Jury nullification has officials losing cases, changing policies, and fretting over the power of the people they often abuse.
After criticism by some local officials of a new program that refers people caught with four ounces or less of marijuana for fines and community service, El Paso, Texas, Police Chief Greg Allen turned out to be a surprise defender of bypassing the usual criminal justice rigmarole of booking, mug shots, and jails. While careful to emphasize that he's no fan of drug legalization, Allen says it's a waste of his officers' time to put hours into an "an arrest that has no end result of a conviction because of jury nullification."
This is only the latest evidence that rebellious jurors are putting limits on how badly government officials can treat the rest of us.
Relative to some of its neighbors, Texas continues to enforce relatively draconian marijuana restrictions. The state is only slowly implementing a medical marijuana law signed by the governor in 2015. It's a measure at least partially inspired by the refusal of jurors, as in a high-profile 2008 case involving an HIV patient, to convict people for using the drug as medicine. But the law has been criticized for requiring the use of low-THC products, and burdensome regulations, "leaving some to worry if the Texas program will work at all," according to the Houston Press. And the state has yet to easy any rules regarding recreational use.
That leaves plenty of room for jurors to act—and they appear to be doing so with enthusiasm.
"Jury nullification, though still rare, appears to be on the rise in drug cases that reach the trial stage," wrote Rice University's Prof. William Martin in the course of a discussion on the impact of jury nullification on the state's drug policy sponsored by Rice University's Baker Institute and the Houston Chronicle. "But even if the numbers remain small, their impact can ripple outward." He cited the case of a judge who experimentally offered jurors a chance to recommend penalties they believed appropriate in cases involving large quantities of drugs. "In the first case, they found the defendant guilty and gave him probation…We did another one just to see. Same result—huge amount of marijuana, probation. The prosecutors couldn't believe it."
But jurors aren't usually allowed to choose lenient treatment of defendants—unless they go for outright acquittal. And they're doing just that often enough that the El Paso Police Chief sees no point to making arrests that have "no end result of a conviction because of jury nullification."
If restrictive laws create conflicts with jurors unwilling to enforce them, it's no surprise that our next bit of news comes from Georgia, which "has some of the most punitive marijuana laws in the country," according to the Marijuana Policy Project.
In Laurens County, Antonio Willis faced up to five years in prison for selling the equivalent of a few joints to an undercover cop. The cop, "who switched into an exaggerated Hispanic accent straight out of Cheech and Chong when dealing with suspects," according to Bill Torpy of the Atlanta Journal-Constitution, kept pestering Willis for drugs while promising to hook the unemployed man up with a construction job.
Willis was represented by Catherine Bernard, a defense attorney affiliated with both Peachtree NORML and the Fully Informed Jury Association. That may have made a difference, since the jury acquitted after just 18 minutes of deliberations.
"A jury in Middle Georgia returned a Not Guilty verdict in a marijuana sale case despite the evidence," retired sheriff's deputy Tom McCain, now executive director of Peachtree NORML, approvingly commented after the trial. "The verdict can be nothing other than Jury Nullification."
Unsurprisingly, the power of the jury is widely touted by legalization advocates as a key to knee-capping the war on drugs. But it's also widely seen as an important tool for protecting other rights, too. "Using the jury box to limit government excesses will be a strong tool in our kit," noted an article published by pro-self-defense TheTruthAboutGuns.com after a jury hung when one member refused to vote "guilty" in a 2013 firearm case.
"The degree of difficulty that the government has experienced in obtaining felon-in-possession convictions in my district may well be the product of jury nullification due to the public's confusion about our gun laws—such as they are, or are not—and the public's strongly held feelings toward guns," wrote United States District Court Judge Frederic Block in "Reflections on Guns and Jury Nullification—and Judicial Nullification," published in The Champion, a publication of the National Association of Criminal Defense Lawyers (full text here). That experience of that judge, who also reflected on a juror's expressed refusal to convict solely for gun possession, offers pretty strong evidence that gun owners and their sympathizers are as busily at work in the jury box as pot smokers.
And so are advocates of political protest. In a case I wrote about at the time, New York jurors earlier this year acquitted four defendants of obstructing governmental administration, disorderly conduct, and trespass. The charges related to a 2015 protest at the Hancock Field National Guard Base. The defendants opposed the piloting of Reaper drones from the base, particularly for overseas bombing missions that have frequently resulted in civilian deaths.
"Following the rendering of the verdict," the Upstate Coalition to Ground the Drones and End the Wars announced, "a juror approached [acquitted defendant] Brian Hynes and said 'I really support what you are doing. Keep doing it.'"
One of the jurors openly told Kirsten Tynan, executive director of the Fully Informed Jury Association, that the verdict "was, indeed, a case of conscientious acquittal."
If you need any further evidence of the mainstreaming of jury nullification as a check on state power, look no further than the Denver district attorney, Beth McCann. A long-time prosecutor elected to office just last year, she also has some experience on the defense side. Specifically, she represented a woman prosecuted for failing to report extra income while she was on welfare. "That left McCann with a shaky defense," noted a profile in 5280. "She'd argue jury nullification, an infrequently used legal concept in which a jury can acquit a person because it believes a law is unfair or burdensome... She won."
Under the circumstances, the Denver DA's office is probably going to have a hard time leaning on defendants, attorneys, and jurors who themselves support the power of the jury to rein in government.
And that's good not just for Denver residents, but for anybody who is willing to take advantage of the often-annoying demands of jury duty to throw a little sand in the machinery of our intrusive government.
