Crime

How To Get A Jury To Ignore The Law And Do The Right Thing

The basics of jury nullification.

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When all the facts of a case are dead against your client and you’ve got no way to win at trial, your only option may be a Hail Mary pass: jury nullification.

It takes a lot of finesse, a tolerant judge, a sympathetic client, and a helluva good jury.  Got all that, and you’ve got a chance of winning.

It won’t be easy, but it’s doable if you plan well.  The problem is at no time during the trial can you tell the jury that they have the right to ignore the law (which they do). However, through a combination of promoting certain themes and expressing righteous indignation (generally aimed at the power of the government), the jury will get the message that doing the right thing means acquitting even if the defendant is guilty.

Jury nullification has been around for centuries, mostly arising when the government prosecutes people on laws that are either unpopular or unreasonable to pursue. Such an example was when the government evoked the Fugitive Slave Act to prosecute people in the 1850s who helped runaway slaves.  Or, in the 1920s, when the government went after liquor distillers and speakeasy owners for violating prohibition laws.  Most recently, jurors “hung” (were not unanimous) after the trial of Scott Warren, the young Arizona geography teacher who left jugs of water, cans of beans, and blankets, to assist migrants crossing the border.  (Prosecutors recently decided to go forward with a second trial but dropped the charge of conspiracy to transport aliens and only maintained counts of “harboring” aliens.)

So how do you approach a jury nullification case when you can’t come right out and say what you’re looking for?

You set the scene, establish reasons the jury should be sympathetic, and plan carefully.

That means in openings, cross-examinations, and summation.  But particularly important is picking the right jury. You need to select jurors with open hearts who’ll base their decisions on fairness rather than on what the law demands. They should also be counterculture and generally suspect of the sweeping powers of the prosecution.

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Bean counters and non-emotional types who will likely follow the judge’s instructions to a “T” — you do not want. Picking the right jurors, or at least a majority of the right jurors, is your only chance of winning.

Next, with each witness, build into whatever cross you’re doing elements of how your client is either harmless or hapless.  He didn’t run from arrest.  He gave himself up gladly.  He wasn’t on police radar before and hasn’t been since.  In sum, he’s not dangerous, he’s no kingpin. He deserves a break.

Focus on one issue, no matter how ridiculous, that gives the jurors a hook to hang on when they decide the prosecutor didn’t prove the case beyond a reasonable doubt.

For example, I recently tried a case where my client was arrested in a liquor store in possession of 19 credit cards that were not in his name.  The cards had all been forged. I won a jury nullification defense in that, even though he wasn’t acquitted, neither was he convicted.  The jury hung.  I went with the defense that the prosecutor couldn’t prove my client knew the cards were “forged” because there were so many, and he might not have looked at them all.  Sure, he knew they weren’t his, but that’s different than knowing they were forged as opposed to merely stolen.

I hoped the case would never get retried or that the prosecutor would offer him a misdemeanor.  Unfortunately, this was not to be.

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On the second trial, we didn’t do as well with the jury.  They were made up of Manhattan finance types, entrepreneurs, tech engineers, bankers.  I could no longer go with the defense that my client didn’t know the cards were forged because it was no longer a surprise, and the prosecutor had done his homework between the two trials.  He’d had my client’s cell phone forensically examined and uncovered text messages full of credit-card information and code words about re-stamping.

I tried for jury nullification again but with a different theory. Because the cards displayed during the first trial had never been re-vouchered, I argued that the jurors couldn’t be sure they were the ones that had actually been taken from my client. Who knows how many cards that precinct picked up in the interim.

That, added to the fact that the case was five years old; that my client came to court in a suit and tie; that he had a young child and wife, also in court; that he hadn’t been rearrested since this arrest — I  hoped the jurors would just give him a break.

The first note was hopeful.  The jury was deadlocked. But when the judge re-instructed them to go back and start afresh with an eye toward “common sense” (generally always an enemy to acquittal), they convicted.

I’d clearly picked the wrong jury. Or maybe the case (and client) just weren’t sympathetic enough. Or maybe because almost every juror had been the victim of credit card fraud. Or maybe because I couldn’t slip in how much time my client would get in jail (3 ½ to 7 years) for such a stupid crime (he was just buying two bottles of Hennessey). But whatever the reason, the jury didn’t stick around after to explain.

My lesson: jury nullification defenses are not easy.  You’ve really got to have the political winds at your back, a wonderfully sympathetic jury, and a judge who lets you get away with (sotto voce) asking for mercy.

It’s good to have in your back pocket, but only when it’s your only choice.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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