Clay Conrad speaking to the
Downtown Houston Pachyderm Club, August 14, 2014
“Fully Informed Juries”
I’m here to speak about jury nullification, which is the act of a criminal trial jury in refusing to convict, in spite of proof of guilt, because they believe the law is unjust, or is being unjustly applied. Before I get into that I want to put some context behind it.
You are a young adult. You are at a party. Some people are smoking marijuana, some doing cocaine. Maybe you try some. The party is raided, everyone is arrested. Because of the cocaine, you face felony charges.
You get arrested and thrown in jail. Maybe beaten, maybe raped – more than half the rapes in America occur against male inmates. You get out, and your life as you knew it is over. You lose your student loans. Your name is on the internet, for all eternity. You lose your job. If you have children, they may be taken from you. You may lose your license as an accountant, nurse, lawyer, even hairdresser.
Now tell me: are you more, or less, likely to go forward and lead a productive life, pay lots of taxes, and be a contributing member of your community? Or are you now unemployable, damaged goods?
We have about 2.3 million adults incarcerated in this country, 59% for non-violent offenses, 92% of them male. Roughly 2% of the adult American male population is incarcerated. That number more than triples when you include those on probation, parole, or bond.
The American criminal justice system is broken. It makes us less safe; less free; less prosperous. We broke it because we asked too much of it. We have asked it to solve complex, persistent social problems, and that should never be its job. We have used it for social engineering, not simply social protection.
People categorize crimes differently. I’m going to refer to non-consensual and consensual crimes. The criminal justice system cannot control consensual crimes. Such laws do not work, never have, and never will.
I used to live in Hell’s Kitchen in New York City where I would see drug dealers on the street. Police came through occasionally and made a few arrests, and the dealers would move a few blocks. When the next neighborhood was raided, they’d move back. It was a joke.
The only way the law can control consensual behavior is to become so totalitarian, so intrusive, that it can peer into what every person is doing at all times. So why do we continue to use the criminal law in this way?
Does anyone know what a hammer mechanic is? Has anyone ever tried to fix a broken TV set or car by hitting it, trying to jar it into working? Hammer mechanic. No diagnosis, no understanding – just slap it and cross your fingers. But that never fixes anything – it just hides the problem for a bit. When confronted with a social problem, legislators pass laws, and the easiest way to address the problem is to throw people into cages. No diagnosis, no understanding. Just slap them in handcuffs and cross your fingers. Hammer mechanics.
We need better. Drug users and people, most drug dealers are drug users, and besides they only exist because drugs are illegal. Half of all Americans have used illegal drugs at some point. The law has made the problem worse.
Abolitionist Wendell Phillips once wrote that ‘law is nothing unless close behind it stands a warm, living public opinion.’ The American criminal justice system was designed to allow we, the people to have a say – as jurors.
Jurors have the option to, in Nancy Reagan’s words, “just say no” to injustice. Under English Common Law, jury nullification can be traced back at least to King Aethelred, 200 years before Magna Charta. Ever since John Peter Zenger was acquitted of seditious libel in 1735, juries on American shores have been refusing to convict technically guilty people because of conscientious objections to unjust laws. Today, we have degrees of homicide because during a period when all homicides were punished by hanging, juries were unwilling to convict those they did not believe deserved to be hung. Our courts recognize the Battered Spouse Syndrome because juries were unwilling to convict women who had killed their batterers after decades of horrific abuse. Prohibition ended because as many as 60% of juries chose to acquit the makers and distributors of alcoholic beverages – those we would today consider drug dealers. Juries can, and do, change laws.
All actors in the criminal justice system have discretion. Judges and prosecutors have discretion. Anyone who has ever gotten a warning instead of a ticket knows police officers have discretion. Jurors have discretion as well. If they believe a conviction would be unjust, even if the case has been proven, they have the discretion to say “not guilty.”
Jury nullification informs the way officials in the system exercise their discretion. Prosecutors become less willing to take such cases to trial, and start asking for the laws to be changed. Police become less willing to devote their resources to such cases. Judges begin to see such cases as a waste of time, not supported by the community. And legislators will respond and change the law, as they have done in the past.
