If you were on a jury, hearing a case where a man was on trial for murder – the murder of a man who had raped and beaten his daughter – what would you do? Even if the evidence supported the prosecution overwhelmingly, even if the defendant admitted the killing – what would you do? Plenty of folks would have a hard time blaming the father. That is why jury nullification is a real thing, and in fact part of a jury’s duty, even if plenty of prosecutors disagree. Excerpt:
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.”
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.
In fact, jury nullification is the ultimate expression of a free citizenry exercising their veto power over agents of government – their employees. The law is frequently an ass, and the “system” frequently has little to do with justice. Every free, responsible citizen has the right to determine what justice is, and every citizen called to serve on a jury has the right to see justice done. And yes, sometimes that justice isn’t what the law says. Sometimes it is what is right.
Objective laws should only deal criminally with those accused of the initiation of the use of force or fraud. In my scenario above, the enraged father was not initiating force, but responding to it; and yet the law, being an ass, says he is guilty of criminal homicide.
Plenty of people – and jurors – might disagree. That’s why jury nullification is important; it’s a fundamental check on government. That’s also why prosecutors and judges generally hate it.