When Laws Are Unjust: A Primer on Jury Nullification
by Joe Watson
The 2014 trial of Jacob Lavaro—a 19-year-old from Austin, Texas, who was facing five years to life for making a pound-and-a-half of pot brownies— has again provoked the ire of criminal justice reform advocates, including prominent political commentator Thom Hartmann, who is endorsing a new tack in defeating draconian drug laws.
Short of a long-needed end to the failed "war on drugs," Hartmann says, Americans should learn about the constitutional power of jury nullification.
"You know that based on all the evidence presented by the prosecution that the defendant is probably guilty," Hartmann explains, "but you and other jurors on the case have serious doubts about convicting him because you know that doing so will ruin the defendant's life.
"You're trapped," Hartmann continues. "The law says one thing, but your conscience says the other. So what do you do?"
According to Hartmann, "you declare the defendant 'not guilty' regardless of the evidence and let him walk free, 'nullifying' the unjust or unfair law."
While jury nullification has been around since the country's founding— with John Hancock and John Adams among its original proponents—it has long been held, since an 1895 Supreme Court decision, that jurors had no right during trials to be told about nullification.
"The court did not say that they didn't have the power, or that they couldn't be told about it," wrote Paul Butler in a New York Times op-ed, "But only that judges were not required to instruct them on it during a trial."
In 2011, a defendant in a marijuana case was given a favorable plea bargain by Montana prosecutors after multiple potential jurors said they would nullify the law under which he'd been charged. According to Butler, who has been advocating nullification for nonviolent drug cases since 1995, the end of alcohol prohibition and the repeal of "laws that criminalized gay sex" can also be credited to jury nullification.
But how, if courts prohibit defense lawyers from even mentioning jury nullification during trial, do jurors learn that they can use it?
Thankfully, there have been voices like Butler's and Hartmann's, as well as the Fully Informed Jury Association (www.fija.org), which advocates for juries to be informed of their power to nullify.
And there are also free speech advocates like Julian Heicklen.
Heicklen, an 80-year-old retired chemistry professor, was charged by federal prosecutors in 2011 with jury tampering after he advocated jury nullification outside a New York City federal courthouse in Manhattan. Heicklen reportedly stood with a "Jury Info" sign and passed out brochures explaining and supporting nullification.
Prosecutors argued in an indictment that Heicklen's advocacy, "directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred." But in April 2012, federal judge Kimba M. Wood dismissed that indictment, saying she would not "stretch the interpretation" of the jury tampering statute to cover speech that was "not meant to influence" a juror's actions in a specific case.
Heicklen, who represented himself with the assistance of two federal public defenders, said Wood's ruling was a victory "not just for me," but it was also "a major decision for the country."
Sources: The New York Times, www.truth-out.org