Abortion is a very high profile issue, the possibility of jury nullification is going to be discussed in the mainstream media, so most jurors are going to be aware that it is an option.
Pro choice is viewed as a strong moral and patriotic stance among those who support it, such that it may outweigh the patriotic duty of being a disinterested juror ruling only on the facts.
Purely anecdotally I am generally opposed to jury nullification but am rethinking my position with respect to this issue. Presumably I am not alone
Other points made by the author include the fact that jury nullification is that it is not necessary of jury nullification to work in every case, in order for it to have a profound effect. If a large percentage of slam dunk anti-abortion cases result in mistrials, then prosecutors might decide its not worth pursuing them, not to mention the possibility of prosecutors themselves acting to nullify the laws.
On the other hand even if most criminal anti-abortion judgments never result in convictions that is still going to drive abortions underground, since no provider is going to want to open shop with the certainty of unceasing legal jeopardy and the risk that one of them gets through.
Debate topics include:
How large an effect will jury nullification have on those states in which it is illegal?
How will abortion opponents attempt to counter it. (I assume that they will ignore their own hypocrisy)
If you were a member of a jury pool in an anti abortion case what would you do? (assuming the mods don’t decide that this is too much IMHO for GD)
Jury nullification is a large part of the Morgentaler saga in Canada. Three Quebec juries acquitted Dr Morgentaler, as did one Ontario jury. Although the Supreme Court unanimously disapproved of jury nullification, it had the effect of ending prosecutions for abortion in Quebec.
I wouldn’t have any problem nullifying any laws that I don’t think the government has any business making. For instance, maybe I think the speed limit on the Dumbarton Bridge should be 65 mph instead of 55 mph, but I do acknowledge that the government has the right to set the speed limit, so I would vote to convict someone who drove 60mph.
But I don’t think the government has any business making laws requiring people to return runaway slaves, prohibiting safe medical procedures, or outlawing sodomy.
My problem is that, if asked, I would say exactly the above and would be thrown off the jury.
Even if criminal prosecution is ineffective, does that do much to address the main problem of availability? I guess it would facilitate supply of pills. But it’s not going to mean clinics will reopen.
Then it sounds to me that your honesty is precisely what would (indirectly) lead to an abortionist being convicted of abortion.
Although, getting into legal territory, doesn’t a jury nullification require unanimity? If just 1 juror stalwartly holds out and refuses to convict, then it results in a hung jury and a re-trial, right, as opposed to acquittal?
Not if the prosecutor doesn’t ask me any questions that would compel me to answer that I’d be pro-nullification. The last time I was in a jury pool, more than half of the jurors (myself included) didn’t get asked any questions more involved than a “hands up if you know anyone in this courtroom/know anyone who’s been a victim of this type of crime” type thing.
I don’t recall if I was asked such a question, but I do remember one person being dismissed from the pool because he said that only God can judge someone guilty or not guilty. The only time I was personally addressed by either of the attorneys was the prosecutor asking if I was paying attention because I guess he thought I was distracted. I wasn’t. I wound up on the jury in the end.
Who is the defendant? Is it the person who performed the abortion, or the woman who had the abortion? My thought is that there would be much more prosecutorial weight brought against a person who had performed an abortion than a woman who had undergone one. So more questioning of potential jurors and more assessment of whether their pro-choice politics could affect their decision as a juror. Also, the woman who had undergone the abortion is more likely to be portrayed as a sympathetic figure than the person performing the abortion.
In such cases I would expect potential jurors to be asked “do you know what jury nullification is and do you support or not support it?” and anyone who answers yes would be excluded from that pool without a second glance.
I guess I’m somewhat mystified by a code of ethics that believes jury nullification is absolutely the ethically right thing to do with an evil unjust law, but that telling a necessary lie to put yourself in a position to nullify is not something you’d be willing to do.
They tend not to even acknowledge the concept by name. What they do say in the jury instructions is something like “you have a duty to follow the law as instructed, even if you personally don’t agree with the law.” In almost every case someone will ask jurors during voir dire if they would have any trouble following the law. And, of course, you’d take an oath. So, depending on how seriously you take some things, it could be a predicament. I’d love to vote to acquit, but it’s not as easy as laying low and hoping no one asks you the magic question. You’d have to violate the rules to do it. Perhaps it’s justified.
‘My career has been in data. Sometimes you run a program and don’t get the answer you expect; but data is data. I don’t think you could be more neutral than that.’ Notice I didn’t actually answer the question.
I think the one thing we’ve learned recently is that rules are for suckers.
I would lie my ass off in order to get on the jury and vote to acquit regardless of the facts or the law. Anything less would be contemptible moral cowardice.
I’m assuming/hoping that when an abortion trial takes place, representatives of the Fully Informed Jury Association will be on hand, passing out leaflets on the street in front of the courthouse.
In which case, every potential juror may be answering “yes”, assuming they are literate.
emphasized text
Yeah, that’ll happen. Prosecutors are going to be vewy, vewy careful with jury selection when they select for these hot potatoes. My guess is that a lot of people will be willing to lie to protect their fellow human beings.
(d) Nothing in Article 1 or Article 2 [ed. note: homicide and assault statutes] shall permit the prosecution of (1) […] (2) any woman with respect to her unborn child.
Sec. 19.06. APPLICABILITY TO CERTAIN CONDUCT. This chapter does not apply to the death of an unborn child if the conduct charged is: (1) conduct committed by the mother of the unborn child; […]
Fla. Statutes 775.021(5)(d)(3) and 782.09 (emph. mine)
775.021 Rules of construction.—[…]
(5) Whoever commits an act that violates a provision of this code or commits a criminal offense defined by another statute and thereby causes the death of, or bodily injury to, an unborn child commits a separate offense if the provision or statute does not otherwise specifically provide a separate offense for such death or injury to an unborn child. […] (d) This subsection does not permit the prosecution: […] Of a woman with respect to her unborn child.
782.09 Killing of unborn child by injury to mother.—
(1) […] Any person, other than the mother, who unlawfully kills an unborn child by any injury to the mother: […]
