Creators of The Wire: "We'd Nullify"

Radley Balko | March 6, 2008

A pretty bold statement in Time magazine from the show's head writers, Ed Burns, Dennis Lehane, George Pelecanos, Richard Price, David Simon.

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

Jury nullification is American dissent, as old and as heralded as the 1735 trial of John Peter Zenger, who was acquitted of seditious libel against the royal governor of New York, and absent a government capable of repairing injustices, it is legitimate protest. If some few episodes of a television entertainment have caused others to reflect on the war zones we have created in our cities and the human beings stranded there, we ask that those people might also consider their conscience. And when the lawyers or the judge or your fellow jurors seek explanation, think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren't fictional.

Regular readers of reason can think back to very real names like Kathryn Johnston, Isaac Singletary, Daniel Castillo, Tarika Wilson, or Jarrod Shivers. Or for that matter, any of these.

The one problem with jury nullification is that judges and prosecutors often set perjury traps that pick would-be nullifiers off during the voir dire process. Worse, judges sometimes even wrongly instruct jurors that their only option is to consider the defendant's guilt or innocence, explicitly instructing that they aren't to judge the justness or morality of the law itself.

One of the most significant policies drug reformers could get enacted would be to work Congress and state legislatures to pass legislation protecting and preserving the rights of jurors to nullify—or better yet, to even force courts to notify them of that right before deliberation.

Comments

Elemenope|3.6.08 @ 7:39AM|#

One of the most significant policies drug reformers could get enacted would be to work Congress and state legislatures to pass legislation protecting and preserving the rights of jurors to nullify-or better yet, to even force courts to notify them of that right before deliberation.

Didn't South Dakota try something like that a few years back>?

Fluffy|3.6.08 @ 8:13AM|#

Ed Burns, Dennis Lehane, George Pelecanos, Richard Price, David Simon

And Fluffy.

Jackson Kuhl|3.6.08 @ 8:14AM|#

The one problem with jury nullification is that judges and prosecutors often set perjury traps that pick would-be nullifiers off during the voir dire process.

I'm not sure if that's a problem. The writers have now guaranteed they will never be picked to sit on a jury trying a drug case (or probably any trial, for that matter), making the candidate pool that much smaller. There was that particular case during Prohibition wherein prosecutors had to dismiss 57 candidates before finding their jury for a petty case involving a small amount of liquor. My personal experience has been that the court spends at least 15-20 minutes vetting each candidate. How likely is it that prosecutors would waste their time bringing nonviolent drug offenses to trial if every time they did so entailed 50+ rejections during the selection process? Rather than trying to stealth their way into the jury box, nullifiers -- in sufficient numbers -- can gunk up the system just as much by announcing their intentions beforehand.

|3.6.08 @ 8:16AM|#

radley, would you consider writing an article about those perjury traps and how people can avoid them? if there are good ways of getting on these juries and monkey-wrenching the drug war machine bit by bit, that might hurry the process of dismantling.

Markus|3.6.08 @ 8:16AM|#

Congress passing meaningful drug policy reform is far more likely than them passing a bill to protect jury nullification.

Episiarch|3.6.08 @ 8:24AM|#

For any reasonable civil libertarian to get on a jury in the first place is basically impossible unless you lie during voir dire. I've been there and I got targeted for dismissal immediately.

|3.6.08 @ 8:27AM|#

Ed Burns, Dennis Lehane, George Pelecanos, Richard Price, David Simon

And Fluffy.

And J sub D. I long ago made the decision than non-violent drog offenders are not guilty. Of any crime. The state would be forced to prove I perjured myself in the jury selection process. Good friggin' luck.

VM|3.6.08 @ 8:28AM|#

Epi -

yup. just say you've read a book without pictures, finished third grade at a good school, and that you understand that there are other cultures out there, and you'll be dismissed and on your way to the Regal Beagle inside of fifteen.

:)

|3.6.08 @ 8:32AM|#

This happened all the time during the alcohol ban in the 20's and 30's.It was almost impossible to find a jury where some of the members[or most]didn't drink.They had to get Capone on income tax evasion,not bootlegging.

