The Pandora’s Box Of Jury Nullification

Mar. 17, 2016 (Mimesis Law) — To a defense attorney, jury nullification is a mythical creature. When the case is lost on the facts, there is always that miniscule glimmer of hope that the empaneled jurors will ignore see past the law and acquit your client because they do not want him hauled off to prison. But in a land where mythical creatures roam free, New Hampshire is on the precipice of codifying jury nullification.

As Andrew Fleischman wrote earlier this week, the House of Representatives in the old Granite State passed an amendment to House Bill 1270 that would modify the all-important instructions a judge would give a jury prior to their deliberation. Currently, at the end of a New Hampshire criminal trial, which one can only assume usually involves the theft of milk or a dispute over Widespread Panic tickets, the judge gives the following instructions (slight paraphrasing):

If they (point at government) proved the case beyond a reasonable doubt, then guilty. If they didn’t, not guilty.

But if this bill passes, then the jury will be allowed to make an unprecedented third consideration.

Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

As Fleischman noted, a jury is free to acquit for whatever reason they choose. Lack of evidence, too much evidence, arresting officer had a poorly cut jib, or they are just pissed off about missing that Widespread Panic show. Jury says “not guilty,” it sticks, no matter the reason. But as the law currently stands, when a jury goes rogue and acquits in spite of overwhelming credible evidence of guilt, this decision is not sanctioned by judge or law. For now.

There is the argument that in a system weighted so heavily against the criminal defendant, leveling the scales just a small bit would be a step towards a fairer version of justice. But “reaction” to that “action” is uncertainty. That very counterpoint was levied by none other than Judge Richard G. Kopf.

As for Justice Sotomayor’s statement that “[t]here is a place, I think, for jury nullification—finding the balance in that and the role judges should play[,]” I will not take her statement seriously until she defines the exact “place” about which she spoke. Her statement is equivalent of muttering: “The rule of law is the law of rules, except when it isn’t.”

It should come as no surprise that the good Judge would come down on the side of the rule of law. But “the rule of law” is not merely a phrase. It carries with it the attempted goal of certainty and predictability.

In a criminal justice system that has a certain aversion to fairness, often the only thing a criminal defendant has going for him is the certainty of the rule of law. The laws and rules within the system are, in large part, fair. The injustice pours in when prosecutors, judges and defense attorneys abdicate their responsibility and ignore those laws and rules.

It is tempting to see a rule allowing jury nullification that would, by definition, provide an avenue for acquittal where one did not previously exist. As a defense attorney, I would want this avenue for my own clients 100% of the time. But would inviting selective application of this law further the interests of justice?

Throughout history, law enforcement and the courts have often failed to provide adequate equal protection under our laws. Minorities, especially black Americans, have experienced a much clearer path into the criminal justice system than their white counterparts. Once in the system, institutional racism has punished minorities more harshly than similarly situated whites.

Now, going back to the New Hampshire jury nullification proposal, would such a proposal result in more acquittals? Almost certainly. But do more acquittals necessarily equal more justice? Criminal trials are notorious for removing any and all peripheral, non-relevant information from the proceedings. As it stands, the only factors upon which a jury could decide to nullify guilt would be the facts of the case presented at trial and the appearance of the defendant. Both of those factors are the epitome of arbitrary.

It should surprise no one that if this New Hampshire bill becomes law, the beneficiaries of the “justice” option would almost certainly be the same beneficiaries of a system that is currently run disproportionately by whites. Namely, whites. It is fair to assume that the same racial disparities that currently infect our system will also tarnish this get-out-of-jail-free card.

Beyond the equal protection implications, this law would open up a Pandora’s box of admissibility. If jurors are told they may consider a “just outcome” instead of the current assessment of whether the elements to a crime have been proven beyond a reasonable doubt, evidence relevant to that question becomes almost unlimited. The central question of guilt can become lost.

How could defense attorneys possibly be expected to advise their clients on whether or not to testify. When the case is on the line, there would now be an impossible choice. Do we defend the case on the merits and argue that the government has failed to meet its burden, or do we put our client’s life on the stand in an attempt to convince the jury that convicting this particular person would be unjust? The latter strategy works great for a guilty mother with three children, but is completely unavailable to an innocent drug addict.

And this brings us back to the rule of law. Determinations of guilt should have little to do with the background of the accused. Did the defendant have the intent to kill or was this an accident? Perhaps self-defense? The defendant stole, but did he steal $999 or $1000? A crime was undoubtedly committed, but was it this defendant who did it? In theory, the questions juries face are answered similarly no matter what the defendant looks like. Certainly, racism (and every other -ism) seeps into a jury’s decision, but at this point, at least it is not sanctioned. A resume is appropriate for a job interview, not a jury deliberation.

This is not to say that many New Hampshire lawmakers did not have good intentions in writing this amendment. But without recognizing the full complexity of law and life that exist in our criminal courts, even a law with good intentions can push true justice further away from those most in need of it.

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