Mark Bennett is clearly branching out on his website. A day or so ago, he actually had an official "Guest Blogger" who did a piece on Jury Nullification from a prosecutor's point of view. However, let Guest Bloggers beware, because Mark posted today, bashing the Guest Blogger's position.
The Guest Blogger's Position was that jurors who participate in jury nullification are violating the law, and an article in Time magazine shows that the authors of The Wire are guilty under the Law of Parties because they solicited and encouraged jury nullification.
My position is that the writers of The Wire should be prosecuted.
Not because of their encouraging and soliciting jury nullification, but because they killed off Omar.
Okay, seriously, my thoughts on jury nullification are probably more in tune with Mark's Guest Blogger than with Mark.
Paul Simon sang that there were 50 Ways to Leave Your Lover. Well, there are more than 50 ways to find a person Not Guilty, and jury nullification should not be one of them.
Under the law, a prosecutor must prove his or her case beyond a reasonable doubt. The highest burden of proof within the legal system. Jurors are provided with every element of a case, any discrepancy, or any doubt to hang their hat on, if they want to sign the verdict sheet saying that a Defendant is not guilty of a crime. No detective or investigator from the D.A.'s Office will come and investigate the reasoning of a jury for a not guilty.
Their deliberations are secret and sacred.
Mark and many of his commenters are up in arms over the Guest Blogger's post (I think largely because he suggested that The Wire producers are criminals), and Mark argues that jury nullification is part of the law.
To quote Mark, "I couldn't disagree more".
Jury nullification seems like a lovely idea as a way to "send a message" if you disagree with the War on Drugs, doesn't it?
But jury nullification is, at it's root, saying "throw the law and the evidence out the window and do what you feel is right". The Guest Blogger cited the 1960s acquittals of men responsible for Civil Rights violations and murders and lynchings as example of nullification gone wrong. For some reason, this argument was given light treatment by Mark.
In my opinion, the Guest Blogger hit the nail on the head.
Now, we all know that type of nullification isn't going to happen in today's day and age (one would hope), but what about some other examples?
What if a jury went back to deliberate and decided to nullify the 5th Amendment?
Would Mark be comfortable with jurors saying: "You know, that 5th Amendment started out as a good idea, but in a case like this, it's a bunch of crap. If I was charged with sexually assaulting a child, I'd say something. My conscience tells me that since he didn't take the stand, he probably did it."
Because, let's be intellectually honest here, kids. Nullification for the goose means nullification for the gander (or prosecutor, as the case may be).
The bottom line is that advocating for nullification is advocating for abandoning the (gasp, to quote Lykos) "Rule of Law". It would be just swell if it is to one side's benefit, but it's probably going to really upset the other. I know that the System that we all practice under may not be perfect, but it is the best one we've got.