The jury is a feedback mechanism. The jury can tell officials in the system how they are doing, what the public wants out of its criminal justice system – from a group of citizens who have participated in it. Without that feedback mechanism, we have no voice as citizens. We are drowned out by the private prison profiteers and the special interests who benefit from our current laws. Concerns for our society, our neighbors, is lost. The jury is the people’s body – and we, as jurors, have a far greater role than simply to sit down, shut up, and take orders.
Our little law firm has had a damned good year... we won three out of three jury trials: a misdemeanor DWI, a federal felony involving a US Deputy Marshal accused of feeding information to a drug conspiracy, and a second-degree felony Aggravated Assault with a Deadly Weapon.
We are now at 55 trials, in a row, without a final conviction.
We also won three Motions to Suppress, including a first-degree felony codeine case and a large marijuana grow-house operation. In addition to that, we had a capital murder case remanded to the Court of Appeals for reconsideration, and lots of dismissals, reductions, and a half dozen or so deferred prosecutions...
We have added a third lawyer to our firm, Matt Buckalew, and a full time business manager, Roxanne Avery. We also have two of-counsel attorneys working with our firm, Kevin Michaels and Richard Senasac. We are adding space to our Waller County office, right across the street from the courthouse in Hempstead, TX and added another office to our space in Houston this year. We presently have cases from McAllen to Chicago and several places in between.
Morris B. Hoffman wrote a fascinating op-ed for the March 7, 2006 New York Times. In it he persuasively argues that the peremptory challenge should be abolished. Hoffman is not alone in that position: Brandeis University Government Professor Jeffrey Abramson, author of the hugely successful introduction to jury studies "We, the Jury," concurs.
WHAT IS A PEREMPTORY CHALLENGE?
The peremptory challenge is the primary tool for jury selection that lawyers have. Generally, we do not "select" jurors — we de-select them. The first twelve people in the box will be the jury unless the Prosecution or the Defendant strikes one - either through a peremptory challenge or "for cause."
A "for cause" strike is exercised when a juror is disqualified as a matter of law. Any person who is too young, not a citizen, is a felon, is insane, or fits a small number of other disqualifying points, is disqualified as a matter of law and cannot serve. Primary among these would be any juror who is so biased against one party or the other that they could not put that bias aside and judge the case on the merits.
Any person who is legally qualified to serve may be removed through a peremptory challenge. Both sides have a number of peremptories to exercise (in Texas, each side has ten in District Court (felony cases), and three in County Court (misdemeanor cases tried before 6 member jury). A lawyer may exercise a peremptory strike for any reason other than gender and race.
Accordingly, peremptories may be exercised arbitrarily; they may not be exercised discriminatorily. This is a distinction without a difference. A lawyer can say that he didn't like the juror's wardrobe, attitude, vocal inflections, eye contact, lack of eye contact, etc.; so long as he doesn't mention race, there is no problem.
I have seen jurors dismissed for having the same hair style as the defendant — the theory being that the defendant and the juror, both African-American males with the same hair style, will somehow bond due to — (not their race!!! definitely not their race!!!) — their hairstyle.
To date, I know of no example of a juror being dismissed for having the same blood type as the accused. I cannot, however, monitor every case.
Recently a Texas capital murder case concerning Thomas J. Miller El, the Supreme Court reversed, granting Mr. Miller El a new trial, due to the State's use of racially discriminatory peremptory challenged. However, every lawyer, and most people who haven't gone to law school, know that the prosecutor's sin was not in using race to exercise her peremptory challenges. It was in getting caught: i.e., in being artless enough that her subterfuges could be seen through.
After all, she didn't once mention blood type!
The peremptory challenge serves important purposes, in allowing lawyers to remove jurors who they believe, but cannot prove, are overly biased against them. Once the peremptory challenge is subverted into a tool of jury stacking, it becomes a perversion of its own principle: a tool to micromanage the biases of the resultant jury.
It would appear that Jeff Abramson has it right: challenges for cause, perhaps, should be more liberally granted (so that those borderline jurors presently removed by peremptory challenges do not sit on trials), and the peremptory challenge eliminated or their number sharply reduced. This will put an end to the jury stacking that is presently an accepted part of our justice system, and return lawyers back to the task of presenting strong cases that a jury randomly selected from average citizens will find believable.
