Creators of The Wire: “We’d Nullify”

Thursday, March 6th, 2008

A pretty bold (and awesome) statement in Time magazine from the show’s head writers, Ed Burns, Dennis Lehane, George Pelecanos, Richard Price, David Simon.

If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun’s manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens.

Jury nullification is American dissent, as old and as heralded as the 1735 trial of John Peter Zenger, who was acquitted of seditious libel against the royal governor of New York, and absent a government capable of repairing injustices, it is legitimate protest. If some few episodes of a television entertainment have caused others to reflect on the war zones we have created in our cities and the human beings stranded there, we ask that those people might also consider their conscience. And when the lawyers or the judge or your fellow jurors seek explanation, think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren’t fictional.

Regular readers of this site can think back to very real names like Kathryn Johnston, Isaac Singletary, Daniel Castillo, Tarika Wilson, or Jarrod Shivers. Or for that matter, any of these.

The one problem with jury nullification is that judges and prosecutors often set perjury traps that pick would-be nullifiers off during the voir dire process. Worse, judges sometimes even wrongly instruct jurors that their only option is to consider the defendant’s guilt or innocence, explicitly instructing that they aren’t to judge the justness or morality of the law itself.

One of the most significant policies drug reformers could get enacted would be to work Congress and state legislatures to pass legislation protecting and preserving the rights of jurors to nullify—or better yet, to even force courts to notify them of that right before deliberation.

For more on nullification, check out Clay Conrad’s excellent primer on America’s long history of this important, powerful form of activism.

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24 Responses to “Creators of The Wire: “We’d Nullify””

  1. #1 |  Lee | 

    Your html gotten eaten again.

  2. #2 |  LibertyPlease | 

    That is an awesome statement! To hear mainstream entertainers speak to the larger issues of the drug war in such a mainstream publication is great. Awareness helps.

  3. #3 |  seeker6079 | 

    Is this it?
    http://www.amazon.com/exec/obidos/ASIN/0890897026/theagitator-20/

  4. #4 |  seeker6079 | 

    Here’s Clay Conrad’s blog, “jury geek”
    http://www.jurygeek.blogspot.com/

  5. #5 |  seeker6079 | 

    Conrad on jury nullification for marijuana laws:
    http://www.counterpunch.org/conrad06172005.html

  6. #6 |  Dave Krueger | 

    I was in the jury pool for a Federal drug trial in Birmingham. It’s amazing how thoroughly they question you just to make sure they screen out anyone opposed to the drug war. And the whole time, there’s a DEA agent sitting there at the table next to the prosecutor with a big ol’ smirk on his face.

    Clearly, without lying, there is no way you can keep your feelings about the drug laws to yourself and it made me uncomfortable trying. Once they find out who you are, they question you directly, so I just came out and said I could never convict anyone purely on a drug charge (which is what this case was). I knew that sealed it. I would not be selected. I was relieved because I knew it could have been quite confrontational to hold out for acquittal against everyone else, but I was prepared to do that. But, I felt guilty that the defendant had just lost one of the few people in the room who could have helped save his life from destruction. I just wasn’t prepared for that level of questioning.

    If you’re going to screen the jury so that anyone who might be inclined to vote for acquittal is eliminated, you might as well dispense with the entire trial.

  7. #7 |  seeker6079 | 

    If you’re going to screen the jury so that anyone who might be inclined to vote for acquittal is eliminated, you might as well dispense with the entire trial.

    I think they’re fine with that Dave, just fine.

  8. #8 |  XI | 

    Sadly, I think Dave Krueger is right on the mark. As much as I applaud these writers for their willingness to speak out on the issue, I can’t imagine any situation where they could end up on a jury without perjuring themselves. That is what would happen, right?

  9. #9 |  XI | 

    I suppose the only way it could work, would be if all or most of the potential jurors state their intent to nullify. Of course, that would require convincing the majority of Americans at large….

  10. #10 |  Nick T | 

    Perhaps the way to do it is to couch your statements. The lawyers can usual strike people from the jury without stating a reason up to a certain number (usually around 6) of times. So your inclinations will always show through. But to avoid be stricken for cause, you may wish to come to a point where you can truthfully say that you feel the drug war is a bad policy, but: a) people who deal drugs should be stopped because they profit from the misery of others, or b) that you would listen to the facts of each case, and could be iobjective under the law (which includes your right to jury nullify). I think these are agreeable positions even to most people who hate the drug war and might keep you on.

