A Stitch in Haste

Unlike many libertarians, I have never bought into the concept of jury nullification. I actually think it is a most unlibertarian concept, for several reasons:

--In most if not all settings, jurors swear an oath to uphold and apply the law and to follow the judge's instructions. If you can't in good conscience uphold a particular law, then the right time to demonstrate the inviolability of your principles is during the voir dire.

--Libertarians abhor the concentration of power. How can they then sanction the ultimate concentration of power -- a unilateral veto power -- in a single unelected individual?

--Nullification works both ways. It is just as easy for a lone "law and order" or "ends justify means" juror to vote to convict someone who is in fact innocent. A civil trial analogue occurred here. Eleven-to-one to acquit is still a hung jury, just like eleven-to-one to convict.*

In any case, it now appears that the capital phase of the Zacarias Moussaoui trial was itself a case of jury nullification. One of the three votes was 11-1 to execute (the others were both 10-2; any single 12-0 would have meant execution).

So I'll put it out for an open thread — do you pro-nullification libertarians still support the concept despite the Moussaoui verdict? Should an advocate of "no capital punishment, ever" be allowed to sit on a capital jury in the first place? If jury nullification is ever warranted, then where is the line to be drawn and how is it to be enforced? I find these questions to be so metaphysically unanswerable as to, well, nullify the questions a priori.

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*Most of the time. Unanimous jury verdicts are not a Sixth Amendment requirement. Neither are 12-person juries, or juries at all for that matter (under current case law).