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April 2, 2013

Guest post by Norm Pattis on his new book, "Juries and Justice"

Juries-and-Justice_Cover_thumbI was pleased to receive from noted criminal defense and civil rights lawyer Norm Pattis the following guest-post concerning the themes in his new book, "Juries and Justice: Saving a System Under Fire":

Juries, we like to tell ourselves, are one of the crown jewels of the American experiment in republicanism.  King George III’s interference with the right to jury trials was, after all, one of the reasons cited for rebellion in the Declaration of Independence. Yet today, a summons to jury duty is regarded by many as akin to a trip to the dentist’s office.  Attend jury selection some time and listen to the excuses people offer as to why they cannot serve.  It’s depressing.  Is it possible that one reason for the decline in interest in jury service is that we have transformed jurors into little more than assembly line workers?

At the time of the founding, jurors had the right to decide both facts and law.  In other words, juries could, and did, nullify the law when they thought the law was unfairly, or improperly, applied.  Thus, while John Peter Zenger was undoubtedly guilty in the 1730s of publishing seditious, unlawful comments about William Cosby, the governor of New York, his jury voted to acquit, expressing its sense that the law was wrong.  Today, Zenger would have been convicted by a jury told that it had to follow the law regardless of whether jurors agreed or disagreed with the law.

Jury nullification is prohibited in the federal courts.  In 1895, the Supreme Court ruled a defendant had no right to have a jury informed of its ability to nullify.  Sparf v. United States, 156 U.S. 51 (1895).  Only a handful of states permit lawyers to argue nullification to juries today.  New Hampshire, for example, passed legislation in 2012 permitting the practice.

What irony, then, to permit prosecutors to argue that a defendant must be held “accountable,” the favorite trope of prosecutors nationwide, while at the same time hobbling a jury’s ability to render a decision about whether the prosecution has responsibly used its power to charge a person with a crime.

Jury service offers ordinary people an opportunity to sit in judgment over the day-today conduct of government officials in a way that voting does not.  By the time a candidate for office has been vetted, funded, and groomed by the major parties and Political Action Committees, the candidates too often appear beholden to big money.  Is it any wonder that the stock market has “recovered,” creating great wealth for a few, while many remain out of work, apparently locked out of an economy that doesn’t work for them?

Why not give jurors the chance to express themselves by nullifying the law as a matter of political protest?  Why, for example, can’t jurors simply say “no” when the prosecution seeks to imprison a young man or woman for casual drug use, but decides not to prosecute a banker who engaged in what amounted to fraud by selling bad mortgages?

Jury nullification is risky.  Didn’t juries nullify in the deep South in the 1960s by refusing to convict southerners of acts of racially motivated violence?  In other words, isn’t the rule of law imperiled when it plays a subordinate role to a jury’s passion and prejudice?

That risk is real.  But, on balance, the greater risk seems to be a people adrift, without a real sense of efficacy.  If government were held accountable for the consequences of the day-to-day decisions it makes in jury rooms, a habit of participation might be fostered in a people consigned to playing the role of passive consumers every so often on polling day. Tweedledum and Tweedledee might be forced to listen if jurors were given choices in jury rooms about whether the law served purposes the people endorse.

I say empowering juries could empower communities, and make government more responsive to the felt necessity of the times.  We can increase a sense of the legitimacy of public institutions by getting jurors more involved in deciding not just whether a defendant is guilty of the crime charged, but whether the government has used our resources wisely in deciding to prosecute in the first instance.

I say it’s time to restore the right to nullify in courts throughout the land.  Will it yield chaos and unpredictability?  Perhaps.  Who said order for order’s sake is a good thing? Justice is too important to be left to judges and lawyers.  Ordinary people live with the consequences of what goes on in a courtroom; these people should have a greater role in deciding the cases they hear.

April 2, 2013 at 10:14 PM | Permalink


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Maybe we should empower juries to nullify a law applicable, not just to cases of casual drug use, but to every case that goes to trial: The law that requires proof beyond a reasonable doubt.

It wouldn't be all that hard to find 12 people who'd be happy to convict the town bully, eccentric or outcast merely on a preponderance standard. On Mr. Pattis's theory of "empowering" jurors to toss aside laws they find disagreeable, why not?

Posted by: Bill Otis | Apr 2, 2013 10:26:44 PM

One result of jurors running amok? The Bronx, from which Justice Sotomayor emerged. They hate the police, they love criminals, especially black and Hispanic ones. They let a lot go. Not a place where decent people would want to live.

The jury took advantage of the wisdom of the crowd effect. This advantage has been cancelled by the lawyer.

How about the following more modest proposals.

1) Pay the jury for their time. Stop being a hypocrite. If you pay nothing, that is your sincere opinion of what a service is truly worth.

2) Let them take notes and ask question of any party to the trial, not just the judge.

3) Random selection from the entire population, and no one is excused from service, not even the President of the US.

4) One secret ballot allowed. Period. If 2 of 3 agree to a verdict, you have a verdict. If not, everyone goes home. A mistrial is called. After the first secret ballot, the discussed verdict reflects the opinion of the one bully in the jury imposing it on all the others that just want to go home. This effect cancels the wisdom of the crowd benefit.

