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Vail Daily column: Jury nullification

A friend and client recently sent me an email. He said that he and his wife had recently been watching a TV drama and the matter of jury nullification, something he had never heard of, popped up.

Being the diligent fellow that he is, he advised that he doesn’t take legal information from a TV show as being anything more than entertainment but thought the concept interesting enough that he Googled it and found out there actually appears to be such a thing. He correctly noted too that the legality of jury nullification seems rather vague and, like many things in law, varies from state to state. He said it interested him the powers a jury might have that the court might not tell it about.

My client also noted that he’d be willing to bet that we may see some jury trials come up here in the future on the issue of the Colorado Constitution versus federal law where the jurors might well want to acquit a defendant but don’t know how to. I’m reading tea leaves here — or maybe cannabis leaves? — but I’m wondering if he was alluding to the federal law versus Colorado Constitution when it comes to the legality of marijuana.



So, full disclosure first. I have been a trial attorney for 30 years; I have never witnessed jury nullification. I have never heard of anyone actually experiencing jury nullification.

RARE OCCURRENCE



So, full disclosure first. I have been a trial attorney for 30 years; I have never witnessed jury nullification. And, although it’s not the kind of things my lawyer pals and I talk about when we let our hair down, I have never heard of anyone actually experiencing jury nullification.

That said, however, it seems the kind of thing that, if a lawyer pal walked into it, it might just be the only thing he or she talked about in the immediate aftermath. All of this should suffice to underscore that jury nullification is, to say the least, even more rare than collegiality in Washington.



DEFINING ‘NULLIFICATION’

Before we launch into the deep end of the pool, let’s first define the term “nullification”. Webster’s not-too-helpfully defines the term as “the act of nullifying” and, in turn, defines “nullifying” as “to cause something to lose its value or have no effect.” Now we’re getting somewhere! Appetite whetted, jury nullification is, thus “acquitting of a defendant by a jury in disregard of the judge’s instructions and contrary to the jury’s findings of fact.”

Say what?

Yup. In essence, jury nullification is where the jury pooh-poohs the law, the facts or both.

Jury nullification involves a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.

DISCRETIONARY ACT

Jury nullification is a discretionary act and is not a legally sanctioned function of the jury. Thus, Chris, why the judge does not explain it as a jury “right” up front. It is considered to be inconsistent with the jury’s duty to return a verdict based solely on the law and the facts of the case. The jury does not have a right to nullification, and counsel is not permitted to present the concept of jury nullification to the jury. However, jury verdicts of acquittal are unassailable (think here, an accused’s protection against double jeopardy) even where the verdict is inconsistent with the weight of the evidence and instruction of the law.

SENDING A MESSAGE

So let me tease this out for you. A jury, bunched up with moral indignation for one reason or another, essentially defies the law, brushes off the facts, or both, and brings back a verdict of acquittal when the weight of law and evidence begs the contrary. In shorthand, the jury, by an act of nullification, means to send a message.

What is known as the “nullification crisis” arose in the early 1830s and, as you might expect, involved state’s rights which the heirs to Hamilton and Jefferson had been bickering about for half a century. Led by the fire-breathing John C. Calhoun (who served variously as a U.S. senator, secretary of state and our seventh vice president), certain of South Carolina’s political elite advanced the idea that a state did not have to follow federal laws and could, in effect, “nullify” the law. In effect, they argued, “states’ rights” superseded federal law. To a considerable extent, this skirmish was a precursor to the secession crisis that ultimately triggered the Civil War.

TARIFF OF ABOMINATIONS

The “nut” of this particular crisis was that Calhoun and others South Carolinians were outraged by a tariff passed in 1828 which had raised taxes on imports. The 1828 tariff was so controversial, that it became known as the Tariff of Abominations. Yikes!

Calhoun and others felt the tariff unfairly targeted the southern states, and that the states were not obligated by the U.S. Constitution to follow the law. So controversial was this that, for a time it appeared that South Carolina secede from the Union, followed by armed conflict. Cutting to the chase, though, the crisis was finally put to rest when a compromise was reached.

Now admittedly, Tariff of Abominations is a little far afield from jury nullification, but the concept is the same and the common progenitor is when a body citizen believes, absent their proactive opposition, an injustice will be done. In the case of the Tariff of Abominations, the perceived justice was to be suffered by the South. In the case of jury nullification, the injustice perceived to otherwise be meted out is against the accused.

Jefferson, who said, “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical” and that, “All power is inherent in the people” and that, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure,” would likely smile from his resting place at Monticello at a little righteous insurrection.

Jury nullification? Have I seen it? No, not directly. But sometimes juries reach the same result more subtly. The O.J. Simpson murder trial comes to mind …

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.


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