Jury Nullification

Can a jury refuse to convict in a Malicious Prosecution or any other? It can. It does when black jurors want to keep their own out of prison. Is it legal? Possibly not. Can a judge stop it? He can misdirect the jury but that is about it. But see what an English lawyer has to say at Jury Nullification

From http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html

Jury Nullification
by Doug Linder (2001)
What is jury nullification?
Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

When has jury nullification been practiced?
The most famous nullification case is the 1735 trial of John Peter Zenger, charged with printing seditious libels of the Governor of the Colony of New York, William Cosby. Despite the fact that Zenger clearly printed the alleged libels (the only issue the court said the jury was free to decide, as the court deemed the truth or falsity of the statements to be irrelevant), the jury nonetheless returned a verdict of "Not Guilty."
Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws. In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.

More recent examples of nullification might include acquittals of "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders.

Do juries have the right to nullify?
Juries clearly have the power to nullify; whether they also have the right to nullify is another question. Once a jury returns a verdict of "Not Guilty," that verdict cannot be questioned by any court and the "double jeopardy" clause of the Constitution prohibits a retrial on the same charge.
Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.

Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power.

Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.

If jurors have the power to nullify, shouldn't they be told so?
That's a good question. As it stands now, jurors must learn of their power to nullify from extra-legal sources such as televised legal dramas, novels, or articles about juries that they might have come across. Some juries will understand that they do have the power to nullify, while other juries may be misled by judges into thinking that they must apply the law exactly as it is given. Many commentators have suggested that it is unfair to have a defendant's fate depend upon whether he is lucky enough to have a jury that knows it has the power to nullify.
Judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies. They suggest that informing of the power to nullify will increase the number of hung juries. Some judges also have pointed out that jury nullification has had both positive and negative applications--the negative applications including some notorious cases in which all-white southern juries in the 1950s and 1960s refused to convict white supremacists for killing blacks or civil rights workers despite overwhelming evidence of their guilt. Finally, some judges have argued that informing jurors of their power to nullify places too much weight on their shoulders--that is easier on jurors to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws.

On the other hand, jury nullification provides an important mechanism for feedback. Jurors sometimes use nullification to send messages to prosecutors about misplaced enforcement priorities or what they see as harassing or abusive prosecutions. Jury nullification prevents our criminal justice system from becoming too rigid--it provides some play in the joints for justice, if jurors use their power wisely.

Zenger Trial Homepage

**What is jury nullification?**
Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

**When has jury nullification been practiced?**
The most famous nullification case is the 1735 trial of John Peter Zenger, charged with printing seditious libels of the Governor of the Colony of New York, William Cosby. Despite the fact that Zenger clearly printed the alleged libels (the only issue the court said the jury was free to decide, as the court deemed the truth or falsity of the statements to be irrelevant), the jury nonetheless returned a verdict of "Not Guilty." Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws. In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws. More recent examples of nullification might include acquittals of "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders.

**Do juries have the right to nullify?**
Juries clearly have the power to nullify; whether they also have the right to nullify is another question. Once a jury returns a verdict of "Not Guilty," that verdict cannot be questioned by any court and the "double jeopardy" clause of the Constitution prohibits a retrial on the same charge. Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed. Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power. Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law. Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.

**If jurors have the power to nullify, shouldn't they be told so?**
That's a good question. As it stands now, jurors must learn of their power to nullify from extra-legal sources such as televised legal dramas, novels, or articles about juries that they might have come across. Some juries will understand that they do have the power to nullify, while other juries may be misled by judges into thinking that they must apply the law exactly as it is given. Many commentators have suggested that it is unfair to have a defendant's fate depend upon whether he is lucky enough to have a jury that knows it has the power to nullify. Judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies. They suggest that informing of the power to nullify will increase the number of hung juries. Some judges also have pointed out that jury nullification has had both positive and negative applications--the negative applications including some notorious cases in which all-white southern juries in the 1950s and 1960s refused to convict white supremacists for killing blacks or civil rights workers despite overwhelming evidence of their guilt. Finally, some judges have argued that informing jurors of their power to nullify places too much weight on their shoulders--that is easier on jurors to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws. On the other hand, jury nullification provides an important mechanism for feedback. Jurors sometimes use nullification to send messages to prosecutors about misplaced enforcement priorities or what they see as harassing or abusive prosecutions. Jury nullification prevents our criminal justice system from becoming too rigid--it provides some play in the joints for justice, if jurors use their power wisely.

Jury Nullification - An Englishman writes
A good jury, a competent jury judges facts, it judges law. It acquits if either is found wanting. Given the amount of bad law it should happen more often. It might, with decent luck happen when Emma West comes to trial, if it happens at all. Here a barrister waffles but gets it about right.

From http://libertarianalliance.wordpress.com/2013/03/06/jury-nullification-a-barrister-writes/

Jury Nullification - A Barrister Writes

Jury Nullification: A Barrister Writes
by Howard R. Gray

Juries have a duty to try the case according to the law: this is trite. The judge is the tribunal of law, and the jury is the tribunal of fact: that is the simple rule of how criminal law works, and also just as trite. Judges in England are allowed broad scope to direct juries on the law and often put forward their views of the facts usually pre-seasoned with the exhortation that it is “up to you ladies and gentlemen of the jury” about any particular point they deem in need of comment.