Taktix®|3.6.08 @ 8:34AM|#

For any reasonable civil libertarian to get on a jury in the first place is basically impossible unless you lie during voir dire. I've been there and I got targeted for dismissal immediately.

So, are there any American institutions that are not completely fucked?

Any?

|3.6.08 @ 8:36AM|#

I think if I was a billionaire, I would fund an ad campaign to tell people about jury nullification.

Now, off to become a billionaire...

|3.6.08 @ 8:47AM|#

I'm registered as a Libertarian (not that I have much affection for the party) and I never even get called for jury duty.

robc|3.6.08 @ 8:53AM|#

Ive been called for jury duty once. Once during the two weeks my number came up for jury selection. I was the only pool member seriously questioned for elimination but I squeaked by (or failed to get myself eliminated). I didnt get drawn for the jury, however.

NP|3.6.08 @ 8:53AM|#

Why anyone but an illiterate (or illiterary) dunderhead would look to these second-rate scribblers for governmental policy is beyond me.

throw out your gold teeth and |3.6.08 @ 8:55AM|#

There's too much plea bargaining in drug cases, it encourages the state to persist in the war on drugs. What if every applicable drug charge were to lead to a jury trial? The state would shy away from making many arrests due to costs alone. Even without juror nullification (and face it, given the nanny state memeset of the bulk of our citizenry, we're a few decades away from having the numbers to make a jury nullification move work), jury trials are expensive and time consuming. If the number of drug charges that now go through the system as meek plea bargains were converted to contentious jury trials, jury trials tooled to deliver maximum inconvenience to the state, I think the state would quickly shy away from prosecuting many of the low end charges.

|3.6.08 @ 9:18AM|#

DUI is mostly plea bargained as well.They have lower the bar so far[then .12,now .08]and you can be charged even if under the limit.The problem is the cost.Most low level offenses are settled in the hallways,not the court room.For many it is to expensive to go to trail.Whole law practices are built on never going to trial.If every drug and alcohol case went to trial we'd see a change in enforcement.Maybe only those who did harm would have to worry.

Mad Max|3.6.08 @ 9:21AM|#

A jury nullification thread ought to include a disclaimer along the following lines:

"NOTE: Juries didn't invent the idea of nullifying the laws, nor are we aware of any studies showing that jurors are more prone to nullify the law than other actors in the political/legal system."

If the word "nullification" is always paired with the word "jury," that sends a misleading message that judges, legislators, police, prosecutors, etc. are always law-abiding folks who apply the law exactly as written and would never *dream* of doing anything illegal. It's those unsophisticated, ignorant jurors, you see, who introduced nullification into the system, like the serpent in the garden of law and order.

I'm sure that wasn't the intent of the post, but it's the image that gets reinforced when jury nullification gets discussed without a disclaimer such as I have humbly suggested.

ktc2|3.6.08 @ 9:23AM|#

Taktix® | March 6, 2008, 8:34am | #

For any reasonable civil libertarian to get on a jury in the first place is basically impossible unless you lie during voir dire. I've been there and I got targeted for dismissal immediately.

So, are there any American institutions that are not completely fucked?

Any?


Well, there's the post office . . .

|3.6.08 @ 9:24AM|#

For any reasonable civil libertarian to get on a jury in the first place is basically impossible unless you lie during voir dire. I've been there and I got targeted for dismissal immediately.

Indeed. I have little sympathy for those who complain that they can't get out of jury duty, since from my experience I can never serve on a jury in my state.

|3.6.08 @ 9:59AM|#

I don't want to be a wet blanket, but isn't jury nullification more or less what went on in the south during the bad old days? On those admittedly rare occasions when there was actually a trial to be nullified?

I suppose any tool can be misused, but I'd like to see at least some recognition of the downsides.

whiskey|3.6.08 @ 10:04AM|#

Given the Zenger trial, I don't understand how the Seventh Amendment right to trial as it existed at the time of the founding doesn't explicitly contemplate the introduction of arguments regarding nullification at trial.

