Jury Nullificaion

Radley Balko wrote a column on jury nullification — the idea that a jury has the authority to refuse to convict a person under an unjust law or in an unconscionable situation — and drew plenty of criticism, with Patterico and Xrlq weighing in against, and others (like Michael Williams) arguing for. I argue for jury nullification, and I think I have come to the root cause of the dispute.

I will be up front. I would be for refusing to convict under unjust laws regardless of the history of jury nullification in common law. I would be against finding guilt in unconscionable situations even if it was enumerated as a capital crime in the first article of the constitution. I would support it because it is what is right, and what is right, in my opinion, trumps the Rule of Law.

I am no enemy of the Rule of Law. I think that the Rule of Law is vital in a civilized society. Civilized society is based on trust, and the Rule of Law creates a framework of implicit trust. But slavish devotion to the Law creates the danger of the corruption of that law. I firmly believe that our law has been horribly, deeply corrupted. It is by no means irredeemable. I firmly believe that if we act decisively and firmly, the law can be redeemed, using the legal tools that we have available to us. Those tools are the ballot box, and the jury box. If jury nullification wasn’t one of those options, then we would be much, much closer to the ammunition box, our last resort. It is much harder to corrupt the People than to corrupt the Law, and should the People become corrupt, the Law is irrelevant.

The real question I have for those who oppose the idea of jury nullification is this: is there a situation where you are willing to set aside the Law, and act unlawfully in support of what is right and moral? Is there a point where you would be willing to act unlawfully to prevent a great injustice?

I have no doubt in my mind that I would. I would nullify a case against a defendant that was being pursued unjustly and immorally. I would do more — I would violently resist an attempt by my government to commit genocide (and many lesser transgressions that I would do best not to enumerate.) If the founders did not anticipate that the law could become corrupt, then what is the purpose of the Second Amendment? If the legal system is infallible, then what is the point of keeping the tools of revolution at hand? And if the system is fallible, then by God why should we tolerate that fallibility with a shrug?

I will not tolerate it. I will certainly not participate in it as a juror. To adopt a phrase, if you value the law more than justice, if you value the stability of the state over the liberty of the People, depart from me in peace. I ask not your counsel nor your support. Crouch down and lick the hand that feeds you. May your chains rest lightly upon you and may posterity forget that you were our countrymen.

14 Comments

  1. My thoughts exactly.

  2. Xrlq says:

    I’m not sure how you reconcile this:

    I am no enemy of the Rule of Law. I think that the Rule of Law is vital in a civilized society. Civilized society is based on trust, and the Rule of Law creates a framework of implicit trust.

    with this:

    It is much harder to corrupt the People than to corrupt the Law, and should the People become corrupt, the Law is irrelevant.

    The whole idea behind “the rule of law and not of men” is based on precisely the opposite principle, namely that people are far more corruptible than law. If people were really all that hot, we wouldn’t need laws.

  3. Phelps says:

    Individuals are very corruptable. The People are not very corruptable. That is why we are guaranteed the right to be tried by 12 people rather than 1 judge. It is very easy to corrupt one judge. It is very hard to corrupt 12 semi-random citizens.

    It would not be unheard of for me to walk down a street and get mugged. It would be unheard of for me to walk down 12 streets and get mugged every time.

  4. Xrlq says:

    Huh? Substitute “lynched” for “mugged” and it happened all the time – aside from the minor detail that 12 lynchings obviously had to have 12 separate separate victims rather than murdering the same individual 12 times. It’s all well and good to wax poetic about how uncorruptable The People supposedly are, but one man’s The People is another’s mob. There’s a reason why phrases like “mob justice” and “mob rule” generally have negative rather than positive connotations.

  5. Phelps says:

    Your analogy falls flat. In the jury room, the dissent to not act rules. That means there isn’t likely to be a “lynching”. In a lynching, 11 people say to do it and number 12 holds his tongue if he knows what is good for him. That isn’t the case in the jury room. Again, that is why we have 12 jurors decide it instead of one judge.

    There is nothing special about the moral values of a judge. He isn’t any more or less likely to act morally than the average citizen. The only way to have a “lynching” scenario come about is if you have the trial get all the way to the jury, past all the discretion up to then (the very same discretion that you want us to put all our faith in) and then have twelve people unanimously decide to convict.

    How is that any different than what we have now?

