Jury Nullification: A Call for Justice or an Invitation to Anarchy?

• Author: Lmutenant Commander Robert E Korroch, Major Michael J. Dauidson
• Pages: 03

If a jury possesses . . [the power to nullify1 as a "nght," it 1s illogical that it 1s not so instructed How can the jury exercise its nght to pardon if It 18 Ignorant of it and is told quite to the contrary by the standard instructions?l

I Introduction

Axiomatically, a jury2 in criminal cases "has the power to bring in a verdlct in the teeth of both law and facts "3 The jury possesses a general veto power and may acqut when it has no sympathy for the Gavernment'a case," no matter how overwhelming the evidence of guilt.5 A jury acquittal 18 final and unreviewable, a Judge may not direct a jury to convict or vacate

-United States Coast Guard Presently assigned as Staff Legal Offlcer. US. Coast Guard Reserve Trs~nmg

Center, Yorktow. Vlrgmma B S US Coast Gvard Academy. 1961, J D , hlar%hall.WHhe School of Law. C&e of Wlllmm and.Vary. 1988

**Judge Advocate Generah Corps, US Army Presently assigned ta

Llllgafmn Dlnsmn. U 6 Arm? Legal S e ~ ~ c e s

Agency

'Keenan v Star*, 319 Sa 2d 147, 148 (Fls App 1880)$Far purpaaea of thlr article the author3 USB the clnlmn term "jury" interchangeably with m mrhtary equmlent the "panel "

'Hornmg Y Dlatmt of Colvmbla 254 US 136, 138 11920). Enrted States v Trujdlo. 714 F Id 102. 105 (11th Cir 19831. ~ e s d m Berkmth Y State. 386 Sa 2d 885. 842 (Fla App. 1960)

'Umted States Y Wdaan. 529 F 2d 439, 443 16th Clr 1980)'A court does not have the power to order the jury to return a verdlet af guilty, even in the face of avewhelmmg emdence af guit Umted States Y Spaek, 415 F 2d 165, 180 (1st Cir 1969). Cf Smeleher Y Affarney Qen of Ala, 947 F 2d 1472, 1476 (11th Clr 1991, ?'It xa beyond diapvte thet L judge may not drrect B verdict of guilt? ~n a criminal jnry trial") As an dlustratlan, J Y ~ O T B

~n the fnal of

Washington, D.C'a former mayor Barry, stated that the? knew he was gu~lty of several charges, but ranneted him of mi? m a charge because they bellel.ed the government unfalrl? had targeted Barr? on racial grovnds Courtroom Putsch? Jurors Should Raaef Lairs The? Don't Like. Aciruul Omup Arguea WUL Sr J Jan 4, 1991. sf 4. c d 2 [hereinafter Courtmorn Pvlschll see dlm D C .Ma; Acquitled Br R m d Sympathy Cuiliy ~n 2nd Murder, WAS%. Porn, Jvly 27, 1991, at 83, COI 4

an acquittal, nor may a prosecutor appeal an acquittal an grounds of judicial error or erroneous jury determination 6 Judges have little, if any, control over criminal jury acquittals 7 As the United States Court of Appeals for the Fourth Circuit noted in Unrted States u Moylan,s "If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, OT for any reason which appeals to their logc or passion, the jmy has the power to acquit, and the courts must abide by that dec~mon."$

Jury nullification is not a "defense" recognized by the law,

but rather is a mechanism by which a jury, acting as the community conscience, effectively LS permitted to disregard the letter of the law by determining that applying It to a particular case would not be justified 10 More specifically, nullification occur8 when a jury finds that the defendant 18 technically guilty of the charged offense, but deliberately refuses to render a conviction Accordingly, jury nullification arms under circumstances identical to those that would lead to a directed verdict in a c d tnal.lx Under a hypothetical "directed conviction" standard, a precondition to jury nullification would be the judge's determination that no dispute as to the facts existed, making the defendant guilty as B matter of law.13 The absence of the facility to render a directed conviction in criminal cases therefore gives rise to the possibility of jury acquittals, notwithstanding a defendant's otherwise veritable guilt

'Weinberg-Bradt. "Jury Nullification And Jury Contra1 Procedures: 55 XY U L REV 825. 828 r199Ol ,citations omitted1 The nullificarmn power LIattnbutable to the cr~mmal

~u'y'b nEht to rerun a general rerdlct whmh d m

not

speclfy how It apphsd the Isw to the facts, and the ~ ~ n m f ~ f m n d bar agalnrr

double jwpsrdy Bsllard , Unbe, 716 P 2d 624. 647 CCal 1986, (Bird, C J,direenling and concurrmg,, Stale v Lane, 629 SW2d 343, 345 (Yo 19821 senbane) [power exists 'becavse once the verdict 11 enrered It cannot be impeached and the defendant retried1

'Wemberg-Bradt, dvpia nore 6 nt 828. se# elso People Y Dillon. 568 P 2d 597, 729 lCal 1983~ (Ksus, J. mncurnng! Uury IS immune from legal sanctions for rendering a perverse acquittal)

&417 F 2d 1002 (4th Cir 19691'Id at 1006-%mted States Dougherty. 473 F2d 1113. 1140 IDC Cir 19721 (Barelon, C J diasentmg)

