Clarence Darrow would have loved the resolution of the Jennifer Nelson case in Suffolk County, New York yesterday. The U.S.’s most famous and iconic defense attorney achieved many of his most important victories by slyly arguing for jury nullification, which is now grounds for a mistrial and ethics sanctions in all states but one (New Hampshire) See Note below. Of course, Darrow never used that term, but when he told juries to “send a message” with their not-guilty verdict, that’s what he was talking about.
Jennifer Nelson, 36, a Long Island mother, faced up to 25 years in prison for driving her car—twice— into a 15-year-old boy, the leader of a pack of bullies that had plagued her teen son last October after she concluded that he had taken his Adidas Ye slides . The jury deliberated less than four hours to declare her innocent of an intentional attack, instead finding her guilty of leaving the scene of an accident when there were serious injuries. Her attorneys say they will seek a sentence of just probation, and if they get the right judge, that may be all the punishment Nelson gets….for attempted murder.
It’s pretty clear that’s what this was. “I’m just happy I finally go to tell my son’s story and I appreciate the jury for their decision,” Nelson said after the verdict. “I’m just happy with the outcome.” I bet she was. Testifying in her own defense, Nelson had said she was unaware that she had stuck anyone and did not intend to injure the boy. I repeat: she drove her car at him twice. Witnesses told investigators they saw Nelson speed up toward accused bully James Gamez in a parking lot as he tried to take cover inside a bagel shop. Passing drivers said they saw Nelson strike the boy once, back up and hit him again, then speed away from the scene.
“I would have called the police if I knew I hit someone,” said Nelson, who traded in her bloody, dented vehicle the same day as the “accident.” A coincidence, I’m sure. Nelson’s son told his mom that several classmates had given him a beating and a concussion after stealing his shoes and an AirPod. About 30 minutes after his accusation, Nelson confronted the teens near his school and pulled a knife on them, which was captured on cell phone video. Nelson said she only wanted to scare the boys. Then, two hours later, she got in her car and went after Gamez in the parking lot, where her vehicle inflicted a broken pelvis, a punctured lung and several broken ribs. He easily could have been killed: it was just moral luck that he was not. Would that jury have acquitted Nelson if she had murdered the boy? Presumably so.
The comments on the New York Post report on the verdict are almost as alarming as the verdict. The vast majority support the jury. Here’s a representative sample:
- “Maybe the perpetrator learned a valuable lesson. Being a bully doesn’t always mean you come out on top. Hopefully, the attitude adjustment takes hold.”
- “I’ll bet the “bully” will think twice before trying it again. Good for her, I would have done the same, but probably not in public.”
- “I have a feeling justice was served.”
- “”acquitted of attempted murder Tuesday in a surprise verdict” …..This statement truly defines the current news media. It was a “surprise” only to the woke reporters who support defunding the police, no bail, few arrests and rampant crime without consequences. Real Americans are fed-up with this mess and this jury gave a loud and clear response to the woke scammers.”
- “Finally! A story today with a happy ending.”
- “You go, Mama Bear! Congratulations!”
Ethics Observations:
1. The reason jury nullification is an important arrow to be left available in the jury’s metaphorical quiver is that sometimes a law itself is wrong and unjust, or prosecutoral discretion has been abused. Neither factor was present here.
2. Nelson not only committed an illegal act of vigilante justice based on minimal evidence (the word of her son), she lied about it. She’s not just a criminal, she’s dangerous. What else will justify an attempted hit in her dubious judgement? The jury verdict was wildly irresponsible.
3. The “message” being sent here is that it’s acceptable for citizens to take the law into their own hands…or maybe that mothers get a pass when they try to kill a bully. Or is it that kids who steal trendy shoes deserve to die? Or the mothers “of color” should kill white bullies, since everyone know the system is racist and rigged? Who knows? An ethical jury nullification verdict has to be clear and articulate. This one was based on emotion and ethics ignorance, and was incoherent as well.
4. If you wonder where support for Donald Trump comes from, this incident is one place to look. I’m sure Trump would approve: “tit for tat,” vengeance, pay-back—they are all unethical principles that he extols.
