Radley Balko has an article that illustrates both the importance of the power of jury nullification and the injustice that ocassionally plays out when our justice system refuses to allow jurors to decide what information is relevant.

In February of 2003, a California jury convicted marijuana activist Ed Rosenthal of growing marijuana, in violation of federal law.

What the jury didn't know — and wasn't allowed to hear — was that Rosenthal was not only growing the marijuana for medical patients, he was growing the stuff for the city of Oakland. After the trial, the jury was outraged. "'I'm sorry' doesn't begin to cover it," one told the New York Times. Said the foreman, "It's the most horrible mistake I've ever made in my entire life."

Ignore for the moment whether or not you believe marijuana should be legal, or whether it should be regulated by the state or federal governments, and consider the reaction of that jury foreman once he learned all the information about the case he had just decided. The jury was manipulated by the judicial system into returning a verdict that was technically correct under the law, but was actually horribly unjust in the minds of the jurors. They never would have convicted if they had known all the facts of the case. Imagine yourself in that position, sentencing someone to a potential life in prison, and then later discovering that you had been misled. That's why jury nullification is so important.

The doctrine of jury nullification (search) rests on two truths about the American criminal justice system: (1) Jurors can never be punished for the verdict they return, and (2) Defendants cannot be retried once a jury has found them not guilty, regardless of the jury's reasoning. So the juries in both the Rosenthal and Paey cases could have returned a "not guilty" verdict, even though Paey and Rosenthal were undoubtedly guilty of the charges against them.

This may sound radical, perhaps even subversive, but jury nullification serves as an important safeguard against unjust laws, as well as against the unfair application of well-intended laws. It's also steeped in American and British legal tradition.

The first case of jury nullification in British law came in the trial of William Mead (search) and William Penn (search), the latter of whom would go on to found the province of Pennsylvania. In 1670, the two men were charged in England with unlawful assembly, a law aimed at preventing religions not recognized by the Crown from worshipping. Both almost certainly broke the law, and the judge demanded a guilty verdict. But the jury refused, on the grounds that the law itself was unjust. After repeated refusals, the judge ordered the jury imprisoned. England's highest court eventually ordered the jurors released, establishing into common law the independence and integrity of juries in criminal cases.

Jury nullification isn't about anarchy or subverting the law, it's about ensuring that the laws reflect the will of the people. Remember, America is a Democracy and our government operates only with our consent. If a prosecutor can't convince a fully-informed jury to make a conviction, then the problem is with the law, not the jury.

(HT: Randy Barnett.)



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