A commentary March 3 in the News Tribune (National View: "Jurors can be heroes, too; follow consciences rather than law") referred to jury nullification as a "longstanding, though controversial, legal practice seldom revealed to jurors."
I could summarize it more succinctly in a single word: nihilistic - that is, a belief in nothingness. Jury nullification is, by definition, a juror's willful dereliction of legal responsibility.
Every juror who serves takes an oath to perform several specific duties, including a promise to follow the instructions of the judge. Those instructions include this admonishment to the jurors: "You must follow and apply the rules of law as I give them to you, even if you believe the law is or should be different." Far from endorsing any moral imperative, jury nullification is the practical understanding that a jury's deliberations are conducted in secret and an acquittal cannot be appealed.
It is "seldom revealed to jurors" because the U.S. Supreme Court and Minnesota Supreme Court specifically have held that trial judges should not instruct a jury on this "raw power of lenity," nor do judges have to permit attorneys to argue for it. Doing so would encourage the jury to acquit for legally impermissible reasons. In other words, knowing something improper exists is no justification to openly advocate for it.
As a judge, it is my responsibility to ensure a fair trial to both sides. That means only seating jurors who can perform their duties without bias or prejudice. It means only permitting legally admissible evidence to be introduced in court. It means providing accurate instructions on the law to be applied during jury deliberations.
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The March 3 commentary's call for jurors to disregard all of those safeguards within the system and instead follow their own rules would render the entire trial process meaningless.
There are far better alternatives. Working with law enforcement prior to a protest often can achieve workable solutions that allow protesters to make their voices heard without violating the law or the rights of others. Many of the concerns stated in the commentary, such as discriminatory enforcement, would be appropriately addressed in pretrial motions before a judge or on appeal to a higher court.
Moreover, the legislators who write the laws are elected officials, directly accountable to the public. In Minnesota so are the sheriffs who enforce the laws, the county attorneys who charge violations of the laws, and the judges who sentence under those laws. Local police and prosecutors are indirectly accountable, as they report to elected city councilors and mayors. Rather than encouraging individual jurors to disregard the law, as the March 3 commentary did, why not instead seek changes to the law through the political process?
In essence, the writer of the commentary, Oregon State University professor Kathleen Dean Moore, seems to believe her political end justifies improper means. I see very little heroic in that approach.
In a final irony, Moore attempted to support her call for jury nullification by quoting John Adams from his days as an attorney. Unfortunately, she quoted him out of context, as the smuggling trial of John Hancock was in Admiralty Court and not before a jury at all. Adams was not openly advocating for jury nullification. He instead was criticizing the British government for not affording Hancock a jury trial.
More importantly, Adams, in his famous closing argument on behalf of British soldiers who participated in the Boston Massacre, stated that "facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence."
However well-intentioned the concerns regarding climate were in the commentary, the proposed response would undermine the mission of the judicial system. Jurors should follow the law, not attempt to become a law unto themselves.
Dale Harris is a 6th Judicial District judge in the St. Louis County Courthouse in Duluth.
