March 27, 2008
Legal Department
To a Prosecutor Concerned That I Might Nullify
If you are a prosecutor, it's possible you found this because I'm a potential juror and you were Googling my name. I already wrote something like this in response to a question on Mark Bennet's blog, so I might as well spell it out here. (And yes, I'm in kind of a bad mood.)
This argument is going to be more emotional than logical, but when it comes to describing and predicting my own behavior, there are times when my reason is slave to my passion.
I understand that as a juror I have a role to perform, and that it’s important to do it well and with integrity. I'm supposed to obey the judge, listen to the evidence, and follow the law.
I can assure you, I'm going to try. For whatever it's worth, the only time I was a juror on a criminal case, we voted to convict, and I was one of the people who reached that conclusion early and helped convince others.
That said, you should know that I believe in my heart that it is wrong to punish people for crimes that have no possible victims. My position is a bit nuanced, but to a first approximation you can safely assume that I don't believe it's right to punish people for gambling, prostitution, drugs, or many other things that might be called "vice."
If you allow me on a jury in, say, a drug case, this puts me in something of a quandary. I want to do my duty, but I feel that under some circumstances doing my duty will lead to an immoral result. I truly don't know what I would do in most cases.
To save you the trouble of reading my entire blog, however, I might as well warn you that there is clearly some point at which I would balk. There is some point at which I would nullify, voting to acquit even if the law and evidence clearly indicate guilt.
It is my firmly held belief that much of the War On Drugs is, to be blunt, evil—as evil as witch burnings and slavery and Kristallnacht.
Some of this evil is done by prosecutors, who seek to obtain horrible punishments for the most minor of crimes. (If you prefer to blame the legislature, go ahead. It's just as bad either way when it comes in front of a jury.) Exhibit A in the list of prosecutorial horrors is the case of Richard Paey, wheelchair-bound father of three, sent to prison for 25 years for forging his prescriptions for painkillers.
Would it have been wrong for the jury to nullify in that case? If so, does that mean you believe Paey deserved his harsh sentence? If he didn't deserve it, how is it right for the jury to be presented with a chance to stop it and do nothing?
Maybe you think Richard Paey and other perpetrators of vice got the sentence they deserved. Then let's try an example of a different sort: Denmark Vesey. In Charleston in 1822 he was the leader in a conspiracy of thousands of slaves to rise up, temporarily seize the city, and then grab ships in the harbor and sail away to freedom. The uprising was disrupted before it could start, and the leaders were put on trial. Vesey and 34 others were convicted and hanged.
There was never any chance a Charleston jury would nullify, but if it had, would that have been wrong? Should slaves be executed for insurrection against their masters? If not, then why would it be wrong for a jury to stop the executions despite the law?
Unless you are truly devoid of moral reasoning, there must be some level of unjustness at which you will abandon the law to avoid complicity in unconscionable evil. I haven't been in a position to find out where that limit is for me, but at the moment I write this, I suspect it is within the bounds of our War On Drugs.
If you place me on a jury and ask me to do what Paey’s prosecutor asked his jury to do, I’d like to think I’d have the moral courage to nullify. And if asked to justify my nullification, I would say that I nullified because the law did not allow me to have you jailed for your cruelty.
So if you want to consign someone to a horrible fate for a crime that harms no one, and you don't want me to nullify, don't ask me to take part in your foul deed. Do it without me.
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But I found myself unable to devise a fact pattern where I could end up on a jury, after voir dire by competent lawyers and judges, in which a law I oppose to point of wanting to nullify it was at issue.
Then again, if I could devise such a fact pattern, I'd be John Grisham or Reginald Rose.
Yeah, if asked if I'd have trouble convicting for certain crimes, I'd have to answer "yes" which would probably get me struck for cause. However, I actually can imagine scenarios where I could be allowed on a jury and end up nullifying.
I suspect there are some laws which have areas where the edge between black and white is very, um, squiggly. It may be I won't know enough about the shape of the edge until I'm well into the trial.
For example, until a few years ago, I could have answered that I wouldn't have a problem convicting a doctor who was diverting prescription painkillers into the black market. Then if I ended up on one of those horrorshow cases we've heard about recently, where the ordinary practice of medicine is being characterized as a crime, I might conclude I had to nullify.
Perhaps you would characterize that as incompenent voir dire, but it doesn't seem unreasonable to me.