Jury Nullification

When They Nullify the Law, Jurors Are Just Doing Their Jobs

Jury nullification angers judges and prosecutors, but it's all just part of the jurors' role in protecting us from the government.

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Why juries do what they do is often a mystery, especially when they protectively interpose themselves between the government and a defendant. Outsiders can't know what really goes on during jury deliberations, and jurors themselves have no way of knowing what truly motivates their colleagues to bring a not guilty verdict. That's why jury nullification—acquittals of defendants who jurors believe did violate the law but don't deserve punishment, either because of specifics of the case or because jurors oppose the law in question—isn't always obvious. It's extraordinarily rare for jurors to tip their hands by setting people loose and then telling them they should keep up the good work, which is what happened in a recent case from New York.

But, as with much of what jurors do, nullification is important and potentially powerful.

Prosecutors and their groupies don't really care why they were thwarted—just that they didn't get their way. When refused convictions in high-profile criminal cases, they tend to act as if the government has been denied something to which it's entitled by divine word and the laws of nature. Amidst whining by prosecutors about spending a week with "12 idiots," and huffing by editorial boards over an "absurd verdict," it's difficult to know whether a not guilty verdict represents an act of juror rebellion or a simple statement that the government didn't live up to its obligation to prove its arguments. Although, either way, jurors likely consider themselves to be doing what's right.

That was certainly the case last year when all the usual people assumed that jury nullification was at the root of the acquittal of seven defendants who had occupied the Malheur Wildlife Refuge in protest of federal dominance of land throughout the West.

"The jury plainly failed to enact their Constitutional duty to apply the law rather than their opinions, and speaking as a professor of politics and government as well as a citizen of the United States, that's scary," wrote Lane Crothers of the University of Illinois in the pages of the New York Daily News. He went on to warn, essentially, that the peasants are revolting because they "don't like the federal government's presence in their lives." That's very bad, according to him.

Not so fast, one of the actual jurors protested in a letter to The Oregonian. "It should be known that all 12 jurors felt that this verdict was a statement regarding the various failures of the prosecution to prove 'conspiracy' in the count itself—and not any form of affirmation of the defense's various beliefs, actions or aspirations."

So, no rebellion at all—except that the one juror couldn't have known what the 11 other people in the room were thinking. Maybe they were being coy in their deliberations.

And actual jury revolts are a thing, though we can't know their frequency. On March 2, jurors in upstate New York acquitted four defendants of obstructing governmental administration, disorderly conduct, and trespass—charges related to a 2015 protest at the Hancock Field National Guard Base. The four opposed the piloting of Reaper drones from the base, particularly for bomb and missile missions in the Middle East that have frequently resulted in civilian deaths.

"Following the rendering of the verdict," the Upstate Coalition to Ground the Drones and End the Wars announced, "a juror approached [acquitted defendant] Brian Hynes and said 'I really support what you are doing. Keep doing it.'"

"Yesterday I spoke with one of the defendants found Not Guilty, and he confirmed that this was, indeed, a case of conscientious acquittal," reported Kirsten Tynan, executive director of the Fully Informed Jury Association.

Given the fury that judges and other officials display toward independent jurors, including occasional contempt of court and jury tampering charges, that's about as clear an indication as you're likely to get that a verdict represents a raised middle finger directed at the powers-that-be. Jurors who go about their business without revealing their motivations are immune to punishment, so keeping your mouth shut is just smart, even if it leaves the rest of us in the dark.

Which is why it's more common to see cases like the rapid acquittal of an Ohio machinist who was arrested for making what Bureau of Alcohol, Tobacco, Firearms, and Explosives agents claimed were firearms noise suppressors (so-called "silencers") without a license. Already on probation for manufacturing the devices, he was busted when federal agents said he was back in business and selling his inventory on eBay. He claimed his products were actually unregulated muzzle brakes and that the government's "expert" had no idea what he was talking about.

Whether the jury believed the machinist, or whether they thought it was ridiculous to threaten a man with producing items that can easily be made on a home workbench and that lawmakers at the state and federal level are considering deregulating, is something we'll probably never know. It's equally possible that jurors thought the prosecution presented a weak and unconvincing case as it is that they considered the law ridiculous and refused to enforce it. Either way, they likely concluded that they were carrying out their responsibility to do justice and protect defendants from government overreach.

Because, ultimately, jury nullification is just an extension of the jury's role as a check on the state—whether prosecutors are applying law badly, or just applying bad law. When jurors take their responsibilities seriously, they can push prosecutors to present more-convincing arguments, and they can prompt legislators to rethink whole areas of policy.

