Jury Nullification as a Powerful Political Statement
Want to strike a powerful blow for justice and make a real difference in someone’s life?
Here is something that even (and perhaps especially!) a relative newcomer to activism is well positioned to do if called upon. YOU could serve on a jury and be a powerful force for justice. Here’s how.
In our unfortunately rigged “justice” system, there is one very powerful safeguard that we still have, but that is not often used because people simply don’t know that it exists. That safeguard is embedded in the right to a trial by jury, and it is called Jury Nullification. Before we go further, take a minute to read up on this power and its proud history. http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
Cool huh? Jury Nullification is as American as apple pie. When government behaves in tyrannical ways, it is within the power of citizens to fight back legally and effectively if they know their rights. This is particularly important now, when authoritarian politicians at every level are passing laws that criminalize protest and doubling down on the disastrous “drug war” that has devastated communities of color and fueled the mass incarceration epidemic. We can hope that these laws will eventually be overturned, but in the meantime, countless lives will be devastated. But as long as the right to a trial by jury holds up, you can help through direct action with a bit of patience and fortitude and at no risk.
Best kept secret…
No judge will tell you about this power. No district attorney will tell you and defense lawyers are prohibited from telling you, but the power and right exists to refuse to convict a defendant if it is clear to you that they are being prosecuted under an unjust or unjustly applied law or if you suspect that you as a juror are being manipulated or prevented from learning the whole truth.
The “other side” uses it all the time.
Jury nullification is already in full gear and always has been — for the powers that be. This is why less than 1% of lynch mob participants were ever convicted, even at the height of post-Reconstruction terror. This is how white supremacists, rogue cops and crooked politicians get away with so much to this day. Juries of their peers (fellow racists, authoritarians and political sympathizers) simply don’t feel like sticking it to one of their own. And remember, it takes just one to hang a jury. So let’s do what we can to rebalance the scales of justice.
The Who, Why and How of it.
This article is primarily aimed at people who are relatively privileged, look “respectable,” have a “clean” record and don’t have a long history of political activism — the kind of people who can actually get on a jury. And this brings us to the first set of inherent injustices baked into our system:
1. Trial by a jury of peers is largely a myth. Because of racist and classist application of laws, it is disproportionately poor people and people of color who end up in courtrooms as defendants in the first place. And because of built in bias in the jury selection process it is disproportionately white, conservative-leaning people who end up on juries. Prosecutors and judges are skilled at identifying and leveraging bias to their advantage. https://www.nytimes.com/2016/05/28/opinion/to-save-our-justice-system-end-racial-bias-in-jury-selection.html?_r=0
2. The system depends on plea-bargaining. Because of unjust laws, biased enforcement and predatory policing, the system would break down from sheer volume without widespread plea-bargaining. Prosecutors have a terrifying array of tools at their disposal to coerce even innocent people into pleading guilty. https://thecrimereport.org/2014/01/07/2014-01-how-plea-bargains-are-making-jury-trials-obsolete/ The first of these tools is overcharging, or “throwing the book” at people, threatening them with decades of hard time for relatively minor offenses and then offering them time served, a fine or a short sentence if they plead out, allowing the system to rack up another conviction. http://criminal.findlaw.com/criminal-procedure/plea-bargains-in-depth.html Often the victims of these tactics don’t realize that they may be setting themselves up for a life of second class citizenship, branded with a conviction that affects every aspect of their lives from employment to housing to health care and other desperately needed rights or benefits. http://sentencingproject.org/wp-content/uploads/2015/12/A-Lifetime-of-Punishment.pdf They may also be ensnaring themselves in a web of debt from which they can never escape as the administration of probation and the collection of fines and fees is handed over to predatory, for profit companies that thrive on keeping their victims permanently indebted. https://www.theguardian.com/money/2014/mar/02/poor-for-profit-probation-prison-georgia If you have not already read The New Jim Crow by Michelle Alexander, now would be a good time to do so. http://newjimcrow.com/about/buy
3. Bail and Jail are used to extract pleas by legalized torture. For those defendants who may hold out because they are innocent or know the true costs of a plea, there is always a prohibitory and discriminatory bail system to keep them locked up, often under horrific conditions, while their lives and families fall apart, putting intense pressure on them to take whatever deal is offered just to get home and try to salvage what they can. https://www.theguardian.com/commentisfree/2013/feb/14/america-bail-system-law-rich-poor
4. And of course there are confessions obtained by trickery or even force that can lead either to a forced plea or misleading “evidence” at trial. http://www.innocenceproject.org/causes/false-confessions-admissions/
Who ends up on trial?
