Jury nullification, like a rare bird, is much discussed among specialists, but hardly ever seen. Last week brought a sighting -- maybe -- in Los Angeles, and hopes for a much more publicized sighting in the Lewis Libby trial in Washington.
"Jurors nullify when they believe a defendant is actually guilty," explains Prof. Paul Butler in the Fall 2004 issue of Litigation magazine. (If you're an ABA member, you can read his article here.) "They do so usually because they think the law is unjust and the prosecution is unfair." To organizations devoted to preserving individual liberties against government interference, like the Fully Informed Jury Association and the Constitutional Rights Foundation Chicago, jury nullification is a fundamental bulwark of freedom. To those more concerned with protecting minorities against majority oppression, it is a potential weapon in the hands of a racially motivated jury to convict an innocent minority defendant or acquit a guilty member of their own group. (The discussion over this issue often centers on Prof. Butler's article "Racially Based Jury Nullification: Black Power in the Criminal Justice System." 105 Yale Law Journal 677-725 (1995), and Clay S. Conrad's book Jury Nullification: The Evolution of a Doctrine, reviewed here among other places.)
Does it ever happen?
For all that conversation, jury nullification rarely actually happens; and even when we think we might have seen it, we're never sure. "[T]he empirical evidence about jury nullification is slim," Prof. Butler notes in the Litigation article, largely because we rarely know exactly how jurors reach verdicts. Jurors who want to acquit a guilty defendant can consciously reject the jury instructions -- or they can decide that witnesses were not credible, or that there were gaps in the proof. Either way, the verdict is a political statement, but it may not be nullification, strictly defined.
Nullification in the news
The rare bird may have been seen in Los Angeles last week. A homeless activist named David Busch was charged with a crime called "Trespass - Interfering With Business," because he was using a hotel lobby pay phone, apparently repeatedly. (I say "apparently" because the article I'm relying on, by the Los Angeles Independent Media Center, is partisan.) He was acquitted. The jurors may have found that no business was interfered with, or they may have found that business was interfered with and they didn't care. Either way, the verdict does sound like a statement against prosecuting the homeless for that which ordinary citizens would be welcome to do.
Meanwhile in Washington, at least some Lewis Libby supporters are wondering whether jury nullification might be the answer for their man. Conservative WizBangBlog explains the concept to its readers and says Libby's case "seems ripe for its application." David Frum imagines how the jury's reasoning might go:
If I were sitting on that jury, and heard this summation, I would have only one question: Why am I judging this man Lewis Libby and not Richard Armitage? If disclosing Plame's name was such a monstrous offense, why did Fitzgerald not indict the man who did the deed?
(Photo by Abulic Monkey at http://www.flickr.com/photos/abulic_monkey/134960543/)