-'See Smythers Equilaklr Aequillds Piedmiion And Preporution Pimnf Past-Panel Prediramenia, Amw LAW. Apnl 1956. at 3 (author opmea that nvlhficafm occurs mort frequently in the milifsri setting at spee~al courts-martial mvolnng minor offenses in which the caniequence of convxrm-that 18, mnmg the career of an otherwm good soldler--often appears uwusti

"Weinberg-Brodf. supra note 6. at 826 & n 1 lLId at 825 n 1

Although jury nullification OCCUTB mfrequently,'4 the prevadmg judicial opinion steadfastly has been apposed to permitting the jury to know that it has the power to acquit "in the teeth of both the law and facts."15 This article examines the historical precedent of jury nullification; the current case law addressing the issue; various arguments opposed to, and in favor of, a jury nullification instruction, and the permissibility of nullification argument. Additionally, this article advances the propositions that a court has the discretion to permit both an instruction and nullification argument; and, under the proper circumstances, a carefully structured instruction would serve the ends of justice wthout opening the courthouse doors to anarchy. Further, this article proposes an addition to the prefatory instructions on findings that, if permitted, would inform the jury-r court-martial panel-f its power to acquit the accused when the members cannot in good conscience support a guilty verdict.

I1 Historical Perspective

A Early Precedent

The legal tradition of the jury as the protector of the rights of the accused Ln a criminal tnal 16 deeply rooted in common law and predates the arrival of the first English colonists to Amenca's shores. The jury's veto power often IS traced to the acquittal of Sir Nicholas Throckmorten, charged with high treason, in 1544.16 In

"In 198 of all cnmmal trial& tried before a jury. lune8 acquit defendanta whom judges would have esnwctsd Of this number. only 21% are attnbuted to jury nullrfleatmn. Id at 828 n 5 (citing H h v ~ n

& H ZEISEL, THE AMERZCU~

JURY 58, 116 (1986)). Studies show that juriea are moat lenient wlth defendants who exceed the bounds of law while acting ~n re1f.defenae. such 88 bstfEred wwes, and with street crime mctrms who retelrate against their attackers Courtroom Putsch?, supra note 5, at 4, eo1 2 One mihtaryiudge has hated the common trait. concerning military defendanta who were acquitted at speaal courts.mart~a1 8s fallows 11) the accused was mewed as B vwtim, (21 the accuaed appeared 81 anercellmt soldier, (31 the victim or an esaentlsl Government mtness presented anunfavorable character from a mditary pomr of mew, and (4) the accvaed had B tremendovs amount to lose if canmcted eueh 88 many years of honorable semee, retirement pay, 01 income for family 6upporf Smythera. supm note 11. at 5.6.

"No federal emuit or military appellate court has mled m favor of a

nullification matrucfian. WYemberg.Brodf, supra note 6. at 837 n.74. United States

Y Schroeder. 27 M J 87, 90 (C M A 19881, United States v Smith. 27 M J 25 29 (C M A 19881, United States Y Mead, 18 M.J 270. 275 lCMA 1983) rWile c~1~1llanjunesand court-martial members always have had the power to dmegard instrvctiona they need not be advlred 81 to fhm power. even npon reqvest by a defendant"), cf Williams Y Cammonwealfh, 644 S.W 2d 335, 339 (Ky 1982) (court refuaed to give ovllrflcallan mstructmn). Ballard v Unbe. 715 P 2d 624, 647 lCsl 1986) (Bird. C J 1 ("this court has never approved of jury nullificatmn"1

"Thrackmorten'i participstian ~n Wyatt B Rebdlion was beyond doubt. but hs was pd~tically popular with the wry that acquitted hm "From now onwards the jury emera 00 a new phaie of Its history. and for the next thres centunea It

1670, a London jury refused to fallow the judge's instruction to convict William Penn and William Mead for preaching to an unlawful assembly For their disobedience, Buahell and the other IUI'OTS were fined and Bushell jailed,'a still insisting on the

right to make the final determination of the guilt or innocence 01 the accused.

In Bushell'i Case,1e Bushell filed a habeas corpua petition, seeking his release. Holding that jnior~could never be punished for their verdicts, Sir John Vaughan, Chief Justice of the Common Pleas-after holding a conference on the matter with all the judges of England-released Bushell Bushell's release effectively vindicated the absolute power of English juries to nullify without fear of pumshment.20

Colomal American juries penodieally refused to convict violators of British laws, regularly refusing to enforce navigation acts designed to funnel all eolomal trade through England. The subsequent British eaelusmn of colonial juries from mantime cases was a source of peat bitterness among the colonists and provided one of the many grievances that eventually led to the American Revolution 21

Jury nullification was common during the early nineteenth century in prosecutions for seditious statements. In particular. It proved to be an important tool for abolitionists in antebellum America, who often were charged with violating the fuetive slave laws.22 Acquittals in these case8 proceeded from the belief that,

wll exemme 1t6 power af veta on the me of the crlmml law sgamst pohtsal oflenders who have succeeded ~n obtaining popular sympathy" Wilson. 629 F2d at 443 (cmng P ~ o c m ~...