I haven’t written in any detail about “jury nullification” since late 2010 and it’s time to rectify that sin of omission.
Nullification occurs when a jury votes not guilty because a law is either unjust or wrongly applied, not because a defendant is actually innocent. And I know that’s what I would do if I was on a jury and the government was persecuting someone for engaging is self-defense or getting nabbed by a revenue camera.
The bottom line is that Walter Williams is right when he says that it is immoral to obey bad laws.
Let’s review some expert opinions.
Writing on the editorial page of the New York Times, a former prosecutor urges jury nullification.
Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by. …The prosecutors who charged Mr. Heicklen said that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” The prosecutors in this case are wrong. The First Amendment exists to protect speech like this — honest information that the government prefers citizens not know. …Jury nullification is not new; its proponents have included John Hancock and John Adams. 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. As Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.” …Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case.
A column in the Washington Post by Professor Glenn Reynolds at the University of Tennessee argues that juries have an obligation to rein in bad prosecutors.
Despite the evidence, those responsible for convicting you may choose to let you go, if they think that sending you to jail would result in an injustice. That can happen through what’s called “prosecutorial discretion,” where a prosecutor decides not to bring or pursue charges against you because doing so would be unfair, even though the evidence is strong. Or it can happen through “jury nullification,” where a jury thinks that the evidence supports conviction but then decides to issue a “not guilty” verdict because it feels that a conviction would be unjust. …Prosecutorial discretion is regularly applied and generally regarded as a standard part of criminal justice. …So-called jury nullification, on the other hand, gets far less respect. Though it is clearly within the power of juries to refuse to convict whenever they choose, judges and prosecutors tend to view this practice with hostility. …there has been a massive shift of power toward prosecutors, the result of politics, over-criminalization, institutional leverage and judges’ failure to provide supervision. It’s time to redress the balance.
By the way, Glenn has proposed ways (see postscript of this column) of addressing this imbalance, which is tied to over-criminalization.
And here’s another column in the Washington Post arguing in favor of jury empowerment.
As I tried cases, I gained enormous respect for the seriousness with which jurors approached their work. …These jurors had no problem convicting anyone of a violent offense, if the government proved its case. For drug crimes, however, it was a different story. …they frequently voted “not guilty” in nonviolent drug cases, no matter how compelling the evidence. …When I started teaching law, I published an article in the Yale Law Journal situating these D.C. jurors in a long line of jurors…who refused to convict American patriots of sedition against the British crown; jurors who acquitted people guilty of violating the Fugitive Slave Act; and jurors who would not punish gay people for “sodomy” for having consensual sex.
Amen. Juries should pursue justice, not act as rubber stamps when prosecutors act as cogs for an unjust regime.
Now let’s look at a real-world example, as reported by the New York Times.
As much as chocolate and watches, Switzerland is known for bank secrecy. …it also made Swiss banks targets for an assault by the United States government… Bank Frey was among the very few to defy the legal onslaught. And Mr. Buck…was the bank’s public face, responsible for landing and then managing American accounts. That put Mr. Buck in the government’s cross hairs. In 2013, a federal grand jury indicted him for conspiring to help Americans avoid taxes. …But things didn’t go as prosecutors had planned… The crux of the defense was that the responsibility to pay taxes and declare income did not rest with Mr. Buck. It was his clients who had decided not to pay taxes. He was under no obligation to tattle… Prosecutors branded him as a crucial cog in an international tax-evasion scheme. …Then it was Mr. Agnifilo’s turn. …“Stefan Buck has nothing whatsoever, nothing whatsoever, to do with the choice that an American taxpayer makes” to not declare offshore assets. …The jury deliberated for a little more than a day. …the verdict: not guilty.
The story doesn’t mention jury nullification, but I’m assuming – from a technical legal perspective – the prosecutors had an open-and-shut case against Mr. Buck. After all, he did “conspire” to help Americans protect their income from the IRS.
But the jury decided that conviction would be absurd because a Swiss person on Swiss soil has no obligation to help enforce bad U.S. tax policy. So they voted not guilty because that was the only moral choice.
And the good news is that this is becoming a pattern.
In October 2014, one of UBS’s top executives, Raoul Weil, went on trial in Florida. Federal prosecutors accused him of helping clients hide billions. Mr. Weil’s lawyers argued he had no knowledge of or responsibility for what had happened. The jury deliberated for barely an hour before acquitting him. The same week, a Los Angeles jury acquitted an Israeli banker who faced similar accusations. The Americans’ pursuit of foreign bankers no longer looked invincible.
The even-better news is that these nullification decisions by juries may now lead to some “prosecutorial discretion.”
