This week Supreme Court Justice Sonia Sotomayor had some kind words for jury nullification, which empowers jurors to judge the law as well as the facts of a case and may involve disregarding the law when the law is unjust. During a discussion about juries at NYU Law School on Monday, Sotomayor, who used to serve on the U.S. Court of Appeals for the 2nd Circuit, was asked about a 1997 decision in which that court "categorically reject[ed]" nullification. "As we govern in the system, and watching it, I'm not so sure that's right," she said, according to Law360. "There is a place, I think, for jury nullification—finding the balance in that and the role judges should play."

In United States v. Thomas, the 2nd Circuit heard a challenge to a judge's dismissal of a juror in a federal drug case who resisted finding the five defendants, all of whom were black, guilty of selling crack. After interviewing the jurors, the judge concluded that the holdout, who was the only black member of the jury, had "immoral" motives because "he believes that these folks have a right to deal drugs, because they don't have any money, they are in a disadvantaged situation and probably that's the thing to do." The judge added that "I don't think he would convict them no matter what the evidence was."

The 2nd Circuit rejected the juror's dismissal, saying the judge did not give sufficient consideration to alternative explanations for his resistance. But it also said the dismissal clearly would have been justified if the juror was in fact determined to acquit the defendants regardless of the evidence. "As an obvious violation of a juror's oath and duty," the court said, "a refusal to apply the law as set forth by the court constitutes grounds for dismissal." It added:

We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict…. A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant guilty, and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

Sotomayor, the only current member of the Supreme Court who has presided over a jury trial, said the 2nd Circuit may have been wrong to reject nullification in such sweeping terms. The context of the question was a slip-and-fall case in which Sen. Claire McCaskill (D-Mo.) served as a juror last month. NYU law professor Steve Susman, who moderated the Sotomayor event, said McCaskill, a former prosecutor who tweeted about her experience on jury duty, reported that she told her fellow jurors the plaintiff's attorney would take a big cut of any award, which may have boosted the damages. "That's a form of jury nullification," Susman suggested.

"You do know that I'm going to get a cert. petition in that case arguing that the senator's information was extrajudicial," Sotomayor replied, adding more seriously, "I'm not so sure I like the tweeting stuff." But the justice seemed open to the idea that jurors sometimes should consider information the judge considers irrelevant. In a drug case, that information might include the stiff mandatory minimum awaiting the defendant, the defendant's medical or religious motivation for violating the law, or the arbitrary disparity in punishment between crack and cocaine powder offenses.

"I am pleasantly surprised…to hear that current Supreme Court justice Sonia Sotomayor has publicly gone on record in favor of jury nullification," Kirsten Tynan, executive director of the Fully Informed Jury Association, wrote on Facebook. "Her comments suggest that the Second Circuit is too harsh on this topic and that its decision in U.S. v. Thomas is in error."

Reason TV on jury nullification in a New Jersey marijuana case: