Luigi Mangione has not had his day in court, and despite all the apparent evidence being revealed by the press, he is still not guilty until proven otherwise in a court of law. Nobody yet knows what the legal strategy of the prosecution and Mangione’s attorneys will be, however, some legal experts have publicly asserted that due to the concept of jury nullification, even if the prosecution provides rock-solid evidence, Mangione may still get one or more hung juries or may even, theoretically, walk free. So, what is jury nullification and what should we all know about it?
Jury nullification is when jurors choose to find a defendant not guilty, even though they believe that the person is technically guilty of the charges. They do this because they disagree with the law or believe that applying the law in a particular case would result in an unjust result. Jurors rely on their conscience, even if it contradicts the law or evidence presented by the prosecution. How did this principle come into being?
One of the earliest cited cases of jury nullification, which established a precedent for future cases, involved the trial of William Penn in London in 1670. Penn was a Religious Society of Friends (Quaker) leader who discovered one Sunday that the British government had locked up his meeting house as the Quakers were considered religious dissenters. He was arrested for holding a small and peaceful outdoor religious service in response.
When he arrived in court, he respectfully took off his hat. He was then ordered by a bailiff to put his hat back on, whereupon he was arrested for contempt of court for wearing a hat. When Penn asked the judge which law he had violated by holding his public meeting, the judge only replied, “Common law”. When Penn pointed out he had the right to know the specific charge, the judge placed him in a “bale-dock,” a small room in the back corner of the courtroom.
After testimony concerning the service, the judge directed the jury to return with a guilty verdict. Penn objected and was removed from the courtroom. In an act of open defiance, the jury then rendered a verdict of not guilty. The infuriated judge sent the jury out to return with a guilty verdict. They came back with another not-guilty verdict.
The judge lambasted the foreman, Mr. Edward Bushell, and threatened to have him imprisoned without food and water if he did not come back with the right verdict. The jury had to leave and come back three more times until Bushell finally told the judge that they had had enough. The verdict was not guilty.
For this act of bravery and integrity, the judge fined each juror 40 marks (about 6 months wages for a skilled worker) and imprisoned each one in Newgate Prison until the fine could be paid. Penn went to jail for three days for putting his hat on as directed by the bailiff. Bushell and his legal team appealed and helped establish the principle that juries must be free to deliver verdicts unaffected by judicial harassment or influence. Bushell is an unsung hero in history.
About 10 years later Penn and his fellow members of The Religious Society of Friends established their own state in North America (Pennsylvania – Penn’s Forest), a bastion of justice, toleration and freedom (the Quakers were, for example, the first religious denomination in the colonies to openly and forcefully denounce slavery). Philadelphia, the City of Brotherly Love (philos – love, adelphos – brother), became the capital of the revolutionary American government.
Following this precedent, it is amazing how often jury nullification has occurred in the USA. Here are just a few historical examples.
In the Zenger Trial of 1735, John Zenger, a newspaper printer, was accused of libel against the British-appointed colonial governor of New York, even though everything Zenger had printed was verifiably true. Despite the judge’s instructions that the truth was not a defense, the jury found Zenger not guilty. Indeed, throughout the Revolutionary War, numerous juries disregarded British law and instructions from pro-British judges and acquitted American defendants. Thus, jury nullification became a valued legal principle embraced by the framers of the Constitution.
In the 1850s, juries in Northern states regularly refused to convict individuals of violating the Fugitive Slave Act, which required the return of people who escaped from slavery to their “owners” in the South once they were found by Southern “slave catchers.”
In the 1920s and 1930s many juries did not convict defendants charged with violating laws concerning the production and sale of alcohol.
In the 1960s, some juries found individuals who avoided the military draft not guilty. They also found protesters who vandalized induction centers not guilty. In United States vs. Moylan (1968) defendants who had burned government draft files were found not guilty.
In the 1990s juries showed sympathy for women who had killed their husbands after years of physical and emotional abuse. Juries often found women who had technically committed murder not guilty. This led to the Governor of the State of Illinois granting clemency and freeing some women incarcerated for this type of situation. Also in the 90s, especially in Washington D.C., several juries began to find non-violent drug offenders not guilty rather than sending young people to prison due to unforgiving laws requiring incarceration.
With jury nullification ordinary citizens can check and balance unjust laws or government overreach, making sure that the legal system does not become too unforgiving or alienated from legitimate social values.
Yet, nullification might allow inconsistent or arbitrary applications of the law, based on the personal beliefs or prejudices of individual juries. For example, the all-White jury in the trial of the murderers of Emmett Till probably knew the defendants were guilty, but found them innocent anyway.
