# Jury Nullification **URL:** \ **Category:** Cecil's Columns/Staff Reports\ **Created:** [October 2, 2009, 4:03pm UTC](https://boards.straightdope.com/t/jury-nullification/512355 "2009-10-02T16:03:04Z")\ **Posts on this page:** 19\ **Page:** 3
**Author:** ![Shmendrik](https://avatars.discourse-cdn.com/v4/letter/s/ee7513/32.png) [@Shmendrik](https://boards.straightdope.com/u/Shmendrik)\ **Post date:** [November 1, 2009, 11:10pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/41 "2009-11-01T23:10:44Z")
> [@Bricker](#): > > No, it doesn’t fit the idea. So far as I can determine from the article, both jurors said they’d keep opne minds about the death penalty, and were even predisposed to favor it at the beginning, but testimony during the penalty phase of the trial changed their minds. That’s exactly how the system is supposed to work. Not exactly. The article implies that Hatchett was ideologically opposed to the death penalty, despite his statements during the jury selection. Hence his quote “If someone is going to murder someone, it doesn’t mean we have to murder them. It’s murder either way.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 1, 2009, 11:37pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/42 "2009-11-01T23:37:38Z")
> [@Shmendrik](#): > > Not exactly. The article implies that Hatchett was ideologically opposed to the death penalty, despite his statements during the jury selection. Hence his quote “If someone is going to murder someone, it doesn’t mean we have to murder them. It’s murder either way.” The full paragraph from the article: > [@](#): > > “I strongly felt that the death sentence shouldn’t have been used,” Derrick Hatchett, 21, of Chicago, said today, a day after he and juror Pablo Laboy refused to sign a verdict of death. “If someone is going to murder someone, it doesn’t mean we have to murder them. It’s murder either way.” So his line about ‘murder either way’ came a day after the deliberations ended, which does nothing to refute the idea that he started out neutral and came to this belief during the trial. Where does the article imply Hatchett had this feeling prior to the trial? ---
**Author:** ![Shmendrik](https://avatars.discourse-cdn.com/v4/letter/s/ee7513/32.png) [@Shmendrik](https://boards.straightdope.com/u/Shmendrik)\ **Post date:** [November 2, 2009, 12:23am UTC](https://boards.straightdope.com/t/jury-nullification/512355/43 "2009-11-02T00:23:18Z")
> [@Bricker](#): > > The full paragraph from the article: > > So his line about ‘murder either way’ came a day after the deliberations ended, which does nothing to refute the idea that he started out neutral and came to this belief during the trial. > > Where does the article imply Hatchett had this feeling prior to the trial? Well, look at what he says later: > [@](#): > > “I understand that it’s an option … but I never thought it should be used,” said Hatchett, who is looking for work after recently completing a degree in massage therapy. “Their decision was their decision, and my decision was my decision.” > > Like Laboy, Hatchett said testimony about Degorski’s abusive childhood gave him \*\*further \*\*reason to oppose death for Degorski. (bolding mine) The implication is that he was opposed to the death penalty before hearing any testimony in the penalty phase of the trial. In any case, let’s assume he wasn’t, but during the penalty phase of the trial developed the theory that any use of the death penalty is “murder”. Again, this is jury nullification, because the role of the jury at that point is to decide, based on the evidence presented, whether a specific individual should be sentenced to death. If a juror decides that the individual should not be sentenced to death because the death penalty is fundamentally unjust, he is exceeding his specific mandate rather than deciding the question presented to him. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [November 4, 2009, 12:53am UTC](https://boards.straightdope.com/t/jury-nullification/512355/44 "2009-11-04T00:53:56Z")
This is what you get for trying to pick people based on what you think they believe. I remember a comment about the OJ Simpson trial. Someone had remarked that the prosecution tried to include black women in the jury. The theory was they would provide racial balance and be more sympathetic to the murdered woman’s situation. A more street-savvy commentator mentioned if there’s one thing black women hated, it was white women stealing the rich black guys. ---
