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

I 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.