It’s 2012, and Obama has just been reelected. A ragtag crew of skinheads decides that the US can’t withstand another four years of socialist fascism and guns him down. In the resulting hysteria, the new President Biden makes a few offhand remarks that spiral out of control into sweeping gun control legislation. (For the sake of the hypothetical, Obama has picked Supreme Court appointees who would overturn the 5-4 DC handgun decision.)
The conservative media switch to round-the-clock coverage of Glenn Beck crying and Rush Limbaugh screaming. Once Beck’s tears run out (assume that this is possible) somebody gets the bright idea of encouraging the Real America to nullify the new law in court. Lacking any other source of power, this soon becomes the new rallying cry to replace defending torture and cutting social services.
So, what’s the fallout? They managed to convince 19% of rural Americans that Obama is a Muslim; on a fiercely controversial topic like gun control, can they get enough people aligned behind nullification to cause a real problem and give the law the aura of unenforceability, or is there still a way of filtering them out? My presumption would be that the promotion of jury nullification is as close to constitutionally ironclad as you can get with the trifecta of double jeopardy protection + the right to a jury + free speech, but the right to bear arms seems pretty clear too and yet the DC handgun law was only barely thrown out. Is there any way to stop such a movement? Is it even desirable to be able to stop such a movement? Am I filling this OP with too many questions?
If you are deeply offended by this post, please switch instances of ‘liberal’ and ‘conservative’ instead of derailing the topic. I made it about conservatives fighting liberal legislation because there is no movement of equivalent focused power on the liberal side.
Prospective jurors are screened for biases before jury selection, so it would theoretically possible to keep them off a jury that is going to deal with an issue they’ve pre-judged. Of course, they can lie about their biases, though probably more people lie to get off juries rather than get on them.
But I would say that in general, this would be a strategy that may work very well. In the South, white juries routinely exonerated white people charged with crimes against blacks up to and including murder. Often, though, prosecutors and judges were in on the deal. When the officers of the courts started doing their job more diligently, the problems were reduced significantly.
Your premise seems to negate the, in my opinion, inevitable backlash resulting from an Obama assassination, which would preclude your scenario playing out as you described. I think you’d have conservatives falling all over themselves trying to run away from even tangential or tenuous associations with an ideology that would bring about Obama’s assassination which, again, in my opinion, would prompt an inexorable nationwide shift to the left.
Why go for jury nullification? Why not just have the local police not enforce the law? Or local DA not bother to bring charges? There are all sorts of discretion used in law enforcement, this could be one in areas where the local populace by-and-large opposes a particular law.
Well, what if Obama gets gunned down in the middle of a speech at the 2004 Democratic Convention and Biden steps in with a speech so rousing he gets swept into office with powers that will make martial law seem like anarchy?
I actually haven’t gotten a jury duty summons (I’m 23), but I was under the impression that lawyers only get a limited number of rejections. Can they or the judge throw out everyone who says they think gun control is a bad idea?
Heh, after being surprised by the enthusiastic embrace for torture I honestly didn’t think that would be a problem. I suppose things would be different if it was the president in trouble rather than suspected terrorists - or IS the president a terrorist!?!
In retrospect, I probably should have constructed a broader hypothetical. I am under no illusions that that specific situation will come to pass, I just wanted a law that the conservatives would be eager to hate.
I confess ignorance on this point.
While this is true, jury nullification has the specific strength of that it is (indirectly) enshrined in the Constitution. If Limbaugh got behind a microphone and started directing law enforcement officials to let criminals go, surely that would become a problem for him.
First of all, let me say IANALawyer. But my understanding is that the lawyers are pretty limited in how many potential jurors thay can exclude arbitrarily – without a specific cause. But AFAIK there is no limit on how many can be excluded for good cause (as defined by the judge). If a hundred people in a row satnd up and say, “I’m gonna vote for his innocence because I think it’s a stupid law”, a hundred people are going to be excluded.
Depending on the state, counsel in voir dire (the jury-selection process) get a limited number of “peremptory challenges,” i.e., x number of potential jurors they can dismiss from the jury panel without giving any reason. But they get unlimited challenges for cause. I.e., “Your Honor, based on his/her answers to these questions, I do not believe juror A can be impartial in this case.”
Jury nullification will never make much difference until all of the above are eliminated from the system.
No, the right to trial by jury in enshrined in the Constitution. The basic premise of FIJA is that the jurors have the legal power, under common law, to judge not only the facts of the case but the law; therefore, the judge should be required by law so to instruct them in each and every case before sending them to deliberate.
Well, in practice, jurors certainly have the opportunity to judge the law; that is, in a jury system, the reasons for which they jurors reached a decision can’t be second-guesses. But that’s not the same as actually having the legal authority to judge law, and the Constitution certainly does not give it to them. Whether the common law does is a more complicated debate.
BTW: Two questions I’ve never seen adequately answered by jury-nullification advocates:
If jurors have the discretion to acquit a defendant, regardless of the evidence, then do they also have the discretion to convict a defendant, regardless of the evidence?
How does this apply on the civil side? How much discretion do or should jurors have to find for the defendant/plaintiff regardless of the evidence?
N.B.: Jury nullification is case-specific and has no precedential effect. I.e., if this week a jury acquits an obviously guilty marijuana dealer, that does not stop another jury from convicting one on similar evidence next week.
I was under the impression that if there was not enough evidence of a defendant’s guilt, then the judge would dismiss the case before it even got to the jury. The fact that the jury is hearing the case at all means that a judge heard the evidence and thought that the prosecutor at least legally met some kind of burden…
True; but that does not prevent a jury from deciding that the evidence against this defendant does not meet the burden of proof beyond reasonable doubt, but they still want to convict him because he’s such an obvious total bastard that he must be guilty of something. I’ve seen that played out in more than one Law & Order episode and Jack McCoy usually comes away smug about it.
I disagree. It’s not expressed as such, but isn’t it an unavoidable consequence of the Double Jeopardy clause? And grounding it in the DJ clause answers your other questions as well.
Double jeopardy applies regardless of whether the defendant was acquitted in a jury trial or a bench trial. It’s not about the right to trial by jury, it’s about final resolution of charges.
The judge can also vacate the jury’s guilty verdict and enter a not guilty verdict into the record if he finds the evidence doesn’t support it. The prosecution can appeal this because they’re only exposing the defendent to the jury’s original verdict, not a 2nd jeopardy. He cannot, under any circumstances vacate a not guilty and substitute a guilty verdict.
and about as likely as the OP’s situation.