    Dissenters have no voice in a lynch mob. They have the loudest voice on a jury. Your analogy fails. If the mob is so unruly, why are we granting them any authority, even as finders of fact? The law is in place to constrain the officers of the court, not the jury.

  6. Xrlq says:

    Funny how your analogy becomes “my” analogy once it stops producing the results it was supposed to. You’re the one who likened juries to 12 random people on 12 random streets, not me. And FYI, the dissenter doesn’t “rule” anything. In most jurisdictions if not all, a failure to reach a unanimous verdict results in a mistrial, not an acquittal.

    There is nothing special about the moral values of a judge. He isn’t any more or less likely to act morally than the average citizen.

    That’s a load of crap, but it’s also irrelevant. It’s crap because judges are held to much higher ethical standards than the average citizen is. It’s irrelevant because morals are not the issue here; understanding the law is. Law may not be rocket science, but it does require some knowledge, not to mention above-average reasoning skills, which half the population could never learn if they tried.

    The law is in place to constrain everyone involved in the trial, not everyone but the jury. Juries should have no more power to interpret the law than judges in bench trials do.

  7. Phelps says:

    Your analogy (the one you profered) was that a jury with authority to nullify was like a lynch mob. That is the analogy that failed. My analogy was that in the same way that it is unthinkable that someone would get mugged on 12 random streets out of 12, it is just as unthinkable that juries will begin finding judgments willy-nilly as soon as someone plants the idea that maybe they are allowed to remember what the Constitution says while they are in the jury box. In the lynch mob analogy, a mistrial is a judicial lynching averted.

    The standards that judges are held to are irrelevant to thier personal morality. A strict moral code could induce one to an immoral act as easily as a moral one — the code is what it is. One’s reasoning skills are no guarantee that one will act morally. History is replete with evil geniuses.

    I agree that the law is in place to restrain everyone. I spoke too generally. This legal concept is in place to constrain the officers of the court. The jury is contrained by the prosecutorial discretion to not bring the case to trial; the prosecutor is constrained by the jury’s authority to throw out the case.

  8. Phelps says:

    The original question still stands unanswered, by the way: is there a situation where you are willing to set aside the Law, and act unlawfully in support of what is right and moral?

  9. Xrlq says:

    it is just as unthinkable that juries will begin finding judgments willy-nilly as soon as someone plants the idea that maybe they are allowed to remember what the Constitution says while they are in the jury box.

    The Constitution doesn’t say anything about jury nullification, so I don’t know where that reference comes from. If 12 jurors with no legal training are invited to make up the law as they go, constrained only by their collective sense of “justice,” then it’s axiomatic that they will make up judgments willy-nilly. For each case, the law will be whatever those twelve decide amongst themselves that it should be, which in turn will depend on where the jury pool is pulled from and/or whose lawyers put on the better show at trial. It doesn’t get much willier or nillier than that.

    The original question still stands unanswered, by the way: is there a situation where you are willing to set aside the Law, and act unlawfully in support of what is right and moral?

    Certainly. If I, as a juror, think the law is a bit screwy, I’ll generally vote to apply it anyway because I think that preserving the rule of law generally is far more important than achieving my own personal brand of justice in any given case. However, like everything else this principle has its limits. If the law gets too screwy – Nazi law, for example – then at some point I would conclude that the law had gotten so bad that the rule of law is no longer worth preserving.

    That’s one of the reasons I favor the trial by jury with NO right to nullify, rather than being perhaps more consistent and supporting the abolition of juries altogether. Compare this to the RKBA. If a police state ever comes, you can forget about asserting your right to bear arms in a court of law; it won’t exist. What will exist, of course – and all that will really matter in the end – are the arms themselves.

  10. Jenn says:

    “It’s crap because judges are held to much higher ethical standards than the average citizen is.

    Yes, they are held to much higher ethical standards, but, it does not mean that they will emulate these standards.

    There has been many cases in which a judge has less than ethical standards. In a very recent case, a judge was forced to resign for his unethical morale in his own courtroom. He is an embarrassment to the system.

    The afore-mentioned judge laughed during a domestic violence case and spewed juvinile slurs such as, “Did she have it coming?”

    He is not new the system as he had over 20 years behind the bench. His bahavior was nothing less than ehtical.

    So, I don’t believe that it’s crap. It’s exactly as Phelps said, “There is nothing special about the moral values of a judge.”

