Jury nullification in the United States

Jury nullification in the United States has its origins in colonial British America. Similar to British law, in the United States jury nullification occurs when a jury in a criminal case reaches a verdict contrary to the weight of evidence, sometimes because of a disagreement with the relevant law. The American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment’s Double Jeopardy Clause, which prohibits the appeal of an acquittal, and the fact that jurors can never be punished for the verdict they return.

In practice

The tradition of jury nullification in the United States has its roots in the British legal system, specifically in a 1670 English case where Quakers were acquitted by a jury of violating a law which only permitted religious assemblies under the Church of England. In 1735 a journalist in the colony of New York was acquitted by a jury who nullified a law making it a crime to criticize public officials. Later, colonial juries nullified the Navigation Acts which would have forced all trade with the colonies to pass through England for taxation.

Just prior to the Civil War northern juries sometimes refused to convict for violations of the Fugitive Slave Act because jurors felt the laws to be unjust. In 1851, 24 people were indicted for helping a fugitive escape from a jail in Syracuse, New York. The first four trials of the group resulted in three acquittals and one conviction, and the government dropped the remaining charges. Likewise, after a crowd broke into a Boston courtroom and rescued Anthony Burns, a slave, the grand jury indicted three of those involved, but after an acquittal and several hung juries, the government dropped the charges.

During the 19th and 20th centuries, especially in the 1950s and '60s Civil Rights Movement era, some all-white juries acquitted white defendants accused of murdering blacks; however, the problem according to some scholars was: "...not in jury nullification, but in jury selection. The jury was not representative of the community..." During Prohibition, juries often nullified alcohol control laws, possibly as often as 60% of the time because of disagreements with the justice of the law. This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition.

Kalven's and Zeisel's study of the American jury found that juries acquitted when judges would have convicted in only nineteen percent of cases, and of these, only twenty-one percent of the acquittals were attributable to jury nullification. Jury nullification sometimes takes the form of a jury convicting the defendant of lesser charges than what the prosecutor sought.

In the 21st century, many discussions of jury nullification center around drug laws that are considered by many to be unjust either in principle or because they disproportionately affect members of certain groups. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification, and a recent rise in hung juries (from an average of 5% to nearly 20% in recent years) is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves (though other reasons such as the CSI effect may also be involved).

In criminal cases, jury nullification arguments sometimes focus on the precise language of the jury instruction on the burden of proof. Many jury instructions on the issue of the burden of proof invite nullification arguments. According to these instructions juries must find the defendant not guilty if the case has not been proven beyond a reasonable doubt. Conversely the jury should find the defendant guilty if the case has been proven beyond a reasonable doubt. The permissive language "should" arguably allows juries to consider nullification arguments. It is also possible to receive a specific jury instruction on nullification, though most judges simply avoid the topic and do not tell jurors of their power to judge the fairness of the law and how it is applied as well as to judge the facts of a case.

During the Vietnam War era, many protestors, including Benjamin Spock, sought jury nullification. Spock was convicted of conspiracy to counsel, aid, and abet registrants to avoid the draft, after the judge instructed the jury to apply the law as he laid it down. However, the U.S. Court of Appeals for the 1st Circuit overturned the conviction because the judge had committed prejudicial error in putting to the jury ten special yes-or-no questions. Eight defendants from Oakland, California were tried in 1969 for conspiracy to disrupt a draft induction center, and the jury acquitted after being told by the judge that it could acquit if it felt the defendants' actions were protected by the First Amendment guarantees of freedom of speech and assembly. Likewise, in a case involving ten Seattle protestors accused of blocking a munitions train carrying bombs destined for Vietnam, the jury acquitted after the judge allowed the defendants to talk about their motives and permitted the defense to ask the jurors to invoke their consciences and object to the war by acquitting.

The Camden 28 were able to gain an acquittal despite the overwhelming evidence of their guilt. In at least one case, the judge allowed the jury to hear testimony about the Pentagon Papers and the nature of the Vietnam War. In one Vietnam-era case, the defense compared the defendants' actions in breaking into a government office to the Boston Tea Party, saying that no one "would say that breaking into a ship shouldn't be criminal, shouldn't be a crime," but that it was justified under the circumstances. There was also a case in which a jury voted 9-3 to acquit peace activists despite their admission that they poured blood in a military recruiting center.

