Jury nullification: when jurors leave the law behind.

One of the U.S. justice system's best-kept secrets is being leaked to the general public: Jurors do not have to follow the law.

While trial judges continue to read out traditional instructions that emphasize the juror's oath to follow and apply the law, a growing number of prospective jurors come to the courthouse knowing that if they don't like the law, they can ignore it. Spurred by acquittals in recent high-profile cases, legislators, attorneys, judges, and law professors are debating the controversial issue of jury nullification.

Nullification occurs when a jury refuses to convict a defendant even though the evidence seems to allow no other conclusion but guilty. The constitutional prohibition against double jeopardy makes the jury's acquittal irreversible.

The jury's power of nullification can be traced to medieval times. It was codified into English law after jurors in 1670 ignored a trial judge's instructions and voted to acquit William Penn of unlawful assembly. Nullification in American courts dates back to the colonial period and the acquittal of dissident John Peter Zenger on charges of libel. Later, northern juries nullified fugitive slave laws while southern juries nullified laws governing treatment of slaves. The U.S. Supreme Court recognized that judges have no recourse if jurors acquit in the face of overwhelming inculpatory evidence. (Sparf and Hansen v. United States, 156 U.S. 51 (1895).)

Some people think that widespread knowledge of a jury's power to nullify the law could lead to anarchy. Others openly advocate nullification as a means to correct social inequity. Trial attorneys are caught in the eye of the storm, forced to cope with a justice system that accurately reflects society's underlying tensions and contradictions.

Fletcher Baldwin, a former civil rights lawyer who is now a professor of constitutional law at the University of Florida, is unsure whether the O.J. Simpson verdict was an example of nullification, but he said the current concern "is that black jurors have now discovered jury nullification. In the past it's usually been all-white juries that nullified the law."

Baldwin referred to convictions tainted by extreme racial prejudice. These were more common before World War II than they are now, after changes in the law made it easier for unfair convictions to be reversed on appeal. Today's nullification issue centers on acquittals.

Several justifications for jury nullification have been cited. Consider, for example, a scenario in which a law makes it illegal to cross a street. The prosecutor has five witnesses who saw X, who is black, cross the street and a videotape showing him crossing the street. The jury is asked to decide whether he is guilty of breaking the law. The jury finds him not guilty because--

* jurors think the law is unjust.

* the penalty for breaking the law is a mandatory two years in jail, and jurors think the penalty is excessive.

* although blacks represent only 15 percent of the population in this town, 70 percent of people charged with crossing the street are black, so jurors suspect there was selective enforcement.

* of all the people who end up in jail for crossing the street, nearly 90 percent are poor or black, suggesting that the trial process favors wealthy or white defendants.

* crossing the street is fundamentally a social problem, and criminal enforcement masks the real need for effective social programs.

To transform the fictional scenario into reality, simply change the focus from crossing the street to drug possession, prostitution, battered women killing their abusers, or illegal anti-abortion activities.

"Citizens who serve on juries have a fairly decent and sensitive feeling for what is right and what is wrong," said Baldwin. "There are exceptions, but not enough to eliminate the practice of jury nullification. "

Subverting the System

A more extreme view of nullification is advocated by former federal prosecutor Paul Butler, now an associate professor at George Washington University Law School. "African American jurors should approach their work cognizant of its political nature and of their prerogative to exercise their power in the best interests of the black community," he wrote in a recent essay. (Paul Butler, Black Jurors: Right to Acquit? Harper's Magazine, Dec. 1995, at 11.)

Butler wrote that the black community would be better off if some nonviolent lawbreakers remained in the community instead of being sent to jail. "Imagine a country in which a third of the young male citizens are under the supervision of the criminal justice system--either awaiting trial, in prison, or on probation or parole. Imagine a country in which two-thirds of the men can anticipate being arrested before they reach age 30." This police state, Butler suggested, is Black America.

