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O.J. Simpson Case Wrongly Decried Jury Nullification

O.J. Simpson Case Wrongly Decried Jury Nullification

Looking at the Michael Jackson trial brings one ironic thought to my mind: can it really be ten years since OJ was acquitted? Ten years - and a large portion of the American public (or at least the media) still hasn't gotten over it. The case has been referred to as one of jury nullification, yet the record shows that the incompetence of the prosecution (who were apparently more interested in grandstanding for the cameras than in winning their case), and by the judge may have been responsible for the outcome. Simply put, the case dragged on too long, and the civil servants on the prosecution team were thoroughly out-classed, out-maneuvered, and out-lawyered by the defense team. The Judge did nothing to level the playing field. Marcia Clark and Chris Darden were the best friends O.J. Simpson ever had.

So the O.J. case has wrongly been decried as one of jury nullification. But what is worse is that the media hasn't learned anything in the meantime. They still think of trial by jury as a popularity contest.

Now, ten years later, and another black celebrity is in the dock: this time, one from the A-list. Yes, it's the king of pop himself! Michael Jackson is charged with four counts of committing a lewd act on a minor, one count of an attempted lewd act, one count of conspiracy involving child abduction, false imprisonment and extortion, and four counts of administering alcohol for the purpose of committing child molestation.

Yet what, according to Tim Molloy of the Associated Press, will decide the case? Whether Michael Jackson or the child's mother is "weirder." The concept that the jury could believe Michael Jackson likely IS guilty, but still have room for reasonble doubt, just gets left in the dust. Of course, with such media reporting (which is either irresponsible or ignorant) feeding into the psyche of the jury pool, how can we expect jurors to understand and follow the concept of "proof beyond a reasonable doubt"?

Well, the academic literature shows that juries fail to comprehend the concept of proof beyond a reasonable doubt. Prof. Lawrence M. Solan has written that "empirical studies and linguistic analysis strongly suggest that it is more difficult to establish proof by clear and convincing evidence than it is to establish proof beyond a reasonable doubt, even though our system regards the former as reflecting a lighter burden." This is because, according to Prof. Solan, clear and convincing evidence instructions "focus the jury on the government's burden, while [proof beyond a reasonable doubt instructions] focus the jury on the defendant's ability to come up with alternative explanations." See Lawrence M. Solan, Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Tex.L.Rev. 105 (1999).

We still just don't get it: it doesn't matter who is weirder. It doesn't matter who is more incredible. What matters is only whether the incriminating evidence is so credible that it leaves no room for rational dispute. If not, no matter how weird Michael Jackson may be, he must be acquitted.

Los Angeles District Attorney Calls Jury "Incredibly Stupid"

Los Angeles District Attorney Calls Jury "Incredibly Stupid"

As an attorney, I hate to lose a case. One of the first things I was told when hired as a new associate was that if I only won cases I was "supposed" to win - cases in which the facts and the law were clearly in my favor - I wasn’t much of a lawyer. My job is to win close cases, and when possible, bad cases. My clients hire me for that job, and I owe it to them to take it seriously.

Prosecutors have a different obligation. Their job is not to seek convictions whenever they can get them, but only when a conviction would be "just." If there is a reason to doubt the guilt of an accused person, our Constitution demands he be set free. The Founders of this Nation, following Blackstone, believed it was better for ten guilty men to go free than for one innocent man to suffer conviction, in order to prevent the conviction of innocents and preserve the moral authority of the criminal justice system.

Of course, we do not allow a prosecutor to determine when a conviction is justified. He has to convince the community at large, as represented by a jury, to agree with him. If the jury thinks the prosecutor is wrong, the accused goes free. Any other system would lead to trial by government - something the Founders thought the most dangerous and arbitrary power imaginable.

To allow a government apparatchik to determine guilt or innocence would leave all the rights of the people at the mercy of their government. To allow the people, acting through juries, to determine the guilt or innocence of an accused leaves the powers of government at the mercy of its citizens. If the citizens do not believe a conviction is justified, legally or morally, the accused is allowed to go free. The job of a juror is to be skeptical, to test the State’s case carefully - and to vote their best conscientious judgment after a thorough review of all the facts, evidence, and arguments before them.

