Jury nullification: The elephant in the room

There's an elephant in every courtroom. Prosecutors and judges won't show it to jurors, and even Virginia defense lawyers seem forbidden from mentioning this fact: If you think a law is unjust, you can acquit.

It's called jury nullification, and such Founding Fathers as John Adams and Thomas Jefferson venerated juries as "the last roadblock to tyranny," according to civil libertarian John Whitehead.

"The Framers of the Constitution were some of the greatest advocates for the power of juries to nullify," says Whitehead, the founder of the Albemarle-based Rutherford Institute.

Charlottesville citizens got a taste of how the government deals with an unpopular law last week when six potential jurors were dismissed when they said they wouldn't convict someone of marijuana possession because they thought the law was wrong. And even the judge noted that the last time she had a marijuana case, she couldn't get enough jurors.

"The jury has a right to judge both the law as well as the fact in controversy," said John Jay, the first U.S. Supreme Court chief justice. With such a pedigree, why has jury nullification gone underground?

"In large part it's because it's no longer taught in schools, and it's not favorable to prosecutors," says Kirsten Tynan of the Fully Informed Jury Association, a Montana-based nonprofit dedicated to reminding each American jury that it remains "an independent body that objectively interprets the law and considers the facts."

Many courts have interpreted a potential juror's disagreement with an unpopular law as a threat to justice. That's what allowed Albemarle Circuit Court Judge Cheryl Higgins to remove six drug law foes from the jury pool during the voir dire process for the two-pot-plant-possession trial of Philip Cobbs on July 18.

"That's a clear case of stacking the deck for the prosecution," says Tynan. "That's not what voir dire is meant to do."

Tynan asserts the juror interviews are intended to identify relationships that might pose a conflict for a juror, such as the accused being a family member or business partner.

"It's not to exclude anyone who disagrees with the prosecution," says Tynan, who notes that the governor of New Hampshire signed a law last month giving New Hampshire defendants something that Virginia defendants can only dream about: the right to tell the jury that they can consider the "application of the law" in addition to the facts of the case.

Tynan's organization encourages citizens to publicize their hidden right– even if that means handing out leaflets to potential jurors. Such efforts have been fought by officials, as in the case of Julian P. Heicklen. A retired chemistry teacher, Heicklen was arrested and charged with jury-tampering for leafleting outside a Manhattan courthouse. To the delight of nullification fans, that charge was dismissed in April by federal judge Kimba Wood, who noted that illegal tampering would target specific jurors rather than Heicklen's effort to provide the information to whomever would take it.

Jury nullification has a long, and sometimes proud, history in America, including the last days of the Fugitive Slave Act of 1850, when that federal law deemed slaves property that must be returned to owners. "Northern juries," says Whitehead, "refused to convict those accused of violating the law by harboring escaped slaves."

By the end of the 19th century, when juries refused to convict illegally striking workers and unions, the federal government clamped down on nullification, and a split U.S. Supreme Court ruled in 1895 that judges were not required to inform juries of their right to nullify unjust laws, says Whitehead.
In the ensuing decades, such unpopular laws as alcohol bans during the Prohibition era, the draft during the Vietnam War, and what Whitehead calls the "unjust, unconstitutional" War on Drugs have all inspired jury nullification.
More ominously, nullification also has been accused of abetting Jim Crow-era cases in which all-white juries would refuse to convict a white defendant accused of killing or raping an African American. However, jury nullification proponents point out that such injustices stemmed more from a jury's lack of racial diversity than with laws seen as unjust.

Death penalty cases are a high-profile example in which states such as Virginia and Texas have endorsed the practice of excluding jurors who say they can't follow the law, notes Hook legal expert David Heilberg.

"How fair is that for the defendant?" asks Heilberg. "I think jury nullification is protected by the Constitution."

And yet even the Rutherford Institute-affiliated legal team that defended Philip Cobbs in the case of the armed, helicopter-abetted, search-warrantless invasion of his property never told the jury about its right to send a message about potential misuse of drug laws. Lawyer Heilberg explains why.

"Lawyers have given an oath to apply and follow the law," says Heilberg. "I don't think it's proper for a defense attorney to ask a jury to nullify the law."

Perhaps, Heilberg suggests, the burden lies with citizens who serve on drug or other questionable cases, to think about the government effort pressing such a prosecution and then ask the question: "Is this the best use of your tax dollars?"


Waal, seems to me that though defense attorneys "can't" mention the possibility of jury nullification, they certainly could try calling an expert witness who might mention the possibility. Shall we all say a prayer for local resident Mike Trudgeon, whose home was invaded by officers of the law, some of whom -- near as I recollect -- sat on his chest until he died of asphyxiation? The preponderance of power in America, thanks to the Patriot Act, is overwhelmingly in favor of the government -- which can do whatever it wants, including warrantless "searches" of your person and your property via satellite, helicopter, or unmanned drone. If you watch TV on your computer, your television now has the capability of talking back to you. We've come a long way since 1948, but ... at some point it may be fair to ask: are we now a two party nation of sheep? ... Are we all paralyzed by the violence we see on television and at the movies?