    I’ve been called up for jury duty starting on Friday. This makes it THAT much more interesting! I really hope I am chosen to stay.

  11. Jenn says:

    *juvenile even

  12. Mexigogue says:

    Hey is this “best of”?

    And I do not believe that the law creates ethics. I think the law is supposed to jibe with ethics, else it should be tossed out.

  13. Phelps says:

    At least we are starting to find some middle ground here.

    The Constitution doesn’t say anything about jury nullification, so I don’t know where that reference comes from. If 12 jurors with no legal training are invited to make up the law as they go, constrained only by their collective sense of “justice,” then it’s axiomatic that they will make up judgments willy-nilly. For each case, the law will be whatever those twelve decide amongst themselves that it should be, which in turn will depend on where the jury pool is pulled from and/or whose lawyers put on the better show at trial. It doesn’t get much willier or nillier than that.

    Here’s the problem — it isn’t the law as the juror’s think it should be. It is the law as the jurors understand it. There is a huge magnitude of difference there. I can’t go in and say, even under jury nullification, “I think the AWB (now sunset but as an example) is a bad policy, and therefore I am not going to convict.” What I can do is say, “they are prosecuting this guy under the AWB, but I know he has a right to keep arms under the second amendment of the constitution and the constitution is the highest law in the land; therefore, I am not going to convict him.”

    Certainly. If I, as a juror, think the law is a bit screwy, I’ll generally vote to apply it anyway because I think that preserving the rule of law generally is far more important than achieving my own personal brand of justice in any given case. However, like everything else this principle has its limits. If the law gets too screwy – Nazi law, for example – then at some point I would conclude that the law had gotten so bad that the rule of law is no longer worth preserving.

    That’s where I thought we were, but it needed to be said. We aren’t arguing on whether or not it can be a moral position — we are just arguing the mechanics of when to apply it. I’m of the opinion that the law has already become oppressive and we have already reached the point that it is time to begin resisting. You are of the opinion that the law is good shape overall and that system should be strengthened.

    All the laypeople in this argument have been against you, and all the people supporting your view have been attorneys. You might want to ponder that.

    That’s one of the reasons I favor the trial by jury with NO right to nullify, rather than being perhaps more consistent and supporting the abolition of juries altogether. Compare this to the RKBA. If a police state ever comes, you can forget about asserting your right to bear arms in a court of law; it won’t exist. What will exist, of course – and all that will really matter in the end – are the arms themselves.

    I guess that comes down a strategic call. I would rather have a tiny armed rebellion every 20 years that kept the government in line than a giant civil war every 150. I would take the same strategy with the courts. (And I have no illusions that should I take up arms and fail, I would be tried as a traitor.)

  14. Xrlq says:

    Here’s the problem — it isn’t the law as the juror’s think it should be. It is the law as the jurors understand it. There is a huge magnitude of difference there. I can’t go in and say, even under jury nullification, “I think the AWB (now sunset but as an example) is a bad policy, and therefore I am not going to convict.” What I can do is say, “they are prosecuting this guy under the AWB, but I know he has a right to keep arms under the second amendment of the constitution and the constitution is the highest law in the land; therefore, I am not going to convict him.”

    That’s an interesting, nuanced version of jury nullification, not it’s not the usual party line, and certainly not what Balko advocates. He says, and I quote, that nullification is “a doctrine that seeks justice in spite of the law.” Similarly, the jury that acquitted every FIJA activist’s favorite son, John Peter Zenger, had no illusions that Zenger’s “libel” was protected by the highest law of the land. It is protected by today’s highest law, of course, but it wasn’t back then.

    All the laypeople in this argument have been against you, and all the people supporting your view have been attorneys. You might want to ponder that.

    I’m not sure I believe that. Do you have independent proof that nk, Nels Nelson and Boman are all lawyers, or did you simply make that up? I will grant you that there does appear to be a strong inverse correlation between the likelihood that any given individual (1) has a law degree, and (2) supports jury nullification. I’m not sure why you think I am the one that should be pondering the implications of that. The only thing that separates lawyers from nonlawyers is knowledge. If law were medicine, FIJA is snake oil, and its peddlers are almost proud of the fact that all of the naysayers are … spit …. physicians.

    What you really should be pondering is why a libertarian article of faith like jury nullification is unpopular not only among lawyers in general, but among libertarian-leaning ones in particular.