Jury Nullification

Justice Sotomayor Says 'There Is a Place, I Think, for Jury Nullification'

The former 2nd Circuit judge suggests that court was wrong to categorically reject a jury's right to acquit a guilty defendant.

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This week Supreme Court Justice Sonia Sotomayor had some kind words for jury nullification, which empowers jurors to judge the law as well as the facts of a case and may involve disregarding the law when the law is unjust. During a discussion about juries at NYU Law School on Monday, Sotomayor, who used to serve on the U.S. Court of Appeals for the 2nd Circuit, was asked about a 1997 decision in which that court "categorically reject[ed]" nullification. "As we govern in the system, and watching it, I'm not so sure that's right," she said, according to Law360. "There is a place, I think, for jury nullificationā€”finding the balance in that and the role judges should play."

In United States v. Thomas, the 2nd Circuit heard a challenge to a judge's dismissal of a juror in a federal drug case who resisted finding the five defendants, all of whom were black, guilty of selling crack. After interviewing the jurors, the judge concluded that the holdout, who was the only black member of the jury, had "immoral" motives because "he believes that these folks have a right to deal drugs, because they don't have any money, they are in a disadvantaged situation and probably that's the thing to do." The judge added that "I don't think he would convict them no matter what the evidence was."

The 2nd Circuit rejected the juror's dismissal, saying the judge did not give sufficient consideration to alternative explanations for his resistance. But it also said the dismissal clearly would have been justified if the juror was in fact determined to acquit the defendants regardless of the evidence. "As an obvious violation of a juror's oath and duty," the court said, "a refusal to apply the law as set forth by the court constitutes grounds for dismissal." It added:

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. 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….

A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant guilty, and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

Sotomayor, the only current member of the Supreme Court who has presided over a jury trial, said the 2nd Circuit may have been wrong to reject nullification in such sweeping terms. The context of the question was a slip-and-fall case in which Sen. Claire McCaskill (D-Mo.) served as a juror last month. NYU law professor Steve Susman, who moderated the Sotomayor event, said McCaskill, a former prosecutor who tweeted about her experience on jury duty, reported that she told her fellow jurors the plaintiff's attorney would take a big cut of any award, which may have boosted the damages. "That's a form of jury nullification," Susman suggested.

"You do know that I'm going to get a cert. petition in that case arguing that the senator's information was extrajudicial," Sotomayor replied, adding more seriously, "I'm not so sure I like the tweeting stuff." But the justice seemed open to the idea that jurors sometimes should consider information the judge considers irrelevant. In a drug case, that information might include the stiff mandatory minimum awaiting the defendant, the defendant's medical or religious motivation for violating the law, or the arbitrary disparity in punishment between crack and cocaine powder offenses. 

"I am pleasantly surprised…to hear that current Supreme Court justice Sonia Sotomayor has publicly gone on record in favor of jury nullification," Kirsten Tynan, executive director of the Fully Informed Jury Association, wrote on Facebook. "Her comments suggest that the Second Circuit is too harsh on this topic and that its decision in U.S. v. Thomas is in error."

Reason TV on jury nullification in a New Jersey marijuana case:

NEXT: Defectum humoris non curat lex ('the law does not reward humorlessness')

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  1. She’s right

    1. I keep telling y’all that Sotomayor has been great on civil liberties. Sure, she is anti-gun, but none of the Supremes are good on everything.

      I think it has to do with the fact that she did not grow up priviledged and actually saw what the criminal kudicial system does to poor people.

      1. “I keep telling y’all that Sotomayor has been great on civil liberties. Sure, she is anti-gun, but none of the Supremes are good on everything.”

        She also dissented against Citizens United. So, umm, she’s not great on civil liberties. Maybe she’s great on civil liberties that Liberal like.

    2. With respect to a criminal case, where a unanimous verdict is required, she is wrong.
      Allowing a single individual to overrule the rest of a jury, because they regard the law as “unjust” is as wrong as allowing a close relative of the defendant to serve on the jury, maybe worse.

      1. fuck off.

