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Just about every American knows that juries have the power to rule whether a defendant deserves to be convicted of a crime. What few Americans know is that a jury has legal power to disregard the facts of the case and exonerate a defendant who has broken a law the jury sees as unjust.
In 2009, Doug Darrell was caught breaking the law, when a flyover of his New Jersey backyard by National Guard helicopter revealed the presence of 15 marijuana plants. His guilt was never in dispute.
Nonetheless, so strong was Darrell's feeling that he had done nothing wrong—as a practicing Rastafarian, marijuana is sacramental—that he turned down a deal in which he would have dodged jail time and even a fine, because accepting it would have meant pleading guilty to a crime. So the case went to trial.
Darrell's conviction would have been certain if not for a new law in New Jersey that guaranteed a defendant's right to inform the jury of their "right to judge the facts and the application of the law in relation to the facts in controversy." More commonly known as "jury nullification," it is the freedom a jury has to declare a defendant not guilty when they feel that even though the facts of the case are technically sufficient to sustain a conviction, the law in general is, or a conviction in this particular case, would be unjust.
It's a controversial concept, one that prosecutors, along with most judges, work to keep out of the courtroom. But it's a power all juries have, one they would do well to exercise in cases where the enforcement of a law clearly goes against the common good.
Jury nullification has been on American soil since before that soil was christened as the United States. One of the foundational cases was that of John Peter Zenger, who in 1735 was charged with libel for printing articles critical of William Cosby, New York's governor. Because the judge refused to allow the jury to consider the truth or falsity of Zenger's criticisms (this was before the legal precedent in the U.S. that truth is a 100% defense against libel) but only whether Zenger had printed the material, because the criticisms were not false, his trial jury found him not guilty, even though the question of whether he had printed the articles was not in dispute.
The Founding Fathers conceived of jury nullification as an integral part of American jurisprudence. As John Adams wrote in his diary in 1771,
[T]he jury have a power of deciding an issue upon a general verdict. And, if they have, is it not an absurdity to suppose that the law would oblige them to find a verdict according to the direction of the court, against their own opinion judgment, and conscience? It has already been admitted to be most advisable for the jury to find a special verdict, when they are in doubt of the law. […] Now, should the melancholy case arise that the judges should give their opinions to the jury against one of these fundamental principles, is a juror obliged to give his verdict generally, according to this direction, or even to find the fact specially, and submit the law to the court? Every man, of any feeling or conscience, will answer no. It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the court.
In the early days of American jurisprudence jury nullification was common enough that John Jay, the first chief justice of the Supreme Court, reminded the jury in Georgia v. Brailsford (1794) that while generally deciding matters of fact was the province of the jury, with matters of law being the province of the court, "[I]t must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy."
But over time jury nullification fell out of favor with the courts. In 1972, United States v. Dougherty set a disadvantageous precedent for proponents of jury nullification, when an appeals court upheld the conviction of the "D.C. Nine," despite the fact that the trial judge had thwarted the defendants' attempt to apprise the jury of their power to nullify. There is no necessity, the appeals court ruled, for juries to be informed of their nullification—and that keeping them in the dark about this power, in fact, "confines the happening of the lawless jury to the occasional instance that does not violate, and viewed as an exception may even enhance, the over-all normative effect of the rule of law."
But even in the language of Dougherty there is an explicit recognition of jury nullification as part of the American legal system: "[… T]here is widespread existence of the jury's prerogative, and approval of its existence as a 'necessary counter to casehardened judges and arbitrary prosecutors" […. T]he jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, and must independently initiate and undertake an act in contravention of the established instructions."
The danger of jury nullification is obvious. We are a nation of laws, as well as a nation of individuals equal under the law, and so (the argument against jury nullification goes) the only way to ensure equal justice for all is for juries to render verdicts based solely on whether the prosecution has proved beyond a reasonable doubt whether the accused has violated the law. Were juries to take it upon themselves to decide whether a law should be enforced in a particular case or at all is, to again quote from Dougherty, "runs the risk of degrading the legal structure requisite for true freedom, for an ordered liberty that protects against anarchy as well as tyranny."
To be sure, at times jury nullification has been employed to ill effect. For example, University of Missouri-Kansas City Professor Doug Lidner points out that in the South of the 1950s and '60s all-White juries sometimes refused to convict Whites of murdering Blacks even in the face of overwhelming evidence of guilt.
But with the case of Rosa Parks, the Jim Crow South also affords about as clear a case in favor of jury nullification as can be imagined for most 21-century Americans. In 1955 Parks was arrested for "sitting in the white section of [a] bus, and [refusing to] move back," a clear violation Montgomery, Alabama's City Coe. Four days later she was convicted of disorderly conduct and fined $10. While by convicting her the jury may have fulfilled their technical duty as jurors, might they have served a higher duty by refusing to convict her of a law that most of us agree was completely unjust?
Unlike most people I know, I hope one day to serve on a jury, in part because I may have the chance to stand in the way of one of my fellow citizens being convicted of an unjust law. The odds are against—it's not as if I can rattle off a long list of unjust laws—but all it would have taken would have been for one juror to refuse to convict Parks, and the state would have had to start over.
No doubt it is likely that the next jury would have found her guilty. But by one juror's practicing nullification, the cost to the state would have been greater to convict Parks. Even that would have been a small victory. While, the intermediate goal of jury nullification is to exonerate persons guilty of violating unjust laws, the ultimate goal is for "not guilty" verdicts in such cases to be so common that it is no longer pragmatic for the state to enforce the law; and every trial in which the state is unable to obtain a conviction in such a case is one step in that direction.
Just as a single juror may be able to convince her 11 fellow jurors to change their minds, a single juror can inform her cohort of their nullification power. That is not unlike what happened with Doug Darrell. Despite the jury's being informed of their nullification power before they began their deliberations, as juror Cathleen Converse later related, the jury was leaning toward a guilty verdict until they reconsidered the nullification possibility.
"We could clearly see the defense was resting its case on the nullification argument. We put the facts aside to give nullification consideration," says Converse. "The written definition was requested and posted on a chalk board. Some discussion occurred regarding what would be extraordinary enough to nullify. […] The turning point was when one of the jurors declared that after reading the definition on nullification its reliance on 'conscientious feeling' and 'fair result," she says. "It nowhere said extraordinary. And thus the last three jurors agreed that they could nullify."
"The jury system functions at its best when it is fully informed of the jury’s prerogatives," reads the text of HB 146, the New Jersey bill that became the law that inspired a jury to acquit Doug Darrell of a crime of which he was guilty. As his jury knew, on occasion a "crime" is anything but, and justice is best served by nullifying an unjust law.
Juries can do this only when they know they have such power. If ever there was an instance where knowledge is power, this is it. And although such power should be exercised only with great care, in a country that has had laws on the books discriminating against people for the color of their skin and for what they choose to put in their own bodies, there is certainly precedent for the people taking the power from the state, one jury at a time.
About the Author:
Except for a four-month sojourn in Comoros (a small island nation near the northwest of Madagascar), Greggory Moore has lived his entire life in Southern California. Currently he resides in Long Beach, CA, where he engages in a variety of activities, including playing in the band MOVE, performing as a member of RIOTstage, and, of course, writing.
His work has appeared in the Los Angeles Times, OC Weekly, Daily Kos, the Long Beach Post, Random Lengths News, The District Weekly, GreaterLongBeach.com, and a variety of academic and literary journals. HIs first novel, The Use of Regret, was published in 2011, and he is currently at work on his follow-up. For more information: greggorymoore.com
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