For all the above reasons and more, it is usually either people who are up on charges so serious and so provable that a plea bargain is not offered or is not good enough to persuade them to take it, or it is the truly innocent or grossly overcharged who hold out for a trial because they just can’t bring themselves to admit to something they didn’t do and may even believe that their trial will be fair. It is usually a vain hope. Of course the system then goes at them with increased ferocity. It is shockingly common for a relatively powerless person, possibly innocent, probably overcharged if they are guilty of anything at all, to end up facing a systemically rigged trial before people who are predisposed to devalue them. https://thecrimereport.org/2014/01/07/2014-01-how-plea-bargains-are-making-jury-trials-obsolete/
Political trials
Another scenario that is becoming more and more common is political trials of dissidents caught up in draconian laws designed to make the exercise of First Amendment rights illegal or to punish nonviolent civil disobedience as “terrorism.” These heroes will go to trial for the sake of the cause and they deserve for their courage to be met by our own. https://theintercept.com/2017/01/23/lawmakers-in-eight-states-have-proposed-laws-criminalizing-peaceful-protest/
But what if I get a real criminal who should be convicted?
This article is not meant to dissuade you from locking up a real bad-guy if you sincerely believe they’re guilty and dangerous. But statistically speaking, if you do get on a jury, it will almost always be a case against some poor, powerless individual caught up in the rigged, stacked, elitist, racist, privatized and monetized meat-grinder that passes for a criminal justice system in this country. Or it may be a political vendetta designed to punish dissent. You don’t have to be a willing cog in that corrupt machine. In fact, you can be a monkey wrench in the gears, risk-free. How cool is that?
The odds are never in our favor.
While there is a smaller category of dangerous, violent, clearly guilty criminals who should be kept from harming others there are literally millions of ordinary, unfortunate people who run afoul of laws designed to entrap and criminalize the poor and marginalized. These include drug laws that we now know for a fact were designed to punish dissidents and decimate communities of color http://www.cnn.com/2016/03/23/politics/john-ehrlichman-richard-nixon-drug-war-blacks-hippie/ and laws designed to criminalize homelessness and poverty (for example selling loose cigarettes, begging, sleeping in public, economic “survival crimes” etc.) https://www.nlchp.org/documents/No_Safe_Place And we can add to that, laws that criminalize peaceful protest and civil disobedience, for example laws that would define interfering with commerce, for example blocking a road, as “economic terrorism.” http://www.theblaze.com/news/2016/11/21/economic-terrorism-washington-state-lawmaker-proposes-bill-to-criminalize-destructive-protests/
The truth, the whole truth or anything but the truth?
As a juror in a criminal case, you will be allowed to view and hear only the evidence that the judge in the case rules “admissible.” While witnesses take an oath to “tell the truth, the whole truth and nothing but the truth,” the laws of evidence are stacked to restrict and prevent the telling of the whole truth. Much that you see or hear will be tightly controlled, narrowed down and de-contextualized. It is anything but the whole truth, but it is how prosecutors, with the help of complicit judges, stack the deck.
Even unto Death: Widespread Prosecutorial Misconduct.
On top of that, the prosecutor almost always has first access to any evidence turned up in an investigation and there is a strong incentive to conceal what is known as “exculpatory evidence” (evidence of innocence) such as contradictory witness testimony, video, physical evidence such as DNA and evidence that backs up an alibi. Prosecutorial immunity (meaning that prosecutors cannot be sued or held legally liable, even for deliberate concealing of evidence that results in an unjust conviction) makes it virtually certain that there will be no consequences if this is eventually discovered, even if an innocent person has been unjustly imprisoned or, as has happened in some cases, executed. https://deathpenaltyinfo.org/executed-possibly-innocent and https://theintercept.com/2017/05/02/texas-prosecutor-in-junk-science-execution-case-stands-trial-for-misconduct/ It happens more frequently than most people imagine and in some jurisdictions it is pretty routine.