Under this plan, the job of prosecutors is difficult, as it should be. Sometimes they win, sometimes they lose, but they should never win too easily. Whether they win or lose, they should respect the process and the critical role of the jury – or find another line of work.

Some prosecutors, it would appear, have issues with this noble and well-established Constitutional plan. Following the jury acquittal of actor Robert Blake on two of the three charges against him, Los Angeles District Attorney Steve Cooley said not only that he disagreed with the jurors, but called the jurors who decided the case "incredibly stupid."

Blake’s attorney M. Gerald Schwartzbach, according to an Associated Press report, responded that Cooley’s "attack on the jurors was inappropriate and small-minded.'" As indeed it was. It was also unethical, and an affront to America’s Constitutional order.

Standard legal ethics rules prohibit any attorney from subjecting discharged jurors to coercion or public humiliation. Comments such as Cooley’s not only violate those rules, but disparage the entire American legal system: if we cannot trust jurors to make well-informed decisions, then the result of any case is simply a crap-shoot. If Cooley’s confidence in the system he is such an integral part of is so poor, how can we have trust any convictions meted out by similarly "incredibly stupid" juries? Or are juries that agree with Mr. Cooley incredibly smart, and only those who disagree with him incredibly stupid?

Why should any citizen appear for jury duty, now that they know that the price for failing to rubber-stamp the State’s ambitions is to be publicly labeled "incredibly stupid" by elected officials? Such sour-grapes are not just unbecoming. They demonstrate a profound antagonism for the people and the system Mr. Cooley was elected to serve.

It is because of small-minded prosecutors like Steve Cooley that the constitutional safeguards that limit their power are so critical to the maintenance of a free country. Mr. Cooley may believe that no prosecution witness in the Blake case lied; the jurors who heard both sides of the case, however, had good reasons to disagree. They were hardly “incredibly stupid” for doing so. The jurors did their job and held the State to its burden of proof, just as the Constitution commands. If doing the job the Constitution sets out for them makes these twelve men and women "incredibly stupid," must we not place Jefferson, Adams, Franklin, Hamilton, and the rest of the Founders in the dunce box as well?

Is Jury Nullification Passive-Aggressive?

Are Jurors Competent to Do Their Job?

I received a recent comment from Joshua Karstendick, which I thought I should answer in a new post:

I understand the Framers' reason to keep citizens as a check on the government's power, but doesn't it make you the least bit nervous to allow the fates of legal cases to be determined by ordinary folk? I mean, these people have no legal background. You know what they say, half of all people are below average.

Speaking of which, do you know of any real data on juries as to their demographics and education?

First, let's look at whether jus' plain folk are capable of determining the outcome of legal cases. It is true that they have no legal background, but that may be as much of an asset as a liability.

Let's put jury nullification - the prerogative of a jury to acquit on extralegal grounds - aside for the moment. The job of a juror is to determine what the facts are, and then apply them to the law as they are instructed by the court. This requires, primarily, the determination of who is lying, and who is telling the truth - credibility.

Telling the Truth

In his book The American Jury System, New York Law School Prof. Randolph Jonakait quotes a statistic that the average person can tell whether someone is lying or not with an accuracy of 54%. Not much better than a coin toss.

With training and practice, that number can be raised. How high? According to the studies Jonakait cites, only as high as 57%. So the judge's training and experience aren't worth any more than three percentage points.

But wait! Judges have experience(which may result in nothing more than ingrained mistakes), yes. But training? Hey, they went to the same law schools as other lawyers, and Judging Credibility 101 was not on the curriculum. So the alternative to a jury may be no better, and often worse.

Complex Evidence

In cases with engineering, scientific, financial, or other technical evidence, a jury is likely to do much better than a judge. To quote Duke Law School Prof. Neil Vidmar, lawyers tend to be highly literate - but barely numerate. The chance of getting one or more people who understand technical evidence on the jury (and can explain it to the rest) are far higher than that of having a CPA, engineer or physicist on the bench. So juries are more, not less, likely to understand complex evidence than are judges.