**Author:** ![Daylate](https://avatars.discourse-cdn.com/v4/letter/d/9dc877/32.png) [@Daylate](https://boards.straightdope.com/u/Daylate)\ **Post date:** [November 5, 2009, 12:23am UTC](https://boards.straightdope.com/t/jury-nullification/512355/45 "2009-11-05T00:23:39Z")
From MD2000 > [@](#): > > The major benefit is that most trials in europe are much shorter and simpler than in North America. Oh? How long has that Amanda Knox abortion been going on down in sunny Italy? ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [November 5, 2009, 5:42pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/46 "2009-11-05T17:42:05Z")
> [@Daylate](#): > > From MD2000 > > Oh? How long has that Amanda Knox abortion been going on down in sunny Italy? The investigations are no better than here. The actual trial tends to be short and sweet. However, who knows what’s going on here? They take a long summer break, they wait months between trial and verdict, and then again for sentencing. The prosecutor is on trial himself for something unrelated. The CSI policia sound like keystone kops. The joke about Italy (or any other chaotic country) used to be “imagine a whole country run by the post office…” ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [November 5, 2009, 9:30pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/47 "2009-11-05T21:30:02Z")
In the bad (worse?) old days of chronic Italian political turmoil, the joke went that two parliamentarians were sitting in the legislative chamber in Rome, bored out of their minds as a debate droned on around them. One said to the other, “I think I’ll take a little nap.” A few hours later he woke up and whispered to his seatmate, “Did I miss anything?” “No, not really,” the other guy replied, “but you were Prime Minister twice.” ---
**Author:** ![Walabio](https://avatars.discourse-cdn.com/v4/letter/w/9d8465/32.png) [@Walabio](https://boards.straightdope.com/u/Walabio)\ **Post date:** [November 14, 2009, 6:01am UTC](https://boards.straightdope.com/t/jury-nullification/512355/48 "2009-11-14T06:01:32Z")
> [@Elendil\_s\_Heir](#): > > If the jury wrote, “We’re thinking of acquitting him because the guy he killed was black, and we hate black people,” I would reply, "“You are bound by your oath as jurors to see that justice is done, without fear or favor, and without bias or prejudice. Either acquitting or convicting someone of a crime for the entirely irrelevant reason of that person’s race is illegal, improper, and would create a terrible injustice. You must decide this case based upon the facts as you see them, and on the law as I have given it to you in my instructions, and for no other reason whatsoever.” > > I would not, at that point anyway, grant a mistrial in either case. I would hate to be in your court. You would hang a man for sleeping in class. These are what your answers should be: “If the jury wrote, ‘We’re thinking of acquitting him because the guy he killed was black, and we hate black people,’” I would say: I do not care about the color of the victim and neither should you. Justice is colorbind. If you believe that killing white people just to watch men die is wrong, than killing people just to watch them die is wrong. In the case of a jury asked to determine whether a pothead should get a fifty (50) year sentence for possessing a joint, I would reply: Your purpose as a jury is to determine whether the defendant did something so wrong as to warrant conviction and punishment. Vote your conscience. I would declare a mistrial in the former but not the latter. As for acquittals under Jim Crow, we have a reason for a jury of peers. A jury should be a crossection of the population. If a defendant with dark skin goes up against a Judge, Prosecutor, Defense, and Jury who are all white males belonging to a certain Christian Organization called the Klu Klux Klan, do not expect a fair trial. I shall close with a quotation: “No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor.” — Third State of the Union Address (1903-12-07) of Theodore “Teddy” Roosevelt Junior ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 14, 2009, 8:21am UTC](https://boards.straightdope.com/t/jury-nullification/512355/49 "2009-11-14T08:21:23Z")
> [@Walabio](#): > > I would hate to be in your court. You would hang a man for sleeping in class. These are what your answers should be: > > “If the jury wrote, ‘We’re thinking of acquitting him because the guy he killed was black, and we hate black people,’” I would say: > > I do not care about the color of the victim and neither should you. Justice is colorbind. If you believe that killing white people just to watch men die is wrong, than killing people just to watch them die is wrong. > . > . > . > I would declare a mistrial … And when the prosecution retries and the accused pleads former jeopardy as a defense? ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [November 14, 2009, 2:22pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/50 "2009-11-14T14:22:27Z")
