Thursday, March 27, 2008

Mark Bennett and Jury Nullification

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.

10 comments:

hcresident said...

Mark,

I will be sure and tell of my friends that are a bit radical to the right that they are free to ignore the fifth amendment. According to many lawyers in our community, it is perfectly OK to lie during voir dire. While we are at it, they can lie about being open to the minimum range of punishment as well.

John said...

Kind of a funny point to make given that jury nullification is pretty much the whole point of trial by jury in the first place...not having it would violate the sixth amendment, so I'm not sure why you'd be so concerned with jurors nullifying the fifth.

Ron in Houston said...

In a way the court's instructions on the 5th are like saying "don't think about a white elephant."

Just as there have been jurors who didn't render a guilty when they probably should have, there have been jurors who have convicted over some doubt when the defendant didn't testify.

We want an intellectually pure system. It just doesn't exist.

Anonymous said...

This talk is great and all, but can we get back to prosecuting the writers of The Wire for killing off Omar? I'm totally behind that idea. I mean, why? Why Omar?

Gritsforbreakfast said...

I was also distraught when they killed Omar, but in the final episode a teenage street hood had replaced him as the "new Omar," and the game goes on.

That said, on the jury nullification question, you're wrong that it's abandoning the rule of law. Jurors are charged to make a decision. They aren't violating the law because they don't rule the way you like. Barring bribery or undue outside influence, they're responsible only to their own conscience and God as to how they decide. Prosecutors complaining about nullification is just sour grapes. Usually, in the rare cases when it happens, it just means the ADA brought a BS case in the first place.

I don't think light treatment was given to the example of jury nullification in the murders of civil rights workers. The reality is that those jurors WERE NOT prosecuted, so the example does not support the Guest Blogger's position.

Ron's right - when I hear someone who wants to prosecute jurors for unjustified guilty verdicts that violate the same oath, I might begin to have more sympathy. That's a LOT more common than nullification, by a longshot.

Anonymous said...

It is interesting that a prosecutor is required to take an oath to seek justice, not merely convictions.

In every case in which a jury nullifies, the jury has unanimously agreed that what the prosecutor was seeking was NOT justice.

Instead of going after the jurors, shouldn't we go after the prosecutors who are seeking unjust convictions? Or does that not bother you a bit?

Do you think, like you're tarnished idol Kelly Siegler, that anything is permissible in seeking a conviction -- including ignoring the PROSECUTOR's oath not to seek injustice?

A Harris County Lawyer said...

John,
I'm not sure exactly what you are trying to say.

Ron,
You are right that a Defendant's silence is sometimes the "white elephant in the room", which is why it is good that there are 12 people back there and not 1. I'm not naive enough to think that a Defendant's silence doesn't enter jurors' minds, but I do think that they police each other if one of them tries to bring it up in deliberations. I like your phrasing of "intellectually pure", because I think that goes to the root of the divide here.

Anon 12:01,
I think Omar Little may have been the most original and fascinating character ever created on TV. I've often thought of Larry McMurtry as a "literary serial killer" who creates awesome characters and then kills them off. Maybe David Simon has the same inclinations as McMurtry.

Grits,
I think all of this is a semantic argument, anyway. Ron mentioned "intellectually pure", and I think from the intellecutally pure standpoint, that jurors ARE, in fact, to not nullify. They can find somebody not guilty for thousands of other reasons (who can really quantify beyond a reasonable doubt). I do think that most (if not all) judges would shut down a defense attorney's argument for nullification as being improper, and I think that the Rules would support them doing so. All in all, I think this argument is the Sound and the Fury signifying nothing. Juries are going to do what juries are going to do.

Anon 2:35,
Congratulations on adding a little element of ignorance into an otherwise good discussion. Prosecuting prosecutors who get "not guilty" verdicts? That's brilliant, and not crazy in the slightest. You may want to stay on the Chronicle blog for future reference. Alan Bernstein needs the validation.

A Harris County Lawyer said...

Oh, and by the way, I'm totally jealous that David Simon commented on Mark's blog. I read Simon's incredible book "Homicide: Life on the Streets" when it first came out. I own the entirety of the Homicide series on DVD, as well as the Wire.

It just isn't fair that Simon goes to that cheap hussy Mark's blog, and not mine! :-)

Anonymous said...

First, I didn't say anything about prosecutor prosecutors who got not guilty verdicts.

I just said that when twelve citizens unanimously agree that a prosecutor sought a conviction in a case in which a conviction would be unjust, that a grievance would be appropriate, and should be sustained, because the prosecutor's ambition caused him or her to ignore their oath. It is unethical for a prosecutor to seek an unjust conviction; a panel of 12 citizens is a pretty good measure to use for whether the conviction sought would be unjust.

Secondly, the civil rights murders and lynching cases rarely involved nullification. See Conrad, Scapegoating the Jury, 7 Cornell Jrl. Law & Pub. Pol'y 7 (1997) for a full critique of how judges, police and prosecutors all sought acquittals in those cases -- and then blamed the jury for the media.

After all, do you really think someone gets elected DA, Judge or Sheriff in a Klan county without Klan support?

Funny how when the same cases went before FEDERAL courts, with different judges, prosecutors and investigators, but with a jury chosen from the same local populace, the result was almost always a conviction.

Anonymous said...

my case just got dismissed by grand jury and the guy admitted he hit me with bat. They spent 10 mins on my case that I spend 6 months to prepare. DA told me I waited too long, but I followed the texas statue of limitations...your thoughts?