Jury Nullification: Calling For Candor From the Bench and Bar

• Author: Major Bradley J. Huestis
• Pages: 02

68 MILITARY LAW REVIEW [Vol. 173

JURY NULLIFICATION:

CALLING FOR CANDOR FROM THE BENCH AND BAR

MAJOR BRADLEY J. HUESTIS1

It is not only [the juror's] right, but his Duty . . . to find the Verdict according to his own best Understanding, Judgment, and Conscience, tho in Direct opposition to the Direction of the Court.2

1. Introduction

   This article addresses the controversial issue of jury nullification. Black's Law Dictionary defines jury nullification as a jury's "knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because a result dictated by law is contrary to the jury's sense of justice, morality, or fairness."3 It occurs when a jury returns a verdict of not guilty despite its belief that the accused is, in fact,

   guilty of the charge. In effect, the jury "nullifies" the charge because it believes the charge is either immoral or applied unfairly to the accused.

   As the Court of Appeals for the District of Columbia noted in 1972, "The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law."4 Although military panels differ somewhat from civilian juries, both have the power to nullify the law.5

   There are many circumstances under which jury nullification may be an issue in a military trial.6 Imagine, for example, a court-martial of a soldier who refuses to take anthrax shots. Other soldiers in the command, whose earlier refusals were widely publicized in the local media, received nonjudicial punishment and administrative separation for their misconduct. Now, fearing the continuing press coverage will somehow discredit

   his unit, the commander wants to "up the ante" to jail time and a federal criminal conviction.

   At trial, the panel members learn that the accused has served honorably for nineteen years. She earned combat parachutist wings in Panama, and she fought bravely in the deserts of Iraq. In the last four years, she has had seven miscarriages. Military doctors believe these miscarriages might be symptoms of "Gulf War Syndrome" related to her service in Operations Desert Shield and Desert Storm. The accused testifies that she loves being a soldier, but believes the anthrax program is dangerous and may hurt her ability to conceive a child. Through tears, she says she would rather face the humiliation of a court-martial for disobeying an order than take an anthrax shot.

   The military judge instructs the members that they each have the responsibility to "impartially resolve the ultimate issue as to whether the accused is guilty or not guilty in accordance with law, the evidence admitted in court, and [their] own conscience."7 After deliberating for nearly three hours, the members return to the courtroom and ask, "If we find that all the elements of disobeying an order are present, does that necessarily mean that we still have to find the accused guilty as charged?"8 How should the judge answer?

   Similarly, imagine a case in which a soldier is charged with rape, oral sodomy, and adultery. The accused and the self-proclaimed victim ended their date at the accused's quarters with late-night drinks and sexual activity. The complaining witness testifies that she consented to oral sex, but then said "no" to any other sexual activity. The accused testifies that although he is technically married, he and his wife are legally separated. He describes the sexual activity in question in detail, focusing on the complaining witness's willing participation. The accused steadfastly maintains that both the oral and vaginal sex were consensual.

   During closing argument, the defense counsel says the evidence clearly proves that no rape occurred. The defense argues that, under the circumstances, the accused should be found innocent of the rape charge

   and, in addition, not guilty of the adultery and sodomy charges.9 The trial counsel objects, asserting that "because the accused admitted to committing adultery and oral sodomy, the military judge should instruct the members that the government has proven each and every element beyond a reasonable doubt, and therefore the panel must find the accused guilty." The defense requests an instruction telling the members that "even if the prosecution met its burden of proof, no member may be forced to convict against his or her own good conscience." What should the military judge do?

   In most criminal jurisdictions, including the military, the bench and bar remain silent about the jury members' power to nullify the law.10 The Court of Appeals for the Armed Forces (CAAF) directly addressed the issue of jury nullification for the first time in United States v. Hardy.11 In

   Hardy, counsel requested instructions at trial similar to those requested in the latter scenario above. The CAAF held that the military judge properly refused the trial counsel's request to direct the panel to return a verdict of guilty. The CAAF also stated, however, that no right of jury nullification exists; it held that the military judge did not err in declining to give a nullification instruction requested by the defense.12 Although the CAAF answered whether military judges are required to give a jury nullification instruction, the court left unanswered the proper content of such instructions, if trial judges elect to give them. The CAAF also left unanswered whether counsel can argue for jury nullification.