"25 percent of the country's voters have jumped over lawmakers and the government," New Hampshire Senate Minority Leader Jeff Woodburn (D-Whitefield) recently told the New Hampshire Business Review when asked about his support for marijuana legalization. "As we see with increased examples of jury nullification, there is no legitimacy anymore for these laws."

If juries can get officials to insert themselves into our lives less often, and to make stronger efforts to justify themselves when they do, what's to complain about?

Hey jurors, to quote one of your colleagues: I really support what you are doing. Keep doing it.

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94 responses to “When They Nullify the Law, Jurors Are Just Doing Their Jobs

  1. As much as I detest the legal system, I’d love to get on a jury and have the chance to nullify a bad prosecution. I figure one of the costs of such a privilege is keeping my yap shut from day one til I die. During deliberations, I don’t doubt a shoddy case would present plenty of room for doubt, and if it’s not a shoddy case, if it’s an open and shut case, I’d just have to fall back on saying it smells too good to be true, it smells fishy, and vote acquittal. Of course that presupposes the defendant really does deserve to get off.

    But for some reason, I haven’t been called for jury duty in 40 years. Last time I was called was while floating around the Pacific on a carrier, and I wrote them back that if they could get me some basket leave, I’d be all over that jury pool. Never heard back. Maybe they think I’m the Flying Dutchman, still floating around the Pacific.

    1. Should have added that I vote (because I write them letters once in a while and figure they might pay more attention to a voter) and drive, so I have no idea why I am never even summoned.

      1. Same here. I’d love to have the opportunity to go voluntaryist all over the judicial system’s ass. Alas, i have not been selected for jury duty in ever.

        1. I think they pick a letter and go by people’s last names or something.
          My wife and I were both selected within a few weeks of each other which seems awfully un-random.

          A term on a grand jury is what I was selected for so it would have been something like 1 or 2 mornings a week for a couple months.

          After interview by the Assistant DA I was rejected, presumably for giving answers indicating I was not reflexively deferential to the State.

          I suspect harborers of independent thought have to lie to get on a jury.

        2. I have jury duty coming up May 1st – 5th. I’ll have to pop back in and report on the outcome (without spilling any beans of course)

  2. Ahhh, the good news segment of this fine Teusday morning.

    If any jurors are reading this, thank you for your service.

  3. Given the fury that judges and other officials display toward independent jurors, including occasional contempt of court and jury tampering charges…

    I’ve asked the attorneys and scholars among us before what the legal personal consequences were for a juror who chooses nullification. Is it a defensible right as a citizen juror or not?

    1. It is what you do without ever, ever saying you did it. Just mumble a few things during the deliberations to indicate you are for a not guilty plea, and then vote not guilty. No one can make you explain why. It is your right as a human being to see justice done, regardless of any man made “laws”. That way you don’t have to worry about a bunch of bogus tampering or obstruction charges.
      The most convincing argument for jury nullification is the fact that the judge and prosecutors refuse to include that option in the jury instructions.

      1. I don’t like that it’s a right, or even a duty in my mind, that I cannot openly exercise. But, there are a lot of things in the criminal justice system that I don’t like but live with, so this will just be another.

  4. Careful what you wish for. Juries may “nullify” good laws — laws that protect property rights, for instance — as well as bad. When you give a jury the “right” to undo objective law on a whim, what will stop them from denying you your rights on any given day? Do we really want anarchy in the court system? Anarchists will answer in the affirmative.

    1. It takes all twelve to do this; otherwise you get a hung jury. I am convinced that when it occurs, it is correct.

    2. oh noes! since jury nullification is always for the defendant, i have a hard time understanding how it could deny me my rights.

    3. “objective law” Good one!

      1. If you don’t believe in objective law, you don’t believe in law, which would make you an unserious anarchist with nothing important to say.

        1. Total deference to the law is the refuge of unthinking useful idiots and or dissembling tyrants.

          So a juror, if these had gone to trial, you would have:

          1. upheld Rosa Parks’ fine
          2. turned in Anne Frank to the authorities
          3. convicted anyone in Jim Crow era of miscegenation

          I assume you are also 100% in support of the Trump policy on no tolerance for illegal residency am I correct?

