2nd Circuit U.S. Court of Appeals Condemns Jury Nullification

IN THE COURTS July 1997

An opinion by the U.S. Court of Appeals for the 2nd Circuit denounced the practice of jury nullification, calling it "a violation of a juror's sworn duty to follow the law as instructed by the court." The opinion of the unanimous three-judge panel, written by Judge Jose A. Cabranes, stated that jurors should not ignore evidence or the law in order to follow their own values when deciding the fate of a defendant (Benjamin Weiser, "U.S Court Rules Verdicts By Juries Must Respect Law," New York Times, May 21, 1997, p. A1; Editorial, "When Jurors Ignore the Law," New York Times, May 27, 1997, p. A24).

The court's strong statements against nullification stem from an Albany (NY) case (U.S. v. Thomas, May 20, 1997, WestLaw 1997-WL-280000) that involved a Federal jury which complained to the judge that one member refused to convict the defendants, alleged drug dealers, because they "were in a disadvantaged situation." The judge removed the juror, and the remaining eleven members convicted the defendants. The Court of Appeals overturned the conviction saying the removed juror may have actually been unpersuaded of the defendants' guilt, but the judges still rejected the idea of nullification.

"We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable, or that courts may permit it to occur when it is within their power to prevent," Judge Cabranes wrote. He said judges have a duty to admonish or dismiss jurors who vote to acquit defendants for racial reasons.

The court's decision is part of a growing national debate over jury nullification. In March 1997, the ABA Section on Individual Rights and Responsibilities sponsored a forum on jury nullification at Georgetown Law School. The forum, broadcast on C-SPAN, was cosponsored by the Criminal Justice Policy Foundation, and NLADA. In 1996, George Washington University law professor Paul Butler wrote in favor of jury nullification in the Yale Law Review, saying it was necessary because of racial injustices in current law enforcement. But, said New York University law professor Burt Neubourne, "It's a two-edged sword ... We acknowledge that jury nullification can be the ultimate defense against government oppression, but we also fear it because it's corrosive of the rule of law," he said.

For additional information, contact the Fully Informed Jury Association (FIJA) at (800) TEL-JURY.

The 2nd Circuit decision is located on-line at: http://www.ljextra.com/public/daily/XD2ca.html.