Failing that, I can't see how convictions resulting from jury instructions instructing the jury that they are not to consider the morality of the law establishing the charged crimes aren't overturned as the instructions are clearly contrary to law. It's one thing to prohibit explicit instructions as to nullification, it's another to permit explicit denials of nullification.

drawn asunder|3.6.08 @ 10:44AM|#

Wouldn't it be much more likely that there would be legislation to outlaw nullifcation, instead of protect it?

On another note, would I be the only one that might consider acquiting Omar too?

|3.6.08 @ 10:50AM|#

Jury nullification is just another term for vigilante "law." In the good old days, all-white juries in the South were encouraged to "remember their Anglo-Saxon heritage" and let white murderers of blacks walk free. David Simon and the rest of his preening crew should just wear "No Snitching" tee-shirts and be done with it. Limousine liberalism, it seems, is an unkillable beast. Vanity of vanities, all is vanity? Maybe that's true.

Anonymous|3.6.08 @ 10:58AM|#

Ron Paul is a huge proponent of jury nullification, apparently.

http://youtube.com/watch?v=pA4GKG__B-s
http://youtube.com/watch?v=tRdse8zBzyI
http://youtube.com/watch?v=jbw8rF_hA9I

|3.6.08 @ 10:59AM|#

Go back to films, Alan.

As mentioned above, nullification is an old precedent that has been misused, just like any other tool.

I'm failing to see where there's a true recourse for the average Citizen of the Republic anymore...obviously voting doesn't do any good (what with the 97% reelection rate).

|3.6.08 @ 11:03AM|#

Given that The Wire is set in Baltimore, it is interesting that Maryland is one of the three states (that I know of) that has an explicit nullification clause in its constitution: Article 23 of the Declaration of Rights...

In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.

|3.6.08 @ 11:06AM|#

So Alan,how do you stop unjust laws?I'm a Reagan Republican and have always been against the drug war.I found Milton Friedman and W.F Buckley at a young age and agreed with their stance.How do you justify sending people to jail {or putting them on probation]when they have done no harm?

Jim Lesczynski|3.6.08 @ 11:22AM|#

Another good reform would be simply to get rid of voire dire. As Vin Suprynowicz noted, voire dire is French for jury-stacking. Just take any 12 men or women at random.

Someone Who Doesn\'t Want to L|3.6.08 @ 11:24AM|#

MikeP,

Which other states have explicit nullification clauses?

MikeW|3.6.08 @ 11:27AM|#

Hey right some articles on jury nullification, the history of it and the ability of individuals to use it.

|3.6.08 @ 11:31AM|#

I find it odd that someone would bring up all white juries in the south.The drug laws were racially motivated in the beginning and still effect blacks and hispanics more as a whole.Much of the drug panic began in the south.They couldn't have high black men raping white gals,could they.

Episiarch|3.6.08 @ 11:36AM|#

Don't worry, Alan had just seen 12 Angry Men and became confused over whether he knew what the fuck he was talking about. Because, you know, it's currently 1950 and the only injustice being done in courtrooms today are murder trials for white racists who are being freed by racist juries.

Clay Davis|3.6.08 @ 11:50AM|#

Sheeeiiiit.

NoStar|3.6.08 @ 11:54AM|#

In my county, they send a questionaire when you are put in the jury pool. One question is along these lines: Will you follow the judge's instructions as to what the law is?

My answer: Yes, as long as his instructions do not violate the right of jury nullification.

I've yet to be called in to serve.
I recommend this method to anyone who wishes to get out of jury duty.

|3.6.08 @ 12:06PM|#

Which other states have explicit nullification clauses?

The other states I know of besides Maryland are Indiana...

In all criminal cases whatever, the jury shall have the right to determine the law and the facts.

and Oregon...

In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.

|3.6.08 @ 12:25PM|#

Meanwhile, those in California will find no such statement in the state constitution.

Instead, jurors face a selection process that begins with the perjury admonishment...

"Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court, and that failure to do so may subject you to criminal prosecution?"

And then after selection, they face the juror oath...

