Just Say No
The judge has carefully questioned each juror during voir dire: "You're willing, Mr. Jones, to follow the law as I give it to you?" After all, it's a marijuana trafficking case -- nine dime bags -- and jurors might not have regarded that as being among the more serious offenses. (Which is what happened a few years back in State v. Williams, where the 8th District affirmed the trial judge's declaration of a mistrial and the empaneling of a new jury because the original venire "wasn't taking marijuana seriously enough"; the opinion noted that two of the jurors expressed the view that marijuana should be legal, and "fellow prospective jurors were openly laughing between themselves at the prospect of serving on the case.") The prosecutor, of course, has followed up on that: "So, Ms. Polanski, you understand that if I prove to you that the defendant is guilty beyond a reasonable doubt, you have to return a verdict of guilty, even though you may disagree with the law that he's charged with violating?" All of the jurors solemnly nod their heads in agreement with this.
So everybody's pretty much surprised when you stand up and tell the jury, "What the judge and the prosecutor just told you is bullshit. If you don't think that the law is proper, you have the complete right and power to acquit my client."
We're talking about jury nullification, of course, which has a long and storied history in America. It began with one of the most famous trials, that of John Peter Zenger in 1735 for violating the seditious libel laws, which prohibited criticism of the King, regardless of whether the criticisms were true. Zenger was clearly guilty, but his lawyer argued that the law was outmoded, and that only falsehood should be an offense. The jury agreed and acquitted Zenger after a few minutes deliberation.
That and the ensuing century or so were probably the high water mark for the concept. The early constitutions of both Georgia and Pennsylvania provided that juries "shall be the judges of law, as well as fact," and as late as 1941 Chief Justice Harlan Stone stated that "the law itself is on trial quite as much as the cause which is to be decided."
Unfortunately, the concept took a beating during the first half or so of the 20th century, because there are two sides to that coin. While jurors could protect defendants from bad laws, they could also protect defendants from good ones: in most of the South during that time, it became virtually impossible to convict a white man of a crime against a black man. As a result, it became the prevailing trend to instruct the jury that they were judges only of the facts, and had to apply them to the law as it was given them.
Fat chance. Just ask Bernie Goetz. After shooting four young black men who were trying to mug him on a subway in 1984, he was charged with attempted murder and first-degree assault, but the jury convicted him of only a single charge of weapon possession, for which he served eight months. Or Marion Berry, the former Mayor of Washington, D.C., arrested for drugs as the result of a sting operation. The whole incident was captured on videotape, with the police bursting into a hotel room where Barry was smoking crack with his girlfriend, who'd turned FBI informant, and Barry uttering the memorable phrase, "bitch set me up," sure to go down in history right along with "don't give up the ship" and "we have met the enemy and he is ours." The jury nonetheless convicted him of a but a single count of possession, hanging on the other charges.
Goetz's case represents a situation where the jury believes that the law is being unfairly applied, while Barry's involves a reaction to perceived governmental overreach: five of the jurors believed that Barry had been the victim of a government conspiracy to frame him, refusing even to accept evidence which wasn't contested at trial. A person doesn't have to be famous to get the benefit of that. In one of my first trials as a young lawyer, I was in front of a judge who was, shall we say, somewhat prosecution-oriented. He threatened to throw me off the case during voir dire, and spent the rest of the trial beating me like a red-headed stepchild, not only sustaining every one of the prosecutors objections and overruling every one of mine, but doing it with exaggerated facial gestures. Sort of like the old joke, "Mr. Bensing, I hold you in contempt!" "Well, judge, I'm not too fond of you, either, but at least I haven't let the jury know." Then I noticed something interesting. Every time he'd overrule me, two women jurors at the end of the first row would look at him with daggers in their eyes. The evidence against my guy was overwhelming, but sure enough, after two days the jury announced they were deadlocked. When the panel came out to hear the judge discharge them, the two women sat apart from the rest of the jurors. They'd picked up on the unfairness of the trial, and they would have sat there in that jury room until hell froze over, and then written "not guilty" across the ice.
But it's one thing for jury nullification to occur in the isolated context of a single case. It's another when it becomes an expression of a policy choice. A little over a year ago, Touray Cornell went to trial on a felony charge of criminal distribution of dangerous drugs in Billings, Montana, after police searched his house and found a 16th ounce of the demon weed. Well, he would have gone to trial, except that so many of the potential jurors said that they wouldn't convict on that basis that the judge decided he wouldn't be able to seat a jury. Prosecutors later indicated that would affect their willingness to bring similar charges. And year before that a rural Illinois jury acquitted a Vietnam vet of marijuana charges, despite the police finding 25 pounds of pot and 50 pounds of growing plants in his home. Perhaps nothing better indicates the fear some prosecutors have of this trend than the Federal indictment last year of Julian P. Heicklein for jury tampering, based on his handing out pamphlets at the Federal courthouse entrance advocating jury nullification.
But what about the lawyer at trial? Jury nullification has been addressed on numerous occasions by Ohio courts, with a unanimous view, as most recently reaffirmed by the 11th District holding several years ago, that a "trial court is not required to provide an instruction on jury nullification," complementary to the 8th District recent rejection a claim that the trial court had erred by giving the standard instruction that jurors "are not permitted to change the law or to apply your own ideas of what you think the law ought to be."
Still, the case law calls to mind Alan Dershowitz's response to the question, "Do you believe in plea bargaining?" "Believe in it? Hell, I've seen it." Several cases degrade the concept, one holding that "although a jury may possess the power to nullify the law by acquitting despite undisputed guilt, such lawless behavior should not be encouraged," but all implicitly agree that the power can be exercised, and there's nothing anybody can do about it. In one case, the defendant claimed his counsel was ineffective by acknowledging he'd committed one of the charged offenses; the appellate court concluded that the lawyer was trying for jury nullification, and that that was a sound strategy.
So there's nothing wrong with going for jury nullification. How far you can go in telling the jury they have that power is another story; there aren't any Ohio cases I've found which discussed a lawyer doing that. If you do, though, you're probably better off leaving out the word "bullshit."