Sometimes, Jurors Have to Take a Stand and Say, ‘No, Not in Our Name’

Picture this: On trial in a federal courtroom in Los Angeles is a woman accused of 20 felony counts of mail fraud stemming from the alleged theft of $17,000 from the Social Security Administration. If convicted of all 20 counts, she faces a maximum penalty of 100 years in prison. The prosecution’s witnesses describe how the woman repeatedly made false claims that she was not receiving her disability checks in order to get replacement checks and cash them along with the originals.

The defense attorney then calls his client to the stand. Under oath, she tells the jury that she is guilty as charged. The judge instructs the jurors to follow the law and sends them off to deliberate. But the woman is not convicted. Instead, the jury cannot reach a verdict on any of the felony counts because four of its 12 members will not vote for conviction. A mistrial is declared, and the woman walks away.

That is what happened in a case that went to trial recently.

Those four jurors chose to nullify -- to vote, that is, according to their gut sense of right and wrong rather than according to the strict letter of the law, a traditional right that dates back to the Magna Carta and that was strongly defended by this nation’s founding fathers.

Though at first blush the story may sound bizarre, even perverse, I believe it is an example of why the jury system works. It wasn’t just the woman on trial who had behaved badly, it was also those prosecuting her.

“Jury lawlessness,� one distinguished legal commentator wrote nearly a century ago, “is the greatest corrective of law in its actual administration.� In our legal system, a juror’s refusal to convict can’t be punished or reversed. For that reason, a jury may apply the law according to the judge’s instructions or choose to nullify.

Jury nullification has been used to acquit defendants charged with seditious libel for speaking out against the government, abolitionists who defied the Fugitive Slave Act and determined drinkers who chose to purchase and consume alcohol during Prohibition. Nullification is not a tool to be used lightly; it would be a mistake for juries to ignore well-thought-out laws on a regular basis.

Occasionally, jury nullification creates a terrible injustice, most infamously during the civil rights era when bigoted juries acquitted clearly guilty white defendants of lynching African Americans. But it is appropriate when a prosecutor or a judge uses a good law for a bad purpose, seeking to punish an individual in a manner that is excessive, vindictive or morally repugnant. In that rare instance, the 12 citizens called upon to endorse that abuse of prosecutorial power can and should refuse to go along.

Our country was founded by people who fled a tyrannical monarchy. Having suffered the evils of a centralized and unchecked ruling class, they were determined to create a government with limited powers -- a government accountable to all of its citizens. Nullification is the last resort for those who believe that common sense and decency should win out over the letter of the law. It is what happens when the people call their government to account by standing up and saying, “No, not in our name.�

That is what those four jurors did Oct. 13. They refused to convict the woman on trial, even after she confessed to the crimes, because the prosecutors who brought the case against her abused the power that had been entrusted to them.

The woman, the jury learned, was disabled and nearly deaf. Years earlier, when confronted with her theft, she had agreed to a reduction in her disability checks, which were then garnished by the Social Security Administration to repay the money that she had taken.

The jury, it seemed, saw the case for what it was. Interestingly, its judgment was originally shared by the prosecutor, who had at first seen fit to charge the woman with a single misdemeanor theft offense, carrying a maximum penalty of one year in prison, on the condition that she ask to be sentenced to 500 hours of community service “to aid in defendant’s rehabilitation.� When the woman would not agree to the condition because of its patronizing language and the difficulty of fulfilling the 500-hour requirement given her physical condition, the response from the U.S. attorney’s office was swift and vengeful. Within days, a new indictment was brought, and what had been one misdemeanor count of theft ballooned into 20 felony counts of mail fraud.

But the ultimate power, the defense attorney made clear, rested with the jury. It was up to the 12 of them to decide whether the woman would be branded a felon 20 times over in their name.

The answer from four of those jurors, a resounding no, was a victory not just for the defendant but for our legal system.