  2. Sotomayor keeps surprising me by not being completely terrible.

    Also, fuck this judge:

    “After interviewing the jurors, the judge concluded that the holdout, who was the only black member of the jury, had “immoral” motives because “he believes that these folks have a right to deal drugs, because they don’t have any money, they are in a disadvantaged situation and probably that’s the thing to do.””

    I think those folks have a right to deal drugs because everyone has a right to engage in consensual commerce, whether they’re in a disadvantaged situation or not. If people don’t want to worry about jury nullification, then they should really stop passing laws that shock the conscience, such as throwing people in jail for 15 years for selling a product that the buyer wants.

    You don’t get to pass tyrannical laws and then whine when the public engages in civil disobedience like refusing to throw people in metal rape cages because the legislature determined such a punishment was warranted for victimless crimes.

    1. Why do you hate the children?

    2. Irish, everybody knows that simply by buying, selling, transporting or imbibing drugs you are inherently committing an act of violence.

      /Tom Cotton

      1. Drugs that are not politically correct, that is.

        1. +1 Phizer v. Merck pistols at dawn

          1. It’s funny to look through old (like 1950’s) medical journals. They’ll have ads for amphetamines to perk up that tired housewife patient of yours.

            1. A lot of schedule 1 and 2 drugs were widely used by doctors if you go back far enough. It’s almost as if they have recognized benefits or something…

              1. Someone linked to an ad for Bayer Heroin the other day. I got a chuckle out of that.

        2. +1 ABC store

    3. Exactly. How can you expect a group of people to agree on a just application of a law when they don’t even agree that the law itself is just.

      1. Because juries are comprised of people not smart enough or busy enough to get out of jury duty?

        1. Not everyone has a problem with civic duties, ya know.

          1. Dammit, SOME of us try our VERY best to avoid our “civic duty”, and the BAHSTAHDS, they pick us ANYWAY! I’ve been there, done that! WHAT am I gonna do next? ? “I hate all humans”? They pick me anyway? “I hate Government Almighty”? They pick me anyway? “I hate organisms that run on organic compounds”? They pick me anyway? YOU please tell ME what I’m a-gonna hafta do to GTHO of jury duty?!?!?

          2. I keep getting on the “call in” list as soon as I’m eligible again, hell, I even went to Muad Dib or Voir Dire or wutevr the fuk they call it, but never get to serve. I want to do my service! As a juror, do you have to give a write-up as to your reasoning in your individual verdict?

            1. I’ve never-ever heard of having to give a write-up as a juror OR as an entire jury… Just guilty, not guilty, per each charge, for criminal cases, and, damages per count, on civil cases.

              Frankly, many jurors in many cases would have a hard time putting 4 words together coherently… Let alone fancy enough to humor the lawyers and judges…

              You’re not missing much… Most jury duty is VERY very boring…

              If on a civil case, do NOT worry about other parties (other than who is “on the hook” today) having to pay their fair damages… The “other guy(s)” will be tried separately. But you are generally not supposed to think about that…

              Go for “jury nullification” if your conscience calls for it! But don’t call it that… Just say “I am not convinced” or “I doubt the testimony of these witnesses, they do not seem credible to me”. Then stick to your guns, and you will be OK… But NO talking about “jury nullification” if you want to survive with your ass and your bank account intact!

      2. This has always astonished me about appeals courts, including the Supreme Court. Juries have to be unanimous, but not appeals courts? Any split ruling from an appeals court should throw out the law itself as being unclear; if highly educated judges can’t agree on what a law means, that law is too damned unclear for mere peasants.

    4. ^This is spot on.

    5. The 10th amendment grants undefined rights to the people, so this juror may have been acting in accordance with the law at any rate.

      1. The 10th Amendment grants nothing to anyone. It’s an explicit limitation on the power of the Federal government.

      2. None of the amendments in the bill of rights grant anything. They simply restate rights and limitations on federal power that already exist under the constitution.

  3. she told her fellow jurors the plaintiff’s attorney would take a big cut of any award, which may have boosted the damages. “That’s a form of jury nullification,” Susman suggested.

    IANAL: can someone who knows, explain Susman’s argument here?

    1. I think McCaskill was pointing out that the award might be excessive. Knowing that, the jury was less likely to find for the plaintiff.

