Editor's Note: Jury Nullification


I was dismissed from the only jury on which I've ever been seated.

To be fair, I asked for it. I was in my early 20s, and the case was about a fender bender on that greatest of all roads, the New Jersey Turnpike. (It is great, some natives joke, because it lets you get out of the Garden State quickly and at a bargain price.) After the jury had been selected and sworn in, the judge turned to us and said, "This is going to take about a week. When it comes time for you to deliberate, you have to agree to apply the law as I define it. If I tell you that black is white, or that wrong is right, that's what you have to believe in reaching your decision."

We dutifully mumbled in agreement and went home for the day. Then I started thinking about what the judge had told us. It wasn't the threat of spending a week listening to the nuances of a wreck that bothered me. There are worse places to kill a few days than a courtroom, especially if you're not the one on trial and if you're working a crummy, low-paying job like the one I had at the time. It was the other thing the judge had said that put me on edge, the stuff about black being white and wrong being right.

The next morning I interrupted the judge as he started the trial and handed him a note that I'd typed up the night before. It laid out my discomfort with his insistence that jurors should put aside their personal morality in rendering a verdict. I just couldn't do that, I wrote. It just didn't seem right. There I was—the Antigone of auto accidents!—taking my principled stand in a county courtroom.

The judge was plainly annoyed when I approached the bench. As he read my note, I saw his face turn red from a mix of anger and frustration. He looked up at me, glaring with utter contempt, the likes of which I hope never again to have directed my way in a court of law, especially as a defendant. "What in hell is wrong with you?" he asked rhetorically before balling my note up in his hand and waving me away. "Get out of here already!"

I was perhaps guilty of thinking too much (that, and youthful exuberance). Longtime Contributing Editor Walter K. Olson's brilliant cover story, "Courting Stupidity" (page 22), exposes how plaintiffs' attorneys routinely seek out jurors who think too little. The motive is plain enough: Trial lawyers dream of scoring a "runaway verdict" in which a sympathetic jury will award a massive amount of cash.

Olson, author of the important new book The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law (St. Martin's), argues that such machinations do more than generate scandalous miscarriages of justice and shocking headlines. By inverting "the once widely held premise that the courts should draw on jurors who are civically engaged and aware of the events of the day," current trends in jury selection undermine one of the great institutions of our legal system. In a society as litigious as ours, that's nothing less than a national outrage.