Saturday, August 16, 2008

Jury nullification is dead

Our founding fathers intended the jury trial system to act as a check against corrupt courts and self-serving legislators. Time was that a jury was free to decide that they couldn't convict under a law they believed was unconstitutional or wrongly applied. That's no longer true. Judges are unwilling to relinquish their control of the proceedings and any troublesome juror that bucks the judge's instructions is simply removed.

This came up most recently in a drug case in Boston that caught my eye because I happen to know the judges referenced in this article. The juror in this case indulged in a bit of showboating I think, but his basic challenge to the legality of the proceedings was sound. By rights, I think Judge Young should have declared a mistrial. Instead he solved the problem by replacing the juror with an alternate.

My old law firm tried cases before him and he’s a hard nosed jurist who tends to give the benefit of the doubt to the prosecution for the most part. I’m not surprised he chose to change the jury to get the verdict, but I was very surprised to see Judge Gertner agreed with what he did. I know her too, on a more personal level and know her to very fair-minded and more liberal judge. I would have expected her to support the juror and the defendant’s rights, even with a less than sympathetic defendant, such as we saw here.

If she's not willing to stand up for a citizen's right to challenge the court, I think there's no hope for the people to reclaim the use of this centuries old balance on the system. It's too bad.

[More posts daily at The Newshoggers and The Detroit News.]

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