The Permanent Jury Nullification: A Trotskyist Argument For Jury Nullification

UPDATE: An interesting case for advocates of jury nullification to keep an eye on.

In my criminal law class, one of the concepts we have studied thus far is the idea of jury nullification. For those of you not familiar, jury nullification is when the jurors ignore the instructions of the judge, the “law finder” of the court, to render a verdict of not guilty. Jury nullification has a rather complicated historical record: on the one hand, it has been used by social movement like the anti-war movement in order to prevent the incarceration of people who took direct action against the state. On the other hand, it has led to white supremacist court rulings, from the killers of Emmett Till to Colin Murphy. Jury nullification is thus very controversial, even among Leftists. It finds a considerable amount of support among both the Left and Right libertarians, who see it as a glorious example of the individual(s) overcoming state oppression in order to protect their communities. In U.S. hegemonic doctrine (or what less-antagonistic lawyers would call “case law”), jury nullification has been found to be a power inevitably granted due to the rights of the Fifth Amendment for juries to be the democratic check to state power as the court’s “fact finders” and the Sixth Amendment for protection from double jeopardy. In other words, if you give juries the power to render verdicts with only guiding instruction and those verdicts of acquittal are absolute, there is no constitutional way to outright criminalize jury nullification. But of course, a capitalist state is never held back by such pithy restraints as “following its own laws.”

In People v. Williams (25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209, 2001), an 18 year old young man had sexual intercourse with a 16 year old girlfriend. If help to the standard of consent between two adults, the girl’s assent would have been considered consent. But because of her age, Williams was charged with the misdemeanor offense of unlawful sexual intercourse with a minor. When the case reached the California Supreme Court, the following exchange between a juror and the presiding judge:

Judge: It’s been reported to me that you refuse to follow my instructions on the law in regard to…unlawful sexual intercourse, that you believe the law to be wrong and, therefore, you will not hear any discussion on that subject. Is that correct?

Juror: Pretty much, yes…

Judge: All right. Well…I would remind you…that you took an oath at the outset of the case in the following language: ‘Do you and each of you understand and agree that you will well and truly try the cause now pending before this Court and a true verdict render according only to the evidence presented to you and to the instructions of the Court.’ You understand that if you would not follow the instructions that have been given to you by the court that you would be violating that oath? Do you understand that?

Juror: I understand that.

Judge: Are you willing to abide by the requirements of your oath?

Juror: I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be a wrong reason.

Judge: Well, you understand that statutory rape or unlawful sexual intercourse has been described to you as a misdemeanor? Did you follow that in the instructions?

Juror: I’ve been told it is a misdemeanor. I still don’t see – if it were a $10 fine, I just don’t see convicting a man and staining his record for the rest of his life. I think that is wrong. I’m sorry, Judge.

Judge: What you’re saying is not the law either concerning that particular aspect. [my emphasis added]

Juror: I’m trying as best I can, Judge. And I’m willing to follow all the rules and regulations on the entire rest of the charges, but on that particular charge, I just feel duty-bound to object.

Judge: So you’re not willing then to follow your oath?

Juror: That is correct.

The juror was excused and Williams was convicted by the newly convened jury. The state’s hypocrisy in this case is palpable: when the judge says that the juror’s opinion is not the law governing the issue, the implicit assumption here is that the jury is duty-bound to be law finders. But we know this not to be the case, precisely because the state argues the opposite when it is discouraging jury nullification! In my opinion, this juror almost avoided his dismissal. It was not until the last question where the juror explicitly stated that he was not willing to follow his oath. When he was asked a similar question for the first few times, all he stated was that he could not see a situation in which he would convict Williams, and his determination as to conviction is his power through jury nullification. There are two lessons to learn from this case: first, that juries are full of people whose commitment to the capitalist state goes far enough that they will turn you in simply for resisting the state’s assignations. Second, that the state has many loopholes by which it can pressure and prod jurors into not using jury nullification or eliminating jurors determined to use jury nullification. If jury nullification is a tool that we wish to use, then we must educate people unfamiliar with the law about due process rights and their power as jurors. But even in this aspect we must be cautious: in 2011, Julian Heicklen was charged with jury tampering for his leafletting about the jury nullification power.

Trotsky did not write much on the political landscape of the United States, which is a shame because what little writing he did do on it shows that he had a very introspective analysis of it. “Certainly the phases of development of the proletarian party in America,” he writes, “will be sui generis (unique)… It is evident that the possibility of participating in and of utilizing a “Labor Party” movement would be greater in the period of its inception, that is, in the period when the part is not a party but an amorphic politic mass movement. That we must participate in it at that time and with the greatest energy is without question” (“On the Labor Party Question in America”). Most Trotskyists in the United States, and notably Socialist Alternative, take some form of this approach to electoral politics. But when Trotsky talked about participating in and utilizing such movements, he was not simply talking about this in regards to electoral politics. I would argue that this approach is just as relevant to how Trotskyists should approach the mostly liberal and libertarian (Left and Right) movement to reform or dismantle the criminal injustice system. Similar to voting, juries are one of our few means of exercising anything remotely resembling democracy. The capitalist politicians and courts have required this sense of community legitimacy in order to carry out their reign of terror on the working class, and especially with all the populations which serve as the United States’s underclass (Black people, Native peoples, gender nonconforming people, drug addicts, etc.). After all, how are we to criticize the incarceration of our family and friends as state violence when it is a jury of their peers that made the decision? But of course this is a farce: as demonstrated in the above cases, the state will use all means at its disposal to convince juries that their options are limited to carry out the state’s own agenda, that they are little more than “yes men” to mass incarceration. This is one of the greatest tragedies of the criminal injustice system: the dramatic irony of a jury that thinks they can only be servants of the capitalist agenda, but in actuality has some of the greatest power within the system to fight that agenda.

It is vital for us to educate the working class and underclass of the importance of serving on a jury. We need to train our members in how to present themselves to be more likely to pass voir dire, and subsequently to carry out a socialist agenda while on the jury, including the use of jury nullification. One juror informing the other jurors of their own power, while it can lead to being dismissed like in the case above, has often led to the most important decisions made in courtrooms (and not just in Twelve Angry Men). We do not need to go through some obligatory political stage in order to start seizing the means of producing incarceration and other state-based punitive judgments. We, any person in this country with jury privileges, can build our conception of socialist law today through actions like jury nullification.

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