Academic journal article The Yale Law Journal

Racially Based Jury Nullification: Black Power in the Criminal Justice System

Academic journal article The Yale Law Journal

Racially Based Jury Nullification: Black Power in the Criminal Justice System

Article excerpt

Wonders do not confuse. We call them that

And close the matter there. But common things

surprise us. They accept the names we give

with calm, and keep them. Easy-breathing then

We brave our next small business. Well, behind

Our backs they alter. How were we to know.(1)

Gwendolyn Brooks


[T]he time that we're living in now . . . is not an era where one who is oppressed is looking toward the oppressor to give him some system or form of logic or reason. What is logical to the oppressor isn't logical to the oppressed. And what is reason to the oppressor isn't reason to the oppressed. The black people in this country are beginning to realize that what sounds reasonable to those who exploit us doesn't sound reasonable to us. There just has to be a new system of reason and logic devised by us who are at the bottom, if we want to get some results in this struggle that is called "the Negro revolution."(2)

Malcolm X


I was a Special Assistant United States Attorney in the District of Columbia in 1990. 1 prosecuted people accused of misdemeanor crimes, mainly the drug and gun cases that overwhelm the local courts of most American cities.(3) As a federal prosecutor, I represented the United States of America and used that power to put people, mainly African-American men, in prison. I am also an African-American man. While at the U.S. Attorney's office, I made two discoveries that profoundly changed the way I viewed my work as a prosecutor and my responsibilities as a black person.

The first discovery occurred during a training session for new Assistants conducted by experienced prosecutors. We rookies were informed that we would lose many of our cases, despite having persuaded a jury beyond a reasonable doubt that the defendant was guilty. We would lose because some black jurors would refuse to convict black defendants who they knew were guilty.

The second discovery was related to the first, but was even more unsettling. It occurred during the trial of Marion Barry, then the second-term mayor of the District of Columbia. Barry was being prosecuted by my office for drug possession and perjury. I learned, to my surprise, that some of my fellow African-American prosecutors hoped that the mayor would be acquitted, despite the fact that he was obviously guilty of at least one of the charges--he had smoked cocaine on FBI videotape.(4) These black prosecutors wanted their office to lose its case because they believed that the prosecution of Barry was racist.

Federal prosecutors in the nation's capital hear many rumors about prominent officials engaging in illegal conduct, including drug use. Some African-American prosecutors wondered why, of all those people, the government chose to "set up" the most famous black politician in Washington, D.C.(5) They also asked themselves why, if crack is so dangerous, the FBI had allowed the mayor to smoke it. Some members of the predominantly black jury must have had similar concerns: They convicted the mayor of only one count of a fourteen-count indictment, despite the trial judge's assessment that he had "`never seen a stronger government case.'"(6) Some African-American prosecutors thought that the jury, in rendering its verdict, jabbed its black thumb in the face of a racist prosecution, and that idea made those prosecutors glad.

As such reactions suggest, lawyers and judges increasingly perceive that some African-American jurors vote to acquit black defendants for racial reasons,(7) a decision sometimes expressed as the juror's desire not to send yet another black man to jail.(8) This Essay examines the question of what role race should play in black jurors' decisions to acquit defendants in criminal cases. Specifically, I consider trials that include both African-American defendants and African-American jurors. I argue that the race of a black defendant is sometimes a legally and morally appropriate factor for jurors to consider in reaching a verdict of not guilty or for an individual juror to consider in refusing to vote for conviction. …

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