      1. OK, I read the sentence as saying that McCaskill’s statement led to an increase in the amount of damages awarded.

        1. I do think it was a bit unclear, but later in the piece they talk about mandatory minimums, so I am pretty sure that’s the angle on McCaskell.

      2. I think it’s actually the opposite. Jury wanted to award, say, $10 million. McCaskill says, “you know, the attorney is going to take 30% of that in contingency.” Jury now ups the damages award to make sure plaintiff gets closer to the $10 million post-contingency.

        1. That’s how I read it initially, but I wouldn’t exactly call that “nullification.” Part of the problem is that I don’t know whether McCaskell is evil or not.

          1. Yeah, my reading of it seems to require a very expansive definition of jury nullification, i.e. any sort of disregard of instructions from the bench.

            1. Well, I guess we can all agree that paragraph was confusing.

              *raises hand*

              “Mr Sullum! Mr Sullum!”

            2. I believe this is it. But I believe a judge would say that’s exactly what nullification is.

          2. I don’t know whether McCaskill is evil or not

            Banal evil.

            1. Well, that *is* the best kind.

              You know who else —

              Oh wait, that one’s too easy.

            2. She’s into banal?

              Why isn’t anyone into normal shit anymore? Kinky, kinky, kinky all the time.

              Now I have to go look at that kitty and amateur pr0n tumblr link that Crusty linked to yesterday.

            3. More like chaotic evil bordering on lawful evil.

          3. Part of the problem is that I don’t know whether McCaskell is evil or not.

            She’s a Senator, so it’s a pretty safe bet that she is.

            1. It’s a relative scale.

            2. Didn’t she blackmail Obama for handouts in exchange for her vote on the healthcare bill?

              Also, how the hell did she make it onto a jury?

              1. Her husband was meant to be on the jury but died tragically.

        2. If that is what she did, she just handed the defendants a ground to ask for a mistrial. It’s incredible that a former prosecutor would say such a thing in the jury room, and even more incredible that she’d admit it publicly.

          Please don’t tell me that she was tweeting during deliberations.

    2. The other thing is that is a civil case, isn’t it? Jury nullification (AFAIK) is specifically for criminal trials.

      1. Hence the confusion above.

  4. 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.

    Okay, but what about in this society?

    1. Well played.

    2. Fuck you, Hugh. That’s why.

      1. Thanks Epi, but I…I didn’t actually ask why?

          1. The question isn’t how old we are, but when old we are.

            1. No, that actually makes sense.

  5. If as jurors we can exercise the right of nullification only in secret then it’s no right at all.

    1. Open nullification laws!

    2. I have disposition matrix for laws that I find objectionable. Like other disposition matrices, it is not subject to legislative or judicial review.

      1. And when interviewed by the judge as to why you’re not applying his instructions to your vote, do you plan to perjure yourself?

        “I do not feel the prosecution made its case.”

        …when in reality:

        “If legislators, prosecutors and the courts want to waste my time with the administration of unjust laws, I’ll waste theirs right back.”

        1. “The prosecution failed to make its case (that we should rubber stamp sending someone to prison for something that shouldn’t be illegal in the first place.)”

        2. I didn’t realize that the judge could interview jurors if they didn’t like the results.

          Can a juror plead the 5th? My guess is that a judge would throw you in the hoosegow for contempt if you plead the 5th or asked for a lawyer.

          1. I never thought they did. I thought jury room were basically sacrosanct, unless fisticuffs start or bribes are offered.

            Regardless, I would just say that I didn’t trust the evidence. Pretty simple. If asked for details, I might add “He was twitchy. He repeated himself a lot. It looked like memorized and coached testimony. I didn’t believe him. I thought he was hiding something.”

          2. Can you pleas the fifth during jury selection?

    3. Yeah, but you can still do it.

      Never say, “regardless of the facts, and that the law was violated, I will not convict this person.”

      Just go on and on about “reasonable doubt.”

      Some rights you have to exercise despite the state, because you can.

  6. That 2nd Circuit opinion might as well have been written by Tulpa.

    1. How do you know it wasn’t?

  7. Correct me if I’m wrong, but in that *Thomas* case I think the trial judge, in the name of *preventing* nullification, nullified the Sixth Amendment, which protects the right to a jury as known at common law, that is, twelve members. The trial judge, though, allowed the jury to reach a verdict with only eleven members (the 12th juror having been removed).

