July 29, 2005
Null Justice

We've all heard about "runaway juries", who on their own initiative and in direct contradiction of evidence and law find a defendant innocent. Such juries are portrayed as menaces to both justice and society, ignoramuses with no real understanding of logic, let alone law, held up as poster children for why the "common man" needs protection most of all from himself. Which is, as with most elitist rhetoric, not only wrong but utterly ignorant of how the system works:

The doctrine of jury nullification rests on two truths about the American criminal justice system: (1) Jurors can never be punished for the verdict they return, and (2) Defendants cannot be retried once a jury has found them not guilty, regardless of the jury's reasoning. So the juries in both the Rosenthal and Paey cases could have returned a "not guilty" verdict, even though Paey and Rosenthal were undoubtedly guilty of the charges against them.

This may sound radical, perhaps even subversive, but jury nullification serves as an important safeguard against unjust laws, as well as against the unfair application of well-intended laws. It's also steeped in American and British legal tradition.

Yes, it's a Fox News site, so some of you may need to put on welding goggles to make sure your eyes don't burn, but this is emphatically not the first time I have read about this phenomena. Histories and discussions of the evolution of common law (especially in the seventeenth and eighteenth centuries) revolve around the rise of independent juries as a cornerstone of an independent justice system. Far from producing chaos and collapse, they were a lynchpin in the train that carried first Britain and then America from tyranny to liberty. We have only forgotten how important this expression of individual freedom is. It's time we started to remember.

Posted by scott at July 29, 2005 09:05 AM

eMail this entry!

Nullification certainly worked well in the OJ trial, don't you think?

Posted by: Pat on July 29, 2005 09:43 AM

Not the same thing. OJ was found innocent because the LA DAs couldn't convict a jaywalker, let alone a murderer. The article is talking about juries having a long tradition of finding defendants innocent when the laws they have broken are wrong.

Stasists, prosecutors, and beauracrats immediately decry this stance as vigilantism in a courtroom, but that's because they have a vested interest in maintaining their own power. History, however, shows that such initiative typically does not result in a miscarriage of justice (the Jim Crow South being a notable exception), quite the opposite in fact.

Posted by: Scott on July 29, 2005 10:00 AM

Personally, I have to agree. As someone who'll likely be a jurist here next month, I'm obligated to act within my consience and return the appropriate verdict - regardless of what every other jurist things, the judge, or the public thinks. If I happen to get a case where the law is incorrect (straw man argument of the day - there are laws that prohibit private bathing still on the books. In some places it's actually illegal to have a bathtub inside your home), I'll have to cast my vote with my consience - which may or may not be in accordance with the letter of the law. Of course, I'm probably going to get some white collar criminal who deserves everything they get, but still...

Posted by: ronaprhys on July 29, 2005 10:10 AM

I read the article after I made a comment. No nullification was involved siad they would have nullified if they had all the information. I can't get passed the OJ trial. That jury would have found him innocent if they had been shown a video tape of the murder. Of course I am beginning to believe that would be the case for any jury of a celebrity in California.

Posted by: Pat on July 29, 2005 10:22 AM

I actually served on two juries that involved murder cases about six years ago. I was stunned that I was picked to serve since I was educated and very opinionated. I guess I just look like a harmless little ole gray haired grandma. I believe in death for breakinhg and entering. lol

Posted by: Pat on July 29, 2005 02:32 PM

and you've threatened me with a stick on more than one occasion...

Posted by: ronaprhys on July 29, 2005 03:15 PM

And will continue to do so if you don't behave. lol

Posted by: Pat on July 29, 2005 03:34 PM

Scott, I tried another trackback on this one, no luck again.

Ping 'http://www.amcgltd.com/archives/007562.html#trackbacks' failed: HTTP error: 405 Method Not Allowed

I covered a couple of reasons why I think it's a bad idea in my post for your consideration. Click here.

Posted by: ManDrake on July 30, 2005 11:16 AM
Post a comment

Email Address:



Remember info?