Jury Nullification Ethics: Denver’s District Attorney Tries To Make It Illegal To Teach Jurors About The Power Of Juries

ZengerIs it just me, or does it seem to everyone as if  a lot of public officials have been trying to shrink the First Amendment lately?

Jury nullification is the doctrine, rich in jurisprudential and American history, that declares that juries have the power and the right to reject what they believe are either unjust criminal laws or unjust prosecutions, and acquit defendants who may have been proven guilty on the evidence, essentially nullifying the law by refusing to enforce it . They definitely have that power: once a citizen is declared not guilty, that citizen cannot be tried again. The dilemma is that neither judges nor lawyers are permitted to let juries know about nullification, since nullification defies the law. A defense lawyer mentioning it in a closing argument risks a mistrial, and bar sanctions. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is written whether they agree with the law or not. In only a few states are jurors expressly permitted to judge both the facts and the law of the case. In 2012, New Hampshire passed a unique law explicitly allowing defense attorneys to inform juries about jury nullification.

In Denver this week, Mark Iannicelli, 56, set up a small booth with a sign that said “Juror Info” in front of the city’s courthouse. The Denver District Attorney’s Office has charged him with eight counts of jury tampering, because Iannicelli used that booth to hand out flyers about jurors’ rights to practice jury nullification to jury pool members. Yes, he has been charged with tampering with juries that aren’t even juries yet.

I haven’t seen the flyer, but I would hope that it tells the inspiring story of printer John Peter Zenger, charged in 1735 with printing seditious libels against the Governor of the Colony of New York, William Cosby. Despite the fact that Zenger undeniably printed the criticism (the only issue the court said the jury was free to decide, as the court deemed the truth or falsity of the statements to be irrelevant), the jury nonetheless returned a verdict of “Not Guilty,” striking blow for freedom of the press in the New World as well as jury independence.

More historically significant examples of nullification were to come. In the early 1800s, juries nullified cases brought under the unconstitutional Alien and Sedition Act. In the decade before the Civil War, Northern juries practiced nullification in prosecutions brought under the Fugitive Slave Laws. Many juries practiced nullification in prosecutions brought against individuals accused of violating Prohibition. Clarence Darrow is generally regarded by the legal profession as America’s greatest trial lawyer, and many of his closing arguments were veiled, or not so veiled, pleas for the juries to ignore the law in the interests of “justice.”

Telling jurors about a power that they have and that cannot be denied to them isn’t “jury tampering.” It is called communication. It is constitutionally protected speech, and as legitimate as informing someone about their Constitutional rights. In fact, someone needs to inform the Denver District Attorney, Mitchell Morrissey, about Constitutional rights. I don’t know how, but somehow he was absent from those classes in high school. And college. And law school.

It is unlikely that Iannicelli’s case will ever get to court, as this kind of jack-boot tactic by law enforcement has been struck down before, though such efforts inhibit free speech even when they are unsuccessful.

Fortunately, if Iannicelli is tried, the jury can refuse to convict him.

Jury nullification.

[Note: this is only tangentially related, but here is the video promotion for my production of “Twelve Angry Men..”]


Pointer: Instapundit

26 thoughts on “Jury Nullification Ethics: Denver’s District Attorney Tries To Make It Illegal To Teach Jurors About The Power Of Juries

  1. As a jury member, would I be permitted to call for nullification amongst my fellow jurors, or would it have to be in the veiled language of “that’s just not right.”?

  2. How do you put someone on trial for telling people about jury nullification without letting the jury know about jury nullification? I think Iannicelli may be protected by a Catch-22.

    That said, if you don’t want jury nullification to happen, the way to do it is to convince the jury that the law is a good one and is being applied fairly and sensibly. Again, people are pathetically attempting to use semantics to do the job of empathy.

      • Semantics is the simplification of interaction, combining analysis and operation. Essentially, it applies labels, algorithms, and rules to situations in order to make decisions and conclusions easier, but the limitation to solving problems in such a manner is that when the implicit assumptions that the algorithms are based on don’t apply, the answer will be wrong. The opposing mindset to semantics is empathy.

        Empathy is the individualization of interaction, combining synthesis and operation. Essentially, it ignores preconceived assumptions and pays attention to the feelings a person expresses and the impressions they have of their experiences. By using one’s own experiences to imagine a paradigm similar to that of the person you’re talking to, you can better understand them and what they want. Empathy does require listening to and exploring a person’s point of view, and more or less by definition does not produce results that can be generalized, but is much better at dealing with edge cases of human behavior.

        Semantics is simple, certain, and easy to systematize, and for these reasons goes horribly wrong when used to deal with a problem that it is ill-suited to, but also for these reasons is very attractive to people who don’t know any better.

        Making a rule to attempt to prevent jury nullification would be an application of semantics. If anyone thought to apply empathy they would realize that a completely valid way to address a potential jury nullification would be to envision and address the jurors’ concerns as to whether the law is just and applied in a just way. Granted, it’s much easier said than done, but that’s what we pay lawyers for.

        As a side note, both of these opposing mindsets are necessary for the great mindset of communication: the ability to synchronize paradigms by moving between and within them, and to learn to play different roles in your interactions with the world. At the highest levels of skill, it’s the closest thing we currently have to a mind meld.