    Of course, the U.S. Supreme Court rejected that interpretation in the 1970s, overturning earlier precedents, and said a jury could have as few as 6 members.

    Which is retarded for anyone who cares for the rule of law and applying the actual, historically-established meaning to common-law terms.

    1. Although, under English common law jury sizes varied from 6 to 12 before being fairly standardized at 12.

      1. When did the standardization occur?

        I believe it was standardized at 12 by the time of the US Constitution.

        1. Can’t find anything for sure. If I’m reading an 18th century manual correctly, it seems there was a writ issued during the reign of Henry II that it should be 12. But, Magna Carta only stipulated “by the lawful judgment of his equals” without providing numbers.

          I know that in most of the colonies, by the 18th century, 12 was the standard number. Apparently it may have been tied to either (i) 12 apostles, (ii) 12 tribes of Israel, (iii) 12 signs of the zodiac.

          1. So if (iii) and the discarded juror was not the Gemini, there were still 12 jurors present in spirit.

            1. and if (i), you can continue with 11 if the tossed juror was a “judas”.

          2. The 12-person jury was a concept so deeply embedded in the common law, and so greatly respected, that people like Edward Coke waxed Biblical in its praises.

            Now this Biblical language is invoked *against* the 12-person jury, based on 21st century secularist assumptions of a world of legal rationality set against a world of medieval superstition.

            Yet somehow the Founders and the generations after them, until the 1970s, endorsed this medieval superstition when interpreting the 6th Amendment.

            So either the Founders were superstitious medieval peasants, or else there is something wrong with the paradigm.

            The fact that the institution of the 12-person jury arose and developed in the Middle Ages, and stood the test of time until the American Founding, when it was praised as a vital bulwark of liberty, would seem to be an argument *against* diluting this constitutional right.

            But apparently the ancient, durable and time tested nature of the 12 person jury is an argument *against* the institition.

            Live and learn.

            1. “something wrong with the paradigm” means “something wrong with the *secularist* paradigm.”

        2. But people refer back to the Magna Carta, so 1787 is not the end-all be-all.

    2. But if we let people think about whether the law is just, then SOMALIA!

    3. How did they settle on 6 as the bare minimum for a Constitutional jury? Was that based on something historical or did they just pull it out of thin air?

      1. It’s as arbitrary as anything else (including “something historical”). Why not 7 or 15 or 123?

        1. Just think “The Dirty Baker’s Dozen”. It doesn’t work. Here in Taiwan they sell eggs in cartons of ten. That sucks.

  8. The judges sure have a lot of nerve criticizing *other* people for nullification.

    It was judicial nullification of the 10th Amendment which let the feds lock people up for dope grown in-state.

    It was judicial nullification of the 14th Amendment that made a whole category of human beings into outlaws whose lives don’t matter.

    It was judicial nullification of the Takings Clause that let the government seize your land and give it to someone richer.

    And they’re worried that from time to time, a jury might let some defendant loose whom a judge considers guilty!

    1. Principals not principles.

  9. The Supreme Court needs more justices who recognize the right of jury nullification.

    President Trump should appoint her to the first vacancy.

    1. lol, no. I already have a headache listening to some of the oral arguments, I can’t even imagine.

      1. The anal arguments are waaaay worse.

  10. I don’t see how you can look at the history and roots of the jury system and not conclude that jury nullification is legitimate. Juries are empowered to convict or acquit people. They decide the ultimate issue of the case. They are more than just finders of facts. If they were merely finders of facts, they would not render verdicts deciding the ultimate issue of the case, they would render factual findings and leave it to judges to decide the ultimate issue of the case by applying the law to the facts as the jury found them.

    Juries go all the way back to the Norman England. Originally juries were a group of local people who advised the Norman lords on the prevailing customs when deciding disputes. The purpose of juries was to ensure that the community had a say in how the laws were applied instead of just having it imposed on them from above. Juries are there to ensure that justice and the interests of the community at large are served. When you understand that, it is obvious that juries have the power to acquit a guilty defendant if that is what best serves justice and the interests of the community.