https://deathpenaltyinfo.org/prosecutorial-misconduct
The vengeance with which prosecutors will pursue and defend conviction including those resulting in the death penalty, even when overwhelming evidence of innocence comes to light is legend. Here is just one particularly egregious example:
https://thinkprogress.org/terry-edwards-execution-d0f97b936ef9
And these outrages get the backing of powerful politicians, including governors who refuse to act, even in the most clearly unjust cases. http://www.slate.com/articles/news_and_politics/jurisprudence/2015/03/cameron_todd_willingham_prosecutor_john_jackson_charges_corrupt_prosecution.html
Capital cases are the ones most likely to start out with some semblance of legal representation (although that may not mean much if you are poor) and also most likely to get any semblance of post-conviction scrutiny, or, in a few lucky cases, help from one of a handful of legal rights projects devoted to rescuing innocent people from death row. Imagine, then, how reckless the system is with lesser cases.
Where to start
Ok, so say you are a juror of good conscience and really want to do the right thing. How do you fill in the blanks to get closer to what is whole and true? Fortunately there are signs if you understand the process and know where to look.
The big picture: What is really going on beneath the surface?
The routine, humdrum business of a typical criminal courtroom involves wholesale processing of marginalized, low income, often poorly educated or even mentally handicapped and poorly represented people through a rigged process that almost always results in conviction and harsh sentencing. The system depends on brutally making examples of people who dare to demand their full legal rights. Judges have vast discretion that they can use to include or exclude evidence and testimony to skew what the jury sees and hears. Far too many judges see their job as facilitating a conviction, imposing a vengeful sentence and moving on as quickly as possible, rather than presiding over an impartial trial. Sadly, prosecutors are awarded for convictions, not justice. Police, even the well intentioned ones, are pressured to rack up arrests and convictions and they know that there is almost no chance of any consequences for planting evidence or lying on the witness stand. (Why worry about something that “minor” when there is almost no chance of their being held accountable even for summarily executing people in the street?) More and more, these abuses are being brought to light and flashed across our video screens on a daily basis. There is no excuse any more for pretending we don’t know what is going on.
Surely it can’t be that bad, can it?
Yes it can. Otherwise it is impossible to explain the jaw-dropping incarceration rates in this country, by far the highest in the world both in raw numbers and per capita (technically excluding Seychelles, a tiny, statistically irrelevant outlier that also holds international prisoners for the UN.) https://en.wikipedia.org/wiki/United_States_incarceration_rate
Honing your injustice detector
So now that you know there is something you may be able to do about it, and are ready to try, what are some of the signs to look for to discern whether you as a juror are being fully informed or are being misled, even gaslighted?
1. Are there family members and other community members in court for the defendant? This is a sign that people care about this person and believe in him or her. The larger the support community the more likely it is that there is some back-story you are not getting. It may also be a sign that this is a political prosecution but the defendant is not being allowed to present evidence that they are being framed, targeted or scapegoated, or mount what is called a “necessity defense,” the claim that they acted to prevent a greater harm. Well, you could take the opportunity to prevent harm by hanging the jury.
2. Does the defense raise many objections that are summarily cut off and denied? This could be a sign that there is something being suppressed that they think would be convincing to the jury but that the judge does not want you to hear. This is ground for “reasonable doubt” no matter what the judge tries to tell you. You get to decide what is reasonable and nobody can make you explain it.
3. Conversely does the defense counsel seem unprepared, disinterested or not fully functional? Everyone is entitled to a fair trial and this is a red light indicator that your defendant is not getting one. The system should not be rewarded for this with a conviction, particularly if it is a relatively minor offense and public safety is not an issue. Who knows what exculpatory evidence or reasonable explanation could have been presented by a competent defense? This question alone could constitute reasonable doubt on your part. Strike a blow for equal justice and just say no. Again, once you are in that jury room, nobody can question your subjective sense of what to believe.
4. Are you shown a very circumscribed piece of evidence, for example, a closely cropped photo or just a few seconds of a video? Are witnesses cut off or shouted down when they try to answer fully? What else would be revealed if you were allowed to look at more of the background or what happened in the minutes or even seconds before and after the bit you were shown? What is being hidden from you? You have every right to be skeptical. Reasonable doubt rears its head again. Pay attention and act accordingly. The judge may instruct you to only consider what s/he has allowed you to see and hear, but you have the power to think for yourself in the jury room. Don’t be afraid to use it.