          1. Those are subjective laws. Objective law only deals with the initiatory use of force, threats of force or fraud.

    4. They have the right whether we like it or not. You can’t know for sure what a juror’s motivation is and you can’t punish them for coming to the wrong conclusion, or the whole point of having a jury is defeated. Nullification is just a fact of how juries work.
      I also happen to think it’s a good thing that should be encouraged. If enough people disregard property rights to the extent that juries regularly let people off for burglary, say, then we are fucked anyway.

  5. He went on to warn, essentially, that the peasants are revolting,,,,,”

    Yeah they stink on ice.

    1. and on really hot days too….they fucking reek!!!

  6. “Because, ultimately, jury nullification is just an extension of the jury’s role as a check on the state”

    Juries are the fourth branch of government.

  7. We expect that the new LG V30 will be a super success when it launches at the upcoming global event.

  8. I was recently selected for jury duty and I was excited at the prospect of nullification. It’s the second or third time I’ve been selected in the 18 years I’ve lived in Texas. Alas, I had to travel on the last day of the week, so they put me on a trivial justice of the peace case that was settled out of court.

    The perfect case would be drug possession, even with intent to distribute. I fantasize about telling the other jurors: “Did this person hurt anybody? Did this person violate anyone else’s rights? No. Then my vote is acquittal. You have two choices. We can acquit or we can hang. Let’s get it over with.” It would probably take 20 minutes.

    Years ago, I was on a jury in Florida for a drug case. It was perfect for nullification, but I wasn’t aware of the idea yet. Thankfully, we acquitted. I look back and I am pleased about how mature the jury was and how they lacked the unthinking “tough on crime” outlook.

    1. Same man! I would love that!

  9. I was recently selected for jury duty and I was excited at the prospect of nullification. It’s the second or third time I’ve been selected in the 18 years I’ve lived in Texas. Alas, I had to travel on the last day of the week, so they put me on a trivial justice of the peace case that was settled out of court.

    The perfect case would be drug possession, even with intent to distribute. I fantasize about telling the other jurors: “Did this person hurt anybody? Did this person violate anyone else’s rights? No. Then my vote is acquittal. You have two choices. We can acquit or we can hang. Let’s get it over with.” It would probably take 20 minutes.

    Years ago, I was on a jury in Florida for a drug case. It was perfect for nullification, but I wasn’t aware of the idea yet. Thankfully, we acquitted. I look back and I am pleased about how mature the jury was and how they lacked the unthinking “tough on crime” outlook.

    1. I wish the squirrels would just all walk into a power station.

    2. A friend of a friend was on a jury and a juror was doing nullification. He turned the juror in to the judge and the juror was thrown out and an alternate was put in his place. You have to be careful about giving your reason. I bet this guy I knew would have said we will hang if he could not get you thrown off (he hated drug dealers).

  10. I was on a jury for felony theft that myself and another juror nullified, 10-2. A contractor took money in advance and failed to fulfill the terms of the non-existent contract so the state wanted to throw him in the pokey. Although there was a victim in the case and I had misgivings about allowing a thief with actual victims to walk free, the state did not show the contractor intended, from the time he took the money, that he did not intend to complete the job. They showed that he took a long time to get material for another contract, but it was finally delivered, and that he did good work “but slow” for another client, but the pattern they tried to establish only showed he was a crappy businessman. I was actually amazed at the initial vote of 8-4 to convict, seems people don’t like shady contractors and they actually talked two more into joining them in the hanging. How were clients supposed to get any compensation (maybe civil court) if he’s in jail?

    1. good call. This is really a civil issue.

  11. I’ve always thought of juries as being “we the people”. The government governs in our name, juries are the last line of defense against a charge brought by the government where we the people can say “No, that isn’t what we meant by this law”. Justice lies in the rule of law evenly applied, but we the people can make exceptions to what is after all OUR law in the name of a greater justice.

    Worst example, some years back there was an elderly man who suffocated his wife of many years as she lay in a hospital bed awaiting death from Alzheimer’s rather than to see her suffer out her last days. A tearful jury convicted him anyway, saying that they thought it was a horrible injustice to punish the old man for simply showing the mercy you’d show any dying animal but there was nothing they could do. No, you assholes, you could have said we the people didn’t have this in mind when we adopted this law and it’s a pretty sick, twisted, evil prosecutor who would prosecute the case or at least not prosecute it in such a way as to make sure the jurors would vote for acquittal.

    1. My grandma died after a stroke left her unable to speak and unable to swallow. My mom asked her if she wanted to be fed intravenously or supported in some other way. She shook her head no.