        • Isn’t that a needlessly convoluted way of saying that there are rules and laws which are designed to eliminate the inherent distortions of emotions, but when the rules and laws seem to lead to results that seem wrong and unjust, emotion gets the upper hand? It’s not the jury’s role to make the laws, or execute them. Their job is to determine whether the facts fit the laws. According to the rules, they can never take the law into their own hands, but the law cannot stop them from doing so.

          On this blog, the Ethics Incompleteness Principle explains that there will be a time when the unethical breach of the law will be necessary and right. I don’t see how bring blurry terms like empathy and semantics clarifies anything.

          • It may seem needlessly convoluted to you, who already have developed an implicit respect for balance. However, many people don’t recognize the merits of one or both of these mindsets. By cataloging the abilities of these mindsets to solve problems, I can demonstrate their worth to people who don’t already see it as obvious.

            Furthermore, these mindsets represent not just approaches, but skills. Semantics and empathy are skills that allow more specific skills to be learned. My purpose in elaborating upon these is to also figure out how to help people develop them so they can stop causing problems and start solving them.

            Finally, these mindsets are not the only ones in play; I’m not giving convoluted labels to a simple isolated situation, but rather connecting a simple situation to a bigger picture in which the terms are important. There are six other basic mindsets, and many more peripheral ones, including a few very powerful ones. Knowing their capabilities allows me to determine what mindsets a problem calls for and whether a person is using one that will work. Being a geek, I theme them after metaphorical elemental powers for illustrative purposes. Semantics is themed as Light Element and empathy is themed as Darkness Element. This, too, is meant to help people learn how and when to use a mindset.

            The system is designed to enumerate all the mindsets a person needs to be mature and capable. As far as I know, it’s the best shot the world has at developing a self-sustaining enlightened society.

        • Did I ever tell you that I imagine you as this green, gelatinous, amorphous organism, floating in a glass tank full of yellow viscous liquid, with fine wires attached to your translucent, membranous skin interfacing with the computer in your orbiting space pod, from which you send these inter-species communiques? Or are you actually a squid?

          • More like an octopus. I’ve got a picture now.

            The reason why I historically haven’t considered myself “human” is that I’ve been a perception user for as long as I can remember, which led me to change to follow the truth and attempt to become better even as I diverge from mainstream humans. Before learning to use communication, I had trouble fitting in with society. I’m developing my skills at presentation, so that I can bring the rest of the world along with me as I break new ground and I won’t have to hide my perception in order to fit in.

            I came up with my alias on this basis when I started high school: Representative of a deeper reality that makes most people freak out because it’s so alien to them: check. Hyper-resilient due to transcending injury: check. Rejects the limitations that humanity ascribes to itself: check. Disrupts conventional paradigms just by trying to interact with them: check. Confirmed: I’m a Cthulhu-esque Cosmic Horror/Eldritch Abomination. I imagine this is how people see Nietzsche, as well.

            人間 じゃない でも この 世界 が 俺の も だ よ! Ningen janai, demo… kono sekai ga… oreno mo da yo! I’m not human, but… this world… is mine, too!

  3. Okay, but don’t you think you’ve erred in *only* presenting jury nullification in a positive light? Couldn’t a jury also use its power to nullify just and righteous laws? For instance, couldn’t a jury in deep 1950s Alabama choose to use jury nullification to acquit a white murderer accused of killing a black child? Also, isn’t every form of jury tampering some kind of communication?

    • I don’t think I suggested it was positive at all. It’s contrary to the law and the justice system. That’s per se negative. Situations where it is justifiable are exceptions, but that’ what safety valves are for….exceptional circumstances. The jury has the power, that’s all: power can be misused as well as appropriately used.

      Jury tampering is using illicit means to affect jury deliberations in a particular case. Making information available to the jury about the jury’s role in general not related to any case in particular cannot be jury tampering.

      • Ah, I misunderstood your point. I thought you were making a larger point about jury nullification, but you were making a narrow point about this particular individual. Thank you for the clarification.

  4. Clarify for me please though-

    Does jury nullification create precedent or would it require a case by case basis as the same law may apply in completely different trials?

    I’m sure you mentioned that but I may have missed it.

  5. The power of nullification- whether it be by juries or states vs. the federal government- and the power of an elected county sheriff are two important pillars of a free society that are rarely noted. Yet both are under increasing political attack. That has served to draw attention to them, which is vitally needed.

  6. The way this material has been selected and presented may mislead readers into thinking that this is primarily a U.S. issue with eighteenth century origins. It is not. Edmund Spenser’s A View on the Present State of Ireland shows that it was already going on in sixteenth century Ireland (he was against it). It seems highly probable that it goes back to the very beginnings of the jury system, in mediaeval Normandy, drawing on even earlier precedents; it seems that it was adopted for the very reason that it allowed a safety valve, without which justice couldn’t have been imposed in the face of resistance (more effective then, as rulers had less disposable force independent of the consent of the ruled) and with which adverse outcomes did not undercut rulers’ legitimacy so much (the way, say, mobs freeing recaptured slaves did).

    • Thank you, and I take the note. I have enough trouble trying to remind Americans of the history, institutions and culture without getting into our pathetic ignorance of British history, but you are 100% correct.

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