"Do you, and each of you, understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?"

If that's not explicit enough, the jury brochure clarifies...

As a juror you should think seriously about the oath before taking it. The oath means you give your word to reach your verdict upon only the evidence presented in the trial and the court's instructions about the law. You cannot consider any other evidence or instruction other than those given by the court in the case before you.

And, lest you forget...

Remember that your role as a juror is as important as the judge's in making sure that justice is done.

For "justice is done" feel free to substitute "the state has its way."

ben|3.6.08 @ 12:37PM|#

Georgia also allows nullification:

Article I Section I Paragraph XI:

...and the jury shall be the judges of the law and the facts.

|3.6.08 @ 12:40PM|#

This how I got out of jury duty. Simply stated that I would never hand down a guilty verdict for a mere possession charge and was pretty quickly and painlessly sent on my way. I apologized to the defense attorney and went home. It's a shame everyone doesn't do that.

|3.6.08 @ 12:41PM|#

Questions:

While I suppose I could look this up myself, do the statistics for incarcerated "nonviolent drug offenders," contain a signficant number of people who were clearly found in possession solely for their own personal use or does it overwhelmingly include individuals who were involved in distributing (whether actually found to have been distributing or possession with intent to distribute)? (Not passing on whether or not this is a distinction without a difference).

Another question... does anyone have any idea why the US incarceration rate is higher than other countries that have the same or very similar drug laws than the US, such as France and the UK? If the laws are indeed the same, seems to me that a country can accomplish the goal of making (some) drugs illegal, while not filling up the prison system (notwithstanding, of course, that making (some) drugs illegal is a legitimate goal).

|3.6.08 @ 12:50PM|#

Someone is going to have to explain jury nullification...how is it any different then simply finding a person not guilty?

|3.6.08 @ 12:55PM|#

Just to add, the discussion here of the legal principles and precendents involved is useful and interesting, but I don't even see this sort of generalized protest as rising to that level. If one is sincerely incapable of being a reliable juror, and he or she states why this is the case, I don't see how any judge or attorney would force the issue.

|3.6.08 @ 1:06PM|#

Never again will I sit on a jury. I still feel guilty for my decision ten years after the fact. I took money out of a man's pocket because he had building materials stored in his back yard.

I still remember the smarmy judge making fun of the defendent after we had delivered our verdict.

And I still remember the judge specifically telling us not to judge the law.

|3.6.08 @ 1:07PM|#

pistoffnick,
We're they...EVIL...building materials?

|3.6.08 @ 1:40PM|#

A piecepiece on Omar in Obit Mag. (***spoiler alert***)

JCW|3.6.08 @ 1:56PM|#

What happens if the judge instructs you not to judge the law, and you do it anyway?

Brandybuck|3.6.08 @ 2:09PM|#

The problem with jury nullification is that cranks have so twisted the concept into an absurdity. I have actually seen literature from folks that suggest a single jury of twelve men can literally remove a law from the books. Tax protesters are notorious for this. Nothing could be further from the truth.

In most states, juries do not have the right to judge the law. But in a tiny handful of states, they can judge the law itself. But only in regards to the case at hand. Their verdict will NOT abolish the law.

On the other hand, every juror has the right to vote 'not guilty'. This is what jury nullification really means. If juries keep returning 'not guilty' verdicts for certain "crimes", then the system will eventually figure out that it's not worth their time enforcing that law. Jury nullification has to be performed on a wide scale for it to be effective.

TallDave|3.6.08 @ 2:34PM|#

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented.

Yes!

This is how the drug war could end!

This is how Prohibition ended!

During Prohibition, juries often nullified alcohol control laws,[14] possibly as often as 60% of the time.[15] This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition

http://www.deanesmay.com/2008/01/31/how-the-drug-war-might-end/

|3.6.08 @ 2:34PM|#

I agree with most of what Brandybuck says here. Where I differ may come down to the definition of 'right'...

In most states, juries do not have the right to judge the law. But in a tiny handful of states, they can judge the law itself.