5. And yes, the accumulated distrust in the justice system that woke attacks on police, laws and courts have engendered helped create this ugly episode.
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NOTE: In the 1895 SCOTUS case of Sparf v. United States, Associate Justice John Marshall Harlan, the US Supreme Court held 5-4 that a trial judge has no responsibility to inform the jury of the right to nullify laws by declaring a guilty defendant not guilty. In a 1969, Fourth Circuit Court of Appeals decision, U.S. v. Moylan, 417 F.2d 1002 (4th Cir.1969), the Court affirmed that a jury had a right to employ jury nullification, but upheld the power of a court to refuse to permit an instruction to the jury reminding jurors of that right. In 1972, in United States v. Dougherty, 473 F.2d 1113, the United States Court of Appeals for the District of Columbia Circuit followed Moylan by agreeing that a jury has the de facto power to ignore the law and evidence while upholding a judge’s the denial of the defense’s request to instruct the jury to that effect. In 1988, the Sixth Circuit upheld a jury instruction that read, “There is no such thing as valid jury nullification.” In United States v. Thomas (1997), the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law.
Ethics Alarms 
Is “prosecutorial discretion” a form of “jury nullification”? Or aren’t these concepts at least the counter-balance to each other?
Regardless of the above, I can’t help but let my mind wander to the scores of law ‘unenforcement’ occuring in large cities across the nation. Looting, rioting, assaults, and just general lawlessness.
Comment #4 stands out. One has to wonder whether the level of support for this type of “justice” would be the same if we had not all suffered through years, now, of seeing obviously serious and even violent crime go largely unpunished and even condoned and praised (unless the perps were trespassing right-leaning yahoos, of course) by primarily one segment of society, including even those who should have been officially and equally upholding laws and norms. Action-Reaction.
Destroying the rule of law leads to anarchy? Who possibly could have predicted that? I’d like to think that watching second order consequences play out in horrific fashion would snap people back to reality and force them to admit that fully thinking policy decisions through before implementing them is necessary, but I won’t hold my breath. People seem pretty determined to close their eyes and continue continue taking a sledgehammer to the foundations of civilization while pretending they are the epitome of virtue and morality.
Not sure what any of this has to do with Trump. There is not a single elected federal official who I can confidently say isn’t thoroughly corrupt. The current sitting President is as criminal as they come, blatantly takes bribes and sells influence, flouts the law at every turn, and violates the constitution whenever he feels like it. Everyone wants to hold Trump out like he is some sort of outlier. He isn’t. Assholery abounds among the elite. Tit for tat is ubiquitous. Criminality is ubiquitous. I find every leftwing politician just as offensive as Trump haters find Trump. Does anyone really believe Biden doesn’t use tit for tat? AOC? Kamala Harris? Chuck Schumer? Are any of those people less narcissistic, vengeful or obnoxious? No. None of our elected elites are setting a good example for the people. I’m sick of people pretending like Trump is somehow worse than everyone else. He isn’t. If people want Trump gone they need to look at how they themselves are abusing segments of society with their votes and stop waiting for Trump supporters to bend over and kiss their ass. We can all fix this together or we can all destroy things together. It looks to me like mutually agreed upon destruction is what people actually want.
Legalizing criminality increases criminality.
My first Reply would not post.
Null Pointer wrote: “Destroying the rule of law leads to anarchy?” What I’d like to see (read) is an ethics article (an expose if you will) from Jack, our host, on the “destruction of the rule of law” by too many Jurists (Judges) across our Country who regularly control and knowingly issue orders and judgments that are flatly contrary to law (without consequences).
Jack knows of what I speak, and I believe he would agree that Judges do far more damage to the judicial system in this country that what Jurys on occasion might do when exercising nullification.
In any case, I am with Null.
