Jury Nullification

What It's Like to Explain Jury Nullification to a Sitting Judge

Don't assume I agree to enforce absurd laws.

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Actually, they were mostly women.
The Jury by John Morgan

I spent a day last week immersed in Los Angeles County's immense judicial system downtown after being summoned to jury duty.

My experience was not quite as vividly terrible as Matt Welch's in New York, partly because Los Angeles lets you complete your questionnaire and orientation videos online well in advance, and thus I was permitted to arrive late and stroll in after all the dreadful lecturing. And then I just sat around most of the day, having courthouse cafeteria jambalaya for lunch so bad it actually inspired fascination rather than disgust. ("Where did they find sausage that tasted like nothing? How is that even possible?")

I wasn't called for a panel until very late in the afternoon. I actually worried that I was going to end up dragged back on Thursday (debate day!) just to complete jury process. There were about 35 of us, and they were handling us in groups. But fortunately I ended up in the first group, and the judges and lawyers decided who to keep and boot group by group.

Before we were brought into the courtroom, we were all handed a questionnaire intended to determine any biases we might have toward races, or police officers, or criminals, et cetera. Of interest to me was the very first question, which asked us to agree that we would apply the laws as instructed, even if we disagreed with said laws.

I very much have a Lysander Spooner-esque concept of jury duty. The juries are not just there to determine innocence or guilt, but to act as a check on runaway authoritarian criminalization and the increasing network of confusing laws that are passed with neither the approval nor oftentimes even the knowledge of the citizenry.

I have also never actually served on a jury because I am a journalist and editor. The last time I made it to a panel for jury duty it was for a high-profile fraud case for which I knew loads of off-the-record information that may or may not have come up in trial. Needless to say, I wasn't kept on.

My attitude toward jury nullification was on my mind as we were brought in before the judge, particularly since this was just after a Denver jury nullification activist was arrested for handing out pamphlets, which inspired a piece by Glenn Harlan Reynolds at USA Today the day before my jury service. What was I going to be in for when I said I couldn't agree to the very first question?

The judge, fortunately, was unfailingly polite to everybody. There were absolutely no angry lectures from him to anybody while I was there. Our defendant was a woman accused of attempted murder with a deadly weapon. So unless there was some sort of exaggeration of what counts as a deadly weapon I didn't see the likelihood of jury nullification becoming an issue. There weren't even any other charges being piled against the woman for refusing to accept a plea. Just this one. (Later the defense attorney would ask us if any of us had ever been stabbed.)

But the judge, when talking about the questionnaire at the start of the process, said he was going to assume that all of us actually agreed with the first question, and that we would be willing to convict somebody of a law regardless of whether we agreed with such a law. I certainly was not going to agree to that and wasn't about to lie that I would under oath.

He started by letting people who wanted to try their luck at begging to get out of jury duty for extreme hardships or just to reschedule for a better time. Then he started going juror by juror getting some history from them (occupation, previous jury service, friends in law enforcement), then asking if they had any problems with any of the questions. People were allowed to talk to the judge and lawyers in a sidebar if there were problems that were particularly sensitive (like details of having previously been crime victims).

When the judge got to me, I gave him my basics (including identifying myself as a journalist and editor) and that I hadn't been on a jury before. He then repeated his assumption that I agreed with the first question and asked if I had problems with any of the other questions.

"Well, actually about that first question," I began, and then explained that I believed that jurors had the right to nullify laws that they thought were inappropriate. I then clarified that personally for me this mostly applied to cases where there were no actual "victims" connected to a criminal charge (drugs, vice, et cetera) and that I didn't think it would apply in this case.

The judge didn't seem upset about me bringing jury nullification into his court. He nodded his head and repeated what I said to make sure he understood me. I was not lectured for not agreeing to perform my judicial duty as the state sees fit. I was not immediately ejected. I started wondering if I was going to end up on jury duty anyway.

Then the prosecutor asked me what sort of journalism I did, and it was all over. I didn't even have to reveal my libertarian identity (assuming knowing about jury nullification didn't already do that) or my reporting on prosecutorial misconduct or overreach. All I really had to do is to say that I have written about criminal cases and court rulings in the past. I mentioned writing about California State Sen. Leland Yee's arrest and charges of corruption. She asked me if I would be willing to set aside what I had read about the law in other cases for this jury. I said I would, but she obviously must have thought I knew too much. When it came time for the prosecution and defense attorneys to challenge (and eject) jurors, I was the first one bounced out of there. And then I was done.

