Jury Nullification – The power to do what is right. Part 2

This thing they call “jury nullification” means that the jury can acquit a defendant if they think a strict application of the law–as given to them by the judge–would be unfair. It means that the jury is judging both the facts AND the law.

How exactly can a jury get away with giving a “not guilty” verdict when the facts clearly show that the defendant ACTUALLY DID what he was accused of doing?

The chief factor is the 5th amendment prohibition against double jeopardy. The defendant–once acquitted–cannot be tried a second time (this also means the state cannot appeal a “not guilty” verdict).

In addition to the fact that “not guilty” verdicts are binding and unappealable, the second factor is almost as important: no juror can be punished for rendering a “not guilty” verdict, even if they apparently failed to follow the court’s instructions. Unless they commit a crime like taking a bribe, they are untouchable.

When I was a prosecutor, the idea that a jury was free to acquit any defendant, was very distressing to me. Reasonably enough, prosecutors expect juries to render guilty verdicts when the prosecutor proves his case.

They can understand losing a case that turns out to be weaker than they expected. Things sometimes go badly at trial. But, on the other hand, nothing is more frustrating than seeing jurors acquit an obviously guilty person.

This is ironic because prosecutors typically exercise their own discretion in refusing to file 15% to 20% of all the cases the police send to them.

Just as prosecutors are annoyed by juries who disagree with them, the police are often rankled when the prosecutor won’t file every case submitted to them. Yet the police themselves will give a lawbreaker a second chance when they issue a warning or let a friend drive a troublemaker home, instead of arresting him.

It seems that nobody wants to convict a person who cannot or should not be prosecuted, but once THEY decide to punish the accused, THEY expect their decision to be the final word on the subject.

This raises the question: Who should have this power? Who should we trust with this sort of discretion? Who is more likely to bring the mind and values of the community to the decision-making process?

I’d welcome any comments on this. More in my next post.

–> Read part 3

Child Endangerment & DWI: Double Jeopardy?

DWISection 568.050 makes it a separate crime (child endangerment) to commit a DWI with a child in the car. The new Senate Bill 216 would also add driving with any level of controlled substance (or its metabolite) in the body to create a new way to commit child endangerment. Both of these ways to commit child endangerment create a problem when combined with a DWI.

Police & prosecutors are known to file DWI charges AND Child endangerment charges together for the same incident, if there is a child in the car. But that’s an illegal double-dip. I can’t see this practice continuing very long before the court of appeals overturns a conviction (that is, if there isn’t one in the works right now!).

Simply, a conviction on both charges together would amount to double jeopardy.The reason is that DWI is a lesser included offense of the Child Endangerment charge; i.e., the elements of the DWI charge are contained totally within the Child Endangerment charge. That’s a big no-no which smart defense attorneys will prevent and ethical prosecutors will not file in the first place.

All things considered, I’d say Missouri’s DWI Child endangerment law is pretty useless. If prosecutors can’t file Child Endangerment along with the DWI charge, then they must choose between the two. In that case they will certainly choose the DWI charge because the punishment ends up being worse for the defendant. With a DWI, he not only has criminal punishment, but he must deal with:

  • points on his driver’s license
  • increased punishment for repeat offenses
  • conviction can be later used to charge a higher level DWI
  • odd stuff like insurance rate increases, job loss, etc.

If the legislature wants to make DWI child endangerment stick they will have to make it a type of aggravated DWI with ALL the DWI penalties and consequences PLUS something more for having Junior along for the ride.