> [@Bricker](#): > > And when the prosecution retries and the accused pleads former jeopardy as a defense? IIRC, you pretty much have to declare the mistrial before the jury delivers its verdict. Of course, if they send the judge a note saying “we’re racist so we will acquit the guy”, you the judge obviously declare a mistrial before calling the jury back to render its verdict. Which is what some judges do if they get any hint of jury hanky-panky sufficient to disrupt the natural course of justice - which it is up to the judge to determine. Of course, I’m sure by now there is a decent body of precedent as to what consitutes jury misconduct. Walabio has the right point. Trial by a jury of your peers stops working (like most of democracy) when the “peers” aren’t. When one group dominates to the exclusion of the others, it becomes tyranny of the majority. The major revolutions in 1860 and 1954 came about because sufficient numbers of the majority recognized this was wrong and must be remedied. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [November 15, 2009, 12:20am UTC](https://boards.straightdope.com/t/jury-nullification/512355/51 "2009-11-15T00:20:08Z")
> [@Walabio](#): > > I would hate to be in your court. You would hang a man for sleeping in class… Oh, I haven’t done that in… jeez, at least three weeks. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 15, 2009, 2:53pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/52 "2009-11-15T14:53:02Z")
> [@md2000](#): > > IIRC, you pretty much have to declare the mistrial before the jury delivers its verdict. Of course, if they send the judge a note saying “we’re racist so we will acquit the guy”, you the judge obviously declare a mistrial before calling the jury back to render its verdict. Which is what some judges do if they get any hint of jury hanky-panky sufficient to disrupt the natural course of justice - which it is up to the judge to determine. Of course, I’m sure by now there is a decent body of precedent as to what consitutes jury misconduct. > > Walabio has the right point. Trial by a jury of your peers stops working (like most of democracy) when the “peers” aren’t. When one group dominates to the exclusion of the others, it becomes tyranny of the majority. The major revolutions in 1860 and 1954 came about because sufficient numbers of the majority recognized this was wrong and must be remedied. Yes. So the jury sends back a note saying, “We intend to acquit this guy. Sincerely, Your Local KKK.” And the judge declares a mistrial, over (of course) the objections of the defense. And (presumably) the prosecution refiles. Now comes the defense, who says, “Hey, jeopardy attached at the first trial the moment the jury was sworn. My client has a right to be tried by the jury that was empaneled at the first trial, and this second trial constitutes double jeopardy.” ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [November 16, 2009, 6:25pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/53 "2009-11-16T18:25:47Z")
> [@Bricker](#): > > Yes. So the jury sends back a note saying, “We intend to acquit this guy. Sincerely, Your Local KKK.” > > And the judge declares a mistrial, over (of course) the objections of the defense. And (presumably) the prosecution refiles. > > Now comes the defense, who says, “Hey, jeopardy attached at the first trial the moment the jury was sworn. My client has a right to be tried by the jury that was empaneled at the first trial, and this second trial constitutes double jeopardy.” Not sure what the legal technicalities of the mistrial are. Mistrials are declared all the time, even jury trials, resulting in new trials. So I doubt that once the jury is sworn, a verdict is all that can happen. Of course a smart jury wouldn’t give broad enough hints to warn the judge. More likely, there is aa split among the jurors and one complains to the right court official. Once the jury has been dismissed without a verdict, trying to guess what they actually would have said is irrelevant. You can poll them later, but things like the dismissal and subsequent news coverage or talking about the case to others could have tainted their result - so no court would buy that. The burning question on appeal (like there wouldn’t be one…?) is was the judge within his rights and the rules to dismiss the jury and declare a mistrial? Even if he wasn’t, that behaviour is grounds for a mistrial I assume. Jury nullification itself is not illegal and probably not grounds for dismissing one or all jurors, but I’m sure any judge who knows the system can find some plausible grounds for doing what he wants to do. That’s why we have lawyers, and that’s why they get paid big bucks… ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2009, 3:50pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/54 "2009-11-17T15:50:28Z")
