The mock Pete Rose trial ESPN just had on TV had interesting results. 11 jurors believed Rose bet on baseball, which carries with it an automatic banishment. But of those 11, seven voted to allow Rose onto the Hall of Fame ballot.
I, for one, think Rose’s permanent expulsion should be just that — permanent. But that’s a post for a different website. What’s interesting about the faux ESPN trial is that Alan Dershowitz, the pseudo-prosecutor, asked judge Catherine Crier to charge the jury with two questions: first, did Rose gamble, and if so, shoud he be given the ole’ heave-ho? Johnnie Cochran, the defense attorney (why is this starting to sound like the lead up to a bad punchline?), objected, saying Dershowitz was changing the rules. But Dershowitz’s strategy was clear — he wanted the jury to have to reconcile their factual finding of guilt with their desire to acquit. Crier ruled in favor of Cochran.
If this were a real criminal trial, the charge wouldn’t be anything like the one here. The jury would be asked to determine simply if Rose gambled, and if they did beyond a reasonable doubt, they’d be instructed to find Rose guilty. The jury would have the power to acquit Rose; they’d simply not be told about it.
While I, and many (although admitedly a small minority) would agree with the outcome where nullification is not an option, I hope it’s clear to the thousands of people who watched this Rose trial that taking that power from the jury would make the moot court truly moot. If you ever need an example on why nullification is a proper and arguably necessary instruction, just look to this case. If the only question is “Did Pete Rose gamble on baseball,” there’s not much to debate. (Unless you’re Bill James.) But there’s certainly a debate going on, as there should be, and if it comes out in favor of the accused, let the jury set him free.