Dear Prospective Jurors

I know it's got to be hard to be a juror, feeling like you're not getting the whole story from anyone. There are types of evidence you don't get to here. It all makes sense once you have enough time and centuries of law to help figure it out, but at first blush, it's got to seem odd that we keep some things from you.

And then there's the law. We try with jury instructions, we really do. But they're hard to write in any sort of clear, easily readable way. I've often thought that for a juror, trying to understand jury instructions must be a bit like watching the movie adaptation without having read the book. Those viewers who have read the books (the lawyers) understand all the backstory, the nuance, why the phrases are just the way they are, and, most importantly, which instructions were left out.

I can't preemptively try to explain all of what might come up in a trial, what all the instructions mean. But there is one thing that no jury will ever hear in a courtroom but that every jury has the absolute right to do. All juries have the absolute right to engage in jury nullification.

Any jury in this country is allowed to return a verdict of not guilty no matter what the evidence is. Even if the state proves its case in spades, the jury can still decline to convict. Now, in the interest of public safety, I don't really want juries declining to convict murderers on the theory that some people just need killin'.

I'm more talking about the kinds of ridiculous things that shouldn't ever have been charged as crimes in the first place, the kinds of cases that are unnecessarily cluttering our courts, taking up the precious time of public defenders, and wasting taxpayer dollars. Stupid squabbles between grown adults. A person possessing an empty baggie that has trace amounts of cocaine. An offender required to register (offenders have to register for all sorts of piddly crap these days) who made a good faith effort but failed to fill out the form exactly right.

Jurors have the right to say no. They have the right to say, "This is stupid and thank you oh so much, prosecutor, for wasting my time with it." It's your government after all, right? Jury nullification is the ultimate democratic tool the people have for influencing crime and punishment policy. Jurors have the right to tell a district attorney's office if they disapprove of the way that office is allocating its resources. Jurors have the right to make this point one verdict at a time. But no court in the country will ever tell a jury it can nullify. Defense attorneys will try to let a jury know, try to slip the concept into closing argument, but it's usually not enough.

Prospective jurors need to know about this option before they even get into the jury room. If you are on a jury and you all get back into the jury room to begin deliberations, all of you shaking your heads and wondering why on earth a prosecutor wasted your time with this nonsense, tell your fellow jurors about jury nullification. You don't have to convict if you don't want to, no matter what the evidence says. And you're not violating the law one bit.

So nullify away.

(Just maybe not for the really bad crimes.)


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