I would say that a juror has the inalienable natural right not to take part in convicting someone when he thinks that conviction would be unjust. I would further say that this right is found in the common law that holds throughout the United States even if it is recognized in only a few state constitutions.

TallDave|3.6.08 @ 2:35PM|#

http://en.wikipedia.org/wiki/Jury_nullification

Nevertheless, there is little doubt as to the ability of a jury to nullify the law.

TallDave|3.6.08 @ 2:39PM|#

For any reasonable civil libertarian to get on a jury in the first place is basically impossible unless you lie during voir dire. I've been there and I got targeted for dismissal immediately.

That is just so very, very wrong.

We need voir dire reform.

|3.6.08 @ 2:40PM|#

Someone is going to have to explain jury nullification...how is it any different then simply finding a person not guilty?

Jury nullification is when a person is found not guilty because the jury finds the law itself to be unjust, rather than the more common case where the jury finds that the state didn't prove guilt based on the evidence.

Someone Who Doesn\'t Want to L|3.6.08 @ 2:41PM|#

I will never wind up serving on a jury. I voted once and will not do so again. As I understand, that pretty much takes me out of the pool of potential jurors.

I also lack a driver's license, though I do have a non-driver's state ID.

Geotpf|3.6.08 @ 3:42PM|#

"Warty | March 6, 2008, 8:36am | #

I think if I was a billionaire, I would fund an ad campaign to tell people about jury nullification.

Now, off to become a billionaire..."

Maybe you should e-mail Peter Lewis.

http://en.wikipedia.org/wiki/Peter_Lewis

Former clerk|3.6.08 @ 7:32PM|#

To the person who asked about possession w/ intent to distribute: It's not just a distinction w/o a difference (as compared to distribution). Intent to distribute can be inferred from something as innocuous as having one's drugs in two separate bags. For example, we had a case where possession of two dime bags was charged as possession with intent to distribute. This sort of "inferred intent" often comes into play in completely absurd circumstances like the one cited above. Someone who has two eighth-bags of marijuana can face much higher penalties than someone who has a quarter-bag.

But what seems to be the typical charge in federal courts these days (at least in the circuit where I worked) is to charge not possession, not possession with intent, not distribution, but instead "conspiracy to possess with intent to distribute". It's a lot easier to prove as the AUSA (prosecutor) doesn't need to catch anyone actually selling drugs or even holding drugs. All you need to do is tape a phone call or two in which someone arranges a purchase or sale. And "conspiring to do X" typically bears the same penalty as "actually doing X" (at least in the drug context).

jury pool|3.7.08 @ 4:47AM|#

It only takes one to hang a jury. It works for the mob.

|3.7.08 @ 9:58AM|#

If some few episodes of a television entertainment have caused others to reflect on the war zones we have created in our cities and the human beings stranded there...

There "we" go again, creating a war zone. Funny how the people living in that war zone have nothing to do with it.

|3.7.08 @ 10:02AM|#

All well and good, but if jury nullification is up and running, how does one tell what the law is? Both Hammurabi and Moses engraved the Law in stone so everybody knew what it was. If they'd had jury nullification, one would have to wonder.......a hanging offense here, get off scotfree there. Not good in my estimation.

Matt Maynard|3.7.08 @ 10:26AM|#

Well, there's a sure-fire way to guarantee you will never get selected for jury duty: announce you'll nullify in certain circumstances. If you answer the question "have you ever announced an intention to nullify" truthfully during voir dire, it's a given that the prosecution will elect to have you removed from the pool. They may have been too clever by half; now they might never get the opportunity to nullify.

Don Meaker|3.7.08 @ 10:30AM|#

In CA we had voir dire reform, and transitioned to the federal rules whereby the judge asks the questions, rather than the attorneys.

The old process had each attorney presenting his view of the facts, and removing up to 6 jurors that were least receptive (peremptory challenges) in addition to any number of jurors that the judge agreed was unfit. The effect was to trim off the tails of the bell shaped curve.

New process still does the same thing, but with the more inflammatory questions that each side used to ask filtered out.

wandering wavepacket|3.7.08 @ 10:40AM|#

Didn't South Dakota try something like that a few years back?

