Jury nullification and Santangelo

First published here.

With the upcoming Patti Santangelo case looming, the subject of jury nullification provides interesting food for thought.

As virtually everybody who knows anything about it knows, virtually nobody knows anything about jury nullification. So what the hell is it? (And try saying it three times fast as a mental warm up too.)

Wikipedia gives a good summary: Jury nullification is a jury's refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented. Instead, a jury bases its verdict on other grounds. Historically, examples include the unjustness of the law, injustice of its application, the race of a party, or the jury's own common sense.

WTF?

Okay, there's actually some logic behind the idea that a bunch of ordinary people can just decide the fate of their fellow citizens. There is also Article Three of the US Constitution behind the idea as well but I like the logic, so we'll run with that for the moment.

You get to vote for someone to represent you in your country's government. That representative has a hand in deciding what the law is. That representative is just as likely as anyone else to go completly bonkers and pass a law punishing people for holding a banana in an unauthorized manner (and there a weirder laws than that out there!).

Some cop, who's just doing his job, arrests you for holding a banana in an unauthorized manner. You go before the court. The judge informs everyone that there's a statutory sentence for illegal banana holders and you're looking at ten years in the slammer if found guilty...and you're guilty as hell. They've got video footage of you holding the banana in a manner that's clearly against the law. They've got two dozen witnesses who saw your criminal banana-clutching activities with their own eyes. They even have a forensic expert who can demonstrate how the markings on the banana could only be made by someone gripping it in a way that the law says is illegal.

You opt for a trial by jury and they acquit you because that law is just fucking dumb. That's jury nullification in practice: the last defense of the citizenry against an unjust (or insane) government.

But they don't tell you that you can do it.

In Sparf v US, the court decided that the judge has no responsibility to inform the jury of their ability to nullify a case...and there's actually some logic behind that as well.

The government works for you. Right? It's your servant. Right? It exists solely for the benefit of you and your fellow citizens. Got it?

Now, isn't it a bit strange that your servant should be the one to tell you everything you're allowed to do? You're the master, here, so you should know what your rights are, dammit! The court simply rattles through the legal procedure, part of which is something along the lines of, "...you should find the defendant guilty or not guilty". That's it. They don't tell you what you can do because you're supposed to know that already. It's a de facto power that you have, akin to taking your ball and going home if you don't feel like playing any more.

Sure, the score may be tied with ten minutes of game time remaining, but you can still just walk away if you feel like it.

If you think this all sound a bit screwed up, maybe ask yourself, "why bother being judged by a jury of your peers if the court judge is simply going to force them to find you guilty?" I mean, it's only the 6th Amendement. Why do we need the Constitution when we have all these other great laws like the Federal Rules of Criminal Procedure? Or that Alaskan law that makes it illegal to feed alcoholic beverages to a moose?

Could it be that it's 'cause the US Constitution is pretty damned important? You know, guaranteeing certain things like the government not depriving any person of life, liberty, or property without due process of law? That kind of thing.

As John Adams put it: "It is not only his right but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." Now that's coming from the guy who helped write the Delclaration of Independence, became president of the United States and saw his efforts later expressed in the US Constitution.

His resume suggests that we shouldn't simply ignore his views on citizens' involvement with the law.

Then again, John Adams spent most of his life fighting for freedom, justice and independence from ghastly laws, so what does he know about modern America?

Oh, wait...

It's interesting to consider the idea of jury nullification in light of some of the lawsuits being flung around at the moment, especially the case of Patti Santangelo, who's opted for a trial by jury in her case against the RIAA.

Who knows? Maybe the citizens of New York state serving on her jury will finally tell the record companies that they're not prepared to choose corporate profits over ordinary people.

Maybe some of Santangelo's jurors were unlucky enough to have bought a rootkitted CD from Sony.

Maybe the damages the RIAA is asking for are just so ridiculously high that the jury will acquit her out of sheer bloody-mindedness. The concience of the individual is a fickle beast, but somehow I get the feeling that the RIAA is really scared of people thinking for themselves.

It undermines their whole business model.