A Stitch in Haste

To review: I have long been on record as rejecting outright the notion that jury nullification is either: (a) an explicit prerogative of modern juries, (b) inherently just, or (c) inherently libertarian. The latter two points are self-apparent to anyone who analyzes the question objectively. Nullification is a tool, and like all tools it can be used for good or for ill — with “good” and “ill” open to subjective definition. Libertarians have no more superior claim to nullification than do anarchists or socialists. The more inflexible nullifier-libertarians always seem to suggest that only libertarians would nullify and only to achieve “libertarian” goals. That presumption is, of course, patently preposterous.

But that’s all low-hanging fruit. One of the more complicated questions is how the history of juries factors into modern theories of the jury generally and nullification specifically. As I have noted elsewhere, the often-cited (which is to say, “often-abused”) cases (e.g., Zenger) and quotes (e.g., Adams) are with very few exceptions pre-Revolutionary. Which is to say when there was no such thing as an “independent judiciary.” Judges were servants of the Crown, expected — upon threat of punishment — to do the King’s bidding.

Recently, a fascinating memo was issued by a federal district judge in Massachusetts in response to inquiries from a juror regarding nullification:

First, after only an hour of deliberations, the jury sent a note indicating that one juror refused to accept the legitimacy of the drug laws at issue. After it became clear that deliberations could not move forward, the Court conducted individual juror voir dire. The Court dismissed Juror No. 2 because he was unwilling to set aside his belief that the Commerce Clause does not give Congress the authority to proscribe mere possession of narcotics.

The judge then went on to write a 40-page opinion (nominally on the question of removing this juror and another possibly tainted juror) that in reality is a treatise on the role of the jury generally. (The judge also rails against pre-trial settlements, plea bargaining, tort reform, the U.S. Sentencing Guidelines, jurisdiction-stripping and other modern practices that keep litigants away from juries.)

The judge confirms my view that the modern law-fact dichotomy arose quickly and without much dissent almost immediately after the Founding:

While judges shouldered a good deal of the blame for the lack of legal certainty, allowing juries to follow their own law led to ad hoc decisions and undermined uniformity and predictability. Influential legal thinkers of the day recognized that establishing a predictable rule of law was critical to the growth of America’s fledgling economy. The future chief justice of Connecticut, Zephaniah Swift, observed the relationship between uniformity of decision in England and the immense wealth and commercial prosperity of that nation. [Internal quotes and citations omitted.]

In other words, jurors were “nullifying” what were, objectively speaking, perfectly legal contracts and perfectly valid debts — sometimes for quite large amounts of money. They were also creating an incoherent, almost schizophrenic mish-mash of rules that made the formation of binding contracts, especially interstate contracts, a difficult or even impossible undertaking. (I specifically noted the total failure of nullifier-libertarians to address the question of civil trials in the Stitch in Haste Podcast #002.)

More:

The requirement that ordinary citizens — as opposed to elected representatives — take responsibility for the administration of justice is our Constitution’s most shining example of direct democracy. It is no coincidence that the framers employed unbridled democracy in Article III. As Professor Amar has explained, the jury requirement provides a check against life-tenured judges and prosecutors that is no less significant than the Senate’s check on the House of Representatives.

Just as the Zenger trial did not, contra libertarian mythology, actually involve the “nullification” of any law, but only of the judge’s instructions, so too do modern juries provide a check, not against oppressive laws, but against oppressive processes: overzealous prosecutors, tyrannical sheriffs, racist police officers, biased judges, etc.:

The purpose of a jury is … to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. Taylor v. Louisiana, 419 U.S. 522 (1975)

Furthermore, it was precisely the need for the judge to explain the law to juries, which they were to take as a given, that led to the notion of judicial review itself. For Chief Justice Marshall to declare in Marbury v. Madison that it is the role of judges to “say what the law is” presupposes someone to say it to — i.e., a jury of laypersons. Only in that way can the constitutionality of a law be debated (i.e., on appeal) in the first place. (Note: The memo’s discussion of the history of judicial review at the district court level is a truly fascinating read, both as law and history.)

