Jury Nullification

It’s odd to hear people sum up the American judicial system this way: “It may not be perfect, but it’s the best damn system there is.”  Really?  Are you sure about that?  What other legal systems are you familiar with?  For example, what do they have in Iceland?  In Spain?  In Brazil?  Of course, when you ask these questions no one ever has an answer.  Nonetheless, they’re convinced ours is the best.

Unlike most Americans, I look forward to jury duty.  Bizarre as it sounds, I regard it as not only an opportunity to observe firsthand the “best damn system in the world,” but an effortless way of meeting and talking with new people.  Admittedly, while most of these folks are nervous wrecks, resentful and fearful at having been summoned to this intimidating place, they’re usually willing to talk.

I’ve served on eight trials, ranging from a six-week personal injury lawsuit to a conservancy hearing (a schizophrenic petitioning to be released from a county mental institution) to several armed robberies.  What have these experiences taught me about the judicial system?  They’ve taught me what they’ve taught every other veteran juror….that real court ain’t like television court.

First of all, it’s a shock to see how boring and nondescript real lawyers are.  They’re more like accountants than lawyers.  They have no charisma, no charm, no twinkle in their eye; they exhibit no brilliance, no flair, no wit, no idiosyncrasies.  Very un-television like.  In truth, most lawyers are simply legal journeyman, shoemakers doing their jobs.

And some of the things I’ve seen in court have been weirdly unprofessional, something no scriptwriter would ever let slip by.  For instance, I heard this actual exchange, word for word, during an armed robbery trial in Superior Court in Santa Ana, California.  A woman who had witnessed a convenience store being robbed was being questioned by the prosecutor.

Prosecutor:  “Did you see a person enter the store?”

Woman:  “Yes, I did.”

Prosecutor:  “What time did you see this person enter, approximately?”

Woman:  “Approximately 9:15 P.M.”

Prosecutor:  “Was this person a man or woman?”

Woman:  “A man.”

Prosecutor:  “What was his nationality?”

Woman:  “Negro.”

The last trial I sat on was a spousal battery case, held in Norwalk Superior Court, in Los Angeles County.  The facts were these:  A woman called 9-11 and reported that her boyfriend had physically assaulted her.  When the police arrived she told them he had kicked her in the backside as she tried to grab the TV remote control device.  The boyfriend admitted, technically, to kicking her but insisted it was more a “push with his foot” than a “kick.”

Three people took the witness stand:  the woman, the man, and one of the cops (a policewoman). The victim was a stocky woman with a loud, booming voice.  One of our jurors later described her as “menacing.”  The man was exceedingly thin, almost frail looking, with a long, wispy Fu Manchu goatee.

The victim completely recanted her story.  She denied everything.  She said his foot had barely grazed her bottom, that she’d been “pissed at him all day,” and that she’d called the police because she wanted to “teach him a lesson.”  The man basically agreed with her.  She was loud and confident; he was soft-spoken and timid.

The cop disputed both of them.  She said the woman had been very upset — upset enough to call 911 — and was crying when the police arrived.  The man had kicked her (albeit with a bare foot), and grudgingly admitted to it.  The policewoman testified that, in her professional judgment, this constituted battery.  He was arrested and taken to jail.

The prosecutor had set up a flipchart with a copy of the statute’s pertinent language, the meaning of which couldn’t have been clearer.  It is unlawful to grab, hit, kick, etc. another person, even if the “assault” leaves no blood, bruises, welts, or marks of any kind.  The extent of the injury is irrelevant.  It’s the intent that matters.  You aggressively kick someone in the butt, you’ve committed battery.

In his summation, the prosecutor told us that if we believed he had kicked her — which, he argued, couldn’t be disputed — then we had no choice.  The law was clear.  It was our duty to find him guilty of battery.  The man’s lawyer summed it up by telling us the whole thing had been a terrible misunderstanding.  Just listen to what the woman said.  It never happened.  With that, we retired to the jury room.

They elected me foreman….even though I pleaded with them not to.  Having heard me say during my jury interview that I’d been on seven previous trials, they unwisely concluded that I was the “most qualified.”  I was disappointed.  Being foreman is constraining because, if you’re conscientious, you realize you can’t offer too many opinions without looking like you’re trying to dominate the proceedings.

The first thing I did was ask for a show of hands from everyone who believed the man had kicked her.  All twelve of us raised our hands.  Okay, it was unanimous.  Then, following standard procedure, I passed around sheets of paper and asked everyone to write down Guilty or Not Guilty, and pass the sheets back to me.  The count was 11 to 1.  Not Guilty.

It was a glorious moment.  I couldn’t have been prouder of my fellow jurors.  Despite what the prosecutor told us about doing our duty, and despite the law being crystal clear in this matter, we had decided to do the right thing, the fair thing.  We had decided that this guy shouldn’t be convicted.

Well, at least eleven of us had decided that.  The lone holdout was a man in his forties, a mechanical engineer.  “Didn’t you hear what the D.A. told us?” he said plaintively.  “Even if we wanted to, we don’t have the right to ignore the law.”  When one of the jurors asked if he “agreed” with the way the law was written, he was stunned.  “It doesn’t matter if I agree or not,” he said.  “The law is the law.”

Wrong.  We told him it wasn’t our job to enforce the law.  That was their job.  Our job was to do the right thing.  And if the County of Los Angeles didn’t trust a jury to reach the right and proper decision, then they shouldn’t have given us that authority.

We asked him:  Do you really believe this guy should risk going to jail?  He thought about it a long, careful moment and said he did not.  Then are you willing to along with the rest of us and cut him loose?  Reluctantly, he agreed.  Okay.  All in favor of Not Guilty, raise your hand.  All twelve hands went up.  Deliberations were finished.  They had taken thirty-five minutes.

After the trial, I approached the two lawyers as they left the courtroom.  I was curious if the prosecutor had been shocked or dismayed by our verdict.  Clearly, he wasn’t. “I thought it was a fair decision,” he said pleasantly.  His exact words.  The other lawyer — the public defender — nodded in agreement.

If he thought it was a “fair” decision, then why did his office prosecute this guy in the first place?  The answer is that the American legal system has become an industry unto itself, one that supplies lucrative jobs to judges and private attorneys, and decent jobs to public defenders, bailiffs, prison guards, probation officers, expert witnesses, et al.

While the System clearly benefits those with the jobs, it clearly hurts people who get stuck with convictions that are meted out not from of a sense of justice, but for “administrative” reasons.  These convictions follow them the rest of their lives, and prevent them from even getting jobs because they now have criminal records.  We did our small part to fix that.

David Macaray, a Los Angeles playwright and author (It’s Never Been Easy: Essays on Modern Labor), was a former union rep. He can be reached at: dmacaray@earthlink.net. Read other articles by David.

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  1. John Andrews said on March 25th, 2011 at 11:54pm #

    “‘The one great principle of the English law is to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings.”

    Charles Dickens
    ‘Bleak House’