5) Buy insurance to cover jury negligent verdicts, wrongful convictions, unfair nullifications. Jurors must be subject to tort liability to void the immunities they grant to Bronx criminals, Mississippi Klansmen on genocidal rampages, and anti-corporation dunderheads in Texas small towns deciding giant patent cases. All need to be sued. The government should buy them insurance and rein in these little town pirates. To deter.

Posted by: Supremacy Claus | Apr 2, 2013 11:47:37 PM

i've been saying this for years.

The jury has the right and the duty to decide a number of things

1. Did the individual comited the crime charged
2. Was the law the individual was chaged under legal?
3. If the law is legal was it applied fairly in this case.

If all those answers are not Yes. Aquit!

Posted by: rodsmith | Apr 3, 2013 1:40:49 AM

Mr. Pattis --

Let's say that a crime like the grotesque Petit rape/murders occurs in Connecticut this afternoon. Connecticut state law no longer allows the death penalty. Under your theory, shouldn't a local Connecticut jury that still believes in capital punishment for a particularly horrid murder or murders have the prerogative to return a death sentence and demand its enforcement?

Posted by: Bill Otis | Apr 3, 2013 8:56:47 AM

Nullification might be "prohibited" as a matter of law, but it is not as a matter of fact. Let's say we think the OJ jury was dead wrong. Let's say they practiced nullification. (I don't think this is crystal clear, but many think so.) It is not like their judgment was no more final.

There is enough ways for a criminal defense lawyer to provide a jury an out here that I don't think just plain jury nullification is necessary. It is also open to abuse. I understand the arguments such as if some jury heard a case against people who helped fugitive slaves. But, again, there is in practice, an opening for a jury be sent a message in various ways (both sides know how to go close to the line w/o crossing it) and rest it on "reasonable doubt."

It might be acceptable for minor crimes to let the jury have a nullification option -- that is, I'm open to the idea in theory. It's problematic, but if a locality tries that out, okay. But, writ large, it's problematic and not really even necessary.

Posted by: Joe | Apr 3, 2013 11:37:09 AM

The thing missing in both the article and comments is...that so few GO to trial to be subjected to jury scrutiny, especially in the Federal system. I went through a three week Federal trial and was acquitted, but I am in a distinct minority...and the possible consequences of the "trial penalty" are huge. So hoping juries will do anything is kindof beside the point..without more defendants coming before juries.

Posted by: folly | Apr 3, 2013 11:57:53 AM

One problem (though only one) with Bill Otis's suggestion is that words mean things. The term "jury nullification" refers to a jury's "rejection of the evidence or refusal to apply the law." Black's Law Dictionary 936 (9th ed. 2009). In other words, nullification results, by definition, in acquittal. See 1 Fed. Jury Prac. & Instr. § 5:16 (5th ed.), 1 Fed. Jury Prac. & Instr. § 5:16 (5th ed.) ("Nullification occurs when a juror violates his or her oath by failing to apply the law as instructed by the court thereby acquitting a defendant.") See also Wikipedia ("Jury nullification occurs in a trial when a jury acquits a defendant they believe to be guilty of the charges against them.").

Posted by: Michael Drake | Apr 3, 2013 1:37:02 PM

Michael Drake --

I am using "nullification" to mean the same thing Mr. Pattis did. While it's absolutely true that words have meanings (and I'm glad to hear you say so), it is also true that Mr. Pattis's central idea is that the jury should be able to discard legal outcomes (like the conviction and subsequent sentence of a drug user) with which it disagrees. It is very much the same notion that the jury should be able to discard legal outcomes (like Connecticut's repeal of the death penalty) when, in a particularly horrible case, it disagrees with THOSE.

If popular will is to be expressed by juries, that principle cannot fairly be confined only to those instances pleasing to the defense side.

Your complaint is nothing more than semantics. I could just as well say, "Do you think Timothy McVeigh should get anything less than the maximum penalty provided by law?"

If you said "no," people would think you'd gone crazy, because it's perfectly obvious that McVeigh should get the maximum penalty provided by law.

But if you say "yes," I could come right back and say, "Oh, cool, so you approve of capital punishment after all."

Best to avoid word games. The central, underlying question raised by Mr. Pattis is whether the jury should be able to work its will notwithstanding what the law says. Your objection to my comment obscures this question rather than answering it.

Posted by: Bill Otis | Apr 3, 2013 3:39:03 PM

Bill, you're using an alternative definition to reach conclusions that the standard definition doesn't—and in doing so ignoring the substantive political theory that the standard definition rests on. If anything is a "word game," that is.

As for what definition Norm Pattis is using, I'll let him speak for himself.

Posted by: Michael Drake | Apr 4, 2013 12:02:55 AM

Michael Drake --

Your response continues to rely on semantics. I'm interested, however, in basics. The underlying question raised by Mr. Pattis's book is whether the jury should be able to work its will notwithstanding what the law says.

What is your answer to that question? Yes? No? Yes, but only if the defendant benefits? What?

I'll give you my answer, and I won't be cute or semantic about it. The answer is no. The rule of law, equity's strong interest in avoiding idiosyncratic outcomes, and vindication of the legislature's legitimate authority to write the law all require that answer.

So what is your answer?

Posted by: Bill Otis | Apr 4, 2013 12:29:28 PM

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