    1. The purpose of juries was to ensure that the community had a say in how the laws were applied instead of just having it imposed on them from above. Juries are there to ensure that justice and the interests of the community at large are served.

      Which is exactly why most judges and prosecutors are hostile to the concept of jury nullification. They want the power to impose laws from above with no regards to justice or the interests of the community. They don’t give a shit about silly things like justice. They care only for the power to destroy lives.

      1. Absolutely. The last thing they want is for anyone to place a check on their power.

        1. “We the Jury find this Court to be in contempt of Society.”

      2. Which means that judges and prosecutors today are actually more hostile to the rights of the people than medieval conquerors.

      3. Which is exactly why most judges and prosecutors are hostile to the concept of jury nullification. They want the power to impose laws from above with no regards to justice or the interests of the community. They don’t give a shit about silly things like justice. They care only for the power to destroy lives.

        100% this. Which is why jury nullification is so important.

    2. “If they were merely finders of facts, they would not render verdicts deciding the ultimate issue of the case, they would render factual findings and leave it to judges to decide the ultimate issue of the case by applying the law to the facts as the jury found them.”

      This plus, like, a zillion.

    3. It’s worse – if the juries were merely finders of facts/rule as instructed, juries would be a really lousy way to adjudicate a trial. Having a bunch of folks who may not be educated about legal matters and almost certainly aren’t familiar with the nuances or history of the law or legal proceedings decide a case is ludicrous. You would be far better off to have some council of wise men locked in an isolated monastery read depositions, review evidence and render a verdict without ever seeing or hearing either the prosecution or the defense.

  11. Here’s the other issue: The system is so heavily stacked against defendants that jury nullification is one way to potentially even the scales in a currently unfair system. The ridiculous mandatory minimums mean that this conversation happens every day:

    DA: “You’re looking at 15 years in prison. However, if you agree to plead to a lesser charge, we’ll let you out in 3-5 years.”

    The accused in this country are put in an impossible situation where even if they don’t think they did anything wrong, they’ll end up going to prison for several years anyway because DAs basically threaten them with overlong prison sentences into pleading guilty to lesser crimes.

    This is a repulsive practice and if jurors started refusing to sentence people who were going to be sentenced to these sorts of jail sentences, that would finally enable defendants to get a fair shake in an unfair system.

    1. And don’t forget the prevalence of minimum mandatory sentences. Juries are in many cases prevented from deliberating on the sentence. So nullification is the only option available to do justice in some cases.

      If juries actually got to decide sentences like they should, there would be much less need for jury nullification.

  12. Sotomayer isn’t the worst nazgul, this isn’t the first time I’ve agreed with one of her positions, although I can’t remember the other time.

    1. Saying that ignorance of the law by cops was no excuse. She was the only dissenter.

      1. Was that the one where they decided a cop could search your car illegally and it was totally okay if the illegal search occurred by accident because the cop was too stupid to know the law?

        1. Yup. It was 8-1 for the cops, and she dissented.

    2. Given the number of 9-0 losses that President Constitutional Expert has suffered, there have certainly been others.

    3. I’d put her at #8 of 9, behind RBG. She can be okay on rights of the accused sometimes, but she is hostile to most issues touching on personal liberty.

  13. She’s consistently the least-terrible Obama appointee. I guess that’s saying something.

    1. Yay! Cake!

  14. Sotomayor looks like she will turn out to be an interesting justice. One of Obama’s few bright spot, but credit where due.

    Kagan, on the other hand…

    1. Kagan has to be one of the biggest political hacks ever appointed.

      1. But HARVARD?

  15. I’m sure the wise Latina will be walking this back soon.

    1. She sure will. I’m sure at some point there will be a hate crimes case where a juror nullifies based on the notion that he doesn’t accept the notion of a hate crime warranting special treatment.

      1. Principals over principles…

    2. What makes you think that? Has she done something similar before?

  16. I will give her credit for speaking out on this one. And I guess to the case with the cop who pulled someone over in NC for one taillight out. Although, I don’t necessarily think that case (if considered by itself) was really quite as bad as it sounds at first. That case is bad when one piles that on top of everything else with cops to establish precedent that cops can do whatever they want.

