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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