    On a related note, what we need are people pointing out the disgusting moral hypocrisy of prosecutors who themsleves use drugs and then turn around and seek harsh sentences for drug possessors and dealers (aka, the peopel exactly like them or they people they support). Think about it for 5 minutes, how prosecutors who have an ethical obligation to see that justice is done and may use their discretion as to what crimes they emphasize and how hard they push, will seek to put people in prison for possessing marijuana and then go home that night and use marijuana themselves. It’s far worse than a judge who does the same, and it carries the disgusting act of essentially crushing another person’s life for something they freely do and probably recognize as harmless. And don’t think that “just doing my job” or “well I have to follow the laws” stuff flies for one second. No one made you be a prosecutor and again you have your discretion.

    Maybe if prosecutors (who in many cities enjoy notorious reputations for being drug users and big partiers) started considering how immorally they conduct themselves, drug laws would change.

    P.S. Two great questions to ask any prosecutor, especially proud ones: How confident are you that the police you call to testify are telling the truth, and hat would you do if you had serious doubts about that? And, do you use marijuana, and if so, do you prosecute people for using it, and if so how can you justify that on even a base moral level?

  11. #11 |  Tokin42 | 

    I’ve been voting for decades and I just received my very first jury duty summons/questionnaire last week. They had a question on it that asked if I was a conscientious objector or had “moral scruples” which would prevent me from being on a jury and of course I checked that off. If I get called, and I will, then I’m going to have to be honest when they question me and I doubt they’ll want me on a jury. The only way to get past the screening process is to lie and I won’t.

  12. #12 |  Matt | 

    “The one problem with jury nullification is that judges and prosecutors often set perjury traps that pick would-be nullifiers off during the voir dire process. Worse, judges sometimes even wrongly instruct jurors that their only option is to consider the defendant’s guilt or innocence, explicitly instructing that they aren’t to judge the justness or morality of the law itself.”

    That’s exactly how it went down when I was called for jury duty. I even asked the judge after the trial about what it was and she painted it as a quasi-religious component, with a little subversion thrown in.

  13. #13 |  Miggs | 

    Did someone say “jury nullification?” Cue Patterico.

  14. #14 |  Loren | 

    One of the most significant policies drug reformers could get enacted would be to work Congress and state legislatures to pass legislation protecting and preserving the rights of jurors to nullify—or better yet, to even force courts to notify them of that right before deliberation.

    Now how exactly would you write such legislation to make sure it only allows for nullification in the types of cases *you* would like it to?

    What about a juror in a domestic violence case who believes in a husband’s absolute authority over his wife (e.g., a husband can’t rape his wife)? How about a NAMBLA member on a child sex case? Or a tax protester who thinks the income tax is unconstitutional? Or a radical who doesn’t believe in intellectual property law? Or a socialist who doesn’t believe in America’s property law? Or a bigot who doesn’t have much of a problem with a white man killing a black man? Are you comfortable with these situations, or do you have some way to draft protections for nullification that somehow exclude these kinds of exercises of it?

    How about a juror who believes in giving excessive and extra-legal deference to police officers? A juror who believes that an officer should only be held liable and responsible for intentionally malicious acts, and not for even grossly negligent conduct, regardless of what the law might say to the contrary. Would you be comfortable with allowing jurors to simply ignore the law and acquit the men who killed Kathryn Johnston, in spite of the laws they broke? After all, I’m willing to bet that given the choice and opportunity, there are an awful lot of people who would give an awful lot of undue deference to men in uniform.

  15. #15 |  Radley Balko | 

    Loren,

    In short, yes. Most of your examples involve a small enough subset of the population that I don’t see them becoming a problem. At the worst, you’d get one person with those sorts of abhorrent views on a jury, at which point you’d get a hung jury and a new trial–not an acquittal.

    The only time you’d get entire juries nullifying a law in spite of a defendant’s guilt are in those cases where the law is clearly unjust — as happened during alcohol prohibition, sedition prosecutions, and some civil rights cases. It would have been helpful, for example, if jurors in the Richard Paey, Ed Rosenthal, or William Hurwitz cases new of their option to nullify.

    So yeah, I think jurors should always be educated about the option to nullify–to judge the law as well as the defendant’s guilt. The odds of finding twelve jurors willing to nullify and acquit a guilty defendant for reasons most of us would find immoral are pretty steep.

  16. #16 |  Loren | 

    Radley,

    At the worst, you’d get one person with those sorts of abhorrent views on a jury, at which point you’d get a hung jury and a new trial–not an acquittal.

    Quite true. But what do you think the odds are that you’ll get 12 people to acquit a clearly legally-guilty drug defendant based on their opinion of the drug war? After all, 11 to acquit and 1 to convict is still a hung jury. And I also imagine there’s a greater likelihood of finding 12 excessively pro-police jurors in many parts of the country than 12 exceedingly anti-drug-war jurors.