Several cases that were speculated to be instances of jury nullification included the prosecution of Washington D.C.’s former mayor, Marion Barry; the trial of Lorena Bobbitt; the prosecution of the police officers accused of beating Rodney King; the prosecution of two men charged with beating Reginald Denny in the resulting riots; the trial of the surviving Branch Davidian members; the trial of the Menendez brothers for the murder of their parents; and perhaps most famously, the O.J. Simpson murder trial. In the days preceding Jack Kevorkian's trial for assisted suicide in Michigan, Kevorkian's lawyer, Geoffrey Fieger, told the press that he would urge the jury to disregard the law. Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger's statements had already been extensively reported in the media.

In a 1998 article, Vanderbilt University Law Professor Nancy J. King wrote that "recent reports suggest jurors today are balking in trials in which a conviction could trigger a three strikes or other mandatory sentence, and in assisted suicide, drug possession, and firearms cases."

Court opinions

In the 1794 case of Georgia v. Brailsford, the Supreme Court directly tried a common law case in its only jury trial to date. The facts in the case were not in dispute, and the legal opinion of the court was unanimous, but the Court was nonetheless obligated under the Seventh Amendment to refer the matter to the jury for a general verdict. Chief Justice John Jay's nuanced instructions to the jury have been cited frequently in discussions of jury nullification:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.

Although no precedent revokes the power of nullification, courts have since the 19th century tended to restrain juries from considering it, and to insist on their deference to court-given law. The first major decision in this direction was Games v. Stiles ex dem Dunn which held that the bench could override the verdict of the jury on a point of law.

The 1895 decision in Sparf v. U.S., written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.

A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the power of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.

We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:

…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to ensure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.

In 1972, in United States v. Dougherty, the United States Court of Appeals for the District of Columbia Circuit issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense's chance to instruct the jury about the power to nullify. However, in Dougherty the then-chief judge David L. Bazelon authored a dissenting in part opinion, arguing that the jury should be instructed about their power to render the verdict according to their conscience if the law was unjust. He wrote that refusal to allow the jury to be instructed constitutes a "deliberate lack of candor". It has been argued that the denial of jury nullification requests negates much of the point of self-representation.

In 1988, in U.S. v. Krzyske, the jury asked the judge about jury nullification. The judge responded "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error.

In 1997, in U.S. v. Thomas, the U.S. Court of Appeals for the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b). The Second Circuit also stated, however, that the court must not remove a juror for an alleged refusal to follow the law as instructed unless the record leaves no doubt that the juror was in fact engaged in deliberate misconduct—that he was not simply unpersuaded by the Government's case against the defendants.

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.

In 2001, a California Supreme Court ruling on a case involving statutory rape led to a new jury instruction that requires jurors to inform the judge whenever a fellow panelist appears to be deciding a case based on his or her dislike of a law. People v. Williams, 25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209. However, the ruling could not overturn the practice of jury nullification itself because of double jeopardy: a defendant who has been acquitted of a charge cannot be charged a second time with it, even if the court later learns jury nullification played a role in the verdict.

The Supreme Court of the United States has not recently confronted the issue directly.

Circa 1996, Laura Kriho was the sole juror holdout in a drug possession trial, one eventually declared a mistrial. Kriho was found in contempt of court and charged with perjury and obstruction of justice for learning from the Internet that the defendant could face a four- to twelve-year prison term if convicted, a fact that had not been disclosed to the jury by the court. Additionally, while not asked about her opinions about the fairness of the drug laws or her own prior legal history, she was prosecuted for obstruction of justice for failing to volunteer this information on her own. The trial court found "that Kriho had intended to obstruct the judicial process and that her actions had prevented the seating of a fair and impartial jury", but after four years of legal battles the charges were eventually dropped after a district court ruled that her statements during secret jury deliberations could not be used against her. It has been argued that improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's right to a fair trial.

Advocacy groups and notable proponents

Ron Paul, a U.S. Representative and presidential candidate in 1988, 2008 and 2012, is a notable supporter of jury nullification and has written extensively on the historic importance of juries as finders of fact and law.