Jury Nullification

The next question is whether jurors are competent to decide whether to nullify? Of course, that is a question of ethics. A juror should be able to tell whether a conviction would or would not be unconscionable without any specialized education or training. In fact, it would seem that lawyers and judges often get hardened to injustices, and may be willing to accept injustices that the lay public would be repelled by. After all, this is a question of right and wrong - and if a person isn't able to tell right from wrong, they are legally insane (at least by some tests) and should be disqualified from jury duty!

Finally, as for the education level of jurors: Harry Kalven and Hans Zeisel, in their landmark study The American Jury, found that jurors were, statistically, slightly above the national average for education - at that time, 12.3 years of schooling as opposed to 11.6 years, for the average. This makes sense: those who are ineligible for jury duty tend not to be at the top of the heap, and are weeded out.

Now, motor-voter programs and other programs to diversify the jury pool may have brought the jury closer to average, as many employed people do everything they can to "duck out" of jury duty. The answer is not to disparage or discard the jury, but to put some teeth in the jury summonses - and, perhaps, to pay jurors at least minimum wage. Jury service is the best opportunity most of us have to participate in our government. It is abysmal that so few of us want to take advantage of this opportunity.

The alternative to trial by jury is trial by judge. A jury provides a consensus judgment of diverse elements of the community; a judge provides one jaded perspective. A judge will not have twelve lifetimes of experience, or the educations of twelve individuals, to bring to the job.

Well, Joshua, I hope this answers your questions.

Jurors Revolt After Feeling Like

Medical Marijuana: Is Jury Nullification the Next Step?

Since the June 6th Supreme Court decision in Gonzalez v. Raich, medical marijuana supporters have largely determined to focus on lobbying congress. While Raich did not overturn state medical marijuana laws in the eleven states that have them (Alaska, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Vermont and Washington), it did permit the federal government to arrest medical marijuana patients in those states. (State medical marijuana bills exempt qualified patients who use cannabis medicinally from state criminal penalties.)

Congress is expected to vote later this month on a bipartisan amendment sponsored by Reps. Dana Rohrabacher (R-CA) and Maurice Hinchey (D-NY) that would prohibit the federal government from spending taxpayers' dollars to prosecute patients who comply with their state's medical marijuana laws. Yet Congress has refused to pass a similar bill before, and has by all appearances only moved further towards intolerance in the interim. It seems a stretch to believe that this Congress will act to protect medical marijuana patients.

In some areas, particularly the San Francisco/Oakland area of Northern California, it seems likely that jury nullification may be an increasing threat in federal marijuana cases. In 2003, jurors revolted after convicting Ed Rosenthal of growing 100 pounds or more of marijuana in a highly disputed San Francisco federal case. The jury was outraged that they had not been informed that Rosenthal was growing the marijuana for distribution to medical dispensaries. Juror Marney Craig, a 58 year old Marin County property manager, labeled the trial "a cruel charade." "It is the most horrible mistake I have ever made," she said. "I feel like we were sheep, we were manipulated."

The foreman, Charles Sackett, said, "I fail to understand how evidence and testimony that is pertinent, imperative and representative to state government policy, as well as doctor and patient rights, and indeed your own family, are irrelevant to this case."

Following Rosenthal's conviction, five of the jurors joined Rosenthal on the steps of the Federal Courthouse, denouncing their own verdict, saying they had been manipulated and misdirected, and demanding that Rosenthal receive a new trial. Not surprisingly, the trial court judge, Charles Breyer (brother of U.S. Supreme Court Justice Steven Breyer) refused to consider the jurors protests or grant a new trial. However, in the glare of negative publicity, Judge Breyer eventually gave Rosenthal - whom the federal government wanted to send to prison for six and a half years - a startling one-day sentence.


The Rosenthal jurors convicted without being aware of their nullification prerogative. However, the Rosenthal case made the issue of jury nullification a front page item - and cast it in a positive light. Articles on the jury revolt, often including statements by Sackett and others that jury nullification would play a large rule in future trials, were carried by the New York Times, Newsday, the Washington Post, Reuters, the San Francisco Chronicle, San Francisco Examiner, Oakland Tribune, the Chicago Tribune, the Associated Press and elsewhere. The jurors themselves appeared on numerous nationally televised news broadcasts.

