Gene Weingarten, the Washington Post columnist, wrote about his recent experience as a juror. It was a trial of a man accused of selling $10 of heroin to an undercover officer. Weingarten professed to be annoyed that such a small amount would justify an arrest and trial; he’s just wrong about that. Dealing a dangerous prohibited drug is still dealing, no matter what the amount. I know this is the kind of case that gets the legalize-drugs-so-we don’t-put-so-many-people-in-jail crowd all self-righteous, but “a smidgen of heroin dealing” still supports a destructive social problem, and law abiding citizens don’t deal even a little smack.
That’s not really the issue here, however.
Weingarten was convinced that the defendant was guilty beyond a reasonable doubt. He was also convinced that the police were lying. He decided that if he got the chance to deliberate on the case (he was an alternate), he would make a stand against cheating by the police and the exploitation of dishonesty by the prosecutor, and vote for acquittal.
Weingarten calls what he planned to do “jury nullification”, which is when a jury acquits a guilty defendant contrary to the law in the interest of a greater justice. This was not jury nullification. It is called being a responsible juror. As a matter of law, the testimony of a lying police officer can’t prove the guilt of a client beyond a reasonable doubt, because it is not legitimate and legal evidence. A juror may personally be convinced of an individual’s guilt, but “beyond a reasonable doubt” is an objective standard, not a subjective one. If the key witness, in this case one of the arresting officers, is lying, then there must be doubt. Weingarten writes that other officers supported the lie; they were lying too.
It doesn’t change the fact that jury nullification or not, Weingarten’s reasoning was ethically valid.
“I believe they [the police] feel themselves to be warriors fighting the good fight against bad people who have the system stacked in their favor. I believe they knew they had the right guy and were willing to cheat a little to assure a conviction. I believe they had the right guy, too. But the willingness to cheat, I think, is a poisonous corruption of a system designed to protect the innocent at the risk of occasionally letting the guilty walk free. It’s a good system, fundamental to freedom. I think a police officer willing to cheat is more dangerous than a two-bit drug peddler.”
Correct. Manufacturing evidence to convict a guilty man is exactly as wrong as doing so to convict an innocent one. This is the kind of corruption explored in the Orson Welles 1958 classic,“Touch of Evil,” in which a veteran police detective, whose instincts are uncanny, begins cheating to make certain the criminals he knows are guilty get convicted even when legitimate evidence is lacking. What Weingarten witnessed was the same touch of evil—the authorities distorting the system, using perjury and deception to try the guilty, rather than the fair trials that are their absolute right as citizens. A justice system that tolerates this practice is not just. It is dangerous.
Weingarten never made it onto the jury, but the defendant, to Weingarten’s surprise, was acquitted anyway. We should hope that the result occurred not because the jury members thought a little heroin dealing should slide by, but because they know that a defendant, even a guilty one, should never be convicted in America by lies and manufactured evidence.
In either case, their actions preserved the integrity of the system.