New York Times Editorial
May 27, 1997
When Jurors Ignore the Law
America's system of trial by jury depends on the
willingness of jurors to do their best to reach verdicts based on
the law and evidence, putting aside their own personal biases.
Last week a Federal Appeals Court in Manhattan moved to protect
this process by recognizing the authority of judges to remove
jurors who brazenly engage in the practice known as
"'nullification," purposely ignoring the evidence and
law to acquit or convict a defendant based on their own racial,
cultural or political predispositions.
"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 power
to prevent," Judge Jose Cabrenes wrote for a unanimous
three-judge panel in a decision stemming from a drug case tried
in Albany.
The decision applies only to a very narrow range of cases where
the juror misconduct is extreme and unambiguous. In the case at
hand, the court found that this standard had not been met, so it
overturned a judge who had removed a juror, saying the juror may
truly have been unpersuaded of the defendants' guilt.
But even if largely symbolic, the court's judgment serves as a
timely and necessary response to a troubling Yale Law Journal
article by a George Washington University law professor, Paul
Butler. The article argued that, in certain nonviolent cases,
black jurors would be justified in acquitting black defendants to
protest racism in the criminal justice system. The criminal
justice system is certainly imperfect, but this sort of wrecking
is not the way to fix it.
True, the issue is complicated. As Judge Cabrenes and his
colleagues noted, jury nullification has deep roots in American
history and jurisprudence. It was a jury's refusal to punish
criticism of the Crown, after all, that freed the colonial
publisher John Peter Zenger on seditious libel charges, helping
to establish freedom of the press. Nullification also kept
fugitive slaves from being sent back to the South, when juries
refused to enforce fugitive-slave laws before the Civil War. But
history is also replete with examples of shameful acts of
nullification, like the hung juries in the 1964 trials for the
murder of Medgar Evers, the civil rights leader.
As a practical matter, courts have scant room to police juror
nullification without threatening democracy's countervailing
interest in preserving the secrecy of jury deliberations.
Distinguishing between outright nullification and a juror's
honest doubts about the government's case is not easy. Thus,
while affirming the authority of judges to admonish or even
dismiss jurors after deliberations have begun, the appeals court
confined the power to extreme cases when there is "no
doubt" that a juror would not vote to convict regardless of
the evidence.
This sends a needed warning to deter jurors who may think they
have a right to intentionally disregard their sworn duty. But by
demanding a very high threshold of evidence before a judge can
even investigate possible nullification, the decision would
preserve the secrecy and independence of juries and their power
to rebel in rare cases of tremendous moral import, a critical
protection against government oppression.
The decision leaves unaddressed the problem many Americans think
of loosely as jury nullification but which is really something
deeper, and more subtle. That is the big gulf in how jurors of
different racial backgrounds and life experiences tend to
perceive the law and evidence, especially in cases that rely on
police testimony. Narrowing that gulf remains the jury system's
greatest challenge.
June 3, 1997
Drug Laws Help Foster Juror Rebellions
To the Editor:
In your May 27 editorial "When Jurors Ignore the Law,"
you say that the recent Federal Appeals Court ruling that grants
authority to judges to remove jurors who practice nullification
"leaves unaddressed the problem many Americans think of
loosely as jury nullification but which is really something
deeper, and more subtle.
That is the big gulf in how jurors of different racial
backgrounds and life experiences tend to perceive the law. . .
."
This is true, but it is not merely a matter of institutionalized
racism, or a perceptual divide between white and nonwhite
Americans.
The deeper problem is the disrespect for the legal system in
general, among both whites and black, that is fostered by the
criminal prohibition of drugs.
As happened during alcohol Prohibition, more and more jurors are
suffering moral qualms about enforcing Draconian antidrug laws
and are refusing to convict.
The case the Appeals Court ruled on grew out of such a drug case.
Paul Butler's article in the Yale Law Review argued that there
should be a presumption in favor of nullification in nonviolent
drug cases.
In Colorado recently, a juror was convicted of contempt of court
as a result of her refusing to vote to convict in a
methamphetamine case.
If jury nullification threatens the rule of law, it is because
the so-called war on drugs has created judicial injustice too
severe for citizens to accept.
The rising tide of jury nullification speaks to the extreme of
our drug laws, and the corrosive effect they are having on our
system of justice.
AARON D. WILSON
Associate Director, Partnership for
Responsible Drug Information
New York, May 27, 1997
Essence of Democracy
To the Editor:
With regard to your May 27 editorial "When Jurors Ignore the
Law," there is nothing jurors do in invoking nullification
that district attorneys do not do in deciding not to prosecute
certain cases.
The fact that district attorneys are allowed to do so while
jurors are not is the merest bureaucratic quibble.
To require that jurors ignore their sense of morality is to put
them in the position of being unable to distinguish right from
wrong; that is, to make them "insane" and so
"incompetent." Certainly, jury nullification can result
-- and has resulted -- in enormities; but the essence of
democracy is that on the whole, ordinary people can be relied on
to make wise decisions.
JOHN K. LUNDE
Orono, Me., May 27, 1997
Nonpolitical Feedback
To the Editor:
The concept of jury nullification referred to in your editorial
of May 27 is enshrined in Indiana's State Constitution, and order
has not broken down. The Indiana Supreme Court has held, in cases
from 1878 to the present, that jurors "are oath-bound to
find the facts honestly and accept the law faithfully as both
exist, and . . . return a verdict which you find just and proper.
. . ."
It is in "good conscience" that jurors pass upon the
circumstances of a defendant.
Being the last pronouncement of the community standard,
legislation is sometimes out of step or behind the times, since
the community standard is forever evolving.
Fully informed jurors, by their verdicts, send legislators
non-political democratic feedback about the laws they have
enacted, which is essential for the proper functioning of our
Republic.
R. J. TAVEL
Indianapolis, May 29, 1997
The writer is a lawyer.
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