Jury Nullification – The power to do what is right. Part 1

Jefferson City criminal defense lawyerBefore every Missouri criminal trial begins, the judge asks the jury to stand and raise their right hand as the jurors take this oath:

Do you solemnly swear or affirm that you will well and truly try the issues in this case and render a true verdict according to the law and the evidence, so help you God?”

After all the evidence in the case is heard, the court instructs the jury as to the law, telling them that they must decide the facts in the case. Something like this:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about March 18, 2008, on US Hwy 54, in the County of Cole, State of Missouri, the defendant operated a motor vehicle, and

Second, that he did so while in an intoxicated condition,

then you will find the defendant guilty of driving while intoxicated.

It looks very mechanical. Very simply, if the defendant was

1. intoxicated; and

2. driving; then he is automatically guilty.

But that is not how it works.

In fact, the jury has unquestioned power to find the defendant “not guilty.” Without having to justify why.

Now most of the time, jurors do follow the court’s instructions and render a verdict based on whether the state has proved the facts in the case beyond a reasonable doubt. But there are times when the jury clearly DOES NOT CARE that the state has proven it’s case.

If they think the law is unjust in a particular case, they exercise their power and vote “not guilty” even though the defendant undoubtedly did what he was accused of doing.

Twice-when I was a prosecutor–I learned this lesson firsthand.

The first time was a felony DWI trial. The defendant had been drunk (very drunk) driving and his lawyer was the only person who could dispute it with a straight face. But the jury came back with a “not guilty” verdict. Several jurors went out of their way after the trial to find me and tell me not to feel bad, that I did a good job, but there was no way they were going to find that nice boy guilty of a felony.

Another fellow was acquitted after I proved his guilt-beyond all possible doubt-that he illegally possessed a concealed weapon (a knife he kept under the driver’s seat of his car). I spoke with some jurors afterward and they just disagreed with the law. There was no way they were going to convict a man for doing what everyone has a right to do; i.e. keep a weapon in his car for self-defense.

The fascinating thing about this is that the jury got away with ignoring the court’s instructions. No one could stop them. No one could reverse their decision. No one could punish them afterward.

This power of “jury nullification” of the law is intriguing. I’ll get into it more in later posts.

–> Read Part 2

The trial where nobody lied

Iconic columnI attended a criminal jury trial today. The defendant was charged with the sale of methamphetamine. The MUSTANG drug task force had set up a sting in a Jefferson City motel and set the room up for video and sound. The police used an undercover informant who arrived at the motel with a list of phone numbers believed to belong to drug dealers. The informant called through his list and asked the dealers and to come over and sell him drugs (not mentioning, however, that the sale would be for the cameras).

The defendant showed up with another guy. The jury watched and listened to the drug sale on videotape. The defendant–who was facing ten years to life as a prior offender–took the stand to testify. He told the jury that it was him on the tape and yes, he sold the meth to the undercover informant.

Why was he not guilty? Because, he said, he only sold the drugs because he needed the money. That was his defense.

ArgumentIn closing argument, his lawyer asked the jury to ignore the law and find the guy not guilty. He conceded his client may be guilty under the law, but he only did it for the money. Besides, it wasn’t quite fair that the police tricked him into coming over to the motel and then videotaping him.

The jury went out. While the jury deliberated, the court asked the defendant if it had been his decision to take the stand and testify. Did he know he didn’t have to testify if he didn’t want to? The defendant said he hadn’t talked much with his lawyer and the only advice he had been given was to plead guilty.

By this time, everyone in the room was thinking that the pleading guilty advice was probably pretty sound. A few minutes later this was confirmed when the jury sent back a message saying that they couldn’t find the “guilty” form for the foreperson to sign. The form was quickly found and the inevitable guilty verdict was read.