    But frankly, she has been absolutely horrible on just about everything else. I am not a lawyer or anything, but I do try to read SCOTUS rulings on occasion and she doesn’t strike me as really all that bright (at least in terms of logic).

    1. Come on, she “spoke out” because someone was getting money and she doesn’t like that, that’s all.

  17. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

    OBEY

    -also-

    Sotomayor, the only current member of the Supreme Court who has presided over a jury trial,

    is shameful.

    1. Perhaps we need a Supreme Criminal Court and a Supreme Civil Court. Saying that two almost completely distinct branches of law should be ultimately adjudicated by the same court doesn’t make a lot of sense.

  18. There’s a goddam war on prosecutors out there.

  19. “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.”

    Of course, we’re totally ok with prosecutor nullification where the DA/USA doesn’t file charges against obviously guilty people. That’s just “prosecutorial discretion” and completely consistent with the rule of law.

    1. Hey now, it is one thing to question juries not enforcing the law to the Nth degree as the prosecutors order them, but don’t you dare start talking about taking away presecutorial discretion.

      1. If they were required to actually enforce law as written whenever they had sufficient evidence of guilt, the whole system would come crashing down. I’m pretty sure they know that.

  20. Finally, an honest judge instead of a law student who marks her own examination papers.
    This recalls a Freak Brothers cartoon where Fat Freddy is impaneled, sees the defendant is “some poor hippie” and concludes “he’s innocent, I can tell!” A level playing field is one where two can play.

  21. Ah, perfect, I just got my first jury summons, at the tender age of 24.

  22. Wear your Gadsden Flag shirt, Les. You probably won’t even have to sit down.

    1. I was thinking of a woodchipper shirt. Too inside jokey?

      1. Any judge that gets the joke might toss you in the clink for contempt.

      2. Either they won’t get the reference, or they’ll take action against the wearer. No in between.

      3. Yes. Unless it’s Federal court.

      4. Coffee-stained wife beater it is, then šŸ™

    2. “Wear your Gadsden Flag shirt, Les. You probably won’t even have to sit down.”

      Well since he’ll probably be taken down in the parking lot as a militant extremist, that’s technically correct.

  23. Meanwhile, the WaPo thinks a Texas judge is a big meanie for not rubber stamping a federal detention of an Iraqi immigrant who may or may not have wanted to materially support ISIS. I mean, the guy is clearly an asshole, but he appears to also be right.

  24. The US Supreme Court already DID recognize the right of Jury Nullification. Evidently SCOTUS was populated with idiots even back then, because in that same case, they also ruled that while the right does exist—i.e. to judge the law as well as the facts, and thus to acquit a defendant even in the face of contrary evidence—that judges and prosecutors do NOT have to tell them of that right.
    The case is Sparf & Hansen v. The United States, a.k.a. Sparf v. United States.

    1. ^^^ “Back then” i.e. 1895 case.

    2. ^^^ Jury Nullification was part of my platform when I ran for Wayne County Prosecutor in 2012. http://www.Afton4CountyProsecutor.com

  25. 10.3% of the vote for a libertarian is commendable.

  26. before I looked at the receipt of $thirty thosand , I have faith …that…my cousin woz like they say realy receiving money in there spare time at their computer. . there dads buddy haz done this for only about 14 months and just repaid the mortgage on their place and got themselves a Honda . try this …………..

    ——– A?l?p?h?a-C?a?r?e?e?r?s.c?o?m

    1. Thanks. Admittedly, it was just me and the incumbent Democrat—there was no Republican running. But not bad, for only spending about $100 on some yard signs for me and a few neighbor friends, and campaigning just on Halloween night as my kids trick-or-treated. The Detroit News did manage to do a story on my campaign—not highlighting the issues, but rather, the fact that my twin brother was also running for the identical office in the adjacent county over (Oakland County). The freak show angle was more newsworthy than our stance on the issues?but any exposure is better than no exposure, eh?
      I’ll probably run again this fall, if only to piss-off my next-door neighbor, who is the top county attorney for the County Executive, and very politically-connected, and dyed-in-the-wool Democrat.

