Point of Law: Juries Entitled to Ignore It the Power of Nullification Puts Activists, Jurists at Odds

Article excerpt

YOU MAY HAVE missed this exchange during the closing arguments of the O.J. Simpson trial.

You can bet that Frank Nugent of Oakland, a member of the Fully Informed Jury Association, didn't.

Marcia Clark: "I've never seen counsel ask for jury nullification in this way."

Judge Ito: "It was very artfully phrased."

For a fleeting moment, jury nullification, a little-known but important point of law dating back to the Magna Carta of 1215, received worldwide attention in the Simpson case.

For an instant, Nugent's pet issue was in the limelight.

Prosecutor Marcia Clark was complaining to Judge Lance Ito about defense attorney Johnnie Cochran's tactics with the jury.

Here's a definition.

Jury nullification: the power of a jury to reject a judge's instructions or not to apply a law to a defendant if it believes the result would be injustice.

In other words, juries can ignore the law if they want to acquit. That happened a lot before the Civil War when juries refused to convict abolitionists who helped runaway slaves.

Juries cannot, however, ignore the law if they want to convict.

It's a funny thing about this issue.

Opponents of jury nullification - and they are many - cite no legal precedent that says juries do not have this power. Instead, opponents argue that juries should not be told they have this power. They say chaos will break out if jurors ignore judges' instructions and decide laws should not be obeyed in certain cases.

Some opponents go further. They say juries should be told they do not have the power to ignore the law if they want to acquit.

They say jury nullification occurs too often. To advertise this inherent power of juries would produce anarchy across the nation.

Nugent and the Fully Informed Jury Association are in the business of advertising this power.

Nugent, a retired insurance executive, is the Missouri coordinator for the association. The association has 3,000 members nationwide and chapters in every state.

Nugent is backing a bill that would require judges to be frank about juries' power to nullify the law.

"The bill would force judges to tell the truth to juries. We already have the authority in the law," he said.

So far, the association has not found anyone in the Missouri or Illinois legislatures to introduce its legislation. The bill has passed one chamber in some legislatures, but as of yet, not both.

Although Missouri has no such legislation, Gov. Mel Carnahan signed a proclamation observing Jury Rights Day on Sept. 5. To the faithful of the Fully Informed Jury Association, Jury Rights Day is synonymous with a celebration of jury nullification.

However, Chris Sifford, Carnahan's spokesman, said the governor only signed the proclamation as an endorsement of the jury system, not of jury nullification.

The proclamation states that under "English and American legal doctrine it is the right and responsibility of the trial jury to decide both on matters of law and fact" and that Missouri "recognizes these rights as true and inalienable."

*****

Roots In The Magna Carta

The jury association takes its legal precedents all the way back to the Magna Carta in 1215, when King John was forced to surrender his power to rule by decree. The association cites statements by John Adams, Alexander Hamilton, John Jay, Samuel Chase and Thomas Jefferson.

The group also invokes freedom of the press. John Peter Zenger was acquitted in 1735 when a jury nullified a British law against criticizing the royal governor of New York.

According to the association, judges began overruling the power of juries in 1850 because so many northern juries refused to convict abolitionists charged with helping runaway slaves. In 1895, the Supreme Court - in the case which is still the binding precedent - ruled that judges did not have to inform jurors they had the power to nullify the law. …