      After that, we took turns being by her bedside. I read to her and she watched baseball. It was excruciating. My mind was dark and I looked at her and thought how easy it would be to put a pillow over her face and end it. It was a weird and disturbing experience. I now have a deep understanding of what that elderly man went through.

      1. Yea my grandma went slowly due to dementia. Was terrible. I swore i would never go out that way.

    2. christ what idiots! I feel bad for the man.

  12. But… But this is a Nation Of Laws?! Of LAWS, I tell you! You don’t get to pick and cgoose which laws you accept and which you don’t!

    Trumpistas told me so.

  13. jury nullification should be spelled out to the jurors as a valid option they should consider when deciding the verdict.

  14. “So, no rebellion at all?except that the one juror couldn’t have known what the 11 other people in the room were thinking. Maybe they were being coy in their deliberations.”

    One good indicator of what the other jurors were thinking is the fact that they did not vote Not Guilty on all counts. They hung on one count, which means that at least someone was considering convicting on something. If this were some kind of message verdict by jury nullification, it would make more sense to acquit on everything.

  15. Great article. Unfortunately I never get called for jury duty. Might be because since they seem to spy on everyone that they know I won’t convict on any victimless crime. If people realized what it cost them they might not be so ready to convict at the drop of the hat.

  16. “As we see with increased examples of jury nullification, there is no legitimacy anymore for these laws.”

    Exactly. Seems in accordance with the Declaration of Independence: once a government loses it’s legitimacy, it’s time to shake it off.

  17. OJ Simpson?

    1. There have always been and always will be examples of juries making bad decisions for bad reasons, no matter what anyone thinks about nullification. And I very much doubt that anyone on that jury was intending to nullify laws against murder.

  18. “It’s extraordinarily rare for jurors to tip their hands by setting people loose and then telling them they should keep up the good work, which is what happened in a recent case from New York.”

    Actually, it happened often enough with southern juries who acquitted lynchers. Of course this is a side of jury nullification that its defenders never bring up….

    1. It’s a fair point. But I don’t see any way you can stop things like that from happening. So you might as well encourage it when it leads to more just outcomes.

    2. Its important to point out that the lynching trials were almost certainly rigged in the defendants favor.

    3. See freedom only works when good things happen, not when bad things happen. You might as well live in a police state

      People say hateful things online…. of course this is a side of free speech that its defenders never bring up

      Sometimes guilty people are let off … of course this is a side of innocent until proven guilty that its defenders never bring up

      Sometimes innocent people are killed by guns… of course this is a side of the 2nd amendment that its defenders never bring up

      .
      ….

  19. The way I see it, the government exercises powers delegated by the people. The jury ARE the people. The jury’s authority to decide whether to punish a defendant is superior to the government, and any apparatchik who attempts to retaliate against a juror should be facing a long stretch in jail.

    -jcr

  20. In addition to nullification, I’d like to see juries gain the power to dismiss the prosecutor and the trial judge if they decide they’re getting uppity.

    -jcr

    1. That would be pretty cool if juries could out a bad judge or prosecutor so they could have a fiar trial. I like that idea. It would seriously keep the government in check.

  21. I have left jury nullification flyers in jury pool waiting rooms.
    And contrary to what this article imply’s, you CANNOT be held accountable even if you state that you exercised your right to jury nullification. Several SCOTUS cases have set precedent in that regard.

      1. process may be the punishment though.

  22. I used to be called for jury service every 3 years on the dot.

    I registered as a Libertarian about 5 years ago, and have not been called for jury service since.

    Coincidence?

  23. Great article, I’ve long supported the outstanding work done by the Fully Informed Jury Association

    http://www.lifestrategies.net/fija

  24. This story reminds me of an article in the liberal Creative Loafing in Atlanta a couple years ago. They do an issue every year about what they consider the worst bills proposed by the Georgia legislature that year (the legislature meets from Jan. to March only, thank goodness). After listing lots of awful proposed bills, they ended by slamming a bill that would allow juries to decide both the facts AND the law in court cases (actually, Paragraph 11 of the state constitution already allows this).

    The author seemed completely unaware of the contradiction in criticizing terrible legislative acts, then being against a bill that would actually give us some protection against such horrible acts. Unless I’m not thinking of other options, jury nullification is the only way that the American people (not pols or judges) can act legally and directly to prevent the enforcement of bad laws. Please correct me if I am wrong.

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  31. Ahhh, the good news segment of this fine Teusday morning.

    If any jurors are reading this, thank you for your service.

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