Yes, there was an Amendment proposal in 2002 to explicitly allow jury nullification.

Unfortunately, the voters rejected it - too easy a target for opponents, who smeared it as a measure which would "let people ignore the law" and allow criminal activity.

Oh, how I miss the Rushmore state...

|3.7.08 @ 10:54AM|#

Don: I wish we could do that in Texas, but our legislature can't even pass a law allowing for life imprisonment without the possibility of parole - too many death penalty advocates keep blocking it.

I was knocked off a jury in a small time possession with intent to distribute case - I said I wasn't going to convict a kid found with a sweet n low packet's worth of coke (crack? I don't know) on him. The DA wanted to know why, and I explained my opposition to the drug war - the cost, the calamitous social effects, the sheer unwinnability, the fact that the drug war has done far more damage than any drugs themselves ever could, the fact that all the violence and corruption that comes from drugs actually comes from the fact that they are illegal, etc. - I was calm, I did not rant, I spoke no more than 3 minutes, and I'm a thoroughly nonthreatening, whitebread 40something mommy kind of gal - hell, I support the death penalty, just not the drug war.

The DA reacted as if I had suggested blowing up the courthouse. He immediately turned to the previously voir dired neonatal nurse on the panel and asked her to explain what happens to babies whose mothers take drugs while pregnant. She regaled us with tales of crack babies. She got picked; I did not, and I'm sure the kid was convicted.

I'm pretty sure that when I was on that panel, the DA of Harris County was Chuck Rosenthal - he was the successor to Johnny Holmes, who made Harris County the Death Penalty Capital County of this, the Death Penalty Capital State. Rosenthal was always noted for his aggressive (read: unprincipled and unconstitutional) prosecution of drug cases. Rosenthal has just resigned in the midst of a sex and racism scandal. It's been fun to watch his career circling the drain for the past six months.

|3.7.08 @ 11:16AM|#

While I am not anxious to serve on a jury (slight understatement), I don't believe that stating that you will retain your right of nullification should be allowed to disqualify you. I actually don't believe it should be allowed as a question.

I would imagine that I have no legal standing to challenge these questions as I have never even received a summons. However, if I was summoned and dismissed following questions along those lines, would I be able to file a suit? Has this already been attempted? Or, perhaps, only the defendant could challenge this question. I would think that defense attorneys must have already tried this approach; and therefore it has failed.

PS In gun cases do they ask about your views on the 2nd Ammendment? Is this a legal line of questioning in that instance?

|3.7.08 @ 11:18AM|#

As a felony prosecutor, I have seen jury nullification in murder trials where the jury felt the victim was "better off dead" because he was a drug dealer. Race was no a factor, by the way. The juries "not guiltied" the accused on the murder and convicted him for aggravated assault upon the victim. Does anybody want to argue murder should no longer be prosecuted because juries walk people?

|3.7.08 @ 11:20AM|#

As Carroll noted, I believe it was hit caterpillar, "It all depends on how you look at things."

During the forties a jury acquitted one Capt. Massey of blowing off the head of the Japanese who was acquitted of, but who later admitted to raping his wife. Jury Nullification. The country applauded.

During the sixties a jury acquitted "Delay" Beckwith of murder for killing James Meridith in the face of very strong evidence. Jury nullification. The country was outraged.

Forty years later they retried the guy and threw his 80 year-old butt in jail.

|3.7.08 @ 11:44AM|#

Potential jury nullification is a very good reason why terror trials should be moved to a military venue. We've already had a case or two with clear indications of it happening.

|3.7.08 @ 11:53AM|#

In limited and rare circumstances, such as occupation by a foreign power, I could see jury nullification as a legitimate tool of an oppressed population. In this case regarding drug crimes, the notion of jury nullification practiced by the head writers of a television show brings only one word to mind:

Kooks!

