Jury Nullification: Is there no role for mercy?
It’s not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court.
~John Adams (1771)
For a Massachusetts criminal defense lawyer faced with nearly indisputable evidence of his client’s guilt, appealing to the jury’s sense of fairness may be his only hope of obtaining an acquittal. But, Massachusetts judges will not permit a criminal defense lawyer to argue “jury nullifcation.”
History of Jury Nullification
Jury nullification dates back to the Magna Carta, signed into law in 1215 by a reluctant King John of England who perceived it to be an unforgivable restraint on his unfettered power. The Magna Carta bestowed on the King’s subjects the right to be judged by a jury of his peers:
No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land.
The jury, essentially, represents the community at large. As citizens, jurors retain the community ethos – attitudes, beliefs, morals, and sense of fairness. Initially, “jurors were responsible only to their own consciences. They were completely free to return a verdict of their pleasure in accordance with what they thought right. The evidence was not binding upon them; the judge’s charge was not binding; nothing was. The law did not concern itself with the question of how they reached their verdict . . . . If a jury, moved by whim, mercy, sympathy, or pig headedness, refused to convict against all law and evidence, the prisoner was freed, and that was that.” Leonard W. Levy, The Palladium of Justice: Origins of Trial by Jury (Chicago: Ivan R. Dee, 1999).
Those in power rarely long abide any limitation on their authority to enact, impose and enforce laws. By the mid 1600s, English judges were routinely fining and threatening juries with incarceration for failing to return a “proper” verdict. Edward Bushel, a member of a “rogue” jury, refused to pay his fine. The astonished trial judge raged at him, “[y]ou shall be locked up without meat, drink, fire, and tobacco. You shall not think thus to abuse the court; we will have a verdict, by the help of God, or you shall starve for it.” On appeal, Chief Justice Vaughan ruled in the Bushel’s Case that jurors could not be punished for their verdicts, thereby reestablishing juror independence.
Jury Nullfication in Massachusetts
For Massachusetts trial judges, the right of a jury to essentially nullify a law by acquitting a defendant is a power better left unacknowledged. Commonwealth v. Herbert, 379 Mass. 752, 755 (1980) (“it is improper for a juror to disregard the law as given by the judge, [but] it remains within the power of a juror to vote his conscience”). Indeed, Massachusetts judges refuse to instruct jurors that they are empowered to return a not guilty where the prosecution has proved guilt beyond a reasonable doubt. See, Commonwealth v. Fernette, 398 Mass. 658, 670 (1986) (acknowledging the right of a juror to vote his conscience, but declining to allow judges to so instruct juries).
Worse, judges refuse to allow Massachusetts criminal defense lawyers to inform juries of their rights to nullification or to introduce evidence at trial directed at the undermining the legitimacy of the prosecution, the injustice of a conviction, or the justness of an acquittal, or is otherwise designed to induce the jury to nullify, such as the length of a mandatory prison sentence. The goal of the Massachusetts judiciary is to blindfold jurors, preventing them from grasping the injustice of the verdicts the system requires of them or “subverting” the authority of judges to interpret and impose the laws. In short, our judiciary has reduced our jurors to returning verdicts based on evidence, rather than justice.
What is Jury Nullification?
The term jury nullification is misleading, suggesting that when jurors vote their consciences they nullify or invalidate the law enacted by legislative bodies. Jurors guided by more than the letter of the law do not invalidate a statute, they void the system’s persecution of a fellow citizen or avert the prosecution’s misapplication of the law.
[T]he function of the jury as the ultimate authority on the law [is] not to “nullify” the instructions of the judge, but to complete the law, when necessary, by recognizing principles of justification that go beyond the written law. It would be better if we abandoned the phrase “jury nullification” and spoke instead of the jury’s function in these cases of completing and perfecting the positive law recognized by the courts and the legislature.
~Professor George Fletcher
Today, the need for jury empowerment has never been greater as prosecutors, especially Federal prosecutors, indict law abiding individuals for minor, often inconsequential, infractions of complex and confusing statutes. If the judiciary is too weak to reign in prosecutors, jurors must be allowed to fill the void. Nullification is a natural part of a community’s role in thwarting hyper-aggressive prosecutors from turning our criminal codes into traps for the unwary or a smorgasbord of opportunity for prosecutors to harass and punish the unpopular.
No Role for Mercy?
In its purest form, nullification may have little to do with usurping governmental authority. It may be simple compassion for the unfortunates in the crosshairs of prosecutors or mercy for an individual who, whatever his misdeeds or mistakes, warrants no further punishment, like a mother whose “criminal” negligence ended the life of her precious child. As a society, do we want to encourage or demand a single-minded adherence to laws? Are we better off without compassion for our fellow man? Is that a world we want to live in? Is there no role in our criminal justice system for mercy?
Kevin J. Mahoney is a Massachusetts criminal defense lawyer.
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