Jury nullification can be used for good or for ill, and opinions on the practice are no less polarized.
Commuters arriving at the Judiciary Square metro station in Washington, D.C. have been greeted with an unusual billboard. The massive advertisements warned passersby that “Good jurors nullify bad laws” and “You have the right to ‘hang’ the jury with your vote if you cannot agree with other jurors.”
Jury nullification, or a jury ruling in defiance of the facts of a case or in disagreement to the letter of the law, is a de facto power of juries — despite the fact that judges rarely inform juries of this. In common law countries that prohibit double jeopardy — the retrial of an acquitted person — such as the United States, jury nullification is protected on the basis that juries cannot be punished for the rulings they make and a person cannot be charged with the same offense more than once. Historically, this has been both a good and a bad thing.
Throughout the history of this country, jury nullification has been used to mitigate and correct governmental wrongs and unfair laws. For example, colonial juries would regularly nullify the Navigation Acts, which had forced all colonial trade to first pass through England for taxation. In the years leading up to the Civil War, northern juries would regularly refuse to recognize violations of the Fugitive Slave Act, as in a 1851 case when 26 Syracuse, N.Y. abolitionists were tried for breaking free William “Jerry” Henry, an escaped slave, who was ultimately funneled to Canada. Syracuse, a major hub of the abolitionist movement and “the great central depot” of the Underground Railroad, was sympathetic to the 26 and only convicted one.
That one conviction was overturned, and the escape is memorialized to this day in downtown Syracuse.
Nullification has also been used as an act of oppression or vice. In the Jim Crow South, all-White juries would reliably use nullification to acquit White defendants accused of killing Black victims. As much as 60 percent of the time, juries nullified alcohol control laws during Prohibition out of disagreement with the statutes.
In 2009, Luis Ramirez, a Mexican immigrant farmer, was beaten to death by Derrick Donchak, 19 at the time, and Brandon Piekarsky, 17. While Ramirez was walking down a street with his friend, a group of drunk teenagers — including Donchak and Piekarsky — allegedly taunted the men with racial slurs. A fight escalated, which concluded with Piekarsky kicking Ramirez in the head, leading to his death two days later.
An all-White jury acquitted the two teenagers of all charges but simple assault, which the teenagers admitted to.
“The jurors here [are] sending the message that you can brutally beat a person, without regard to their life, and get away with it, continue with your life uninterrupted,” said Gladys Limon, a spokeswoman for the Mexican-American Legal Defense and Education Fund, to CNN.
“In this case, the message is that a person who may not be popular in society based on their national origin or certain characteristic has less value in our society.”
Commonality of nullification
Despite appearances, jury nullification is a common occurrence — even if the practice is not recognized as nullification when it is happening. A recent study found that juries convict White defendants at a lower rate for the same crime than other races. This “leniency” or “compassion” toward White defendants actually constitutes situations in which jurors ruled based on compassion, instead of the letter of the law.
“Jury nullification is this constitutional power that jurors have to say not guilty, even if they think a defendant technically did it but the law is unfair or it’s selectively applied — like our drug laws are,” said Paul Butler, a professor at Georgetown Law School and a former federal prosecutor, to NPR. “[There is] a lot of evidence now that African-Americans get prosecuted when whites don’t. So for jurors, who have concerns about that, they don’t have to find the person guilty. It’s a power that the framers of the Constitution developed because they thought that regular people should have the last say when the government uses its awesome power to punish people.
“It has a proud tradition, you know, slavery used to be legal. Jurors in the north, when slaves would be prosecuted for escaping or people who helped slaves escape were prosecuted- Northern jurors would say not guilty, even though technically those folks were guilty. More recently, here in D.C., up until the ’90s it was a crime for gay people to have consensual sex. Sometimes folks got prosecuted for that. And I’m proud that I live in a city where D.C. jurors would say not guilty, even though those folks were technically guilty ’cause the law was unfair.”