My high school’s dean of discipline (yes children, there was such a position in the hoary past) was Brother Daniel, a Marist Brother (it was, and still is, a Marist boys’ high school) affectionately known by we students as “The Bear.” Brother Daniel was essentially a religious mystic and an absolute pussy cat of a very intelligent, kind man. But he was big and Irish and had the requisite Irish temperament. I recall a fight breaking out in the cafeteria. Br. Daniel flew to the scene (he patrolled both lunch sessions) in his black cassock, grabbed both the combatants by the respective scruffs of their respective necks, banged their heads together and extricated them from the cafeteria, one in each hand, post haste. Whenever a post dismissal fight was scheduled at the nearby empty lot that served as the venue for fights, Br. Daniel would inevitably get wind of the alleged fisticuffs and swoop in by car and scatter everyone and snag the malefactors. As far as I know, there are still deans of discipline at my high school. I bet they are in short supply in most high schools. Toxic masculinity, you know.
Is this really jury nullification, our is it a case of the state not building a strong enough case?
Res ipsa loquitur certainly applies to the boy’s injuries, but the whole incident is complicated by differing levels of evidence. There’s video evidence of the preceeding knife incident, but only eyewitness testimony of the vehicle causing the injuries, allegedly occurring a long time period and a different location than the bullying, and possibly involving someone not even involved in the earlier events.
Even worse, it’s testimony from other drivers–if they were driving past, stopped at a red light, or sitting in the same parking lot isn’t revealed in the articles. The whole difference between intentional and unintentional hinged on this eye-witness testimony and we have no indicator of reliability.
She had motive, opportunity, and they had the weapon, plus eye witness accounts of the attack. Subsequent evidence that she tried to get rid of the car—the smoking gun—and her ridiculous explanation: she accidentally ran into the guy twice who just happened to be her son’s nemesis–ends reasonable doubt for me.
Here’s a case with some parallels. It looks to me like the justice system is failing in ways that will unfortunately lead to a rise of vigilantism.
https://fox8.com/news/another-day-of-deliberations-in-fate-of-two-brothers/
That’s a good find, thanks. I can see the verdict in this case as legit, though. It’s kids in a playground fight, and an accidental death. It could be a racial nullification, a la Elie Mystal, but we don’t know enough. It certainly doesn’t seem premeditated. The defendant isn’t an adult. Most of all, this was a hung jury, meaning only one juror might have refused to convict. That could just be a stupid juror. In the Long Island case, the jury was unanimous and made its decision quickly.
It’s often tough to detect nullification, just like its hard to know if a juror has been bribed. Was the OJ jury doing nullification? It’s always seemed possible to me.
Agreed, this case is more interesting from a legal POV. Hard to make a call not having looked at the evidence, like the jury did.
But it’s a good test case to introspect into one’s biases about what’s one’s visceral reaction to it.
Legally, this woman deserved to go to jail. The evidence was clearly in favor of conviction beyond a reasonable doubt. However, I have a hard time not feeling some sympathy for her. The kids she flattened had been bullying her son mercilessly, apparently, as often happens, the attempt to stop it through the regular channels had failed, so she finally took the law in her own hands.
But let me be clear where I’m coming from, I don’t like bullies at all, and I feel no sorrow when something bad happens to one of them. There’s a reason I didn’t get punished when I finally grabbed someone who bullied me and banged his head four times against the concrete curb. I’m still not sorry, and I think I should have banged seven or eight times and made the world a little bit better place by taking this guy out of it. There’s a reason that nothing happened to my father, when, after a tussle at school, the bully showed up at my house demanding I come out and give him satisfaction, and my father grabbed him by the collar, told him he needed to leave now or he would never leave, and threw him down the concrete steps to the sidewalk.
You start trouble, or you make bullying and harassing others your hobby, you don’t get to complain when you get hurt or you get killed. Maybe next time you just keep on walking, or you decide painting models or throwing a ball through a hoop is a better hobby than abusing a classmate who doesn’t come up to your standards (who the hell died and left you judge anyway?). Oh, that’s right, there’s not going to be a next time because finally you made someone mad enough that he decided to let you have it.
A remembrance- we had a dean of discipline at my NYC public high school. When any miscreant was summoned to his office they were confronted with the image of the dean holding an unlit cigar, on his desk was a miniature guillotine cigar snipper. After the deserved admonition, the dean would snip his cigar using his desktop guillotine. At the same time, not so metaphorically, implying that at any subsequent meetings, the same guillotine was sharper enough to snip the boy’s appendage. He was not referring to fingers and toes.
😀