That being said, there is a plethora of rules that they must use to put to a jury about particular points of law and about the standard of proof that must always be there in their directions. For example the “you must be satisfied beyond a reasonable doubt” and “satisfied so that you are sure”, then they go on to give examples. There are the Turnbull directions on corroboration of witness testimony and so on. Each factual element that has a contentious nature must be directed upon in the judge’s homily to the jury at the end of the trial. Failure to adequately direct a jury can result in the verdict being set aside on appeal. Jurors needn’t be too worried that justice will be denied; appeals are often successful.

There is an apocryphal story heard allegedly at the Snaresbrook trial centre in the East End of London of a dialogue between two jurors in the old days at the trial centre in the gents while at the urinals. “Oi mate whad yu think about the evidence then squire?” “Not much guv, seems ee did it though whad you fink?” “Yeah! Fink ee did too!” “You goin to convict?” “Nah didn’t much like the judge did you?” “Nah guess not. Don’t seem right to send the blighter down fa that.” “Yea! Lets get back to the jury room, now weeze knows whats the right fing to do.”

Jury nullification is never far beneath the surface of the system, but it may not always come out as obvious. I have defended a number of cases where there were perverse verdicts of acquittal; it happens regularly and isn’t that unusual. I recall being in an eleven handed case with ten black defendants and two white defendants, when we, the defending barristers, used every one of our peremptory challenges to get most of the white people off the jury panel just to get enough black peers on the panel. I recall the days after this sort of thing went on daily when the concept of being tried by your peers was deliberately attacked at Snaresbrook by bussing in jurors from Knightsbridge to hear east end cases. Talk about a jury of your peers! They just didn’t wear their ermine for their day out in the east-end to wreak justice upon the plebs!

Jury nullification didn’t happen in that case but it could have been an issue as there were too few black people (two to be precise) on the jury selection panel thus the artifice of challenging nearly all the potential jurors was needed to get only one on the jury initially. The usher deliberately kept the other one further down the queue as each juror was presented for empaneling. This sort of behavour isn’t that uncommon in one form or another and would be a good cause for throwing a trial. In the final analysis the other black person was sworn in as a challenge for cause was made to ensure the only two black people eventually served on the jury.

One of my mentors, now sadly passed on, Sophie Craven Barrister at Law, used a simple example about circumstantial evidence. Imagine you are on a street in one of England’s great county towns and you see a man walking down the street and you see he has a lead pipe over his shoulder. You will probably think nothing of it. Consider for a moment. PC Plod of Noddy fame steps out from the police station and surveys the same scene; what conclusion does he draw? This man is a burglar and lead pipes and burglars somewhat go together don’t they? Evidence may be circumstantial but you must use your common sense but just whose common sense do you use? Judges use these stories to demonstrate what they mean about how to handle evidence and arrive at some rational conclusion during their directions to juries. Juries need the directions to understand what to do and how to do it. Nullification isn’t a big deal when a jury decides to throw a case, that is their privilege. It is probably best they say nothing to the press afterwards as it only encourages the naysayers. A jury may disagree with the process however well they are directed, and that should always be permitted. It is very rare that blatant jury nullification happens in spite of the facts, so it isn’t a real concern in the larger picture of how the system works.

Never forget that learned judges are often wrong on the law and on their view of the facts in their directions at the end of the trial, let alone their miss-handling of the trial itself; all being grounds for appeal. Deliberately and cantankerously failing to reach a verdict might verge on contempt of court, but in the usual course of things, a jury failing to reach a verdict isn’t that unusual. The confidentiality of the jury room is sacrosanct and fundamental to the system and the only true protection from tyranny we have in the criminal law.

Nullification is simply an outcome that can happen and should not be seen as remarkable, for it is provided for and should be respected. The fact that our lords and masters in some quarters want to abolish juries is nothing new. Of course they do; that’s what they do. No surprises there! We have the advantage of not being back in the days of Judge Jeffries who threatened to jail the jury because he didn’t appreciate how long they were taking to reach a verdict. Jury nullification would have been dead risky in those days! Nullification may be a loud message to the political class that a particular issue isn’t acceptable as “the law” and needs attention by parliament. So be it.

Sound justice requires the potential for a case to be thrown for whatever reason, and it should always be available, however inconvenient. This is the safety valve in the criminal justice system and should never be abolished. Juries! You may love ‘em or hate ‘em but they are the best thing about the system. Remember compurgation and trial by battle? These were truly awful ways to do criminal law business along with the ducking stool. Single judge panels without juries trying cases would be a retrograde step; especially as judges are now required by the Home Office to go to Judging School for “sensitivity training” and the like. The jury is a vital bulwark and must always be there with the benefit of nullification.

Then of course there is the majority verdict direction when there is deadlock in the jury room. This is a dubious concept, but it is the law. One could go on about that for another page or two. Majority verdicts probably, like it or not, avoid jury nullification for the most part.

One other thing, jury service is compulsory and thus immoral per se as presently conducted. Don’t be taken in by the civic duty nonsense: it is coercive and is repugnant. A proper hourly rate should be paid for jury service commensurate with the pay rate that each juror enjoys in the open market. If this were the case there would be few who would avoid jury service; sadly currently most potential jurors attempt to avoid being empaneled simply because of the personal cost and inconvenience of service on a jury.

My late wife Marilyn was regularly called for jury service in Brooklyn. She always consciously turned out time and again, only to be removed on the voir-dire pre-trial juror interrogation as she was married to an English barrister. Thus she was assumed to know too much about the law. The system here in the states has nullification of jurors too! Though not yet quite like this in England… so far.