   The CAAF's reasoning and holding in Hardy reflect the overwhelming majority of jurisdictions that distinguish between the jury's duty to adhere to judicial instructions and its raw power to acquit in the face of those instructions.13 This article offers an alternative solution: candor from the bench and bar. After reviewing the history and competing policies behind the concept of jury nullification, this article advocates allowing military counsel to argue the concept directly to the panel. When trial judges prohibit explicit argument, they simply drive arguments for nullification "underground." Faced with this situation, counsel can, do, and, in appropriate cases, should make veiled arguments to communicate jury nullification concepts to the members. This underground method of advoca

   ing nullification, however, leads to an unpredictable administration of

   justice.

   An alternative to court-imposed silence is to permit counsel to argue for nullification overtly and trigger a tightly worded, legally restrictive pattern nullification instruction. This honest, candid approach is a better way to address the tension between panel members' unreviewable power to acquit and their duty to follow instructions from the bench.14 This article concludes that the integrity of the justice system demands nothing less than complete frankness and candor from the bench and bar.

2. The History and Policies Behind Jury Nullification

   Courts in England and the United States have wrestled with the concept of jury nullification for hundreds of years. The official reports are sporadic, with courts and lawmakers attempting a variety of approaches to resolve the tension between jury power and judicial authority. This distinction between the jury's raw power to acquit and its duty to follow the instructions of the trial judge is the basis for the current state of American law.15

   Criminal trials by jury began in England around the year 1200 A.D.16

   In these trials, judges retained great power over the jurors. Even after the jurors announced their decision, the judge could force them to reconsider an "incorrect" verdict.17 If the jury failed to follow judicial instructions, the trial judge could fine the members or bring them before a Star Chamber for violating their oaths as jurors.18

   The first well-known jury nullification occurred at an English trial in 1649.19 Mr. John Lilburne, who opposed the rule of Oliver Cromwell, published pamphlets critical of the English government.20 English authorities prosecuted Mr. Lilburne for high treason, which then included the offense of expression of an opinion critical of the government.21 Mr. Lil-burne did not deny that his pamphlets and opinions were critical of the government; rather, he argued that the statute prohibiting his conduct was

   unlawful. During summation, he boldly argued that an English jury had the right to judge the law itself.22 Although no basis in law supported Mr. Lilburne's argument, the jury nevertheless acquitted him.23

   In another English trial twenty-one years later, Bushel's Case,24 Chief Justice Vaughan announced the principle of non-coercion of jurors. Justice Vaughan based this principal on his holding that judges may not punish or threaten to punish jurors for their verdicts.25 Vaughan's landmark opinion concluded a series of cases surrounding the prosecution of William Penn and William Mead for unlawful assembly and disturbing the peace.26

   After authorities closed their London meeting house, Penn and Mead assembled with their Quaker congregation to preach and pray on the street. Admitting these facts, but maintaining his innocence, Mr. Penn argued, "The question is not whether I am guilty of the indictment, but whether this indictment be legal."27

   Edward Bushel was a juror in this trial. He and his fellow jurors returned a verdict of not guilty. The angry trial judge fined Bushel and the other jury members for failing to fulfill their duty as jurors. Bushel and three others refused to pay the fine and were jailed. They remained in jail for more than two months, and they petitioned the Court of Common Pleas for a writ of habeas corpus. Chief Justice Vaughan released the prisoners, holding that judges may not fine or imprison jurors for their verdicts.28

   After Bushel's Case, English jurors could exercise their power to ignore judges' instructions to follow the law without fear of punishment.

   Jurors...