Guest Post: Jury Nullification — A Prosecutor’s View

The following was sent to me by a prosecutor who wishes to remain anonymous. (No, it’s not AHCL.) I disagree with him — I think he’s missing at least one essential point (that jury nullification is the law, so that a nullifying verdict is a verdict “according to the law”) — but he’s not entirely crazy, and I thought I’d toss it out for discussion. Enjoy and comment (paging Clay Conrad). (Do I need to say that opinions expressed below the line don’t reflect my views?)


I just can’t leave this one alone.

I feel compelled to address the completely outrageous, legally andfactually unjustifiable act that you and the writers of The Wire are encouraging.

So let’s not discuss free will, etc. We’ll even leave out the admittedly dubious merits of the WoD for the moment. Let’s talk about one thing and one thing only: Jury nullification.

Can you please explain to me how jury nullification is not a gross and unconscionable violation of the juror’s oath? As you well know, in Texas (and I suspect most other states as well) the jurors must swear, prior to being impaneled, that they will “a true verdict render, based on the law and the evidence presented.” Read those words closely, and if I’ve left any out, please let me know. It doesn’t say “unless I disagree with the law in question,” or “unless I’m against the WoD.” It doesn’t mention jury nullification or even civil disobedience!

The Zenger case is often trotted out as the ultimate example of jury nullification. But somehow I doubt the jurors in that case ever took such a specific oath. Modern jurors are promising, in very specific terms, that they are going to render a TRUE verdict, based on the LAW and the FACTS presented. Jury nullification ignores all three of those things: The verdict will not be true, but will in fact be intentionally, knowingly, willfully and (I might add, to go outside of mens reas BLATANTLY false. The jury nullification verdict will not be based on the law, because it sets out to disregard the law because it is viewed as immoral, wrong, etc. Finally, the jury nullification verdict will most certainly not be based on the facts, because it chooses to ignore those facts as a matter of course.

How, then, do proponents of jury nullification justify their position that modern jurors are legally authorized to employ this fancifully archaic concept? Is it simply understood that the whole juror’s oath is but a subterfuge, and that the renegade juror must engage in this deception as a means to an end?

The writers of The Wire, in advocating the actions that they have, are essentially promoting the commission of a crime. Had they made the statements contained in the Time magazine article in Texas, then they would almost certainly be guilty of aggravated perjury. Outrageous, no? How dare I suggest that the exercise of their First Amendment rights could possibly constitute a crime? Pretty easily, actually. Just look at the law.

Perjury and aggravated perjury are defined as follows:

P.C. 37.02 Perjury

(a) A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning:

(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath

***

P.C. 37.03 Aggravated Perjury

(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

(1) is made during or in connection with an official proceeding; and

(2) is material.

(b) An offense under this section is a felony of the third degree.

The writers of The Wire are telling their readers to premeditatedly violate this statute. By taking the juror’s oath, a juror who plans on engaging in jury nullification is making a false statement under oath, and the statement could hardly be more material to the proceeding! The elements of perjury are thus met. The violation is even more egregious since it is planned out in advance. The jurors enter the courtroom having already formed the intent to commit jury nullification in narcotics cases, regardless of the evidence (“save for a prosecution in which acts of violence or intended violence are alleged” of course, according to the sanctimonious and high-minded drivel put out in the article). Since it is premeditated, the jurors’ oath is false at the moment the jury nullification juror is taking it.

So how are The Wire writers guilty? Texas law further provides:

P.C. 7.02 CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.

(a) A person is criminally responsible for an offense committed by the conduct of another if:

***

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense

***

The Wire writers are, to put it bluntly, encouraging and directing their readers to break the law. And, let’s face it, that’s exactly what jury nullification is: Breaking the law. Not to mention breaking your oath, lying, and a host of other things your mother probably told you not to do.

