Null Set?

Leo McKern, as Rumpole of the Bailey, on jury nullification:



I thought of that scene in reading Professor Jenny Carroll's interesting article, The Jury's Second Coming (2012). Professor Carroll argues that jury nullification constitutes an act of legal interpretation by the community itself through its representatives on the jury--the "conscience of the community" in fact, not merely in civics class rhetoric. She sees it as allowing the community to interpret the law in a manner that is consistent with its mores, preventing undue rigidity, and as an opportunity for expansion of democratic principles beyond the formal processes of government.

These arguments are well taken, certainly they resonate with the historical roots of trial by jury, but they do leave out some unpleasant historical baggage.

It is, of course, a tricky fact in the law that juries can nullify, by declining to convict even when the facts support no other verdict. In the United States, it has often been associated with acquittals of "all-white juries during the civil rights movement of the 1960s acquitting the admitted lynchers of African American males from the post-Reconstruction-era South." Id. at 676-677, n. 103. Although she acknowledges this problem, I thin it's fair to characterize her conclusion on the matter as dismissive: "Admittedly, there is a risk that may apply the law arbitrarily in some cases. But this risk appears no more threatening than that a renegade legislative, executive or judicial branch will unfairly create or apply the law." Id. at 695.

I have some intellectual sympathy for jury nullification--or, rather, the right of an advocate to explicitly apply to the conscience of the community for mercy, as Rumpole in the clip does, and as the Supreme Court permitted the federal courts to proscribe in Sparf & Hansen v. United States (1895). But the problem of bias is a deep and intractable stain on its practice in the United States, and I must confess I find Professor Carroll's efforts to minimize the harm done by bias driven nullification to be rather glib, and ultimately unpersuasive. She makes no real effort to address the harm that can be wreaked by a dominant bloc in the community enforcing differential application of facially neutral laws to the disadvantage of non-majority blocs within the community. As this is the dominant paradigm of jury nullification in the United States' history, this failure is telling. This may be a case where Holmes' aphorism that "[u]pon this point a page of history is worth a volume of logic" should govern.