> [@md2000](#): > > The burning question on appeal (like there wouldn’t be one…?) is was the judge within his rights and the rules to dismiss the jury and declare a mistrial? Even if he wasn’t, that behaviour is grounds for a mistrial I assume. That’s not exactly right, no. There are two competing issues in tension here. The accused has a “valued right to have his trial completed by a particular tribunal.” But society has an “interest in fair trials designed to end in just judgments.” (quoting Wade v. Hunter, 336 US 684 (1949)). > [@](#): > > The reason the defendant’s right is so “valued” is that he has a legitimate interest in completing the trial “once and for all” and “concluding his confrontation with society,” so as to be spared the expense and ordeal of repeated trials, the anxiety and insecurity of having to live with the possibility of conviction, and the possibility that the prosecution may strengthen its case with each try as it learns more of the evidence and of the nature of the defense. These reasons both inform the determination when jeopardy attaches and the evaluation of the permissibility of retrial depending upon the reason for a trial’s premature termination. A retrial before a different jury must be the result of “manifest necessity.” (US v. Perez). Manifest necessity occurs when a jury is unable to actually reach a verdict. But when the jury is willing to reach a verdict, but the judge prevents them from doing so, it’s far less clear. In Gori v. US, a retrial was permitted after the judge declared a mistrial on his own, believing that the prosecution’s questions were leading to inadmissible and highly prejudicial evidence; the reasoning of the appeals court was the the judge’s move was made to protect the interests of the accused and worked to his benefit. But in our hypothetical, the interests of the accused are bolstered by the conduct of the jury. Consider US v. Jorn. In that case, a witness was called by the prosecutor, and began to give testimony that implicated both the accused and himself. Defense counsel asked that the judge advise the witness of his right not to incriminate himself. The judge, after inquiry, said he belied that none of the prosecution’s witnesses had been advised of their right to avoid self-incrimination. He declared a mistrial to allow the witnesses time to consult lawyers of their own. At retrial, the accused raised a double jeopardy defense, and the judge dismissed the case, an action upheld by the US Supreme Court. > [@Jorn Court](#): > > A judge must temper the decision whether or not to abort the trial by considering the importance to the defendant of being able finally to conclude his confrontation with society through the verdict of a tribunal that he might believe is favorable to him. So no – if the judge abuses his discretion in declaring a mistrial, then the Double Jeopardy Rule applies and a subsequent reprosecution is barred. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [November 17, 2009, 8:30pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/55 "2009-11-17T20:30:06Z")
OK, thanks. That answers that question - judge has very limited grounds for calling mistrial. I gues the next question is, if he called in the jurors one at a time and asked them enough questions to get the admission they intended to ignore the law, could he dismiss the jurors for misconduct one at a time until there were not enough (what, 6?) left to render a verdict? After all, we’ve seen cases in the news where a juror was dismissed for falling asleep. What grounds can a judge use to dismiss one or more jurors? ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [November 17, 2009, 9:51pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/56 "2009-11-17T21:51:22Z")