Today, February 1, 2005, I appeared for jury duty in Harris County, Texas. I was on time - in fact, slightly early. I got there at 7:40 AM, and I was summoned to be there at 8:00 A.M.
Now, for all those who talk about making jury duty less onerous, I have a simple question: why 8 A.M.? That means leaving the house no later than 7:00 A.M. for most people. This is early. Defendants don't have to be at court before 9:00 A.M. in most cases. Why did I have to wake up an hour early?
Now, Jurygeek is a night owl. Waking up before 6:00 A.M. is not just inconvenient, but physically stinkin' painful. Moreover, I was punished for being on-time. See below!
Once there, I handed in my standard jury questionnaire (very brief: age, occupation, spouse's occupation, how many kids at home, what level of education), and sat down. Right at 8:00 A.M. they showed a boring video full of platitudes (like the lies I've complained of before), and then told us that the doors would close at 8:30.
Shortly after 8:30, they did another collection of the jury questionnaires, and then showed the boring video full of platitudes again. Because I was on time, I had to suffer through this silly crap twice! Once was quite enough to cure any insomnia I was suffering from (not a problem for Jurygeek at 8:00 A.M.), twice was simply abusive.
Shortly after that I was assigned to a venire panel going to County Criminal Court at Law #15. I was excited - a real criminal case, maybe a drug case in which my vote of "not guilty" can save some poor sap from some unjust law. Ah, the romantic musings of a venireperson!
Our venire-panel was walked over to the criminal courthouse (can't they afford buses? It was raining lightly, and few of us had umbrellas), and we assembled in the hallway outside the courtroom. And waited.
I did have a nice time chatting with a newly-licensed attorney, who was also an engineer and who hadn't made up his mind whether or not to actually practice law. We talked about how the criminal courthouse works, the jury system, and Jon Stewart (he was reading Stewart's America, and I told him that if the prosecutor saw that he'd never have a chance of getting on the jury.)
Well, about an hour and a half or more later, we were finally allowed into the sacred temple of justice otherwise known as County Criminal Court at Law No. 15. There were two lawyers and a defendant at one table. There was another lawyer at the other table. The defendant had headphones on going to his interpreter - he only spoke Spanish, as it turned out.
After we'd gotten into our appropriate seats, the judge started speaking to us. Nobody was really focusing on what he was saying, so far as I could tell. He didn't say much worth hearing, either. Even the least legally literate of us had heard it all on TV before, and even the judge seemed disinterested in the canned dialogue he was forced to recite.
The judge kept saying "Oh, and one thing I forgot," and kept going on what was obviously a word-for-word reading of whatever was in front of him. Nobody was fooled into thinking he was being spontaneous. He asked only whether any of us were not US citizens, convicted thieves, or felons, and a few similar questions.
One woman was anxious to get off the jury and raised her hand. Appears her son had been killed in a fight about a year ago, and so she was unable to be fair. She didn't even know what the case was about yet, but she was convinced she couldn't be there. Although she was ultimately dismissed, she was not excused until the end of jury selection.
Then the prosecutor stood up. Thankfully for me, he was a newly minted assistant DA, someone I'd never met there before. Great! I figured that meant he wouldn't recognize me or know to strike me from the panel. When he asked me what kind of law I practiced, civil or criminal, I said some of each. I tried to appear as indifferent as possible.
Turns out this was a family violence case in which the alleged victim was going to testify that nothing happened. Thus, the only evidence was to come from the cops, who would testify as to what she told them right after the events, supposedly as "excited utterances." Now, over the years the excited utterance exception has grown to swallow up the rule: what used to require the level of excitement that would deprive the speaker of reflection, case law now merely requires that the speaker be "upset." This type of evidence is notoriously unreliable in family violence cases, because the "upset" speaker can be looking for an advantage in a to-be-filed divorce, child custody, or child support case.