In America, God bless her, we do have legitimate forms of protest. We have the right of free speech and we have the right of assembly. The series of tubes known as The Internets is probably the greatest vehicle ever for exercising both of these fundamental rights. Jury nullification is not a legitimate form of protest any more than robbing a bank is a legitimate form of protest against unfair lending practices or the subprime mortgage crisis. So what are we left with? you ask. What recourse do we have against the tyranny of the evil WoD?

Well, in America, God bless her, we also have something known as a democracy, and along with it the right to vote. We have elected legislatures whose precise purpose is to enact the will of the people. If you disagree with the WoD, the solution is to vote for a candidate who will cease that war and legalize narcotics. The solution is not to lie under oath and deliberately pervert the justice system. Jury nullification undermines confidence in the judiciary at a time when that confidence is already tragically low. It opens a whole range of unpleasant questions about inequities in its application. After all, if jury nullification is to be carried out in drug cases, then why not resisting arrest cases, DWI cases, or even murder cases? After all, those laws could be considered to represent a war on people with oppositional defiant disorders, alcohol problems, or anger management issues. Ask the defendants and their family members if THEY would prefer the jurors to ignore the facts. I’ll bet the candid ones would say yes in a heartbeat.

Jury nullification, for all the noble prose and liberatarian philosophies behind it, has no place in the modern criminal justice system. As a prosecutor, I commit my jurors to following the law, and I ask if they can promise to do that and convict if I prove my case to them beyond a reasonable doubt. It’s a proper and appropriate question (even under Standefer ) and the people who are honest enough to say “No” get to go home. If you disagree with the WoD, that is your free gift from our justice system. You are hereby exempted from jury service. And there is no shame in it, either. I often ask my panelists if, for reasons of personal conviction or belief, they simply cannot follow a certain law. They have that opportunity to speak. (And for perjury enthusiasts, I should add that voir dire is conducted under oath, as well.) I do not ask anyone to enforce a law they are dead set against if it would violate their conscience to do so. There is nothing wrong with admitting that you cannot or will not abide by your oath and follow the law. What IS wrong is calculatedly concealing that fact for the purpose of subverting the legal process. That can and should lead to troubles that are — to borrow from The Wire writers again — far from fictional.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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115 Responses to Guest Post: Jury Nullification — A Prosecutor’s View

  1. ECV says:

    Here’s a simple — I hope — question from a layperson: How many successful prosecutions are there each year in the United States of jurors or prospective jurors for: (a) lying under oath about their opposition to the law or laws under which the defendant is charged, their intent to disregard the judge’s instructions, or their intent to acquit the defendant irrespective of the evidence presented during the trial; or (b) failing to volunteer that they are aware of jury nullification, whether or not they intend to practice it in the instant case?

  2. Mark Bennett says:

    ECV — Simple.

    a) Zero.

    b) Zero.

  3. Jake Witmer says:

    I didn’t have time to read all of the above, but let me point out a few relevant facts anyway:

    [If you don't have time to read others' comments, why would anyone bother to read yours? I'm cutting out the middleman and deleting the rest. MB]

  4. FWIW, I see several folks trying to reduce a difficult question to a simple one, starting with the anon guest blogger.

    Yup, it is a simple issue, generally speaking: people ought not, by and large, make promises that they don’t intend to keep. But even the law — which, as we know, is an ass — recognizes exceptions to that; duress, say. Point a gun at my head and make me promise to pay you twenty bucks, and I don’t have to keep that promise.

    Jury nullification is much the same thing, even though the metaphorical gun is, by and large, pointed at somebody else’s head. Windy brings up the Richard Paey case, which is an easy example. A guy who’s done not a damn thing wrong is put on trial, with huge penalties if he’s convicted of the crime of which he is, no question, guilty.

    Compared to putting him in a cell for years, what’s little fib? — which, by the way, is made under duress. (If an erstwhile juror actually tells the truth during voir dire, and the actual truth is, “I’m going to do what makes sense to me and my conscience, and if that’s not in accord with what you and that person in the black robes think, I do hope you’ll suffer great mental anguish,” think that they’re safe from a contempt citation?)

