Wry Craigslist ad created in the aftermath of the Malheur takeover acquittal.

My first reaction upon hearing of the acquittal of the defendants involved in the armed takeover in Oregon was probably similar to yours, gentle reader: I saw no legal argument for acquittal and it was plain as day to me that what happened here was jury nullification (despite what this juror says here, I find myself incredulous that it was difficult to deduce intent from what transpired there.) It was a powerful reminder of the unchecked and untamed potential that lies beneath the legal structures we have built. The right to a jury of your peers also has a built-in, hidden-from-sight extension, which is the right to vie for the kind of peers who might be sympathetic to you even when the law is not.

The web is ablaze with cynical commentary and comparison memes, and arguments of white privilege. But what has happened here is no different–legally speaking–than what happens when people follow The Wire creator David Simon‘s call, or, for that matter, critical race theory scholar Paul Butler‘s call, to nullify in drug cases, or in cases involving defendants of color.

The constitutional trial rights we all have apply universally: there is no boilerplate section in the Bill of Rights that restricts them only to defendants and causes we like and support. This is, in part, why I opposed the ban on grand juries in police violence cases and signed a letter against Judge Persky’s recall: When we take away justice and discretion “only” in cases of defendants we dislike, like police officers or entitled frat boys, we shouldn’t be surprised when these rights disappear for defendants we do like and support.

Nullification is not a constitutional trial right, but it is an implicit power that comes with the secrecy of jury deliberations, their exemption from providing reasons for their decisions, and the inability to appeal acquittals in the U.S. criminal justice system. With great power comes great responsibility, and when we call for the use of this power for causes we believe in, it shouldn’t be too shocking that people who vastly disagree with us use the same power for causes they believe in.

So, is nullification the tool of armed white supremacists, lynchers, and antigovernment insurgents, or of racial justice protesters and war-on-drugs opponents? There’s no way to measure who uses it more, because jurors interviewed after trial are very unlikely to admit that they nullified. Everyone wants their decisions to be perceived as legitimate. Without actually knowing what happened in the jury room and inside the head of each juror, we can never know with absolute certainty–even when it seems obvious–whether they nullified, misunderstood the law, misunderstood the (often badly phrased) jury instructions, or any combination of these factors. We are also unlikely to be able to reproduce and measure this in mock jury experiments, because I think jurors nullify in cases that matter to them a lot emotionally, and experimental conditions will not produce that amount of passion and anguish. In the absence of data on this, we have to assume that juries do this, and keep in mind the knowledge that it can be used by anyone, for any goal, to support any political agenda.

The one thing to learn from this, I think, is that the outcome in highly political contested cases depends on the skills, science and juju that went into the jury selection process, more than on those that went into the trial–and that holds true for all of these cases, sympathetic and antipathetic alike. Which is an excellent reason for every lawyer, on either side of the adversarial process, to learn the art and science of voir dire.

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