Some advocacy groups and websites argue that private parties in cases where the government is the opponent have the right to have juries be instructed that they have the right and duty to render a verdict contrary to legal positions they believe to be unjust or unconstitutional. These and other organizations contact citizens directly and lobby for legal reforms regarding instructions given to jurors.

Clay Conrad, a jury scholar and attorney, argues that there is nothing "wrong" with jury nullification; nullification is part and parcel of what a jury is all about. Conrad extensively reviews cases of jury nullification in cases of racist juries acquitting in cases of pro-segregation violence. The racist communities that produced the racist juries had also elected racist police, prosecutors, and judges. Such cases were rarely prosecuted at all, and when they were due to outside political pressure, only the minimum effort to go through the motions of a trial was made, and with jury selection systems crafted by political leaders to exclude non-whites. Reviewing Conrad's book, University of Tennessee law professor Glenn Reynolds points out that jury nullification is parallel with the doctrine of prosecutorial discretion.

The late Chief Justice of the Washington State Supreme Court William C. Goodloe was an advocate of jury nullification and suggested that the following instruction be given by judges to all juries in criminal cases:

You are instructed that this being a criminal case you are the exclusive judges of the evidence, the credibility of the witnesses and the weight to be given to their testimony, and you have a right also to determine the law in the case. The court does not intend to express any opinion concerning the weight of the evidence, but it is the duty of the court to advise you as to the law, and it is your duty to consider the instructions of the court; yet in your decision upon the merits of the case you have a right to determine for yourselves the law as well as the facts by which your verdict shall be governed.

The United States Libertarian Party's platform states, "We assert the common-law right of juries to judge not only the facts but also the justice of the law."

Some see jury nullification as one of the so-called four boxes of liberty.

Notable Criminal Prosecutions

Julian P. Heicklen - Teaneck, New Jersey - Fall 2010

In the fall of 2010 Julian P. Heicklen of Teaneck, New Jersey, a jury nullification activist who had made a regular practice of handing out information about jury nullification outside courthouses, was charged in federal court in Manhattan with jury tampering, a misdemeanor. He has previously been cited several times for distributing fliers without a permit outside the Federal Courthouse in Manhattan. Heicklen, a retired chemistry professor, was arraigned February 25, 2011 before a magistrate judge. The maximum penalty is 6 months incarceration. Because Heicklen was charged with a misdemeanor, he was not entitled to a jury trial. The statute under which Heicklen was charged, Title 18 USC Section 1504, reads in pertinent part:

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

A federal judge dismissed the case against Heicklen on April 19, 2012.

Mark Iannicelli and Eric Brandt - Denver, Colorado - July 27, 2015

(Note - this entire section was added by Eric Brandt 2017JAN15. Lack of citations is known and will be completed soon)

Felony Jury Tampering Charges Filed

On Friday July 24, 2015, Mark Iannicelli (of Occupy Denver) teamed up with Eric Brandt (a free speech advocate known for displaying large middle-finger signs reading "F--- Cops") to commence what they had intended to grow into a regular occurrence - distributing Jury Nullification literature in front of courthouses. Their first selection was the Lindsey-Flanigan Courthouse in Denver, Colorado. The pair quickly learned the Denver courthouse only pooled jurors on Monday, Tuesday and Wednesday so they left after only about an hour. They returned on Monday July 27, 2015 better prepared including a small foam-core stand ("booth") patriotically themed with the words "JUROR INFO" written on it upon which the extra fliers were positioned and they began offering a Jury Nullification brochure downloaded from the Fully Informed Jury Association titled "TRUE OR FALSE" to those entering the courthouse. Almost immediately courthouse administrators and sheriff deputies were confronting them and telling them they had to stop. Knowing the sidewalk around the courthouse is a traditional public forum and distribution of literature is protected free speech under the First Amendment both men ignored the orders and continued their work. After a couple hours, Denver Police arrived on scene. They confiscated the Juror Info "booth" and the box of freshly printed fliers. Mark was arrested on the spot and charged with seven counts of Felony Jury Tampering. Brandt, already a client of Civil Rights Lawyer David Lane because due to dozens of police retaliation arrests in response to his middle finger sign, called Lane during the arrest. Lane immediately took on Iannicelli defense. Brandt, who strangely was not arrested, contacted via email the Denver District Attorney - Mitch Morrissey insisting he had handed out at least as many fliers as Mr. Iannicelli. He demanded equal justice under the law insisting he too be charged with seven counts of Felony Jury Tampering. An arrest warrant was issued August 7, 2015 and Brandt was plastered in the newspaper paper and on television as a wanted man - at large - known to carry a large sign displaying a profane message for police. Brandt is easily spotted and many people call 911 Dispatch any time he is out with his sign. As a result, on August 10, 2015 Denver Police executed a snatch-and-grab arrest within minutes of his arrival downtown. At his bond and advisement hearing the next morning he entered the courtroom where some 20 people, mostly strangers, stood up in his honor and David Lane ready to defend him. The judge set a $3500 bond and the strangers in the courtroom immediately posted his bond in cash as they had done with Iannicelli the previous week.

