Wednesday, December 28, 2011

The Wild and Wonderful World of Jury Nullification

If you've ever been fortunate enough to serve your civic duty as a juror, you've probably sat through hours of meticulously written jury instructions.  Jury instructions, as previously discussed on this blog, are painstakingly detailed directions read by the judge to the jury, guiding them on all aspects of the relevant law that they are to consider in rendering their verdict.  The instructions you heard probably defined various legal terms, outlined the elements of specific crimes charged, and explained the various factors that jurors may / must consider before making their decision.  You probably heard a layman's breakdown of "probable cause", "reasonable foreseeability", "exigent circumstances" and "specific intent".

What you probably didn't hear were the words "jury nullification"...until now. 

"Jury nullification" refers to the traditional power of juries to render a "not guilty" verdict, even when they believe that the defendant committed the crime charged and they believe that the defendant has no legal defense to that charge.  According to Prof. Paul Butler of George Washington University, "The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished".  Think of the movie "A Time to Kill": some bad guys commit unspeakable crimes against a little girl.  The little girl's dad (Samuel L. Jackson), extrajudicially disposes of said bad guys.  Samuel L. Jackson is put on trial for murder.  The jury believes that he killed the bad guys and that he was legally sane at the time he committed the killings.  Nevertheless, they find him "not guilty".  This is jury nullification. 

Jury nullification has historically been put to all kinds of uses, other than simply creating compelling story lines for Matthew McConaughey movies.  The refusal by jurors to convict their neighbors for alcohol-related crimes helped end booze prohibition.  It was also used by all-white juries of the Deep South to insulate the Klan from legal repercussions during the "Reign of Terror" after the Civil War. 

Today, there is a growing movement among drug policy reformists to educate jurors about their right to nullify.  Activists have mobilized to spread the word to prospective jurors that nullification is an option, even if the judge does not include that instruction.  One such activist, Prof. Julian Heicklen, is currently awaiting trial on charges of jury tampering after he stood outside a Manhattan courthouse lecturing passersby on the issue.  The aforementioned Prof. Butler has advocated on  behalf of jury nullification as a means of circumventing draconian marijuana laws. 

Former Baltimore Sun reporter David Simon (perhaps best known for his contributions to HBO's "The Wire") has also joined the chorus of those calling for nullification in drug cases. In a piece written for Time Magazine, Mr. Simon stated:

"'A long habit of not thinking a thing wrong, gives it a superficial appearance of being right,' wrote Thomas Paine when he called for civil disobedience against monarchy — the flawed national policy of his day. In a similar spirit, we offer a small idea that is, perhaps, no small idea. It will not solve the drug problem, nor will it heal all civic wounds. … It doesn't resolve the myriad complexities that a retreat from war to sanity will require. All it does is open a range of intricate, paradoxical issues. But this is what we can do — and what we will do.

"If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens."

Activists have achieved some measure of success in their efforts.  Last year, Montana prosecutors were forced to dismiss a marijuana case after 5 of the 12 jurors indicated that they would not vote to convict under any circumstances.

The Drug War is not grounded in logic, reason, common sense or sound public policy.  Elected officials from both sides of the aisle are content to stay the course while the nation squanders more resources and lives on the failed social experiment called "prohibition".  If our leaders are unwilling or unable to correct these flawed laws, then our jurors must.  If you're called upon to serve as a juror in a drug case, remember that you always have the right to nullify.  As a juror, our society vests enormous power in your hands.  You have the opportunity to right a wrong.  Use that power wisely and vote to acquit.