Well, any hopes I had of being on the jury faded quickly when the defense attorney got up to do his questioning of the venire. Right off the bat, he starts talking about how he used to be an assistant DA, and that he recognized me from all the cases we've done together... poof. After that, I was doomed... the prosecutor struck me off the panel after that.
Five days later, I got my check for $6.00 in the mail, to compensate me for jury duty. I spent more than that on parking, of course. But I have the check in hand, and I'm ready to spend it. Perhaps I can now buy that small Renoir I've had my eye on...
I have, for years, heard complaints that jury nullification is not protected by the United States Constitution, because it is not explicitly mentioned in that document. These objections not just wrong, but plainly so. I wish to respond to them briefly here.
First, we must look at the understanding of the jury at the time the Constitution was written. As I've discussed at length elsewhere, the Founding generation considered the role of the criminal trial jury to include discussing both law and fact. This wasn't controversial at the time of the founding. Jefferson, Franklin, Hamilton and many others supported this view.
Secondly, legal practice in the early years of this country was to instruct jurors on their role as finders of both law and fact - even in civil cases. The plainest example is in Georgia v. Brailsford, 3 U.S. 1 (1794), in which John Jay, for a unanimous Supreme Court, wrote:
"It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision. "
Finally, let's look at the best understanding we can have as to what a jury was expected to BE at the time of the founding: the most popular law dictionary of the time. Jacob's Law Dictionary explicitly stated that a criminal petit (trial) jury's role was was to decide both questions of fact and law. Pretty straight-forward as to what informed people would have considered the role of the jury.
Clearly, a historical understanding of the role of the jury indicates that it was never intended to be a mere fact-finder.
WHAT DOES THE CONSTITUTION SAY?
Several clauses of the Constitution and Bill of Rights protect the jury's prerogative to deliver a verdict according to conscience. The Art. III, Sec. 2 and Sixth Amendment guarantees to trial by jury deprive the trial court of the ability to convict a defendant against the wishes of the jury. There can be no directed verdicts for the prosecution in criminal cases - even if the defendant takes the stand and admits to every element of the offense.
A defendant cannot be denied a trial by jury in any case in which the sentence is more than six months. The jury can acquit, whatever the evidence, because only they can make the decision - and no matter what the reason for their acquittal is, it stands.
But most importantly, the Double Jeopardy Clause of the Fifth Amendment prevents the Government from re-prosecuting anyone who has been acquitted by a jury -- no matter how irrational, arbitrary, or bizarre the jury's reasoning in finding the accused not guilty. Even if the jury foreman scribbles the words "because your law sucks" under the words "not guilty" - and the inscription is unanimously initialed by the jurors. Not guilty = over (at least so far as that sovereign is concerned).
Consider the situation in Russia, in which jury acquittals are nothing more than speed bumps for prosecutors. Clearly, the power of Russian jurors to nullify is non-existent. Even when Vera Zasulich was acquitted for shooting the Governor General of St. Petersburg, she would have been re-prosecuted had she not gotten out of the city before she could be re-arrested.
Such has never been the case in America. While a person acquitted in State court can still be prosecuted and convicted in Federal court (remember the trials of the L.A. police officers caught on videotape beating Rodney King), it rarely occurs. The Double Jeopardy clause of the Fifth Amendment is still alive and well. As the Pennsylvania Superior Court has noted, the Double Jeopardy interest in protecting jury nullification is "absolute," as nullification is "the highest interest protected by the principle of double jeopardy."
It is clear that at the time the Constitution was written, it was intended to protect the nullification prerogative, as the definition of the jury trial at the time included that option. It would be like guaranteeing people cars, and then saying "ah, we never mentioned anything about tires or engines." Without tires or engines, we may have a collection of automotive parts, but we do not have cars. Similarly, without the nullification prerogative intact, we may have maintained significant vestiges of the Founders' trial by jury - but we certainly don't have the whole thing.
The Constitutional right to a jury empowered to nullify is protected in the Constitution. What is not guaranteed in the Constitution (although it may perhaps be considered included under the rubric of procedural due process) is the right of a defendant to inform the jury as to its nullification prerogative. However, there is no room for reasonable doubt as to the jury possessing this prerogative under our Constitution. It is there - and it's not going away.
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