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:


(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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