Legal Agility

Over at the Washington Post, Gene Weingarten discussed his temptation towards jury nullification during his recent experience as an alternate juror. It’s an interesting article, and I just want to add a few comments to the discussion on jury nullification.

Actually, let’s start by defining it: jury nullification is when a jury acquits a defendant despite believing that the defendant technically violated the law. This has historically been a form of protest against bad laws by the people, but has also been used to uphold discrimination, such as when white juries acquit white defendants who mobbed and murdered black victims. Law geeks talk about it a lot, but there’s no reason to believe it actually happens much at all. Not that we can ever really know.

There remains some debate over whether jury nullification is a power that juries really have, or should have. No one seriously argues that juries can’t nullify, but people do frequently argue that they shouldn’t nullify, and shouldn’t even be told that they theoretically could do so.

Jurisdictions differ on that. Personally, I’ll never forget a trial I had in New York where a juror was excused for cause simply because she got up and asked the judge about jury nullification.

If you’re interested in reading about the history of jury nullification, I strongly urge you to read Lysander Spooner’s An Essay on the Trial
Jury. He argued that jury nullification is a right that was initially claimed by the people as against the government in the Magna Carta:

The barons of England, sustained by the common people, having their king in their power, compelled him, as the price of his throne, to pledge himself that he would punish no freeman for a violation of any of his laws, unless with the consent of the peers that is, the equals of the accused.

The question here arises, Whether the barons and people intended that those peers (the jury) should be mere puppets in the hands of the king, exercising no opinion of their own as to the intrinsic merits of the accusations they should try, or the justice of the laws they should be called on to enforce? Whether those haughty and victorious barons, when they had their tyrant king at their feet, gave back to him his throne, with full power to enact any tyrannical laws he might please, reserving only to a jury (” the country”) the contemptible and servile privilege of ascertaining, (under the dictation of the king, or his judges, as to the laws of evidence), the simple fact whether those laws had been transgressed? Was this the only restraint, which, when they had all power in their hands, they placed upon the tyranny of a king, whose oppressions they had risen in arms to resist? Was it to obtain such a charter as that, that the whole nation had united, as it were, like one man, against their king? Was it on such a charter that they intended to rely, for all future time, for the security of their liberties? No. They were engaged in no such senseless work as that. On the contrary, when they required him to renounce forever the power to punish any freeman, unless by the consent of his peers, they intended those powers should judge of, and try, the whole case on its merits, independently of all arbitrary legislation, or judicial authority, on the part of the king. In this way they took the liberties of each individual and thus the liberties of the whole people entirely out of the hands of the king, and out of the power of his laws, and placed them in the keeping of the people themselves. And this it was that made the trial by jury the palladium of their liberties.

Weingarten considered jury nullification because he believed it was more important to punish the police officer for lying than to punish the defendant for committing the crime. I think Spooner would be proud.

Mark Bennett wrote a great summary of the discussion on justice and criminal defense that has been going around the legal blogs lately. Personally, my favorite post this time around was Gamso’s, but they’re all worth checking out. It’s a timely discussion for me, because a dear friend of mine asked me again recently how I can bring myself to defend guilty clients. (It’s always a timely discussion, really. I hear this question a lot.)

“All my clients are innocent!” I told her, laughing, but gosh darn it, she wanted a serious answer. She’s asked about this before, and I’ve gone through a whole laundry list of answers for her every time. None of them are really how I justify it to myself, but maybe I’ll chance upon one eventually that helps her understand.

I can explain that I’m not a retributivist, and I don’t really see how putting even guilty people in prison does any good for anyone. I can argue that only by defending guilty clients can we obtain judicial decisions that protect everyone’s civil rights. Or add that we’re all guilty of something, given how far-reaching criminal law has become. I can point out that I can never know who is truly guilty or truly innocent, and I’d rather fight for a guilty person to go free than for an innocent person to be imprisoned. I can even suggest that we have faith in the system, but not with a straight face.

It’s like trying to explain your feelings, though. Why do you feel the way you do? You don’t really know. When your spouse or parent or therapist asks, you may try to explain, but if you’re honest with yourself you’ll realize that you’re just making it up as you go along. I can try to explain why I have no qualms about criminal defense, but when it comes down to it, I simply know where I stand.

I don’t like hurting people. Is that so hard to understand? When I go to bed at night, I can sleep easily, knowing that I fought for freedom, and for less suffering rather than more. That I stood by someone accused so that he would not have to stand alone.

I can’t know whether anyone is truly guilty or innocent, or what they deserve, and frankly, I don’t care. We all deserve at least one person on the damn planet willing to stand there next to us and fight on our behalf.