "Who knows?"

Melissa said...

Jim, I have a question about the definition of jury nullification since I've been getting conflicting answers.

The article says that nullification occurs for a variety of reasons such as "the identity of a party, a disapprobation of the particular prosecution at issue, or a more general opposition to the applicable criminal law or laws." However, I was under the impression that it occurs SPECIFICALLY when the jury wishes to protest a law itself -- they nullify for that one reason.

So which is it, the broader or narrower definition? If bias towards a party counts as a reason for jury nullification, then it suddenly becomes so much harder for the AFF to support.


Jim Anderson said...

Melissa, and that's exactly why you'd better choose a definition carefully--or have evidence that, even if a broad definition is used, in general, nullification is done for the right reasons.

Anonymous said...

This relates to the definition of jury nullification.

A jury can not nullify a law. It is within the scope of any given jury to decide guilt or innocence of one defendant in one case. Any given jury can judge only the facts, and the application of the law in one particular instance. That instance has no effect whatever on the authority of the law.

Nullification is a statistical phenomenon. A law can be nullified only after a sufficiently large number of juries have refused to convict that the government will no longer waste its time prosecuting that law. For such a thing to occur, the law must be judged broadly by the people as an unjust law.

Bader-Ginsburg does not make a case against nullification. She simply asserts that is is the exercise of an erroneously seized power. Referencing this assertion to Bader-Ginsburg is a logical fallacy - an appeal to authority.

To see that her assertion is incorrect, one needs only examine the meaning of a right, a power, and a law, and their relationships to one another.