You ask for my personal thoughts on jury nullification, and that is a complicated question. Not to get too philosophical, but if you think about formal systems of judging people, like courts, then history shows us a range of perspectives, from our system, which admonishes random people from the community to make a determination on the basis of logic and reason, to completely arbitrary systems in totalitarian regimes where you can get dead because you angered the wrong person. Somewhere along that spectrum, from pure arbitrariness to complete logic, the two opposites have to meet. In our system, that point is nullification. It is the amount of arbitrariness we allow. And I do think some amount is necessary, because there has to be a way for the deserving individual to escape an overly harsh punishment of blind justice. Like the PBS documentary about the homeless ex-con who found a handgun on the street, called the police, and brought it to them like they told him to — and was then charged by them with felon in possession. A fair system has to allow a jury to acquit a technically guilty individual who just shouldn’t be convicted. Otherwise, we place the law above our humanity. But on the other hand, arbitrariness in justice is the source of innumerable cruelties throughout history. “Witches” have been burned, Christians fed to lions, Jews sent to concentration camps, all in the name of (arbitrary) justice. History is littered with the corpses of victims of the arbitrary ruler’s “because I say so.” When arbitrariness is a significant part of the legal system, the barbaric, animal nature in humanity seems to leak out. And while I do think we should place our humanity above the law, I also am glad to live in a place and time where we place the law above our darker nature.

So, how do I feel about jury nullification? Like most lawyers, when it works for my client, I feel great about it, and I wouldn’t mind if juries had a little more knowledge about it. But I would be very concerned about a legal system that devolved into juries of individuals who were absolutely confident in their ability to completely disregard the law and do whatever the hell they wanted. Our system strongly encourages juries to respect the law and set aside prejudices. In my experience, juries try very hard to uphold that, and I thank them for that. That does not always happen, though. Sometime a jury “arbitrarily” does the right thing by nullifying, but just as often, the jury does the wrong thing because they don’t like the look of the accused, whether because he is black, brown, ugly, gay, skin headed, illegal, or any other marker that draws on a collective prejudice of the random 12. A world where juries feel empowered to act on their prejudices is not a world I want to live in, and is one I spend considerable effort struggling against.

In the end, I am pretty satisfied with the system the way it is. For the most part jurors take their role quite seriously, and really do their best to reach the right result for the right reasons. While I could (and sometimes do) go on at length about the flaws, unfairnesses, inefficiencies and prejudices in the system, at the core I believe we have achieved a justice system that, at the core, is about as good as humanly possible.

Thanks for your post.

Chris

I’ve spoken to several people on this issue. Many of these people are well-educated, and many have also served on juries.
None of those people, however, were at all aware of the jury’s right to nullify!

I’ve read that in some states judges and prosecuting attorneys will dismiss jurors if it’s discovered they are as much as *AWARE* of Jury Nullification. Do you find that to be true in Wisconsin?

Do these judges and attorneys truly feel that the potential jurors aren’t capable of distinguishing whether or not laws are just or where they indeed, do not apply to a case? Why the ’secrecy’?

AS a defense attorney, what are your personal thoughts on Jury Nullification?

Here are a couple links that might help you get started:
http://www.wikihow.com/Change-a-Law-Through-the-Democratic-Process
http://www.answerbag.com/articles/How-to-Lobby-to-Change-a-Law/8205884e-5f1b-42de-8b27-f88a72d017d9

I did a quick search of other cases that referred to Domino. Out of 11 cases, 10 “Distinguished” from Domino, which is legalese for disagreed with. In other words, in 10 other cases, the court, looking at someone trying to use the “known danger” rule, said “No.” In the 11th case, the court also said “no,” just more strongly. Now this isn’t a complete legal analysis of the issue, but it does make the point. It is hard to sue municipalities.

Thank you for your insightful comments, Tree Guy.

Chris

Chris