A federal appeals court has laid down the law on when judges may stop "jury nullification," dictating rules to govern the centuries-old practice in which jurors free the guilty they think are persecuted.
While lawyers find the new standard set forth last week to be tough - perhaps unattainable - both sides in the New York case consider it extraordinary even to try policing jurors' thoughts.
An opinion by Judge Jose A. Cabranes - listed as a possible candidate for a Supreme Court vacancy by President Clinton - said judges may expel a juror if they document his intent to ignore the law.
"We hold that a juror's purposeful unwillingness to apply the law - including stated intentions to [in effect] nullify on the basis of racial, cultural or political affinities with the defendants - is a proper basis for removal of a juror" until a verdict is announced, the court said in its 3-0 ruling.
It did not say how that can be done without violating jury secrecy, short of a confession.
Courts have long acknowledged, sometimes in despair, that nullification was a jury's prerogative, but, except in two states including Maryland, courts refuse to let judges instruct on that option.
Lawyers often argue it, saying only juries can police the police as Johnnie Cochran did in the O.J. Simpson case and defense lawyer L. John Van Norden did in the crack cocaine trafficking case that this ruling decided.
"It's recognized by justices like Oliver Wendell Holmes that juries have the right to nullify the law. It's not so much it's a right; it's a reality," Mr. Van Norden said.
In a peculiar twist, two newspapers, the New York Law Journal and the New York Times, were aided in quickly obtaining and understanding the import of Tuesday's decision by unusual phone discussions with Judge Cabranes, The Washington Times learned.
Both newspapers called prosecutors about the ruling before it was released and before lawyers in the case knew it was decided.
"Both of them had it before I even knew it was issued. They got the opinion instantly. The New York Law Journal got it before I did," said U.S. Attorney Thomas J. Maroney, who was unable to explain how that occurred.
The history of "jury nullification" is a long one. Early cases sheltered runaway slaves and contributed to religious and press freedom, but closing arguments at the O.J. Simpson trial turned on a race-tinged tactic Harvard Law School professor Randall Kennedy calls the "sabotage of justice."
Currently, "nullification" appears to the province largely of juries sympathetic to black defendants, but is actually more common, according to a government lawyer, from juries vindicating police officers and prison guards accused of mistreating criminals.
Under the ruling a juror clearly could be dismissed if he admitted his intentions. …