by G. Patrick Callahan, Prisoner of War in America
The Second Circuit Court of Appeals has recently ruled that a deliberating juror who disagrees with the law and court instructions, can be removed from the jury pursuant to Federal Rules of Criminal Procedure 23 (b). In other words, the judge can remove a juror if there is evidence that the juror is practicing "Jury Nullification."
The Second Circuit added, however, that if there is "any possibility" from the record of evidence that the request to remove the juror is based on the juror's view of the sufficiency of the evidence in the government's case, a trial court must deny the request for removal. US v. Thomas, No. 95-1337 (2nd Cir. 5-20-97).
This was a case where the district court judge removed a juror because other jurors thought he was disruptive and had expressed his disagreement with the law in question. The Second Circuit reversed the lower court, however, based upon the removed juror's view of the evidence and his justification of his position during deliberation in terms of the evidence.
But within its decision was this jewel of doublespeak:
"We categorically reject the idea that jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent it. Although our protection of the jury trial system provides with a power to "nullify" the law or exercise a power of lenity, is just that - a power; it is not a right or something that a judge should encourage or permit if it is within his authority to permit..."
This statement reveals the fear held by judges and the criminal justice system generally that the practice of jury nullification will spread, become widely known, altering the legal landscape like a First World War artillery barrage. The courts vehemently desire to keep this genie in the bottle; it is the reason that so-called, "fully informed jury" initiatives, which seek to obligate courts of reveal that juries can acquit defendants based upon perceived defects in a given law or laws, are so stringently opposed by the judiciary: as is informing the jury on sentence lengths prior to rendering verdicts. There is intense pressure within the legal system to keep this power, as the Second Circuit describes it, under wraps.
The fact of the matter is that when laws are deemed unjust, there is the right of the jury not to convict. The reason the criminal justice system has a horror of the fully informed jury is obvious: take for instance the O.J. Simpson verdict. The jurors in that case believed the police and prosecution tampered with evidence, had racist motivations and other reasons notwithstanding. This case was the mother of all jury nullification. Though not widely known, juries in Washington, D.C., a federal district, having become increasingly aware that they have the power not to convict, routinely refuse to convict African-American men for certain offenses-mainly drug law violations-because of the suspicion that these laws are draconian impact negatively beyond the charged offense.
The jury foreperson in the Waco massacre case wept openly when she discovered how much prison time the federal government gave those defendants. She stated unequivocally that had the jury known the federal government was going to give them such severe sentences, they never would have been convicted.
When the recent Report of the National Criminal Justice Commission stated that the criminal justice system of this country, rather than guarding the peace, contributed to social instability, it touched upon the central problem: many laws are plainly unjust and the sentences for infractions are beyond any pretense of reasonableness. While drug laws are perhaps the most visible example and in the case of crack cocaine v. powder cocaine gives rise to racist suspicions, the penalties for other violations are likewise unrealistically high. Let's face it, the federal Sentencing guidelines in particular are loaded with double jeopardy violations, capricious results and insane punishments.
The downside of jury nullification is that it can run amok and allow dangerous, violent individuals freedom to wreck more havoc. It does, for that reason, indeed represent a potential danger to established order. But nullification is a double-edged sword which can also correct fundamental wrong, perhaps an essential tool in the greatest law factory on Earth. It is a statement and, at this stage, a clear warning to our Inquisition-minded masters that something is terribly amiss.
We of the November Coalition submit that judges, prosecutors and criminal justice administrators should pay more attention to the immorality of killing men and women by mass incarceration and this very real perception of ingrained injustice with the system. Once addressed by restoration of fairness, which is equity in law, perhaps jury nullification will cease to be the threat that the judiciary thinks it is.