Speaking at a January 23, 1996, conference sponsored by the Annenberg Foundation in Washington, D.C., Butler said he would advise black jurors to make their decision based partly on their need for social self-help. He equated their predicament with that of American revolutionaries and fugitive slaves. "There is no question that jury nullification is subversive," he said. "The issue is whether or not African Americans today have the moral right to engage in this subversion."

Butler proposes that black jurors hold a presumption in favor of nullification when deciding the fate of black defendants charged with nonviolent and victimless crimes, such as drug possession.

Jury Instructions

Because nullification can be such a disruptive issue, most judges are reluctant to inform juries that they have the power to nullify. Federal Judge Jack Weinstein of the Eastern District of New York, who has spoken and written about this issue many times, says he would not instruct juries on their power to nullify. "Such instruction is like telling children not to put beans in their noses," said Weinstein. "Most of them would not have thought of it had it not been suggested."

Judge B. Michael Dann of Arizona's Maricopa County Superior Court tends to agree. Arizona courts are perceived by many as being in the forefront of U.S. jurisprudence since the recent overhaul of the state's jury system. (Arizona Courts Implement Far-Reaching Jury Changes, TRIAL, Jan. 1996, at 79.) But a proposal to instruct juries on nullification was apparently too hot for reformers to handle.

The new Arizona rules state that "except in extraordinary situations or where required by the Arizona constitution, juries should not be instructed on the subject of jury nullification." Questioned about the omission, Dann said, "We decided to let them figure it out for themselves."

Both Weinstein and Dann, however, would tacitly recognize the jury's right to nullify by allowing defendants to testify about moral values and intent. Some courts have refused to allow defendants indicted for quasi-political acts to discuss their motives for breaking the law. Both Weinstein and Dann counsel a more liberal approach to the rules of evidence.

The debate over nullification and jury instructions, however, is no longer academic. The cat is out of the bag.

Several state legislatures have considered, but not passed, a so-called Fully Informed Jury Act, which would require judges to inform juries in criminal cases of their right to nullify the law. Advocates have organized a Fully Informed Jury Association, lobbied legislators, picketed courthouses, and distributed newsletters. People like Paul Butler are speaking out. A growing number of jurors are coming to trial with at least some awareness of their power to nullify.

Suggesting Nullification

Meanwhile, trial lawyers have to cope. Is it in the interest of a criminal defense lawyer to have a jury know about its power of nullification?

"Yes, it usually is," said attorney Fred Joseph of Greenbelt, Maryland, legal director of the Prince Georges County chapter of the American Civil Liberties Union, "but attorneys have to learn to walk a fine line."

Attorneys may not ask at voir dire whether jurors know about nullification, he said, but they can look for discerning individuals who may think independently. Attorneys cannot tell jurors about mandatory sentences or other consequences of a guilty verdict, but they can come close by pointing out that certain charges are "very significant with serious consequences," he said.

"Since you cannot introduce anything new in closing argument, you'll want to use the prosecution's own testimony to introduce favorable information for the jury to consider. For example, ask the arresting officer whether he saw the defendant's two-year-old daughter, whether he found out that the defendant had been abandoned by her husband, and so on. At closing you can then remind the jury of Officer Blank's testimony.

"At closing, you'll have to say things like, `I know you've heard the judge's instruction, but what about this and what about that? These things make the matter not so clear-cut as the prosecution would have you believe.'"

Joseph points out that a juror's decision to nullify often occurs before a trial has been completed. "If a juror feels that the trial process is working unfairly against the defendant, the juror can `nullify' simply by ignoring further evidence," he said.

Isn't nullification a dangerous tool that can cut both ways? If each juror is allowed to pick and choose which law is just, could our system of rule by law degenerate into chaos? Weinstein places his faith in the jury system, because it embodies group decision making.

"It is unlikely that 12 persons chosen at random from the community will at the same time be struck with a collective will to ignore a just law," he said. Given the jury system's procedural safeguards and group decision making, he believes we can remain confident that nullification will continue to be rare and, w hen exercised, will probably be justified.

"Juries," said Weinstein, "are charged not with the task of blindly and mechanically applying the law, but of doing justice."