Lawyers! -- do we really need so many?

Thanks Lisa, this is very informative.

Great story and a great message!

My earlier comment in one of the related threads, with some additional facts not previously mentioned fits better here.

Mr. Zug and Mr. Quatrara are being subjected to unfair criticism. Both are competent and trustworthy professionals. The problem is, in an overreaction to criticisms (that were not entirely fair either as to the previous prosecutor), that the former Commonwealth's Attorney, Mr. Camblos, did not always prosecute vigorously enough or at all, the current policy is to prosecute every marginally arguable case. When you prosecute at these margins, you win a soccer assault case here and lose a 2 marijuana plants case there.

After losing in the lower court , a client who would not want her name published, appealed to Circuit Court but couldn't afford a jury trial. Based on the facts we felt more strongly that a jury would acquit than a Judge sitting alone in judgment. Nevertheless, with her job on the line, my client was relegated to a judge trial. After being stopped on the interstate along with 2 passengers ready to go camping , the Trooper smelled a stale odor of marijuana. In the ashtray was partially but not recently smoked joint that had been left there the night before by the young woman's disloyal boyfriend. In addition to speeding, her only mistake was not wanting to cause trouble destroying her boyfriend's weed. My client smelled the same stale odor of marijuana but never looked in the ash tray. When it was discovered for the first time by the trooper, it was easy for her to deduce where it came from. The boyfriend completely disappeared and refused to even be interviewed. The trooper also searched the entire vehicle, it's occupants and their camping gear. No other marijuana, alcohol or any kind of contraband was found. The court also considered that my client had passed random drug tests at her place of employment and that a test done at Prompt Care within 24 hours after the incident was also negative. THC is detectable in a person's system for about 1 month after it is consumed.Ownership is irrelevant.

Only knowledgeable possession needed to be proved. Since the argument was there, the Commonwealth refused to back down. Fortunately, Judge Higgins found a reasonable doubt in the case. Nevertheless, the public has a right, without being summoned for jury duty, to ask local prosecutors to better spend their tax dollars and to offer explanations for why so many marginal prosecutions clog our courts.

Wow David! You had the opportunity to rewrite and still posted that? I certainly hope you have someone else write stuff that matters, like legal documents.

"After being stopped on the interstate along with 2 passengers ready to go camping , the Trooper smelled a stale odor of marijuana. In the ashtray was partially but not recently smoked joint that had been left there the night before by the young woman's disloyal boyfriend."

A female trooper's disloyal boyfriend left weed in her car and one day while she was driving some friends to go camping she busted someone else (presumably your client) for it? That's an interesting defense.

I understood the narrative presented by Mr. Heilberg. As much as I may enjoy pointing out grammar mistakes, I only comment on those when the meaning of the post is obscured.

On the other hand, CC, GOOD ONE!

David is a very good lawyer, even without the benefit of spell-check and grammar-check.

In almost every locality, prosecutors if not out of control are off the leash. This has to do with office score-keeping,giving juniors trial work and a "we are the tough guys" attitude that begins at the first DA job or even law school.I've been on several juries where we retired for deliberations and just laughed at the case.In one we were so concerned about the money spent to prosecute,we asked the judge at the end of our 20 minutes deliberation-why was this case brought? Judge-- "no idea, I wish I could tell you."

This is only a comment board and Heilberg's remarks were cogently enough presented not to be misconstrued. Prosecutorial over-reach has been a hallmark of the local system. Anyone with a grain of sense knows the best place to plant a few marijuana plants for personal use is on an unused part of some other person's land!! 39 acres is a decent size piece. I myself own 6 acres of rural county land, half open and half forest. Having resided there for over 20 years, there are still places on my land I've never set foot on where anything could be growing and I wouldn't have a clue.
The helicopter search and prosecution of this man represent a tragic misallocation of public resources, even more so in an age of budget constraints and that leaves aside the other point which is whether it should be anyone's business if a middle aged man wanted to cultivate 2 plants for his own use; obviously not a drug dealer selling "drugs to our children" as someone remarked....

I think it's interesting that there are sufficient funds to fly a police helicopter with a pilot and spotter around indefinitely, paramilitary police ground crews at the ready to act on aerial surveillance finds, and a prison and court system to facillitate prosecution of minor offenses such as growing 2 pot plants yet local schools have had tremendous budget shortfalls this past year. How many tens of thousands of dollars went into the discovery of the 2 marijuana plants and prosecution of the property owner? As a nation run amuck with government indebtedness, we are truly lost if we can't pull ourselves up by our bootstraps and acknowledge what a horrible use of tax money this and comparable law enforcement boondoggles are. It's time to make some real changes and stop making criminals out of simple potheads...Nixon and his war on hippies is long gone, lets move on in a more fiscally prudent manner.