> [@Walabio](#): > > Third State of the Union Address (1903-12-07) of Theodore “Teddy” Roosevelt Junior Nope. I know this is weird, but while Theodore Roosevelt’s father was Theodore Roosevelt Sr, President Teddy didn’t call himself Junior. Junior was his son, Theodore Roosevelt Jr., born in 1887, and TR III was his grandson, Junior’s son. At least that’s the story in the genealogical charts shown in my Roosevelt biographies. The explanation? My WAG is that TR was the sun, the moon, and all the stars. He psychologically could never be a junior. ---
**Author:** ![John\_W.Kennedy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_w.kennedy/32/1031_2.png) [@John\_W.Kennedy](https://boards.straightdope.com/u/John_W.Kennedy)\ **Post date:** [November 18, 2009, 4:40am UTC](https://boards.straightdope.com/t/jury-nullification/512355/57 "2009-11-18T04:40:17Z")
The official rule is that you’re not supposed to call yourself “Jr.” after your namesake parent has died, and that no one living is supposed to be called “Sr.” (except for old-fashioned widows who choose to call themselves “Mrs. John Doe, Sr.”). However, there is an exception for celebrities. Lots of people screw it up today, but that’s how it’s _supposed_ to work. Therefore, Theodore the future president stopped being “Jr” when his father died (young Teddy was 20), but at some point – when he became POTUS, if not sooner – he became locked down by the “celebrity” rule, and the generations after were “Jr.” and “III”. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2009, 1:35pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/58 "2009-11-18T13:35:01Z")
> [@md2000](#): > > OK, thanks. That answers that question - judge has very limited grounds for calling mistrial. I gues the next question is, if he called in the jurors one at a time and asked them enough questions to get the admission they intended to ignore the law, could he dismiss the jurors for misconduct one at a time until there were not enough (what, 6?) left to render a verdict? > > After all, we’ve seen cases in the news where a juror was dismissed for falling asleep. What grounds can a judge use to dismiss one or more jurors? These decisions are generally held to be “within the sound discretion of the trial court,” which means that the judge has some latitude in which to act, and won’t be overturned on appeal unless his decision was plainly wrong (“an abuse of discretion”). Since the accused has a “valuable right” to have his case decided by the originally-selected panel of jurors, the judge would need to make a pretty solid record that showed his consideration of the juror’s individual responses under questioning and the fact that their responses indicated no possibility of a fair trial for the Commonwealth – who is, after all, just as entitled as the accused to fairness and an impartial verdict. I feel that a judge simply declaring a mistrial after a note like that, over the objections of the defense and without making careful inquiry of each juror, would likely ultimately face a successful double jeopardy defense on or after retrial. But if that judge made the careful record I mention here, he would probably be safe in declaring the mistrial without triggering DJ protections. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [November 18, 2009, 3:23pm UTC](https://boards.straightdope.com/t/jury-nullification/512355/59 "2009-11-18T15:23:01Z")
In my (very limited) experience talking to lawyers, and reading about trials - with a great deal of discretion comes a great deal of arbitrary “bitchiness”, for lack of a better word. Some judges can rise above it, some can be as petty as they feel that day and then some. Lawyers will not complain about it publicly because they may have to face the judge afterwards; which would not bode well for their clients. A petty judge can find reason to rule the wrong way. The only check and balance on judicial behaviour is the review of higher courts (unelss conduct is so blatant as to invite formal misconduct charges). The appeals “teach the judge a lesson” by overturning his decisions; which can be taken as a correction of judicial reasoning, or a personal rebuke - or both. If the judge is petty, he takes it out on the appealing lawyer. So given the judge has a decent amount of latitude, and I’m sure there’s a reasonable body of precedent as to what sort of questions or comments can be construed as sufficient to question and then dismiss a juror - a clever judge can probably find a way. Of course it’s a dumb jury that gives him a warning so he can. After all, without the warning, he would have no grounds to question the jurors. if it was too simple and mechanical, we wouldn’t need expensive lawyers. Ever decision is… a judgement call. [Previous page](https://boards.straightdope.com/t/jury-nullification/512355.md?page=2)