Hard cases and free-agent jurors

THE saying goes, ``Hard cases make bad law.'' When a court, struggling to confer damages on a worthy plaintiff, ignores a settled legal principle or twists it beyond recognition, the result may appear equitable; but the new rule may create havoc in cases not yet before the court. That is why any court, when trying to do justice between the parties before the court, must give thought to the effect the decision will have on the whole legal system.

Some people call this ``wise judicial restraint.'' Others call it ``crabbed paralysis of compassion.'' Others bemoan it as the enshrinement of formula -- emphasizing the importance of ensuring predictable results.

In any event, whether admirable or deplorable, this holistic view of justice certainly does not apply to juries.

Jurors concentrate entirely on the case before them. Indeed, in most of Massachusetts (and in some other states), a juror need only sit on one case to fulfill her or his service obligation.

The litigation may be unique or it may be part of a pattern; it may involve a long-established principle or it may encompass a newly born legal remedy. None of it matters to the jury.

In theory jurors receive from the judge the guiding rules (who has to prove what, and by how much) and reach a decision by applying them to the evidence they have heard. If, for example, the facts show beyond a reasonable doubt that defendant Able was carrying an unlicensed firearm, the jury ought to convict.

If another jury hearing similar evidence is equally convinced that a different defendant likewise possessed an unlicensed weapon, that jury should also convict. That is, when the facts are similar, we expect different juries to produce consistent results.

Between theory and reality, however, stands this simple fact: A jury's relation to the law is entirely case-specific; one jury's verdict has no necessary relation to any other, even by that particular jury.

Thus freed from any effect of precedent or inherent consistency, a jury can do as it pleases. Though the judge may remind jurors of their sworn duty to decide the case ``solely on the law and the evidence,'' his ability to enforce that duty is embarrassingly weak.

If a guilty verdict rests on the trial judge's error, or on legally insufficient evidence, an appellate court can order a new trial or even order an acquittal.

When jurors, however, decide -- for whatever honest reason -- to ignore overwhelming evidence of guilt, that is, to turn in an objectively erroneous not-guilty verdict, no one can change it. Ever since a London jury in 1670 acquitted William Penn (the founder of Pennsylvania), accused of provoking a riot by preaching in public, it has been a rock-solid principle of English and then American law that the verdict must stand, and that the jurors are legally invulnerable.

This means that if the jurors do not favor the law that the prosecution is enforcing, they can express their opinion silently, as it were, by voting an acquittal. And if they believe the law to be appropriate and the evidence adequate but the particular prosecution trivial, they can punish the prosecutor by defiantly answering not guilty.

We call this ``juror nullification,'' or ``juror invalidation,'' and approve the jury's introducing some lenity into criminal justice.

We should also remember that jurors who convert themselves into legislators or overseers of prosecutorial discretion are disregarding their sworn task. When they forget that they are only to determine whether the prosecution has proved its case, they turn criminal justice into a government not of laws, but of men.

Like hard cases, bad verdicts willfully reached, make for arbitrariness and uncertainty -- that is for injustice.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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