The Justice Department had now lost the three cases it had tried against foreign bankers who helped Americans avoid taxes. Dozens more cases are pending. Those who represent accused Swiss bankers say they expect Mr. Buck’s verdict to embolden defendants and to cause prosecutors to think twice before bringing new charges.
In other words, the bad law will still exist but hopefully will have little or no impact because prosecutors are less likely to file charges and juries won’t convict when they do.
That’s a victory for liberty, though it surely would be best – as we discussed just a few days ago – if politicians repealed the bad laws that make unjust prosecutions possible.
P.S. I’ve confessed mixed feelings about potential nullification in cases of vigilante justice.
P.P.S. In my younger days, I assumed that cops and prosecutors were the good guys, helping to maintain an orderly society. I still think that most of them want to do what’s right, but I also now realize that our Founding Fathers were very wise to include strong protections for defendants in our Constitution. Simply stated, some cops and some prosecutors are bad and those bad apples are why I favor strengthening the Fourth Amendment and have become more skeptical of the death penalty.
P.P.P.S. Even if you’re a law-abiding person, you should support civil liberties.
[…] when jurors decide that a defendant is “not guilty” simply because they don’t agree with the underlying […]
[…] nullification occurs when jurors decide that a defendant is “not guilty” simply because they don’t agree with the underlying […]
[…] ~ The Case for Jury Nullification, Part I – International Liberty […]
[…] duty. If I knew I could be a juror on a case like this, I would relish the opportunity to practice jury nullification, which is a judicial version of civil […]
[…] wrote a three-part series (here, here, and here) about “jury nullification,” which is the notion that jurors can […]
[…] this is why I applaud jurors who deliberately disregard bad […]
[…] https://danieljmitchell.wordpress.com/2018/01/10/the-case-for-jury-nullification-part-i/ […]
[…] my first column on jury nullification, I applauded ordinary citizens for producing a not-guilty verdict when the […]
[…] examples basically make my point that jury nullification is a very valuable tool (at least in cases where the local governments actually allow a trial […]
[…] wrote two days ago about a jury correctly voting to acquit a Swiss banker who was being prosecuted (and persecuted) by […]
Years ago, I was part of a jury panel for the trial of a marijuana dealer. I saw and heard the guy for 2 seconds, but to me he seemed to be a slimy bastard. One woman, a fellow juror candidate, said that she was against the laws making buying and selling marijuana illegal. She was excused from the jury. I was excused from the jury as well, for other reasons.
I remember reading an article by Lysander Spooner, maybe from the 1800s, arguing that jury nullification was important for liberty.
I have thought about that woman since then. She basically said she was in favor of jury nullification. Why should that be a reason for her to be dismissed as a juror candidate? If she was really in favor of jury nullification, maybe she should have kept her mouth shut, landed on the jury, and voted for nullification of the marijuana laws? I don’t know. I just don’t know.
Unfortunately, in many places, if you even mention jury nullification you will be excused at best. In some places people have been arrested for mentioning it.
Use it, but just don’t say it.
Jury nullification? Nullification by judges? Nullification by states? Maybe nullification/revisionism has become intellectually fashionable. The Confederacy could actually have won the Civil War. What about returning California, etc., to Mexico? What about making slavery – pro or con – a local option? Maybe Spanish and French – even Russian – should be official languages in their prior North American holdings. Maybe we should require all hyphenated Americans to return to their country of origin now that hostilities have subsided? Ah, Democracy……rule by the average voter, informed by the un-elected, and self-important media, un-moored from the facts.
How do juries know what to do? Is it part of the instructions? If it were, would it create more unnecessarily hung juries?
I didn’t realize it was so frequent.
Well-said. I am finishing new text on the Constitution, called The Failed Experiment, I’d like to quote portions of this in that book. It would be under topic of Nullification of 1798 proposed by Jefferson and Madison in Kentucky and Virginia resolutions and judicial review.
I’ve long been a supporter of the Fully Informed Jury Association – http://www.fija.org There’s lots more about them at http://www.lifestrategies.net/fija
Some state constitutions, such as Georgia and Pennsylvania, specifically affirm that the jury shall be judges of law, as well as of fact. In Pennsylvania, the Supreme Court affirmed that:
“The power of the jury to be judge of the law in criminal cases is one
of the most valuable securities guaranteed by the Bill of Rights.”
You can donate to them at CharityNavigator, search using their full name.
What? Jury nullification? Nullification by judges? Nullification by states. Did the Confederacy actually win the Civil War? Reverting to the past has become intellectually fashionable. Return California, etc., to Mexico? Make slavery a local option? Talk French in the Louisiana Purchase states? Require all hyphenated Americans to return to their country of origin, now that hostilities have subsided?
Wow! Double-Think has arrived! All heil!… and banzai!…to the offspring of the Greatest Generation….
Pass the hemlock…..