Doug Santo
Pasadena, CA

Devilbunny|3.7.08 @ 12:10PM|#

John A. Russell -

Beckwith had two mistrials; if he had been acquitted he could not have been retried. And he killed Medgar Evers, not James Meredith. And it was his son who was referred to as "Delay". (My mother once went on a date with the younger Beckwith, and it left her with absolutely no uncertainty that the elder had killed Evers.)

|3.7.08 @ 12:29PM|#

However, if I was summoned and dismissed following questions along those lines, would I be able to file a suit? Has this already been attempted? Or, perhaps, only the defendant could challenge this question. I would think that defense attorneys must have already tried this approach; and therefore it has failed.

In my case in California, it was pretty clear that it was the judge who was doing a with-cause dismissal.

As noted above, the judge asked the questions. When he wasn't happy with my answer to "Will you follow the instructions of the court as to the law?" he pressed to see if I'd rather not or would not, and he never asked whether I would have a problem with the law in play in this particular case. He then stood up and called counsel to the farthest end of the bench to have a quiet conference. I assume it went something like, "If I press this guy, he may spoil the whole pool." After their conference I was dismissed.

As to whether you could sue, I doubt it could go anywhere. Every agent of the state involved has a reason to deny you your right to nullify. The legislature doesn't want to see its legislation ignored. The prosecution doesn't want to see its case spoiled. The judiciary doesn't want to see its instructions thwarted.

And that is why it is so important for jurors to understand and retain that right.

Xrlq|3.7.08 @ 12:50PM|#

In limited and rare circumstances, such as occupation by a foreign power, I could see jury nullification as a legitimate tool of an oppressed population.

I couldn't. If we ended up with a police state, whether imposed by a foreign power or not, there would be no jury trials.

|3.7.08 @ 12:56PM|#

If we ended up with a police state, whether imposed by a foreign power or not, there would be no jury trials.

Oh, come now. The jury trial is a long-standing tradition. It would be retained by an occupying power just for continuity's sake.

Of course, "hung jury" would gain a new definition.

M. Simon|3.7.08 @ 1:10PM|#

Did Al Capone turn Chicago into a war zone? Or did it have something to do with the laws he was profiting from?

TallDave|3.7.08 @ 1:13PM|#

Did Al Capone turn Chicago into a war zone? Or did it have something to do with the laws he was profiting from?

Exactly.

|3.7.08 @ 1:13PM|#

Nullification due to politics, race, whatever is common and wrong.
But if that's the game de jour, then I'll never vote to convict a vigilante.

|3.7.08 @ 2:21PM|#

During the forties a jury acquitted one Capt. Massey of blowing off the head of the Japanese who was acquitted of, but who later admitted to raping his wife.

Lieutenant Massie was a lieutenant, and his name was spelled "Massie"

Joseph Kahahawai was never acquitted (there was a mistrial) and he never confessed (Massie and his mother-in-law attempted to beat a confession out of Kahahawai before apparently giving up and just shooting him).

Massie wasn't acquitted either -- he was convicted and sentenced to ten years, despite Clarence Darrow's presumably able defense. The governor commuted the sentence to time served, to avert a riot and Massie, his wife, his co-conspirators, and his lawyer fled the island, never to return.

|3.7.08 @ 4:58PM|#

It's okay. For everyone who insists that a drug defendant is automatically not guilty, there's someone like me.

Every drug trial I sit on will either find the defendant guilty or result in a hung jury.

Lock 'em up and throw away the key - especially if they're young and 'tender.'

|3.7.08 @ 5:53PM|#

Ymal:

Why?

evilpaul|3.7.08 @ 6:53PM|#

Alan Vanneman, "Jury nullification is just another term for vigilante "law." In the good old days, all-white juries in the South were encouraged to "remember their Anglo-Saxon heritage" and let white murderers of blacks walk free."

Yeah. White juries also refused to enforce the Fugitive Slave Act. And all sorts of other unjust laws.

