What is Jury Nullification

What Is Jury Nullification?

Jury BoxIn its strictest sense, jury nullification occurs when a jury returns a Not Guilty verdict even though jurors believe the defendant has broken the law. Because the Not Guilty verdict cannot be overturned, and because the jurors cannot be punished for their verdict, the law is said to be nullified in that particular case.

In what can be said to be a milder form of jury nullification, some of the jurors, or even just one in most cases, can hang the jury by maintaining a Not Guilty verdict even though they believe the defendant broke the law. There is no requirement that jurors must come to a unanimous verdict. If the jury cannot unanimously agree on a verdict of either Guilty or Not Guilty, this is known as a hung jury. When further deliberation clearly will be unproductive, the judge will declare a mistrial. The prosecution may or may not retry the case in the future, but the law has at least been nullified in the trial at hand.

Former prosecutor and current Georgetown University Law Center professor Paul Butler has dubbed another variation on this theme to be “jury nullification 2.0”. He used this term in reference to the case of Touray Cornell, a Missoula, Montana man charged with possession of 1/16th of an ounce of marijuana in a county that had passed a citizen initiative instructing law enforcement to make marijuana enforcement their lowest priority. Of 27 potential jurors questioned during voir dire, only five said they would vote to convict a person of possession of such a small amount of marijuana. Skeptical that it would even be possible to seat a jury, the judge in the case called a recess during which time the lawyers worked out a deal known as an “Alford plea” in which the defendant didn’t admit guilt.

When these kinds of rejections of enforcement of laws stack up over time, the laws become unenforceable. We’ve seen this rejection of the Fugitive Slave Laws and alcohol prohibition, for example, undermine such laws’ enforcement. Eventually it is no longer worth the time or hassle or embarrassment for government officials to try to enforce these laws. They may be further nullified in a sense either remaining on the books but not being enforced, or being repealed altogether

Other terms you may hear in place of jury nullification are conscientious acquittal, juror veto, or jury pardon.

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Jury Nullification – strike down of Kangaroo Court

Yesterday the jury in the trial of four men accused of offenses related to a standoff near the Bundy ranch in Bunkerville, Nevada sent a resounding message to prosecutors and the judge in the case by returning absolutely no Guilty verdicts.

Instead, jurors found Ricky Lovelien and Steven Stewart Not Guilty of all 10 charges against them. Jurors found Scott Drexler and Eric Parker Not Guilty of most charges against them, with the jury undecided on four charges against Parker and two charges against Drexler.

“There was not a dry eye in the room, except the prosecutors’, who were steaming mad, and the judge’s. I was literally bawling my eyes out,” said FIJA Advisory Board member Dr. Roger Roots, who was in the courtroom when the verdicts were delivered.

This is the second trial for all the defendants. They cannot be retried on those charges for which jurors delivered Not Guilty verdicts. However, they can be retried on any charges for which jurors failed to reach a verdict. It is not clear yet whether the prosecution will continue jury shopping in order to find jurors who will convict.

Demonstrators were publicly visible outside the courthouse in recent weeks, including several who educated the general public about jurors’ right of conscientious acquittal by jury nullification. While FIJA previously pointed out that the Malheur Refuge occupation acquittals were probably not the result of jury nullification, we have been keeping an eye on other related trials, such as this one, for potential conscientious acquittals.

According to Dr. Roots, “This was almost certainly jury nullification. I see no other realistic interpretation. I say that because the defense pretty much did not put on a case, and in fact, were not allowed to put on a case.”

Among other things, the judge forbade the defense from many lines of inquiry including
● how well-armed Bureau of Land Management (BLM) agents were or how frightened defendants were of a potential attack,
● any mention of bullying or physically violent behavior of BLM agents leading up to the protest (though the prosecution was allowed to bring up things that happened months beforehand),
● any reference whatsoever to Constitutional First or Second Amendment rights, and
● any testimony from five prospective defense witnesses, whose testimony Judge Navarro pre-screened outside the presence of the jury and ultimately rejected.

Navarro cut off defendant Eric Parker mid-testimony, and she kicked him off the stand for supposedly breaking the rules she laid down. At the time he was cut off, he was rebutting a statement made by a prosecution witness claiming that he looked in a particular direction. That testimony was allowed, but Parker was not allowed to testify that he looked up and to the right. After Not only that statement, but his entire testimony was stricken from the record. Jurors were ordered to disregard all of his testimony, leaving him completely voiceless in his own defense.

Defense attorney Jess Marchese confirmed after speaking with jurors that the treatment of the defense factored into their decisions.

“The court’s restrictive limitations on the defense were overtly aimed at stopping jury nullification, and yet the irony is that they absolutely fueled it,” Roots said.

Fully Informed Jury Association

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