Reynolds: Nullifying juries more interested in justice than some prosecutors The fact that jurors can let the guilty go free intended to protect us from unjust laws.

Glenn Harlan Reynolds | USA TODAY

If you are a member of a jury in a criminal case, even if you think the defendant is guilty of the crimes charged, you are entirely free to vote for acquittal if you think that the prosecution is malicious or unfair, or that a conviction in that case would be unjust, or that the law itself is unconstitutional or simply wrong. And if you do so, there’s nothing anyone can do about it.

Judges and prosecutors know this. But they don’t want jurors to know it, which is why we occasionally see cases like this one, in which jury-information activist Mark Iannicelli was arrested and charged with “jury tampering” for setting up a small booth in front of a Denver courthouse labeled “Juror Info” and passing out leaflets. Putting up a sign and passing out leaflets sounds like free speech to me, but apparently Denver District Attorney Mitch Morrissey feels differently.

The last time I noticed a case like this was in 2012, where a retired chemistry professor did pretty much the same thing. Federal District Judge Kimba Wood dismissed the indictment. At the time, NYU Law professor Rachel Barkow commented, “I don’t think sensible prosecutors should have even brought this case.” Well, sensible prosecutors didn’t.

And UCLA law professor Eugene Volokh wrote: “It seems to me that such speech is constitutionally protected, and that the indictment therefore violates the First Amendment. One can debate whether jury nullification is good or bad for the legal system, but it’s clear that it’s not a crime for jurors to refuse to convict even when the jury instructions seem to call for a guilty verdict. So Heicklen is encouraging a jury to engage in legal — even if, in the view of some, harmful — conduct.” It’s legal, but prosecutors don’t want jurors to know about it because if jurors knew they were free to acquit in the interest of justice, it would weaken prosecutors. (Prosecutors don’t even like billboards aimed at educating jurors.)

Of course, prosecutors have essentially the same power, since they’re under no obligation to bring charges against even an obviously guilty defendant. But while the power of juries to let guilty people go free in the name of justice is treated as suspect and called “jury nullification,” the power of prosecutors to do the exact same thing is called “prosecutorial discretion,” and is treated not as a bug, but as a feature in our justice system. But there’s no obvious reason why one is better than the other. Yes, prosecutors are professionals — but they’re also politicians, which means that their discretion may be employed politically. And they’re repeat players in the justice system, which makes them targets for corruption in a way that juries — laypeople who come together for a single case — aren’t.

As Clay S. Conrad notes in his Jury Nullification: The Evolution Of A Doctrine, to the framers of our Constitution, jury nullification was itself a feature, not a bug. Distrustful of the bureaucracy and even of the judiciary, framing-era Americans viewed a jury’s refusal to convict as an important protection for liberty. This remained the case until, Conrad notes, juries began refusing to enforce the Fugitive Slave Act of 1850, because they thought returning escaped slaves to their owners was unjust. In response, the system began trying to get around juries’ power not to convict. These efforts increased when juries were reluctant to convict labor leaders, or to enforce Prohibition. And though there were racist juries that refused to convict racist defendants in the civil rights era, Conrad notes that those juries were part of a system that also involved racist prosecutors, racist police, and racist judges.

Nowadays, jury nullification is less important because, as I recently wrote in the Columbia Law Review, so few cases even go to a jury anymore. Instead, prosecutors draft massive “kitchen sink” indictments charging dozens or hundreds of crimes, then bludgeon defendants into accepting a plea bargain rather than risk a trial in which conviction on even a single count out of hundreds of charges could be disastrous. A different kind of jury — the grand jury — is supposed to discipline prosecutors on indictments, but in practice, they’ve turned into rubber stamps for the most part.

If we value justice in this nation, the solution isn’t to give prosecutors a freer hand. It’s to hold them more firmly to the limitations our nation’s founders intended. That’s not “tampering.” It’s setting things right.

Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself.

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