Juries are the final arbiter on the use of political power. Political power, libertarians used to know, can and will be abused. I'm not sure how people interested in individual rights and the dignity of their fellow human beings can be opposed to a final check to protect people from the rapacious machinery of the state.

|3.8.08 @ 12:38PM|#

A friend is a member of the Fully Informed Jury Association. Called for duty, and the usual question asked about to what groups do you belong. He cited that group and the judge, who had never heard of it, asked him what its principles were. He thus was allowed to esssentially give a short presentation on jury nullification, to the other potential jurors.

|3.8.08 @ 6:38PM|#

Dear Mr. Balko:

I look forward to the day when a juror decides to practice jury nullification on you in a case where the law is one your side.

Don Meaker|3.8.08 @ 7:28PM|#

A co-worker was called with me to jury service. I was released, as my brother was a police officer. He was retained. I asked him about the case afterwards.

"Well, we didn't think the prosecutor proved his case, but we thought she was probably guilty anyways.".

So, it happens all the time, prosecutors know it (they wouldn't bring a trial if they didn't think the defendant was guilty!)

Pat|3.10.08 @ 12:38AM|#

The problem is that the prosecutor/politicians who control the drug war policy figured this out decades ago and took the power out of the courts and jury rooms of America. giving it into the hands of prosecutors who coerce and intimidate arrestees with extreme scenarios should the American even think of going to court and asking for a jury.

Most americans in prison for drugs NEVER see a trial. Rather they are simply dealt up the river by under equipped public defenders making the quickest deal they can with prosecutors who today have all of the powers that used to reside in the hands of American judiciary.

The ONLY way to end the war on drugs is to get out there RIGHT NOW during the election cycle. Confront the politicians on the election trail and make sure that they know that they will lose votes for their support of the war on drugs. Threatening the political viability of members of congress and campaigners for president is the ONLY thing that will end the war on drugs.

Bloggers can do this even more than people on the street because the things we publish stay on the net throughout the campaign for anyone who searches the names of the politicians.

535 plus one president.

We only need to make our selves felt by 535 members, their political challengers and the three major candidates for the White House. A half dozen people in each congressional district focusing on the campaigns in their district can change the world.

A dozen blogs focusing critically on the presidential candidates from now through to November can help form the opinions of millions of Americans about the presidential candidates.

To hell with jury nullification in this rigged criminal justice system. One case at a time will end the war in another five hundred years. Elections are here and now.

Barack Obama poo pooed(?) the Ralph Nader campaign as representing only a couple of percent of voters. But add together the Nader Independents, The Greens and the Libertarian Party, (and now Ron Paul Republicans), who all oppose the war on drugs, and you have well over 10% of the electorate. A much greater number than the margin of victory in the last two presidential campaigns.

Xrlq|3.10.08 @ 1:19PM|#

Edna:

radley, would you consider writing an article about those perjury traps and how people can avoid them?

That would be a great idea, but here's a better one: maybe he should write an article explaining why he used the phrase "perjury trap" to describe a voir dire question whose function was precisely the opposite, namely to "trap" the prospective juror into telling the truth. I guess phrases like "not-perjury trap," "truth trap" and "not-lying-your-way-onto-a-jury trap" just don't have the same ring to them.

The short answer is that real perjury traps are best avoided by ... you'll never guess this one ... not committing perjury. Radley's non-perjury non-trap, by contrast, can be avoided in one of two ways: (1) perjuring yourself; or (2) persuading the Legislature to change the law and actually grant juries the very rights nullification advocates have long deluded themsleves into thinking they already have.

|3.16.08 @ 9:56PM|#

I'm guessing that if the producers of the Wire walked out on their front porch one day and saw someone with the nickname of "Bubbles" selling crack, they would call the police without blinking an eye. The call for jury nullification from anyone who is not forced to live in residential housing projects and inner city neighborhoods is ludicrous. Are drug laws too stiff? Yes. I think we can all agree that crack cocaine should be punished no more harsh than powdered cocaine. The illegality of marijuana is making less and less sense compared to the devastation that alcohol inflicts. However, if you were to plunk down a crack house next to Burns' home, he'd watch his property values plummet, property crimes increase, and a steady flow of crack addicts shuffling in and out at all hours of the night. The writers of the Wire naiveté really takes a good joke too far.