On December 15, 2015, District Court Judge Kenneth Plots dismissed all 14 felony charges against both men against the District Attorney's objections stating the activity was not tampering with any jurors and was protected speech under the First Amendment. The City alleged they had committed Jury Tampering because the high-profile Dexter Lewis murder trial was underway at the time. The City believed they had intended to tamper with those jurors although there was never any allegation any of Lewis's jurors had even received a flier. The District Attorney then filed an appeal on the dismissals and the cases are stuck in the review process which could last a couple years. It is highly unlikely the ruling will be perturbed. But what happened between the arrests and dismissals would become an epic tale and the stuff of legends...

Order Banning Free Speech at the Courthouse, Federal Lawsuit and Preliminary Injunction

Dexter Lewis, who is African American, was convicted of murdering several people and was now facing the death penalty. The recent racially predicated riots in Ferguson, Missouri and Baltimore, MD and the recent non-death sentence for the Aurora Theatre shooter - who is not African American, raised concern that should Dexter Lewis be sentenced to death the public might respond violently as well. In anticipation of the verdict, Chief Judge Michael A. Martinez, Second Judicial District entered Chief Judge Order 15-01 effectively banning free speech on the sidewalks surrounding the courthouse. The order was taped to the courthouse doors.

At the same time, Occupy Denver was organizing a federal civil rights lawsuit in response to the jury tampering arrests as well as regular Jury Nullification campaigns. The motive of the Order was not stated, Activists believed the ban was targeting Jury Nullification and went into a frenzy. Eric Verlo, Janet Matzen and the Fully Informed Jury Association - wanting to continue the literature distribution but now fearing imminent criminal prosecution or contempt citations jointly filed a federal lawsuit and were granted an emergency preliminary injunction hearing. Colorado Attorney General Cynthia Coffman argued in support of the ban on speech at the courthouse and felt it should be permanent. The Denver City Attorney in a very unusual twist actually sided with the activists stating the City designed the plaza to handle as many as 500 demonstrators and it was a designated public forum for speech. Commander Toni Lopez testified there had been countless demonstrations over the years and he could not recall ever closing it since it was opened in 2010. Federal Judge William Martinez granted the preliminary injunction and stated the plaza was in fact a TRADITIONAL public forum open to the public 24 hours a day.

Occupy Denver Moves In - 24 hours a day - for 57 days

On August 24, 2015 - armed with an injunction, Occupy Denver moved in. Within hours Denver Police raided the activists and confiscated their personal property which included a shade canopy, a folding table, several chairs and other protest materials. David Lane requested an immediate Contempt Hearing which was set the next week. On August 28, 2015 Denver Police were ordered to return the property seized on the 26th. Within two hours Denver Police raided the activists AGAIN and took all their property. That night, around 100 militarized, armed riot police woke the 12 sleeping peaceful demonstrators protesting against he Denver Urban Camping Ban. Four were arrested with charges including Obstruction of a public passageway, Interference with Police Duties and Disobedience of a Police Order. The plaza became a battlefield between activists and the City and police with ever-evolving sophistication and tactics by both sides. By the time the City hit their final blow to the occupation on October 21, 2015 there would be two federal contempt hearings, nearly 30 armed police raids, confiscation of thousands of dollars in activists personal property, 24 arrests citing over 50 criminal charges against 14 activists, at least two separate conspiracies within the city targeting the movement and intending to shut it down, evidence tampering and spoilage, unlawful implementation of a city-wide curfew on admin build grounds, police perjured testimony, a crippled log-jammed general sessions docket, prosecutors frantically trying to save their cases from the now fully informed jurors on every floor, highly organized court support with masses of activists consuming whole courtrooms for trials, the assignment of a special retired judge and a private courtroom just for Eric Brandt's cases, 17 months of trials, at least hundreds of thousands in City expenditures with almost nothing to show for it, activists who have prevailed over and over again (over 60% dismissal or acquittal), minimal sentences on the few guilty verdicts entered, and complicated appeals from several of the convictions. On January 11, 2017 - the last remaining case completed a 17-month prosecution with NOT GUILTY verdicts and the accidental last-moment disclosure of the evidence proving there was a conspiracy between the City Attorney's Office, Public Works and Denver Police to prosecute and jail the activists into silence. Jury Nullification education outreach work continues at the Lindsey-Flanigan courthouse to this day and has expanded to several other area courthouses including Adams COunty, Jefferson County, Arapahoe County, Westminster, Aurora and Lakewood.