But she didn't ask me about jury nullification at all, so I was left wondering if I still could have gotten on that jury if I didn't have my experience writing about court cases to doom me. I'll probably never know, because I will probably never, ever get seated on a jury, not that this will stop them from making me drag myself down there every couple of years. 

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59 responses to “What It's Like to Explain Jury Nullification to a Sitting Judge

  1. Later the defense attorney would ask us if any of us had been stabbed.

    “In a manner of speaking.”

    1. After the “stabbed” question, I was hoping for “all hetero sex is rape.”

  2. Where did they find sausage that tasted like nothing?

    Vienna, of course.

    1. +1 tiny weiner.

    2. There was a phase in my youngest daughter’s life where vienna sausages were the only thing she would eat. No fruit, vegetables, yogurt, pasta or anything. Just “Meat Sticks” as she called them. This was around 2.5. It lasted about 2 months where she drank juice (we started using V8 fusion to get some veggies in the mix), milk and water and ate only meat sticks.

      We tried doing the whole “Ok then, you don’t get to eat” thing. But that didn’t work with her and after 2 days of her not eating, we took her to the doctor who told us that Vienna Sausages are loved primarily by kids with bad acid reflux. So we gave her the meat sticks and now that her acid reflux has gone down she is a pretty good eater of almost anything.

      1. Considering the shelf life of those things is measured in half life like plutonium, she might live forever. She might also glow in the dark, though.

        1. Nope. Every now and again I hear the door to her room open at 2am on the baby monitor (she is 3.5 now). I get up and start looking for her. Upstairs. Downstairs. Then, as I go to her room to see if she is back in bed, I catch a glimpse of shining eyes in the corner of the living room. “Daddy, can I have some Little Einsteins?”

          It. Is. The. Stuff. Of. Nightmares.

          God, it’s like I’m a guard in an insane asylum.

          1. That’s adorable. Oh, hell, everything about a 3.5 YO is adorable.

    3. Sausage that tasted like nothing? That’s an improvement on what I was served in the service.

  3. You should have gotten a hard-eye stare going at the judge, and said in a rumbling voice through gritted teeth, “No justice, no peace.”

    1. No no, he should have taken off his helmet and said I AM THE LAW

      1. I started thinking that he should have answered all the judge’s questions very straightforwardly and earnestly, then just let a huge ripping wet fart out right at the conclusion of some sentence. And then stood up, felt the back of his pants, and said, in a completely calm voice, “Can you excuse me for a moment?” and walked out to the restroom.

        1. I think we all read the story with the assumption that the aftereffects of the jambalaya were the real reason they bounced him first.

  4. The way you describe it, it’s like they weren’t taking you seriously.

    It sounds like they were willing to assume you agreed to question one–even if you said that you didn’t.

    That judge reads like Pliny the Younger writing to the emperor for advice: “This guy says he’s a Christian pro-jury nullification, but I can’t find anything wrong with him other than that. What should I do?”

    1. No one’s going to nullify murder. If it was a drug case, that might have raised some concerns.

      1. I suppose that depends on a lot, including how evidence was found and how hard-core a supporter of jury nulification one is. Can a stance of jury nulification extend to an individuals belief of legal search and seisure? What about minimum sentancing laws? Dunno, just asking.

      2. No one’s going to nullify murder.

        Speak for yourself, Mr. Fist of Etiquette (LAOL). Take that D.A.’s dick out of your mouth first so we can understand you.

      3. Seems like grand juries nullify murder every time a police-related shooting is presented.

        1. Except in those cases they’re following the DA’s and Judge’s instructions, so it’s cool.

  5. …not that this will stop them from making my drag myself down there every couple of years.

    In my experience in California, I appear to have been blacklisted. At least I have not received a jury summons in the couple decades since getting bounced — by the judge — for responding that I couldn’t apply the laws as instructed if I disagreed with said laws.

    Of course this may be a judge-by-judge, court-by-court thing.

    1. I have the same experience. I went once, and told the selection committee, “In the words of John Adams, I believe ‘it is not only the juror’s right, but his duty to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.'”.

      I was bounced and have never been called back. I’m moving back to CA- but Irvine this time- so it will be interesting to know if I’ve been re-enlisted.

    2. I wasn’t called again for federal jury duty for 20 yrs. after I exercised the juror’s veto in a federal narcotics case.

  6. Jambalaya!!

    1. It didn’t sound very nutritious.

      Michelle Obama should probably get involved.

