The discombobulated deputy attorney of Missoula County, Montana, called it “mutiny.” The quiet courtroom insurrection was sparked by the prosecution of a man accused of possessing 1/16th of an ounce of marijuana. One of the 27 potential jurors asked why taxpayer money was being wasted in such a manner; thereupon the judge polled the entire jury pool. Most of them affirmed their refusal to convict on such a minor possession. Earlier, other potential jurors had been excused over “philosophical objections.”
At this point District Judge Dusty Deschamps reportedly reflected, “Geez, I don’t know if we can seat a jury,” and called a recess. Instead of a trial, the prosecutor worked out a plea deal, which read, in part: “Public opinion, as revealed by the reaction of a substantial portion of the members of the jury … is not supportive of the state’s marijuana law and appeared to prevent any conviction from being obtained simply because an unbiased jury did not appear available under any circumstances.”
Jury nullification did not technically occur in Missoula because no jury was seated. Nevertheless, the incident is viewed as a triumph for nullification, and the strategy is reinvigorated.
What is jury nullification? Does it provide a reliable path to freedom or justice?
Nullification occurs when the jury or one juror in a criminal case acquits or refuses to convict a defendant despite the letter of the law or the weight of evidence. In effect, the jury passes judgment on the justice of the law itself and refuses to facilitate what it deems to be unjust.
The legal doctrine has long standing. Jury nullification was embedded into British common law in 1670 when an English jury refused to convict William Penn for preaching Quakerism The jurors were imprisoned, and the English high court subsequently ruled that juries must be free to reach decisions without fear of punishment. In 1735 jury nullification was affirmed in America when jurors refused to convict publisher John Peter Zenger for printing criticisms of the governor of New York.
Clearly, the good sense and common decency of a handful of individuals can provide grassroots protection against tyrannical law. But those who enthusiastically embrace jury nullification as a strategy (for example, the Fully Informed Jury Association or FIJA) should be cautious. The strategy is a two-edged and dangerous sword.
Consider just one historical type of jury nullification. In the early and mid-twentieth century, all-white southern juries notoriously refused to convict whites who savaged blacks. The two early trials of Ku Klux Klan member Byron De La Beckwith for the 1963 murder of black civil rights activist Medgar Evers are shameful examples. Despite damning evidence, the Mississippi trials ended with deadlocked juries; during the second trial a former governor interrupted courtroom testimony to shake hands conspicuously with Beckwith. Only in 1994, in a dramatically changed political climate, was Beckwith convicted.
Jury nullification has also been cited as a factor in the acquittal of police officers who use excessive force. Even when the violence is videotaped, juries are flagrantly reluctant to apply the law to on-duty officers as they would apply it to the average citizen.
In short, jury nullification can occur for reasons good or ill, from ingrained justice or from inbred prejudice. Crippling an oppressive law is laudable but fair laws are equally vulnerable to nullification.
Rule of Law
Moreover, the strategy could open a dangerous door. Under the rule of law championed by economist and social philosopher F. A. Hayek, no person is above the law, which should be well-defined and stable rather than arbitrary. Thus the average person is less vulnerable to the shifting will of the elite and can act with some degree of certainty. Otherwise stated, if one purpose of the law is to provide a predictable society, then jury nullification introduces a large element of uncertainty.
If a system of law is totalitarian, then arguing for its universal application or stability rings hollow to anyone who believes law must serve justice. But jury nullification cuts not only at totalitarian laws but also at just ones. And when laws are just and equally applied, there seems to be a lamentable tension between jury nullification and the proper rule of law.
This tension, as well as several others between the strategy of nullification and libertarian theory, may well be resolvable. It remains far from clear, however, that jury nullification can consistently produce justice or freedom.
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