Jury Nullification
“You . . . police the Police. You police them by your verdict. You are the ones to send the message. Nobody else is going to do it in this society. You . . . are the ones in war; you are the ones on the front line” Johnnie Cochran, 1995 O.J. Simpson trial, on jury nullification
Jury nullification refers to a jury’s decision to return a verdict of “not guilty” even when the jury believes that the defendant is guilty of the criminal charges. In essence, the jury “nullifies” a law that it does not want to apply to the defendant, either because the jury finds that the law under consideration goes against its own sense of justice, or because the jurors think the law should not be applied to the defendant they are judging.
Ethnicity-based jury nullification is when the jury’s decision to exercise its power of jury nullification is motivated by the ethnicity or race of the defendant. This usually means that the jury has voted to acquit a member of their own race whom they believe is guilty but do not want to see punished under the law because it goes against their conscience.
Ethnicity has a significant impact on courtroom proceedings and judicial practices. First, there is the voire dire. Voir dire refers to the initial selection of the jury that is to hear the case. During voir dire, the prosecutor and the defendant’s attorney can challenge a prospective juror "for cause," if either attorney feels that that person may be biased against the attorney's case. In addition, each attorney has a number of "peremptory" challenges where a prospective juror can be dismissed for no cause. Those who “pass” the voir dire are impaneled and sworn in as the jury.
Like all powers, voir dire has been subject to misuse and even abuse. Attempts by prosecutors to remove possible nullifiers are often aimed at minority jurors (Sheridan, 2003). In essence this is a form of nullification of the jury. But then, after the jurors have been impaneled, they get a chance to have their say. If they feel that a law is unjust, they may choose to nullify the law and acquit, often on the basis of the race of the defendant.
Finally, there are the judges. Many judges are prone to hand down longer and tougher sentences to minority defendants (Kennedy, 1997). In addition, in one controversial case, the presiding judge removed the lone black juror when the jury was already under deliberation, on suspicion that the juror intended to exercise his power of jury nullification (Parmenter, 1996).
Ethnicity-based jury nullification is a highly controversial issue. Critics of jury nullification generally target black jurors, arguing that when African-Americans exercise their power to nullify the law, they are corrupting our justice system. They perceive that the black jury’s motivation to nullify the law was based on their bias against the police and prosecutors, or on their innate sympathy to the plight of defendants of their own race (Kennedy, 1997).
The “Bronx jury” is a good example of race-based jury nullification. At one point, Bronx minority juries had the highest rate of acquittals in the nation. Black juries were reluctant to convict defendants under the tough Rockefeller drug laws because their communities were devastated by the high rate of imprisonment of their black males (Kennedy, 1997).
In United States v. Thomas, the Court of Appeals ruled that the dismissal of the only black juror in the jury in the middle of deliberations, out of fear the black juror intended to exercise his power of nullification, was improper; however, the court also ruled that trial courts have a duty to prevent jury nullification when possible. The court agreed that jury secrecy was important but went on to admit that it is not possible to investigate suspected intent of jury nullification “without unduly breaching the secrecy of deliberations” (Parmenter, 1996).
In addition, critics have pointed out that ethnic-based jury nullification can also have a negative application, like in the notorious cases in which all-white southern juries in the 1950s and 1960s acquitted white supremacists for killing blacks or civil rights workers they knew were guilty (Kennedy, 1997).
Ethnic-based jury nullification verdicts may have occurred at the trial of Marion Barry on drug charges; the prosecution of the police officers accused of beating Rodney King; and the prosecution of O.J. Simpson for homicide (Horowitz, 1995).
Mayor Marion Barry was charged with conspiracy to possess cocaine, possession of cocaine, and perjury for lying to a grand jury. The jury convicted Barry on one count of perjury, and acquitted on the cocaine charges. The public viewed this as an act of jury nullification by the predominantly black jury.
In the Rodney King trial, after a white jury acquitted the police officers, the black community exploded into riots to protest what they considered ethnicity-based jury nullification by the white jury. But perhaps the most famous alleged act of ethnicity-based jury nullification occurred when a predominantly black jury returned a verdict of “not guilty” in the high-profile trial of O.J. Simpson for the violent murder of his white wife.
But there is something more important going on in here. To eliminate jury nullification, ethnicity-based or otherwise, would threaten the criminal defendant’s right to a trial by a jury of the defendant’s peers, as well as the freedom of speech of the jurors. These are two of our most basic constitutional rights.
References
Butler, P. (1995). Racially Based Jury Nullification: Black Power in the Criminal
Justice System, 105 Yale Law Journal. 677(702).
Horowitz, IA (1985). The effect of jury nullification instruction on verdicts and jury
functioning in criminal trials. Law and Human Behavior 9(1):25-35.
DOI: 10.1007/BF01044287
Kennedy, R. (1997). "Racial Conduct by Jurors and Judges: The Problem of the Tainted
Conviction," and "Black Power in the Jury Box.” Race, Crime and the Law 277-
Leipold, Andrew D. Dangers of Race-Based Jury Nullification: A Response to Professor
Butler, 44 UCLA L. Rev. 109 (1996-1997)
Parmenter, A. (1996). Nullifying the jury: “The judicial oligarchy” declares war on jury
nullification. Washburn Law Journal 46:379-428.
Sheridan, C. (2003). “Another White Race:” Mexican Americans and the Paradox of
Whiteness in Jury Selection. Law and History Review, 21:109-144
doi:10.2307/3595070