“In 1991, a visiting Jewish scholar, Yankel Rosenbaum, was fatally stabbed in Brooklyn by a black mob outraged that a black youngster had been run over and killed by a religious Jewish motorcade. Rosenbaum lived long enough to identify Lemrick Nelson Jr. as the stabber, but a largely black jury did not convict Nelson. Later, some jury members went partying with Nelson to celebrate the acquittal. Nelson subsequently moved to Georgia, where he was convicted of slashing a schoolmate.
“At the time, it appeared to be an act of race-based jury nullification, and, though the word didn’t pop up, it was clear that something very unusual had occurred and that many of the city’s Jews had suddenly withdrawn their faith in the local criminal justice system.”
The courts and jury nullification
Regardless of whether it is used with good or ill intent, jury nullification is a cherished and recognized right for juries. Many prosecutors and judges, however, recognize the danger in the practice. First, jurors free to vote their conscience in determining guilt or innocence do so potentially without consideration of the law, which stands as an affront to American jurisprudence. Any jury that could disregard the law to ascertain innocence could also do it to determine guilt, so goes the general argument. Second, jury nullification introduces randomness into the trial process, as jurors’ sympathy to the defendant, morality, education and upbringing can all affect the way the jury interpret the case.
The D.C. billboards — which are located near the D.C. Superior Court — have forced prosecutors to consider the effect of nullification on their cases. In three separate occasions since the billboards went up, prosecutors have asked judges to ensure that potential jurors have not seen nor have been influenced by the billboard.
“Jurors in the District of Columbia play an important role in holding accountable the criminals who threaten and harm the people who live, work and visit our city,” U.S. Attorney Ronald C. Machen Jr. said in a statement. “Jurors who ignore the law or refuse to follow the judge’s instructions embolden criminals who believe that they can get away with breaking the law and do harm to the community without any repercussion.”
“People are going to jail for weed,” said James Babb, a graphics artist from Philadelphia who raised the $3,000 to put up the billboard. “Things are getting so weird. There needs to be this final safeguard to protect us from a tyrannical government.”
Historically, judges resist the notion of jury nullification, as it in effect renders jury instructions optional. For example, during the George Zimmerman trial, jurors showed discomfort letting free a self-admitted killer based solely on the jury instructions that required the jury to consider Florida’s “Stand Your Ground” laws in deliberation. It can be argued that under jury nullification, the jury could have found Zimmerman guilty, anyway. However, the instruction violation most likely would have forced the presiding judge to put aside the jury’s decision — causing a mistrial — or would have opened the case up for appeal.
A 1969 U.S. Court of Appeals for the Fourth Circuit decision, U.S. v. Moylan, affirmed the precedence of jury nullification, but also confirmed the court’s prerogative not to inform juries about it:
“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision. …
By clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to insure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.”
In successive cases, this opinion was upheld. In 1997, the U.S. Court of Appeals for the Second Circuit ruled that a juror can be dismissed from a case if the juror intends to attempt a jury nullification, but only if the attempt itself constitutes misconduct and not just a lack of persuasion in the prosecutor’s case. “We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent,” wrote the Second Circuit. “Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.”
To date, jury nullification has not been taken up by the U.S. Supreme Court.
The people’s defense
However, in an era of excessive legal challenges — including “Stand Your Ground” — the ability to legally challenge the interpretation of the law may be, for good or for bad, the public’s one true way to push back. “I wouldn’t have advocated this idea of jury nullification but for my experience as a prosecutor, bringing these cases right here in D.C. and just developing so much respect for the people who show up for jury duty,” said Butler to KTEP. “They’re ordinary women and men off the street and they have good common sense. So when I worked as a prosecutor, we all knew if we had some young guy who was charged with a nonviolent drug crime, these D.C. jurors were not going to send that boy to jail.
“If it’s murder, rape, theft — again, these are people with good sense. They know that those are the kind of folks who do need to be separated so that they can’t hurt anybody. They were concerned – if you go to the D.C. Superior Court right now, you would think that white people don’t commit crimes. You would think that they don’t use drugs, they don’t get into fights, they don’t steal from their offices. So one way for people who know that’s not an accurate reflection of the world to fight back is to use your power as jurors.”