Also, in the first trial of Rod Blagojevich, for political corruption in Illinois, one juror, who felt a sense of loyalty toward the politician, held out and forced a hung jury. Blagojevich had to be tried all over again to get a consensus verdict of guilty.
Most importantly, jury nullification is a powerful tool for positive social change. Paul Butler is a professor of law at Georgetown who has argued that socially committed jurors could be using jury duty as social change activists. As he became concerned about the racial disparities involved in who gets arrested and prosecuted and who goes to jail in the USA, he began arguing that jurors could find defendants not guilty through nullification, especially in regard to non-violent crimes, and possibly apply pressure on the police and prosecutors to reduce the imbalanced arrest and prosecution rate of African Americans.
Indeed, if enough juries exonerate enough defendants who might be considered victims of the adverse racist and classist social and economic circumstances that cause crime in the USA, something will have to be done to change those social and economic circumstances. Ways will have to be found to save people from poverty, discrimination and violence, to put money into people’s pockets so they have choices and opportunities.
So let’s update 12 Angry Men from 1957. Our version would be called 12 Angry Citizens and a dissenting juror would not argue about the quality of evidence provided, but about the corrosive social and economic circumstances that lead people to crime. I can imagine that one dissenting juror might say something like this:
“I listened carefully to all the evidence and considered the prosecution’s case. I also listened to as much as I was allowed to hear about the defendant, which wasn’t much. But I think I heard enough. There is a larger moral issue that prevents me from finding this defendant guilty.
“This young person grew up in a racially segregated city and in one of the most economically deprived and most violent neighborhoods in this city. He attended an underperforming school with overcrowded classes. From a young age he was exposed to violence and he was regularly challenged by his peers to rise to a level of violence and crime to survive. He did not have the opportunities that most of us on this jury had. I will not judge him.
“But I can judge the society that allowed him to suffer all of his life and which pushed him in the direction of committing a crime instead of giving him opportunities to thrive. He is not guilty. For the first time in his life I will make sure he gets mercy instead of harm.
“All of us need to get to work making sure we fix the problems that this city has which are causing people to turn to crime. Nobody commits a crime in a social vacuum. Nobody chooses crime without provocation. Not guilty! I will not change my verdict.”
A huge flaw in the criminal justice system is that it does not allow much, if any, background information about why a person may have committed a crime; this is only considered during sentencing. Judges and prosecutors do not allow juries, during a trial, to consider the lack of social or economic opportunities or outright abuse a defendant may have gone through before turning to a criminal act. This is why women who had been enduring years of physical spousal abuse were regularly and blithely thrown in jail…until juries had had enough of this.
An implication of Butler’s argument would seem to be that we, the jury, need to consider what the criminal justice system refuses to consider in a trial and we need to make the humane and moral choices that might nudge our society into changing for the better instead of more forcefully policing underserved and deprived communities.
But now back to the Mangione trial. A recent poll showed that 40% of young people in the USA felt that the murder of Brian Thompson was justified. 25% of students at an Ivy league university also felt this way. This is a cause for alarm to the prosecution as it would mean that there is a sizeable population from which some individuals might exercise the right of jury nullification in the Mangione trial, even if the proof is overwhelming.
The prosecution will try to filter out such folks from the jury. But a meaningful public debate on this issue seems necessary given the response to the killing. Is it ever justifiable to resort to murder to address what is perceived as a social wrong in the United States of America?
This is another teachable moment in US society we are at risk of not using. It is contingent upon the press not to condemn youth who feel this way, but to convincingly argue why we must not resort to violence. It is, possibly, a failure of our popular culture, educational, religious and political leaders and the non-violent peace movement that young people are not convinced that positive and sweeping social change can occur without violence. The media could be making the argument to young folks that murder is not necessary and that change is possible without violence and then we need to actually show this in our actions toward social change.
Jury nullification presents each of us with the huge responsibility and the power to say that something is wrong and that we are going to take individual action peacefully to help change what is wrong. Be a Bushell, and take a stand for non-violent change next time you get called for jury duty. They can no longer threaten to starve you to death. There is nothing to lose and much to gain by taking this type of moral stand.
References:
Winning a “Jury Nullification” Verdict in the Murder Trial of Luigi Mangione
Jury nullification: how jurors can stop unfair and racist laws in the courtroom | Vox
A Historical Look at the Power of Jury Independence | Cato Institute
https://www.1215.org/lawnotes/lawnotes/penntrial.htm
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This Post is republished on Medium.
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