5. What is the vibe? The rapport between the judge and the prosecutor, excessive sidebar conversations, the prosecutor putting words into the judge’s mouth, marked hostility to the defense, etc. can be signs that something is wrong and justice is not being impartially administered. You don’t have to be part of this once you are in that jury room.
6. What’s the big deal? Is this just a low-level, non-violent, victimless, or “nuisance law” crime? If so, do you really want to be part of a rigged, racist system and predatory policing? You can hang the jury. Just say you are not convinced. You don’t have to explain anything to anyone. What if you end up acquitting someone who is actually guilty, you say? Well, if this is a career criminal the prosecution will be motivated to retry the case or the law will catch up to them again and it is highly doubtful that they will be as lucky next time. BUT if this is an innocent or nearly innocent person (may have been selling loose cigarettes or “disturbing the peace” but didn’t really “resist arrest” or “assault” anyone) or a first timer who could straighten out, the prosecution is more likely to just let it go and you did a good thing by giving them the second chance that a more privileged and better represented person would almost certainly get. You can feel good about that.
7. Politics in play? Go, team! Finally, is this an out and out political case where you can go straight to nullification or support a necessity defense whether or not the judge allows it to be presented? An example is the recent case in which sympathetic jurors refused to convict one of the brave souls who, with great care and attention to safety, briefly cut off the flow of tar sands from Canada to the US in a symbolic multi-state protest to alert the public to BOTH the toxicity of the tar sands themselves and the inexcusable vulnerability of the pipeline system to someone who might actually mean real harm. https://cldc.org/news/pipeline-protester-trial-ends-with-hung-jury-in-victory-for-climate-movement/ To this writer’s mind, a case like that is open and shut: Solidarity forever!
Getting Centered
If you are serious about exercising this power and right, you will have to be prepared to remain calm and determined in the face of pressure, even bullying, by fellow jurors who just want to take the easy way out, get home and let the consequences fall on some person with whom they can’t identify or empathize. But you are awake, aware and you’ve got this. Keep calm and hang tough. You may even be called in and lectured by the judge. Don’t let that intimidate you. A judge has no power to do anything to you as long as you listen respectfully and calmly. Think of it as a meditative experience or a test of your will power and commitment to justice. Be prepared to explain over and over that you just don’t feel you are being given the full facts or didn’t find this or that piece of evidence or testimony convincing and have a reasonable doubt. You might even win over someone else, who knows? Anyway, they can’t hold out as long as you can, because they are impatient and you are brave and your cause is just. You can do this.
Getting selected
And now a word about getting on that jury in the first place. You do have to be honest in answering any OBJECTIVE questions you may be asked, such as whether you know any of the parties involved, or whether you were ever the victim of a crime, etc. But you don’t have to give up your right to serve just because the system is skewed in favor of authoritarian sheep. So be prepared to answer SUBJECTIVE questions in a truthful yet neutral manner. For example, would you be more or less likely to believe the testimony of a police officer? Well, you may have information or experience that makes you suspicious of authority figures, but don’t you also pride yourself on your ability to regard everyone fairly and impartially? Of course you do. See? There is more than one way to answer that question and both are honest. We all know there are plenty of people who would treat the most preposterous and obvious lies like Gospel truth if spoken by an authority figure and yet sincerely consider themselves impartial and objective. So why shouldn’t we who are in fact more reasonable and discerning give ourselves the same credit?
Getting ready for the challenge, including “death qualification”
Think ahead, be prepared, talk with people who may have gone through juror questioning (often called voir dire) in the past, and practice your truthful, neutral answers. This also applies to people who may be generally opposed to the death penalty but don’t want to be excluded from a “death qualified” jury. Opposed to the death penalty? Really? In all cases? How about Hitler? If you could make any exception at all could you honestly answer that you could consider it? Because, frankly, research shows that “death qualified” jurors are inherently biased and unaware of it. The scales of justice could us a bit of balancing in these cases. http://www.thejuryexpert.com/2008/05/caveats-of-the-death-qualified-jury-ways-capital-defense-attorneys-can-use-psycholegal-research-to-their-advantage/
Looking good!
Dress nicely, be super-polite and give it your best try. You could literally save a life that might be redeemable or save a deserving, even innocent person from decades of hell and send a message for justice at the same time. Now that’s powerful.