    2. Jury nullification? No soup for you!

    3. Is Jambalaya good? Shouldn’t that be up to a panel of licensed nutritionists working with government to decide?

      Anyone who thinks differently, is definitely an anarchist who hates children. And probably racist. Someone with a rebel flag probably thinks that jambalaya is good. I think I’ve made my point.

  7. All kidding aside, I actually think that your average trial court judge is probably a decent person who does try to do their best to be fair to both the victim and the defendent. Obviously, we need to get rid of the WoD and laws against prostitution, out of control zoning etc. BUT, keep in mind that these laws are written by asshole legislators (who supposedly are elected by the people). And like most normal people, I am sure local judges don’t want to make every freaking case they say into a federal Consitutitonal issue (even though, ideally maybe they should).

    If we can get enough people to understand, then perhaps we can actually get the laws changed. And then judges can go about doing their jobs making sure there is a fair trial.

    1. “I actually think that your average trial court judge is probably a decent person”

      I don’t. For one thing, they are all lawyers. For another, most were prosecutors earlier in their career, and prosecutors exist to prosecute people and make their lives miserable. And, to top it off, they get selected as judge by either 1) a political appointment or 2) running a political campaign to get elected. Either way, they are politicians.

      Lawyers tend to suck, but there are a few decent lawyers, but only the worst want to be prosecutors and politicians.

      1. That actually seems like a glaring oversight in the system, come to think of it; the fact that judges are almost invariably drawn from prosecutors. Given the ‘innocent until proven guilty’ element, it seems like it would only be fair to draw half (or at least a significant minority) of judges from defense attorneys. Granted, few would accept, since defense attorneys are generally in it for the money and a good one already makes more than an average judge, but still.

  8. I am in the L.A. County area. The last time I was called for jury duty was the Compton Courthouse for a drug trial. Possesion for distribution with several add-ons due to the fact that the defendant was accused of being armed. Not for using the gun, just for having it (along with a separate charges for having bullets).

    I informed the Judge that as I did not believe the Gov’t had the authority to ban the use of drugs, and that the other charges were related to the drug charges, I would vote “not guilty” even if the defendant confessed on the stand. I was not going to send somebody to jail on drug charges.

    After some questioning by the Judge and explanation on my part as to how I arrived at my beliefs, I was excused and sent home.

    1. “The last time I was called for jury duty was the Compton Courthouse for a drug trial.”

      So would you say you got…Straight Outta there?

      1. you forgot the sunglasses.

    2. They actually let me onto a jury in a possession-with-intent-to-distribute case after I told them I thought the drug laws were bullshit. Didn’t matter as the defendant plea bargained minutes before the trial.

      1. You should have told the accused. His counsel was incompetent. It was his duty to pay attention at jury selection. If he had, there would have been no plea bargain and he would have gotten off with a “not guilty” or hung jury. Either way, he would have been better off.

    3. The purpose of a jury is to keep the govt. from overreach, i.e., making/enforcing bad law, exceeding their authority. By getting kicked off the jury you removed yourself as a check on govt. and injustice. Did you stop to think of that? Sad.

  9. They also let you off if you work in the courts as, say, an interpreter.

    1. “Oh, Mr. Interpreter, don’t let them kill me, tell them I buried the money under the oak tree in my yard!”

      “He says you don’t have the balls to kill him.”

      Oops, wrong joke.

  10. The sad thing is, a jury ruling on the guilt or innocence or a person, AND on the law and situation (political overreach, etc), should be a view of everyone in a free country, not just libertarians.

    What happens when we don’t teach freedom in school anymore.

    Also, most people think ‘that could never happen to me’, like they could never be railroaded or singled out by an over-ambitious prosecutor. Remember the Duke Lacrosse team and the DA who went after them?

  11. (“Where did they find sausage that tasted like nothing? How is that even possible?”)

    Make it “healthy” by removing all the salt and fat… voila! Taste-free food!

  12. or police officers, or criminals

    But you repeat yourself…

  13. “Your Honor, the nigger is guilty. Can we go home now?”

    1. No nigger here. You must mean the chink.

  14. Then the prosecutor asked me what sort of journalism I did, and it was all over.

    Just tell them you work for Rush Limbaugh. Boom, ejected.

    1. You meant “selected”, right?

  15. ‘ll probably never know, because I will probably never, ever get seated on a jury, not that this will stop them from making me drag myself down there every couple of years.

    If my memory serves me, you can be ejected from jury duty quite literally based on hunches from either legal team. There doesn’t have to be a ‘reason’. I believe that each team gets X number of out-of-hand rejections from a prospective jury pool. This may differ from district to district, but I remember learning some of these odd jury-selection rules after the O.J. case.