  27. If the concept of the People being Sovereign is to have any meaning, jury nullification as a principal must be upheld.
    To say otherwise is to spit on the graves of Peter Zenger, and Frederick Douglas.

    1. Right. The People—the Agent’s Principal—simply must have the last word?must have the power to wield the grass-roots check-and-balance that is Jury Nullification. There’s nothing nihilistic or subversive about it; it doesn’t set precedent, doesn’t create case law, or “turn the Rule of Law on its head (as misused as that term is nowadays); The jury simply judges the law as being applied to the particular defendant before them at that moment, weighing the circumstances of the offense, the defendant’s situation, any undue harshness in the likely sentence, and especially the fairness of the law itself. The law is on trial as much as the defendant. It’s a People’s Sovereignty, without which resistance to such tyrannies as The Fugitive Slave Act, Prohibition, The military draft, etc.could not have been as successful.

    2. And given the limitless, unfair resources available to the State, JN should probably be available in ALL litigation where the State is a party vs. a private entity, and not just in criminal cases. E.g. civil cases such as the government litigation vs. Big Tobacco, the imminent state litigation against gun manufacturers,?CPS cases stripping parents of their parental rights over their children?certainly asset forfeiture cases..etc. etc.
      The usual knee-jerk argument against NJ is “but we’ll have racist white juries unjustly convicting black people of trumped-up crimes and lynching the defendant out back behind the courthouse, like in the pre-Civil Rights Era!!!” Um, no. There is such a thing as a JNOV—Judgment Notwithstanding the Verdict—where a judge can overrule an unjust conviction unsupported by the evidence (provided he’s not a racist white judge, that is—but barring JN would hardly be a solution to that now, would it?).
      Knee-jerk argument #2: “Racist white juries will acquit racists who wantonly murder blacks without fear of conviction!” Yeah, I guess it’s still possible in this day and age, but as Blackstone said, better that 10 guilty men go free than 1 innocent be convicted. Or something like that.

  28. One of the reasons we have a jury system is so the people can overturn an unjust or unjustly prosecuted law. The founding fathers knew all about tyranny and tried to install institutions to prevent it. If all a jury ever did was follow the law, we wouldn’t need them. A judge or judges would be more capable of rendering a decision based on the letter of the law. Thank you Judge Sotomayer.

    1. I heart the Founding Fathers as much as anyone (I heart the Ratifiers even more, i.e. the People’s delegates at the sundry ratifying conventions), but much more credit goes back to the “Magna Carta Founders” and even before that: Jury Nullification goes back at LEAST as far as the Magna Carta, and probably was being practiced before that. The Founders acknowledged something that had been in existence, and respected by custom and common law, for many generations.

      1. ” If all a jury ever did was follow the law, we wouldn’t need them.”
        Not exactly true. While it may have been thought to keep a government-centric decision from taking place by a judge, who is part of the government, what many, here, refuse to acknowledge is that nullification, in a criminal case, because of the not-in-the-Constitution requirement of unanimous agreement of guilt, gives one person a veto over the decision of the jury as a whole.
        If jury nullification is a valid concept, then the unanimous verdict must be eliminated, so that it still comes down to a democratic decision.
        That’s why jury nullification is meaningless in civil cases, unless there are a majority of jurors who so believe.

      2. Got any evidence that the juries from the past, that have implemented nullification, were ones that required a unanimous verdict?
        If the entire jury, or a majority, decide a law is “unjust”, then it is valid, but in our system, where a criminal must be convicted by the entire jury, nullification grants a single juror veto power over what might be the verdict of the rest.
        What gives that individual the right to have their belief override those of the others?
        So long as we have the requirement of unanimous agreement, jury nullification is completely unfair to society.

  29. Once in awhile this justice surprises me; in a good way. I get that jurors cannot nullify law. But this is a difference in symantics between the judge in this arricle and what is actually meant in layman’s terms by the word. It is correct that a juror cannot nullify a duly passed law. It is also correct that a juror may acquit for several reasons including the evidence doesn’t reach the line beyond the benefit of a doubt, the application of the law to apply as given by the judge is found by the jury to be an unjust application in that case, an unjust punsihment would result from a guily verdict or other reason that would seeve the cause of justice.
    It is judicial error to say otherwise. Juries are the bulwark of liberty against government. Juries are where law and justice may be at odds and untangled.