In short, with Independence came a new theory of the judiciary and a new theory of trials — especially federal trials. Judges ceased to be servants of the Crown and became servants of the Law — including serving as the presumptive guarantors of due process. The jury, as the finder of fact, stands not as the final arbiter of the law but of those administering it. And that is certainly a sufficiently powerful — and solemn — task without overlaying false, and counterproductive, notions of nullification on top of it.

The case is U.S. v. Luisi, No. 99-10218 (D.Mass., July 25, 2008) (PDF - 41 pages)

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As one might expect, the nullification memo was not met with much praise in libertarian circles. For the most part, the criticism consisted of the same “check on government power” context dropping (which “government power”?), rewriting of history (“but … but … Zenger!”) and moral grandstanding (“nullification is moral and just when libertarians do it …”) that is par for the course among nullification apologists.

I do want, however, to highlight this post by Cato scholar Tim Lynch. Rather than merely hurling out spasmodic bromides, Lynch actually tries to make some bona fide arguments in defense of nullification:

Court precedents say jurors have no right to nullify. … I would also point out that even though many modern court rulings express hostility toward jury nullification, no court has yet dared try to reverse a not guilty verdict or attempt to punish any juror who cast a not guilty vote in a jury room where the result was deadlock (not an untoward outcome, by the way).

That’s a non sequitur. Courts never — never — second guess jury deliberations unless there is evidence of outside taint (tampering, Bibles, etc.). The fact that courts don’t seek out evidence of nullification (i.e., inside taint) does not mean nullification is proper. It just means that a higher principle — the deliberation room is sacrosanct — takes precedent.

Neither is there a contradiction in saying that jurors have no right to be told about nullification, even if they are not “punished” for actually doing so. It merely reflects the uncomplicated principle that we expect jurors to do the right thing, even if we accept the fact that they might do the wrong thing. But “right” and “wrong” remain constants.

Like so many of America’s early leaders, John Adams was a strong proponent of jury nullification. Here’s Adams: “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

Yes, Adams did indeed say that — in 1771, referring to Crown courts (see above). There is, to my knowledge, no evidence that Adams explicitly embraced nullification under an independent, republican judiciary.

Indeed, note precisely what the Adams quote actually says: “though in direct opposition to the direction of the court.” Not “though in direct opposition to the law.” This is just Zenger recycled: Pre-Revolution nullification was directed at judges, not laws. Nullifying an aggressive prosecution or a biased judge was not the issue in the memo, nor is it what the nullifier-libertarians are really talking about.

Jury nullification is assumed to be improper — so it undermines “the law.” It is like saying a presidential pardon undermines the “rule of law.” But if the president has the power to pardon, and he does, he can exercise it (though we may or may not like the result in particular cases). This is the way in which to understand jury nullification.

Sorry, but no it is certainly not the way in which to understand jury nullification. It is simply circular, assume-the-answer gobbledygook packaged as a faux meta-analysis: “Jury nullification is the law, so it can’t possibly undermine the law.” Except that jury nullification is not the law — no matter how many times its advocates repeat the same flimsy, historically inaccurate or just plain wrong arguments suggesting otherwise.

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The tendency of libertarians to embrace nullification is, to an extent, understandable given the utterly frustrating state of affairs in contemporary American statecraft. An increasingly intrusive legislature, intertwined with an often unaccountable bureaucracy, enabled by appellate courts that have elevated “deference” to the highest judicial virtue, leave those of us who believe in the supremacy of individual rights with few options to “vent.” Point conceded.

But two wrongs do not make a right. Imagining a history and jurisprudence that never existed, and praising a tool that is just as useful to malefactors as to benefactors, is simply not the proper alternative.

Previously:
–In Offense of Jury Nullification
–Stitch in Haste Podcast #002
–Suddenly Jury Nullification Doesn’t Sound So Great
–Where is Your Nullification God Now?
–Did IQs Just Drop Sharply While I Was Away? (Part One)
–More on “Trial Nullification” versus “Law Nullification”
–Should Jury Nullification Apply to Blocked Defenses Too?
–A Nullification Denouement