Oftentimes, while a prosecutor is selecting a jury, he or she will scan the jury pool and seek out someone wearing a brightly colored shirt. Let’s say it is red. Let’s say the prospective juror wearing the red shirt is named Mrs. Jones.
“Mrs. Jones,” the prosecutor will ask, “what color is your shirt?”
“Why, it’s red,” she will answer.
“Mrs. Jones, what if I were to tell you that there is a law that says it is illegal to wear a red shirt in the courthouse?”
Mrs. Jones looks confused, looks around, perhaps afraid one of the bailiffs is about to slap her into cuffs.
“Don’t worry, Mrs. Jones,” the prosecutor will smile, “There is no such law.” The prosecutor will then turn to another prospective juror.
“Mr. Howard,” the prosecutor asks, “If the evidence were to show that Mrs. Jones is indeed wearing a red shirt, and keep in mind she has already confessed, [a few of the other jurors giggle at this point], would you have to find her guilty or not guilty?”
“Why, guilty, I suppose,” Mr. Howard will dutifully answer.
The prosecutor will then address all the jurors and ask “Can all of you agree to follow the law, even if you don’t agree with the law, and find Mrs. Jones is guilty of wearing a red shirt?”
Nine times out of ten there will be unanimous assent from the jurors.
Sometimes, however, one brave soul (Ms. Reynolds, let’s say) will raise their hand and say, “I’m not going to find her guilty of wearing a red shirt. That would be a ridiculous law.” The prosecutor will then remind everyone that it is not their job to decide which laws are good or bad laws, but to follow the law as instructed by the judge.
If Mrs. Reynolds persists in her moral stance that no one should be found guilty of the crime of red shirt-wearing, and that the law is profoundly silly, she will not be chosen for the jury. Some other person who has no problem with potentially sending people to prison for wearing red shirts will take her place.
If I, as the defense attorney, were to tell the jury that they could find my client not guilty if they disagreed with the law, I could find myself dragged from the courts and facing a contempt charge. You see, I would be going down the road of encouraging juror nullification.
Prosecutors love to tell jurors that they have to “follow the law.” They will ask jurors dozens of times during jury selection if they can “follow the law.” It is their favorite question to ask, especially in drug possession cases. They want to weed (pardon the pun) out anybody who would refuse to potentially send someone to prison for possessing illegal drugs. A lot of people feel this way, and if they are honest about their feelings, they will not end up on a jury. They cannot “follow the law.”
Jury nullification occurs when a jury acquits someone despite the fact the evidence clearly indicates beyond a reasonable doubt that an accused is guilty. Juries do this because they think the law is unjust or being applied unfairly. A large part of jury selection, for the prosecutor and sometimes for the judge, is identifying potential nullifiers in the jury pool and ensuring they never see the inside of the deliberation room. A the end of the trial, the Judge will instruct the jury that “You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.” This is a standard instruction given in nearly all criminal cases in Florida. Sometimes, as I have seen, a judge will take it even further and tell them, in an intimidating manner, that if they decide a case against the evidence they are breaking their oath as jurors.
The irony here is, of course, that the jurors are free to decide the case anyway they see fit. They don’t have to follow the law. They can vote not guilty even if the defendant is on the stand admitting that the marijuana was his and proudly stating that, given the chance, he would possess marijuana again. I, as the defense attorney, am not allowed to tell the jurors that they have this power to nullify. See Harding v. State, 736 So. 2d 1230, 1231 (Fla. 2d DCA 1999). So, while the prosecutor is babbling on about red shirts and the judge is telling them that it would be a miscarriage of justice if they failed to follow the law, I have to sit on my hands and bite my tongue. I am not allowed to argue that the law itself is unjust and that a true miscarriage of justice would occur only were they to follow the law.
Jury nullification has a long history in this country. Anyone can Google quotes from the founding fathers of this country speaking authoritatively on the power of the jury to decide not only the facts of the case, but the rightness of the law. In Florida, jury nullification is more commonly referred to as a jury pardon. Despite the evidence in a given case, the jury has the power to “the jury has the power to “temper justice with mercy” by exercising its discretion to reduce the charge to a lesser
offense or to simply find the defendant not guilty.” Potts v. State, 430 So. 2d 900, 903 (Fla. 1982).
I am inspired to write about this today because I recently learned of the twenty-year effort in New Hampshire to allow defense attorneys to argue for nullification in criminal cases and even to require that courts instruct juries of their right to nullify. Recently, the New Hampshire House passed a bill that would require judges to recite a specific instruction informing jurors of their right to nullify. It died in the Senate. A similar effort in 2012 had the life sucked out of it through weakened language before ultimately a New Hampshire Supreme Court case delivered the death blow. See State v. Paul, 104 A.3d 1058 (N.H., 2014). Similar legislative efforts to inform juries of their power are also underway in Utah and Oregon.
I do recognize that the power of the jury to nullify could be used in both positive and negative ways. Certainly, there were murders committed during the Civil Rights era where the murderers walked due to jury nullification. Likewise, Northern juries walked people accused under the Fugitive Slave Acts prior to the Civil War. What seems strange to me though is the charade of pretending that juries must follow the law and ignore their own personal sense of justice; telling them this repeatedly when it seems it is the opposite of the truth.
What about you? Can you follow the law? Is poor Mrs. Jones going to the hoosegow for the crime of wearing a red shirt?
If you want to know more, especially about people who have been arrested for telling jurors outside the courthouse about their right to nullify, as well as other perspectives on the issue, here’s an interesting recent podcast on nullification. http://www.radiolab.org/story/null-and-void.