Will medical marijuana advocates, such as Americans for Safe Access, NORML and Green-Aid, find that educating the jury pool in their nullification prerogative is their only way to defeat the Federal efforts to steam-roller their home-grown velvet revolution? It wouldn't be an unreasonable choice. Particularly in Northern California, it would be difficult to imagine putting together a jury of 12 people without including at least one medical marijuana supporter. Such a person could simply refuse to convict - claiming to find the evidence unconvincing - and avoid a conviction. Any acquittals and/or hung juries would successfully announce to other potential jurors that they simply did not have to convict. In short, a few recalcitrant "stealth" jurors could cut government prosecution efforts off at the knees.

Moreover, should jurors decide not to convict in cases of this sort, Congress might be spurred on to finally pass a law exempting state-authorized medical marijuana patients from prosecution. The acquittal of John Peter Zenger paved the way for the reform of English libel law, and as the acquittals of abused women in "burning bed" cases paved the way for battered woman syndrome defenses, have shown that jury nullification can foreshadow dramatic changes in the law.

Independent jurors could force a change in the way our drug laws treat seriously ill people who smoke marijuana to relieve suffering and prolong their lives. And I don't think you have to be stoned to think that such a change is long overdue.

Michael Jackson Not Guilty Courtesy of 12 of his Neighbors

Michael Jackson "Not Guilty" Courtesy of 12 of his Neighbors

Yesterday was such a busy day on the jury front that it took me a while to comment.

Courtesy of twelve of his neighbors, Michael Jackson is now officially not guilty of the charges against him. Congratulations are due to Mr. Jackson and his attorney Thomas Mesereau, and to the jury, which managed to reach a unanimous verdict in a difficult case (something many pundits doubted they could do). Several facts make this case far different than similar celebrity cases emerging out of that polluted dystopia of the West, Los Angeles:

1. Nobody has lambasted the jury. I have read (almost) no suggestions from anyone that this case represented an inappropriate exercise of jury nullification. Interviews with the jurors indicate that the jurors considered all the evidence, and came to the conclusion that the complaining witness and his family were simply not credible. Of course, there will be some sour grapes - as always - but the jury, by nearly all accounts, has acted responsibly and diligently in considering all the evidence.

2. Unlike the reprehensible behavior of Los Angeles District Attorneys Gil Garcetti and Steve Cooley who publicly criticized the O.J. Simpson and Robert Blake juries, respectively, Santa Barbara County District Attorney Tom Sneddon has accepted his loss gracefully and has not blamed the jury for his weak case. (Ironically, after his unethical public tantrum, Garcetti now presides over the Los Angeles City Ethics Commission. Go figger.) Whether or not one thinks the case ever should have gone to trial, one has to respect Sneddon for his refusal to sink to the depths of his neighbors to the South. It is a difficult thing for any lawyer in the media spotlight to lose a hard-fought case, and the temptation to scapegoat the jury can at times be overwhelming to any lawyer. Sneddon has acted admirably in refusing to succumb.

3. A gag order, a refusal to allow cameras in the courtroom, and a little dignity on the part of the judge and attorneys, kept the circus outside from coming into the courtroom and determining the course of proceedings. One of the jurors noted that by the time deliberations started, they had become so used to the media that they didn’t even notice it. While the case will remain, due to Jackson’s wealth, an aberration, at least it wasn’t a total fluke. A well-prepared, well-funded defense is the exception in American felony courts. But then again, so is a jury trial.

Statistics show that, while Federal criminal filings have more than doubled over the last forty years, the number of criminal jury trials has decreased by thirty percent - a two/thirds reduction in the percentage of cases going to a jury. Most defendants in Jackson’s position would today be forced to take a plea bargain, guilty or not, because the risk of decades in prison if they lost at trial would have been too great. Appearances can be damning, (polls show that roughly half of Americans think Jackson was guilty.)

Jackson was lucky: he could afford to mount a vigorous defense before a jury. The real injustice in this case is that there are so few Mesereaus, and so many defendants who need them.

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