A Stitch in Haste

Are we still pretending that jury nullification is a legitimate libertarian issue?

Patterico's "gotcha" question on the issue concerns the oath many courts require jurors to take before serving, which affirms that they will uphold the law. Patterico asks supporters of nullification if they'd risk perjury charges by taking that oath and then subverting an unjust law during deliberations.

It's a difficult question, and one I think people interested in real justice need to reconcile with their own values and priorities. But I also think his question is pretty revealing. It shows how prosecutors and judges have tweaked juror oaths to set perjury traps for would-be nullifiers, thus taking out of play an important check against bad laws, bad judges, and bad prosecutors. I'd like to see a civil liberties group mount a challenge to those oaths.

Oh my goodness.

Even if Balko's bizarre argument (i.e., that juror oaths are some sort of vast right-, um, left-, um, judge-wing conspiracy to oppress libertarians) had any basis in reality, it would still be a moot point.

It is precisely jury nullification — not the attempt to quash it — that is a radically un-libertarian concept. Libertarians are supposed to oppose the concentration of power in the few — or the one — and to oppose attempts within the government — of which the jury system is a part — to circumvent the rule of law. What kind of libertarian proposes a dictatorship, even a fleeting and minuscule one, as a guarantor of freedom?

But put even that aside. There's a still more primal reason why libertarians should fear, and not praise, jury nullification: the simple fact that it is symmetrical. It can be used as a sword of injustice just as easily — maybe more easily — than as a shield against it.

Unanimity — and nullification — cuts both ways. Suppose you have a defendant who is indeed not guilty, perhaps of any crime at all or perhaps of only a lesser crime and not a more severe crime with which he has also been charged. And suppose 11 of the jurors see this, but one does not — and he votes, in violation of both justice and his oath, to convict — to nullify.

Maybe the juror is a racist and is voting based on that. Maybe he is elderly and biased against "young punks." Maybe he was the past victim of a crime and lied his way onto the jury to vicariously "get even" with a criminal, any criminal. Or maybe the defendant is a career criminal and the renegade juror figures that, whatever the law, the defendant "ought" to be punished more than he already has been.

Or perhaps it's a civil trial against the big bad (oh, and greedy) pharmaceutical company and its big bad (oh, and FDA-approved) drug. Perhaps the juror will figure that liability laws are "oppressive" (i.e., to the plaintiff) or that it's "no big deal" if the rich and impersonal corporate defendant is forced to pay.

All examples of jury nullification. All functionally equivalent to the "pure and clean" libertarian model of nullification. And all should strike fear in the heart of any real libertarian.

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Meanwhile, I sincerely hope that laypersons don't believe that "11 to convict, 1 to acquit" means acquittal, or that "5 for plaintiff, 1 for defendant" means no liability.

Perhaps advocates of nullification simply don't understand the nature of a jury trial. In all federal trials (both criminal and civil), and in almost all the states, a jury trial must be unanimous. No controversy there (except for the "almost" part — see the absurd reasoning and fractured outcome of Apodaca v. Oregon, 406 U.S. 404 (1972), exempting the states from the unanimity requirement, a "privilege" that 45 states have wisely foregone in criminal trials).

So a lone (i.e., perjurious, renegade) juror is in reality not "nullifying" anything. "Eleven to convict, one to acquit" does not mean an acquittal. It means a hung jury, a do-over. Even as a purported "act of conscience" (and since when is perjury an act of conscience?), what's the point? The guilty defendant will, most likely, simply be retried and convicted later. And all the same symmetry arguments apply here as well. Imagine being an innocent defendant and having to suffer the nightmare — and the cost — of a hung jury because of one renegade juror.

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All good libertarians are familiar with the phrase "fatal conceit." It's a close cousin to Kip's Law. It is the hubris, the irrational arrogance, to presume that the world would be perfectly hunky-dory if only you ran things and if only everyone would behave as you want them to behave.

The presumption that jury nullification would only be used as a force for good, and that "two wrongs make a right" for you, because you, unlike everyone around you, are pure and noble and just, is exactly the kind of pomposity that libertarians are supposed to abhor.

Go figure (and try to be unanimous about it).