Likely a Bell 407 if it was VA.SP helicopter. Bell say $431/hour exclusive of pilot's salary, insurance, etc. Just fuel and known maintenance done by operating hours. Then the ground team and all that... just for 2 pot plants. From start to finish with all the personnel and materiele, wouldn't it be fun to know how much the whole charade cost us to jerk that poor fellow around...

This is the drugs- security- state- law -enforcement and prosecutorial industry; all mutually supporting, all mutually justifying and committed to self perpetuation, common sense be damned..and yes, i do realize the real need for some of this. In my other non- va home the police dept just spent $200K on a sonic crowd disperser unit..what do you think the likely hood of that ever being used or working? A Nice new toy for the boys to play with ...

The two-tomato-plant-possession, oops, I meant the two-pot-plant-possession, seems to beg the question as to why this plant is illegal? Why?

Do we have Mothers Against Stoned Drivers? MASD

At the most a stoned driver will park by the side of the road for several hours contemplating why his/her car states the 'Door is ajar'. :)

Jury Nullification is like concealed carry: Keep it in your holster until you need it. Please tell your friends/family to read up on the topic!

While I have no problem with this stories informative side of explaining about Jury Nullification, I do have a problem with the sniping at the court.

If after hearing the evidence the jury decides that the law is unfair, or a law was enforced unfairly, then it is the right/duty of the jury members to nullify this prosecution.

But to say that the judge was incorrect to excuse jurors that have already made up their minds is wrong. Then in a case of murder it would be okay to include a juror who had already made up their mind as to the guilt, or innocence, of the accused. That it would be up to the Defense, or Prosecution, to overcome their preconceived notions.

Instead they should be starting with a jury that is willing to hear all relevant information, with no overt bias, and then come to a fair verdict. Even if that verdict is that the law, or it's implementation, is wrong, and they will not allow the government to do that to another citizen.

One prefers hearing pleasant stories about lawyers, but alas! The pleasant stories are so few and far between. I have known some very, very good ones. They rise to the top like the froth on a freshly pulled lager. I'd like to see if we can't get a constitutional amendment, or maybe an amendment to the by-laws of each state's bar association, prohibiting lawyers from running for public office. Think of the trouble and embarrassment banning lawyers from holding public office would have saved the nation over the last sixty years. Except for the Little League guy of course ... I hear he used to carry whole teams around in the back of his Expedition. I wonder -- does he ever float the Tye? I'll be at the Devil's Backbone Saturday morning if the creeks don't rise.

Pleasant enough to remove the whole last 4 comments when you don't like them?

Why did you delete the comments? Nothing inflammatory was raised. Was some expert on your payroll called on the carpet? I violated none of these terms.* "Language stronger than "darn," insults, ethnically or racially disparaging language, and comparisons to Hitler usually result in speedy comment deletion and may get you blocked from further commenting. Ditto for posting unverified and/or potentially libelous allegations, and even off-topic digression." Was it something I said that is true that you did not like?. Every point I raised is credible and verifiable.

I stayed on topic regarding Jury nullifacation. I did not disparge your expert in any way, except to note the "I" believe that he gave a client bad advice. He did not do his homework, and caved in the advance of his unpreparedness. I did not use any bad language. Nor did I use any potentially libelous remarks.
I admired his billing company. And I truthfully acknowledged his skills. My guess is The Hook is against other points of view. That's sad!

Deleted by moderator.

Excellent Article and VERY well written so all can comprehend what is being relayed and retain this vital information. Thanks in advance for your services.

@not so expert -- you're welcome to send me the stories by email, I'm not hard to find.

Yes it is legit but some Judges are still tyrants and cannot stand the notion that they are ultimately not the "deciders", as GWB would say. So they bounce "uppity jurors" for fabricated reasons and label them "tainted". They can do this at any stage of the proceedings, even when it is in deliberations if they have "just cause". An example of just cause would be if a juror was found to have taken a bribe, been threatened and intimidated in a mob trial etc. Often it is the case that Judges will abuse this "discretionary power" and rid themselves of those who think independently, don't agree with drug laws or whatever. They want conformed spineless dolts that they can muscle around. They hate "trouble makers". It is best to lay low when on a jury and not flaunt your use or knowledge of nullification and simply acquit the defendant quietly saying you are not convinced of the facts or whatever. Your fellow jurors do not have to know what you are doing. The only person you have to render an account to is God or your conscience. You owe no man an explanation. Please read this article for a more in depth exposition of the matter. http://www.lewrockwell.com/orig10/dugas1.html