Jury Nullification- A Right and a Duty

Here is a column I wrote for the Ellis County Press. It should run soon.

Imagine you are a juror for a criminal case. The evidence is clear that the defendant broke the law. However, your conscience tells you the law is unjust and should not be enforced. What do you do?

John Jay, our nation’s first Supreme Court Justice stated that “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge of both, and to determine the la w as well as the fact in controversy.”
American jurors have a history of fighting injustice with JN. Jurors routinely refused to convict prosecutions under the Fugitive Slave Act and during Prohibition. Unfortunately, like so many of our basic rights and freedoms today, JN is under attack.

Some prosecutors and judges see JN as a threat to their power. Judges routinely prevent defense lawyers from informing jurors of JN and/or prevent pro JN jurors from serving. Recently, a Texas prosecutor argued that merely advocating for jury nullification is a crime, comparing it to perjury. That would make this column illegal.

What these JN opponents fail to realize is that the power to convict and acquit comes from the people. Judges have no power to review a not guilty verdict. Prosecutors have no right to tell a juror to convict anyone.

Is JN still useful today? If fighting injustice is useful, then JN is useful. Jury Nullification is an important check on prosecutorial discretion. Texas has over 2,300 felony offenses. Prosecutors have nearly limitless authority to bring these cases to trial. Texas law requires prosecutors to seek justice and not merely pursue convictions. Only JN can prevent a prosecutor from abusing her authority.

JN also recognizes that the political process is not perfect. Does anyone believe that our Texas Legislature is so wise or omniscient as to pass perfect criminal laws that should always be enforced?

To the contrary, our representatives in Austin have a history of passing and never repealing horrible criminal laws. It took a Supreme Court case to strike down the embarrassing Texas sodomy laws. Texas’ misguided ban on selling vibrators also had to be struck down as unconstitutional.

In both cases the legislature lacked the courage and wisdom to repeal criminal laws that clearly had no purpose. JN provides an important check against legislative stupidity.

Finally, JN recognizes that preventing injustice is the ultimate reasonable doubt in a case. If you are a juror and you believe a law or prosecution is unjust you have the right, the duty, and the power to acquit.