"Can you set aside your own personal feelings about what the law should be, and apply the law as I give it to you?" the judge will ask.
"Yes," the jurors will say. Sometimes with their fingers crossed...
The concept of jury nullification has deep roots; it was probably the reason that one of the famous trials in American Colonial history, that of John Peter Zenger for seditious libel, ended in aquittal. The idea that juries could decide the law as well as the facts went by the wayside after America gained its freedom: since laws were enacted by democratically-elected representatives, the jury's ability to nullify those laws would flout the will of the people.
Still, despite an 1895 Supreme Court decision holding that there was no right to jury nullification in the Federal system, the use of it was apparent in acquittals in cases involving unpopular laws, like the Fugitive Slave Acts and Prohibition, and some of the Vietnam-era prosecutions, like the trial of the Black Panther 21 in New York. As detailed in Murray Kempton's superb The Briar Patch, after putting on seemingly overwhelming evidence that the Panthers intended to blow up police stations and department stores, the prosecutor was forced to listen to the jury foreman intone "not guilty" 81 times. The jury concluded whatever intentions the Panthers might have had, they did not possess the wherewithal to compile a grocery list let alone plan and carry out a complicated bombing plot, and that, combined with an overbearing prosecutor and an obviously biased judge, left the jurors in a position where, in Kempton's delicious phrasing, "they would have sat there until Hell froze over, and then written 'not guilty' across the ice."
There's some reason to believe that we're experiencing a spate of revivals of the concept, at least in connection with drug and gun laws. Last year Marine Cpl. Melroy Cort, whose legs had to be amputated after he was wounded by a bomb in Ramadi during his tour in Iraq, was arrested on his way to Walter Reed Medical Center; his car had broken down on the highway, someone saw Cort remove a gun from the glove compartment and put in his pocket, and called police. Despite the fact that Cort had a license for the gun, he'd run afoul of D.C.'s Draconian gun laws. Rejecting his public defenders urging to plead guilty to the felony charges, Cort represented himself, and after deadlocking twice, the jury acquitted him of all but a misdemanor charge of possessing ammunition. Then there's the case of Loren Swift, a 59-year-old Illinois man charged with trafficking in marijuana. Despite the fact that he'd been arrested at his home with 25 pounds of marijuana and another 50 pounds of marijuana plants, after listening to his testimony that he used the marijuana to relieve the symptoms of post-traumatic stress disorder resulting from his service in Vietnam, the jury took only two hours to acquit him.
But what's really set off the discussion is an article by Gene Weingarten, a reporter for the Washington Post, which begins,
Last week I was a juror in the trial of a man accused of selling a $10 bag of heroin to an undercover police officer. At the end of the two days of testimony, I concluded that the defendant was guilty beyond a reasonable doubt. I also concluded that he should be acquitted.
In my mind, it came down to a simple, unsettling question: Is it worse to let a drug dealer go free, or to reward the police for lying under oath?
Weingarten explains that the evidence against the defendant was overwhelming; he'd been found minutes after the controlled buy with the marked money in his pocket. But there was a problem. The dealer had an intermediary, who actually took the money from the undercover cop, went out of sight to the dealer, got the drugs from him, and brought it back to the buyer. The cops had another officer -- the "eyes" -- and he's the one who observed the transaction between the intermediary and the defendant, and radioed the description, resulting in the latter's arrest. The "eyes" testified that he observed the whole thing from a distance of 50 to 60 feet, and gave an extraordinarily precise description, down to the defendant carrying a bottle of ginger ale. That wasn't true; the defense introduced aerial photos showing the distance was three times that, from which it was impossible for the cop to see the things he claimed to have seen.
Weingarten decided to acquit on that basis, but he was only an alternate. No matter; after deliberating two days, the jury deadlocked 10-2 for acquittal, and the state indicated they wouldn't refile. Weingarten closes his article by stating that he's "proud of our jury system. I can't say the same about our police."
That cops lie is not a revelation to anyone who's practiced criminal lawyer for more than a couple of years. One of the major changes I've observed about cops over the last decade or so is that, at least here in Cleveland, they're so ill-trained in search and seizure issues that they don't even know what to lie about any more. Some manage to make the obligatory references to "furtive movements" and "plain view," but mostly they'll just blunder ahead with the truth, oblivious as to where that's likely to take them.
But police lying about search issues is also nothing new. One study back in the 60's showed that in the years after Mapp v. Ohio imposed the exclusionary rule on the states, the number of "dropsy" cases -- where narcotics would mysteriously fall from a client's hand or pocket, helpfully while in the plain sight of a police officer -- increased by about 70%. In fact, the motives for the police to lie about that sort of thing is similar to jurors voting for acquittal in cases of unpopular laws. As explained in a 1967 Nation article, "Policemen see themselves as fighting a two-front war -- against criminals in the street and against 'liberal' rules of law in court. All's fair in this war, including the use of perjury to subvert 'liberal' rules of law that might free those who 'ought' to be jailed."
I guess you could call it "4th Amendment nullification."