    But that’s an easy case, and even there, there are some repercussions to doing the right thing in that instance. (The chance of stopping the insane War on Some Drugs goes down, just a little, when jury nullifications happen only in such obvious and egregious cases.) Yup, in another easy case, it’s wrong to let the white murderers of a civil rights worker, proven guilty beyond a reasonable doubt, go because they’re white guys. But it’s wrong not because of the fib involved in taking the oath, but because, well, it’s the wrong decision.

    Getting on a jury while being consciously willing to engage in nullification is, in and of itself, a little fib. Any grownup should know that little fibs are sometimes okay. Depends on the situation.

    But sure, absent some good enough reason to fib, it’s wrong to fib. And if you can totally ignore all the good reasons why a good person might fib, we’re back to the old Abe Lincoln bit: if you call a tail a leg, how many legs does a lamb have?

    Answer: four. Because calling a tail a leg doesn’t make it one. And neither does calling jury nullification inherently wrong make it so.

  5. Pingback: Trial by Jury on Trial: The Power to Nullify? « Learning Constitutional Law

  6. Jim Kirby says:

    I am aware that the words of the Texas Constitution still state that a juror cannot be excluded from serving “provided he acknowledge the existence of a Supreme Being.” The fact that a federal court has nullified that clause is irrelevant.

    Sorry, but I cannot support the Texas Constitution and feel morally obligated to subvert it. Jury Nullification is only one way to exercise my protest.

  7. Kenneth Unger says:

    An interesting op-ed piece in today’s (12/20/2011) NY Times: “Jurors Need to Know That They Can Say No” By Paul Butler at http://www.nytimes.com/2011/12/21/opinion/jurors-can-say-no.html?ref=opinion, further supports the right and desirability of jury nullification.

  8. Clay S. Conrad says:

    Just couldn’t help but post this: a federal judge in NY, Kimba Wood, just ruled that efforts to distribute jury nullification literature outside a federal district court in Manhattan were NOT illegal, because they were not aimed at a specific case or specific issue, but were protected First Amendment activities.

    Anonymous cowardly prosecutor: 0
    Folks like me: 1

  9. Ed McKown says:

    I approached this issue from a 6th Amendment perspective; the defendant’s right to an impartial jury.

    In 1794, Chief Justice John Jay, writing for the unanimous opinion of the Supreme Court, determined that jurors had the right to determine both the law and the facts of a case. See State v. Brailsford, 3 U.S. 1, 4 (1794).

    This right must have constituted at least in part, if not in whole, the definition of an impartial jury. The taking away of such a fundamental right from the jury must necessarily create an imbalance in favor of the State in criminal proceedings. The balance must not shift in favor of the State because the 6th Amendment is a limitation on State powers not a malleable set of theoretical rights which the State can manipulate in order to deprive the accused of a fundamental right.

    The OP couches all of his arguments in modern jurisprudence with good reason. That being, the founders do not agree with the OP’s modern interpretation. Theophilus Parsons at the Massachusetts convention of 1788 upon the vote for adoption of the United States Constitution; an objection was heard concerning the lack of a Bill of Rights in the Constitution. Parsons stated, “The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms…Let him be considered as a criminal by the general government; yet only his fellow-citizens can convict him. They are his jury, and, if they pronounce him innocent, not all the powers of congress can hurt him; and innocent they certainly will pronounce him if the supposed law he resisted was an act of usurpation.” [2 Elliot, Deb. 94; 2 Bancroft, Hit. Const. 267].

    Up until January 21, 1895, the common law of the land had been that the jury could determine both the facts and the law of a case. In 1895, Justice Harlan wrote the majority opinion in Sparf v. United States. For one hundred and one (101) years, a unanimous decision from the Supreme Court held sway ensuring that every juror had the right to determine both the facts and law of a case. By extension, the accused standing before those jurors enjoyed the benefits the founding fathers intended when the Constitution guaranteed the right to an impartial jury. The unanimous decision reached in Brailsford was ultimately defeated by a majority opinion in Sparf which appears on its face to make every effort to undue that which was already done. See Sparf v. United States, 156 U.S. 51 (1895).