    Also (and admittedly cutting both ways) hung juries can result in defendants never getting a second trial. Edgar Ray Killen was charged with conspiring to kill three civil rights workers in 1964. In an old Southern version of jury nullification, one juror refused to convict him (because he was a preacher). The DA didn’t pursue the case any further, and Killen remained a free man until he was retried and convicted forty years later.

    It would have been helpful, for example, if jurors in the Richard Paey, Ed Rosenthal, or William Hurwitz cases new of their option to nullify.

    What use would such instructions have been in Rosenthal’s trial when the jury wasn’t allowed to hear about who he was growing his marijuana for? Without that information, did they have any reason to even consider nullification? In Paey’s trial, would it necessarily have made a difference when it was the jury foreman giving bad info to his fellow jurors? Have any of Hurwitz’s jurors indicated that they would have preferred to acquit him?

    It seems to me that in each of those examples, there are big problems that wouldn’t be cured by jury nullification. And in all their cases, how certain are you that the jury could have unanimously agreed on nullification? As you point out, a hung jury isn’t, in and of itself, a satisfactory outcome.

    Follow-up Question: if the jury is to be instructed on nullification, should the defense be permitted to argue for nullification to the jury? To beg the jury to have mercy, and simply ignore the law? (I imagine this playing particularly well in celebrity trials.) Better yet, should the prosecution be permitted to argue for nullification with regard to law that benefits the defendant? (Obviously a clearly wrongful conviction would suffer on appeal, but the defendant is still subjected to unnecessary appeals and time in prison.)

  17. #17 |  Dave Krueger | 

    Personally, I don’t see much likelihood of an epidemic of cold blooded violent criminals being let off the hook by juries infected with people whose moral integrity forbids them from sending wife beaters, child molesters, and racist murders to prison.

    The whole reason for trial by jury is to give ordinary citizens the final word in deciding when a fellow citizen has committed an act so egregious that it warrants the revocation of their most valuable possession: their freedom. That authoritarian judges routinely negate that ideal with confusing and conflicting mandates can also be called jury nullification.

  18. #18 |  Positive Liberty » “A long habit of not thinking a thing wrong, gives it a superficial appearance of being right.” | 

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  19. #19 |  the war against the war (on drugs) « B Misc. | 

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  20. #20 |  Ron Good | 

    I’m confused by some of the folks here who say they wouldn’y lie to get on a jury for a drug case.

    What possible obligation do you, or I, have to provide some sort of verbal “truth” to government inquisitors, especially when they are doing something that plainly “ought not to be done” in the first place?

    Look, manipulators don’t take advantage of your weaknesses; there’s little there to take. These pariahs take advantage of your strengths instead. If you’re generous, they will drain you; if you’re trusting, they will cheat you; if you’re cooperative they will manipulate you…and if you are honest, they will happily turn that against you as well.

    But, simply put: you owe these bullies nothing, including the truth, and lying to them is not any sort of moral violation.

  21. #21 |  Loren | 

    What possible obligation do you, or I, have to provide some sort of verbal “truth” to government inquisitors, especially when they are doing something that plainly “ought not to be done” in the first place?

    Do you similarly feel that it’s acceptable to lie to defense counsel, such as if you’re a potential juror in a case where you strongly believe in punishing the accused?

    If not, then how much faith should we put in a system that would permit members of a jury pool to lie only to one party, but forbid them from lying the other?

    If it is acceptable, then doesn’t that violate the interests of the defendant? If you were on trial, would you want it so potential jurors could lie during voir dire without consequence?

  22. #22 |  Ron Good | 

    Well, I have my own standards to deal with that, and as with the rest of my life, the legal/illegal dichotomy is only useful to me as a factor in risk assessment. regardless of “The Law” my obligation to myself is to always do what I think is the right thing.

    So, when voire dire is used as a tactic to eliminate jurors who would otherwise have and be aware of the legitimate option of nullification, then it’s not *me* who is faking the system–it’s me preventing the faking the system by lying to the already dishonest and manipulative and–as I noted–I don’t owe those kinds of folks the truth.

    Not to invoke Godwin, but (similarly) what, for example, should I do where someone is charged with “being a jew”, say, in Nazi Germany? Exactly who is owed the truth in that kind of situation–and to whom must I provide it–and why?

    Remember, we’re talking about an essentially political type of trial here, not a trial that involves legitimately prosecuting the instigation of fraud, coercion, theft or murder. I don’t owe thugs involved in that type of “coercive social engineering” proceeding the truth; it’s that simple.

  23. #23 |  …no third solution » Blog Archive » On Jury Nullification | 

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