Jury nullification

Somehow I missed this story.

A federal appeals court overturned the pot-growing convictions of Ed Rosenthal Wednesday because of a juror's phone call to an attorney friend, who told her to follow the judge's instructions or she could get in trouble.

"Jurors cannot fairly determine the outcome of a case if they believe they will face 'trouble' for a conclusion they reach as jurors," said the opinion by Judge Betty Fletcher. "The threat of punishment works a coercive influence on the jury's independence."

Rosenthal's lawyer, Dennis Riordan, said "There would not have been a conviction but for this outside influence" of the attorney's advice, Riordan said. "Jurors never can be told they can get in trouble for what they say during deliberations."

Of course the reality is, as the article goes on to detail, jurors do get punished for exercising their right to jury nullification and they are threatened regularly for even suggesting the concept should be employed. In fact, anyone who expresses this knowledge during the selection process is unlikely to be seated and if they do manage to slip in and use that power, the consequences are costly.

If you're not familiar with the concept, it's basically that as a juror you are not obligated to follow the judge's instructions. You do have to right not to convict, even if the law would require you to do so, because you can't in good conscience vote to uphold the law. But God help you if you decide to use it.

It's a double edged sword, since jurors could also convict when the fine points of law would protect a defendant, but it seems a chance worth taking to restore the citizen's proper role in the justice process. If juries have been reduced to merely rubberstamping the judge's decision in criminal cases, then it seems pointless to bother us with jury duty. We should drop the charade and simply go to all bench trials. [hat tip Mad Maxx]