July 29 roundup


  • Kozinski’s answer was a non sequitur. Jury nullification is not about writing new laws, it literally means nullifying existing ones, at least for a single trial. Did I miss a deeper meaning in his answer or something, or was he just venting somewhat incoherently?

  • Yes, it was a non sequitur.

    He forgets that an instruction permitting nullification requires that the jury first find the law under which defendant is charged to be unconscionable. Then he twists that misunderstanding into the jury believing they can convict defendant even if they believe he didn’t violate the law, just because they don’t like the defendant.

  • Jury nullification– partially in reply to Alex Kozinski

    Many of us have our lists of “good” and “bad” jury nullifications, eg

    Colonial era:
    defense of truthful speech (Zenger case)
    rejection of customs prosecutions

    since 1787:
    rejection of Fugitive Slave Act
    rejection of Alcohol Prohibition
    rejection of other drug prohibitions
    rejection of death-with-dignity prosecutions (A series of prosecutions of Dr. Kevorkian were rejected, until he became a publicity-crazed kamikaze on national television.)

    libel verdicts against truthful political speech the jury disagrees with (partially shut down by USSC’s NY Times v. Sullivan decision)
    refusal to convict KKK terrorists up until 1980s.

    Posner’s horrors focus on offensive nullification (convicting an innocent person), while the public are readier to support defensive nullication (acquitting someone who violated an unjust law).

    The most important jury nullification, however, is almost never discussed: the courts’ unworkable insanity-defense theory. In a peacetime society like the USA today, virtually all criminals are mentally impaired in some way. Rather than turn criminals loose to victimize again, however, juries refuse to accept an insanity defense. The courts quietly go along with this subterfuge, except in death penalty cases.