The Legacy of the Lindsey-Flanigan Jury Nullification arrests and Occupation

The litigation and costs to the City of Denver for their 57 day beat-down of free speech will not be known for years. What is known, however, is that the voice of the people was not crushed but rather grew stronger. Denver Police have modified the way they handle activists all over the city and have toned down their heavy boot approach in favor of less violent, less disruptive, less expensive and less embarrassing procedures. The same two guys - Mark Iannicelli and Eric Brandt are still free men and can still be found handing out Jury Nullification Literature o front of area courthouses.

Keith Wood - Mecosta County, Michigan - November 24, 2015

On November 24, 2015, Keith Wood was arrested and charged with felony obstruction of justice and misdemeanor jury tampering after he handed out fliers, stating that jurors have the right to practice jury nullification, on the sidewalk in front of the Mecosta County, Michigan, courthouse. The felony charge was dismissed.

Opponents

James Wilson, founding father and one of the leading legal theorists of the day, was one of the only sources from the era that addressed jury nullification. He defended the jury's right to render a general verdict (to determine the law as well as the fact). However, in rendering that verdict, he asserted that juries must “determine those questions, as judges must determine them, according to law.” He noted that the law was “governed by precedents, and customs, and authorities, and maxims,” that are “alike obligatory upon jurors as upon judges, in deciding questions of law.” In essence, Wilson was arguing that juries must not disregard the law because laws are the result of due process by legal representatives of the people.

A notable opponent of jury nullification is former judge and unsuccessful Supreme Court nominee Robert Bork. In an essay he wrote jury nullification is a "pernicious practice".

Some have argued that it is not sufficient to instruct jurors that they may judge the law if legal arguments are not made to them, that such incomplete information may indeed do more harm than good, and that we must return to the standard of due process represented by the Stettinius and Fenwick cases. Some alleged costs of jury nullification include inconsistent verdicts and discouraging of guilty pleas.

There is some question as to whether jury nullification should be disallowed in cases where there is an identifiable crime victim. Jury nullification has more support among legal academics than judges.

Jury nullification has also been criticized for having resulted in the acquittal of whites who victimized blacks in the Deep South. David L. Bazelon argued, "One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks. That repellent practice cannot be directly arrested without jeopardizing important constitutional protections-the double jeopardy bar and the jury's power of nullification. But the revulsion and sense of shame fostered by that practice fueled the civil rights movement, which in turn made possible the enactment of major civil rights legislation. That same movement spurred on the revitalization of the equal protection clause and, in particular, the recognition of the right to be tried before a jury selected without bias. The lessons we learned from these abuses helped to create a climate in which such abuses could not so easily thrive." However, Julian Heicklen disputed this: "The problem with the all-white juries that refused to convict whites that committed crimes against blacks was not in jury nullification, but in jury selection. The jury was not representative of the community and would not provide a fair and impartial trial."

Leipold points out that to argue that nullification prevents unfair prosecutions is to argue that it is unfair to convict a defendant when a representative legislature has passed a statute making a certain behavior a crime, the evidence shows beyond a reasonable doubt that the defendant engaged in that behavior, and the accused has no defense to the charge.

See also

• Jury Nullification (book)

External links

• CGP Grey Explains The Law You Won't Be Told