    In reaching the decision in Sparf, Justice Harlan was constrained by the decision in Brailsford. Instead of narrowly construing a jurors right to determine the law as expressed by Justice Jay, Harlan concluded the reporting of Justice Jay’s words were incorrect. Harlan relies on the words of Justice Curtis who states, “The whole case was an anomaly. If it be correctly reported, I can only say it is not in accordance with the views of any other court…in this country or in England”. Id at 65.

    From there my analysis centered around Florida jurisprudence and the historic timeline. Florida is interesting to me because a statute continues to exist which mandates the jury be told the penalty. See s. 918.10 Fla. Stat. (2011). The Florida Court quickly determined the statute to be constitutionally invalid under the Separation of Powers doctrine. See In re Florida Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla. 1972).

    The Florida Supreme Court, beginning in 1972 goes into an impressive series of back flips in determining that “must” means “may”, “shall” means “may” and finally (with back against the wall) determines “must” means “must”. Defense lawyers had little time to rejoice once the Court amended its rules of criminal procedure; finally getting it right on the third try. See Fla. R. Crim. P. §3.390(a).

    The OP restricts his analysis because to do otherwise would shed light on the historical timeline and give credence to the original intent of the founders and the Supreme Court. The term Jury Nullification has been redefined much like liberal and conservative. The right of the jury to nullify was intended as a stop gap measure when the government overreached and there was no proper remedy. It is as necessary now in that role as it was in 1789 and will continue to be as long as men govern men.

    My apologies if this was a bit verbose but I believe there still exists particular remedies within the courtroom which may in the end overturn bad case law.

  10. Ronald Kranig says:

    All I can say is that WHEN the State’s Attorney’s office is more concerned about justice than it does convictions…….THEN I will disagree with the nullification rights of a jury. For example, WHEN the people see that the State (routinely rather than NEVER) prosecutes their own prior “state’s witnesses” for committing perjury to get an innocent defendant convicted of a crime….which includes Police Officers…then the escape of a nullification ruling should disappear but that is like asking to see that all Major League Pitchers apologize if they hit a batter and didn’t mean to.

  11. If “true verdict” only meant “verdict according to the law”, there would never be any need for a jury at all.

    A verdict is true only if it is just. If the defendant is guilty of breaking an obviously unjust law, or if the law as applied to the defendant’s specific circumstances is unjust, then the only true verdict is Not Guilty.

    That said, I’m a lot more cautious about singing the praises of nullification than I used to be at one time. I consider those people tried and acquitted for lynchings by nullifiers, and consider how many gay/lesbian/transgender, immigrant, liberal, atheist, etc. people might die, and their murderers be acquitted, in Texas today if nullification were more respectable than it currently is.

    Bottom line: all law is only as good and just as the people who make it, enforce it, and live under it.

  12. Jade Douglas says:

    Where is the line between a terroristic threat and freedom of speech drawn? Is it a personal, grayish line? If someone made statements about me like this person has made about government officials, I would feel threatened. Should Twitter be responsible for the statements of this person? No. Twitter is an outlet in 2013 as the newspaper was in 1973. However going back to the original question – where is the line drawn?

  13. Tom Benadar says:

    Without jury nullification, we have trials by government.
    A fully informed jury is our best defense against courtroom tyranny.
    http://www.fija.org

  14. desertspeaks says:

    Well, since ALL district attorney’s “on a daily basis” breach their oath of office by HIDING exculpatory evidence.. ie there isn’t ONE single statute today that is published with and or includes a mandatory ENACTING CLAUSE.. that’s a violation of due process!!
    Combined with the fact that a percentage of each and every fine goes towards the elected officials RETIREMENT FUND.. a clear case of CONFLICT OF INTEREST!
    Why should WE THE PEOPLE NOT breach an enforced oath, that only serves to further encroach on our Constitutional and god given rights.. Rights, which by the way are antecedent to the formation of this country and it’s twisted laws enacted by those who wish only to enrich themselves!!?!?!?

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