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Jurors' dilemma: law or conscience?. `Nullification' permits verdicts based on fairness, not code

By CURTIS J. SITOMER / April 10, 1986



IT was a wise little cricket who reminded Pinocchio to ``always let your conscience be your guide.'' But Jiminy Cricket might be held in contempt of court these days, particularly if he had the task of instructing a jury.

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In only a handful of states -- among them Georgia, Indiana, and Maryland -- the court is obliged to inform juries that they don't always have to decide guilt or innocence in strict accordance with the law. Instead, they may allow their own ethical judgments or their highest sense of justice to influence their decisions. In other states, however, jury panelists are expected to follow legal guidelines to the letter.

But what about extenuating circumstances, such as an instance of civil disobedience, when a defendant violates the law to protest social or political injustice? Shouldn't juries be allowed to take motives into consideration when evaluating guilt?

The highly controversial concept of ``jury nullification'' speaks to these questions. This is the phenomenon of finding a verdict of acquittal based on a broader sense of fairness even when the legal facts of the case dictate a decision of guilt. Such situations often present a serious moral dilemma for jurors.

A case in point is the current federal prosecution in Arizona of those who provided sanctuary for undocumented Central Americans who entered the United States illegally, saying they were fleeing persecution and perhaps death in their homeland.

Defendants, many of them members of the clergy, argue that their actions were motivated by conscience and compassion. And they stress that, although they technically abetted lawlessness, justice would not be served by punishing them.

Government prosecutors counter that such a motive -- no matter how altruistic -- should not be the prime factor in determining guilt or innocence. Conspiracy to smuggle, transport, and conceal illegal aliens is still plainly against the law and must be punished, they say.

The outcome of this and other sanctuary cases may go a long way toward resolving the age-old legal question: When may juries disregard the law?

Jury nullification is by no means a new idea. Take, for example, the historic trials of William Penn and John Peter Zenger. Penn was tried in England in 1670 and found guilty of speaking and preaching at a Quaker meeting house in Gracechurch Street, London, which had been closed by authorities. Bucking the instructions of the court, however, the jury refused to return a verdict of unlawful assembly.

The jurors were heavily fined for contempt of court and imrisoned until the fine was paid.

In 1735, Zenger, editor of an antigovernment newspaper, was brought to trial for criminal libel in New York. The jury, however, was persuaded to sidestep strict construction of the common law and bring in a ``not guilty'' verdict. It heeded the argument of the defendant's lawyer, Andrew Hamilton, who pleaded for the right of the jury to inquire into the truth or falsity of the libel.

How does a jury decide when or whether to set aside the facts and return a verdict contrary to the preponderance of evidence?

A PBS ``Frontline'' report, aired April 8, took an unprecedented look at the private deliberations of a Wisconsin state court jury. The citizen panel was charged with weighing facts in the trial of a convicted felon who was arrested for illegal possession of a gun.

There were no political implications in this case. The evidence showed that the defendant -- uneducated and considered to be of limited mental capacity -- had great difficulty understanding why he was being tried and had no intent to use the weapon to commit a crime. He had responded to an advertisement for a job as a private detective which said a gun was required. He bought one. When he happened to show his receipt to a policeman, the defendant was told to surrender the gun. He did so willingly and was arrested for illegal possession.

``Technically, the man is guilty. Guilty as sin,'' responded one juror, who initially had his doubts about how he would vote. Another was much more blunt: ``I don't care what the law says. Has justice been done?''

The jury sought advice from the court. Wisconsin law says a jury may acquit for any reason and for no reason at all. However, the judge admitted that he was reluctant to spell this out. It could be an ``invitation to anarchy to tell a jury they can disregard the law,'' he explained.

After long discussions of what would be a just decision, an acquittal was handed down.

In this case, it appears that justice was done through the process of nullification. But there is another side to the argument. There are dangers that the fairness of the law may be subverted by a racially prejudiced jury or a panel with predetermined political ideas.

Usually, the process of ``voir dire'' (interrogation of prospective jurors by opposing lawyers, and sometimes the judge) tends to counteract such potential juror bias.

The US Supreme Court is now grappling with some of these issues. In one case, it must decide whether a black defendant was denied his constitutional right to a fair trial when he was convicted of burglary by an all-white jury. In another, it must rule whether the exclusion of jurors opposed to the death penalty in a capital trial constitutes, in effect, a ``conviction prone'' panel.

Five million Americans serve as jurors each year. Lawyers and judges often refer to these lay deliberators as the ``conscience of the community'' and the ``last bastion of citizen control.'' But it is not always easy to live up to these high expectations. A Thursday column