    1. As I recall from my jury duty stints, each side had a quota of arbitary, “premptory challenges,” which they didn’t have to explain, but when those ran out, “challenges for cause” has to have good reasons behind them.

  16. Last time I was summoned, the questioning could have easily been mistaken as being intended to get rid of anyone who would not get down on their knees right then and there and fellate a cop. I mean, I’m sure that wasn’t the intentions you know, but it sure could have fooled almost anyone.

    They finally just dismissed us all, because as I had it, they had only found 3-4 cop fellators out of the 50 of us.

    There was one guy who was sort of a comedy act who would answer every question with whatever he thought was the opposite of what they wanted to hear and then would say ‘Am I excused now’? They threatened to remove him once, and then I think they figured out that’s what he wanted.

    All in all, I was satisfied with the amount of lack of respect for authoritah I witnessed that day. I left almost feeling like there is still hope for humanity. Then I came home, pulled up this site and first thing I saw was a puppycide story.

  17. first thing I saw was a puppycide story

    There’s an app for that.

    1. But there’s also Andy Breckman’s feed-a-puppy ap:

      http://tinyurl.com/qzc7wpp

  18. not that this will stop them from making me drag myself down there every couple of years.

    making me – oh please, I heard through the grapevine that you go there to pick up women, you sly dog, you.

    Do you use Game?
    Do you have a crazy hat like that guy Mystery?

  19. “not that this will stop them from making me drag myself down there every couple of years.”

    You could just ignore it and not go.

  20. It was probably your lack of suitable attire.

    Dammit, Shackford…

  21. So we are supposed to follow the FEELZ of a second-rate journalist to guide us as to which laws to follow and which to ignore? Seems like the only difference between this approach and Obama’s DOJ is which laws to ignore.

    1. You are responsible for your actions and if the result of your jury vote is injustice, you can’t use “I followed the law” as a moral justification. See: The Nuremberg Trials for details.

      There are probably more bad laws than good. But no matter. We are still there to correct the vices of our corrupt politicians. Or at least I am. You will probably follow your FEELZ that “the law is the law”.

  22. Rather than launch into some monologue about jury nullification, I would simply ask the Judge, “will I ever be forced to vote ‘Guilty’?” If they said yes, then you could say that you would not want serve on a jury where the verdict were coerced. If they said no (which I am pretty sure they would), you would say, “thank you,” not discuss it any further, and simply vote your conscience an best judgment when the time comes. The worst that can happen would be a hung jury.

    1. Or, you could just keep your mouth shut. You are under no obligation to help a system of institutionalized injustice.

      One of our most powerful rights is the right to keep our mouth shut, and the first to be abandoned by victims of the state.

  23. Well, releasing someone when you don’t like the law is ONE way to do nullify the law.
    Another way is to convict the person for a different characteristic then the law asks for.

    Say you have an abortionist accused of raping his patient (a common occurrence), but the evidence is weak. If you choose to convict him on that charge precisely and only because he is an abortionist and legal abortion is absurdly unjust, then you have ALSO engaged in nullification.

    Clearly, that is also an acceptable form of jury nullification of the law.
    After all, if the jury can nullify the law, it hardly matters HOW the jury nullifies the law.

    1. Accepting for the sake of argument the over the top unlikely example, the chance of “nullification” by finding guilty is insignificant compared to nullification by finding not guilty.

      First, it takes 12 jurors “nullifying” to render a guilty verdict, but only 1 nullifying to stop a guilty verdict. Second, a guilty verdict can be set aside by a judge or an appellate court, while an acquittal cannot.

      Finally, when nullification instructions are read to a jury, they can explicitly note that it is to be used only to find a defendant not guilty, not to find a defendant guilty. The jury can of course ignore even those instructions, but the jury can do that today, “nullifying” a not guilty verdict as described in your example.

      In short, arguing against nullification because it might be used to convict is largely absurd.

  24. Scott, I assume, as a libertarian, you know the 1st question about agreeing to uphold the law, above common sense, above justice, is an attempt to stack the jury with obedient servants of govt.?

    Is it your duty as juror to serve “the law” or protect rights, as the govt. was created to do? And if the govt. doesn’t do its duty, then who will? You are all that’s left. Either you serve to protect rights, or you serve to protect govt. privilege. Not serving is, by default, serving govt. Libertarians and people who understand jury nullification are less than 5%. The odds of the juror who took your place being able to render an independent vote has been manipulated to favor injustice by over 200 years of govt. propaganda.

    So what did your disclosures do to insure justice? Increase it or decrease it?

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