    1. Juries don’t nullify law in the sense of erasing or abolishing law, but they do nullify law in the sense of its rendering inert the law’s application to the particular case at hand.

  30. “…the judge concluded that the holdout, who was the only black member of the jury, had “immoral” motives because “he believes that these folks have a right to deal drugs, because they don’t have any money, they are in a disadvantaged situation and probably that’s the thing to do.” The judge added that “I don’t think he would convict them no matter what the evidence was.”

    Why is this any different than the way our own government, at all levels, excuses and refuses to prosecute its own criminal acts? The USA is a police state banana republic. There is absolutely no reason to respect the law or any of those that enforce it, or carry it out or legislate it. To them it is all a game and we are the suckers. Fuck all of them and their laws!

    1. “The USA is a police state banana republic. ”

      Sigh, this just tells me you don’t know what those words mean. There’s plenty to complain about, but the US in no way sinks to the level you described.

      1. Wakey wakey. . .

  31. “Jury nullification” is the epitome of dishonesty.
    They always, ALWAYS, ask a potential juror if you can put aside your personal feelings/beliefs and rule according to the law.
    If you answer that you can and then go into your deliberations with the intent of violating that promise, you are being as dishonest as anyone can be.
    And some, here, advocate not only doing that, but lying about it while doing it.
    WOW, you libertarians are an honest bunch.

    If you think a law is unjust, say so and be excluded from the jury and then go work the system to try to get the law changed. If enough people agree, they won’t be able to get a jury impaneled.
    The problem with the NAP people is that they are not above the PAP – the passive/aggressive principle – of lying about what they want done and then subverting the rule of law to get it.
    NAP? BS!

    1. And let me remind you also that moderation in the pursuit of justice is no virtue!

  32. “A jury has no more “right” to find a “guilty” defendant “not guilty” than it has to find a “not guilty” defendant guilty,”

    Does this moron pay even a jot of attention to the nonsense that falls out of it?

    How does one find a “guilty” defendant “not guilty” when the defendant isn’t “guilty” until the jury finds them to be so?

    Does the jury say, “Guilty! Psych! Not guilty! Ha ha!” ??

    This is the ONLY way a jury could find a “guilty” defendant “not guilty.”

  33. Is jury nullification addressed anywhere in the law? Or is it just a “tradition” from English law?

  34. Wonder if jury nullification was ever used to help a lynch mob escape justice. I don’t mean the mob that the A.G. heads of course.

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  37. “Sotomayor, the only current member of the Supreme Court who has presided over a jury trial”

    Wait…like, for real? Wait……..like………for real????

  38. Well, that’s a surprise statement coming from Sotomayor. But, the only problem with her is that she also seems to believe that she has the right in her position as a Supreme Court judge to act superior to the U.S. Constitution and its original intent.

  39. Jury Nullification – “A sanctioned doctrine of trial proceedings wherein members of a jury disregard either the evidence presented or the instructions of the judge in order to reach a verdict based upon their own consciences. It espouses the concept that jurors should be the judges of both law and fact.

    The traditional approach in U.S. court systems is for jurors to be the “triers of fact,” while the judge is considered the interpreter of law and the one who will instruct the jury on the applicable law. Jury nullification occurs when a jury substitutes its own interpretation of the law and/or disregards the law entirely in reaching a verdict. The most widely accepted understanding of jury nullification by the courts is one that acknowledges the power but not the right of a juror or jury to nullify the law. Jury nullification is most often, although rarely, exercised in criminal trials but technically is applicable to civil trials as well, where it is subject to civil procedural remedies such as the Judgment Notwithstanding the Verdict.

    — [Juries] have the right beyond all dispute to determine both the law and the facts, and where they do not doubt of the law, they ought to do so. This of leaving it to the judgment of the Court whether the words are libelous or not in effect renders juries useless (to say no worse) in many cases.”
    http://legal-dictionary.thefre…..lification

    Fully Informed Jury Association:
    http://fija.org/

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