Below is my column on campaigns on the left to enlist citizens in jury nullification. It is the latest assault on the integrity of our courts. Long supported by far-left law professors and pundits, it encourages potential jurors to disregard the evidence and the law in rendering a form of social justice.
Here is the column:
“You have this superpower.”
That statement from Qiana Johnson is part of reported training material for residents to engage in “jury nullification,” whereby jurors ignore the law and incriminating facts in a given case to nullify any prosecution.
Notably, Johnson is the newly elected clerk of Prince George’s County Circuit Court in the Maryland suburbs of Washington. She is part of a growing left-wing movement gaining traction with voters that calls for radical changes to the U.S. legal system.
The effort is to engineer “Twelve Angry Men” scenarios on real juries — but unlike in the movie, the jurors are actually being trained to ignore evidence and deliberations in favor of political outcomes.
In her election campaign for her current job, Johnson had to overcome questions about her own criminal record. But many voters are willing to give others a second chance when they show evidence of rehabilitation and contrition. The more immediate concern might be embracing a practice that is expressly barred by courts.
One such document allegedly declares, “You have this superpower, and that superpower is you are able to nullify that goddamn jury.”
Far-left professors have long advocated that juries use jury nullification. Georgetown Law professor and MSNBC legal analyst Paul Butler has long advocated that Black jurors engage in nullification in cases involving Black defendants. Butler wrote in the Washington Post in 2016: “Confronting the racial crisis in criminal justice, jury nullification gives jurors a special power to send the message that Black lives matter.”
The problem of biased jurors has long plagued the legal system. It can work both ways in ignoring the law to refuse or secure convictions. Past cases involving President Trump and other Republicans have raised bias concerns over the jury pool in cities such as Washington, D.C., and New York City.
But jury nullification is different; it is a direct assault on the very foundation of the American court system. The juror is the thumping heart of that system — a group of empowered citizens who swear to consider cases without prejudice or prejudgment.
It is not a crime to advocate jury nullification. Moreover, there are legitimate concerns raised by investigations into such groups. about chilling the rights of free speech and association. In my view, such advocacy is protected speech under the First Amendment.
But that is not always the case for lawyers, who can face professional consequences. Many courts bar lawyers from arguing for jury nullification. Calling for jury nullification can also present sanctionable conduct for lawyers in a given case.
Even if this is protected speech, voices in both parties need to denounce these efforts. It effectively encourages jurors to lie when they take their oath to follow the law and to shed any outside bias or prejudgment. It is an effort to enlist jurors in using cases to achieve political and social goals at the expense of the rule of law.
The professors and pundits supporting these campaigns are actively seeking a hostile takeover of the courts without explaining to these citizens the implications of such dishonesty. Indeed, Chairman James Comer has detailed how groups like Freedom Trainers are allegedly seeking to enlist potential jurors while, according to the committee, instructing trainees not to “signal the agenda.”
Instead of addressing the impact of politicizing our jurors, these groups are portraying nullification as “a powerful tool for ensuring fairness and justice.”
These efforts are coming at a time of full assault on our judicial system from the left. Leading Democrats are calling for the packing of the Supreme Court, to reverse decisions with which they disagree. Every leading Democratic candidate for the 2028 presidential nomination has now thrown the court to the baying mob.
Former Democratic presidential nominee Hillary Clinton is only the most recent, declaring, “We should seriously look at expanding the court while the Democrats are in power.”
From the trial jury to the Supreme Court, many on the left now seek to take control of institutions that have long been the rock of this Republic. If successful, justice will become merely an extension of politics.
What is so disconcerting is that there is no longer any pretense of principle. Law professors are demanding that pledges to pack the Court be used as litmus tests for politicians, and senators are calling for an instant liberal majority on the Court to carry out the “will of the people.”
Liberal professors have long demanded revolutionary change to “reclaim America from constitutionalism.”
The attack on the American jury may be the most insidious of these efforts. Our legal system invests average citizens with the power to do justice. Every community plays a role in upholding the principles of blind justice. As with court-packing, jury nullification is a previously odious practice now being portrayed as a noble cause. It is part of the conditioning of voters to accept foundational changes to our constitutional system, to further a radical agenda harmful to the nation.
The juror’s role was indeed a “superpower,” but not the one these professors and pundits are pushing. It is a power against prejudice and partisanship; it is the power of doing simple justice in a nation committed to the rule of law.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
I usually agree with you, but here you are so wrong. Jury nullification is literally the foundation of our judicial system. Let me start with the 1670 trial of William Penn, the Quaker founder of Pennsylvania which was named after him. Penn was charged with violation of the Conventicle Act that forbade religious assemblies of more than five people outside the Church of England. Penn was preaching nonconformist religious views at an outdoor meeting in London. During the trial Penn stated: “The question is not whether I am guilty of this indictment, but whether this indictment be legal.” Penn objected that the charges were unjust and contrary to English law until he was ejected from the courtroom. At the conclusion of the trial the jury retired to deliberate its verdict. Upon the jury’s return, foreman Edward Bushnell reported to the court simply that the jury found that William Penn had spoken on the street, which was no violation of the law at all. The judge commanded the jury to retire again and render the verdict of guilt. Nevertheless, the jury returned and again stated that the verdict was that Mr. Penn had simply spoken on a street and not violated any law. The judge confined the jury “to the hole,” in Newgate Prison, and instructed the foreman Bushnell that the jury would remain in the hole without food or water until a proper verdict was rendered.
Then in the trial of John Peter Zenger in 1735 where he was accused of libel for opposing the actions of the colonial governor William Cosby. His lawyer James Alexander was found in contempt by the judge and not allowed to represent him, so Andrew Hamilton took over the defense. Hamilton admitted that his client had published what he was accused of, but claimed that truth was an absolute defense to libel. The judge accuracy described the law of the era and told the jury “The law is clear that you cannot justify a libel. The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.” And Mr. Hamilton responded “I know, may it please Your Honor, the jury may do so. But I do likewise know that they may do otherwise. I know that they have the right beyond all dispute to determine both the law and the fact; and where they do not doubt of the law, they ought to do so. Leaving it to judgment of the court whether the words are libelous or not in effect renders juries useless (to say no worse) in many cases.” The judge instructed the jury that its duty under the law was clear, there were no facts for it to decide, and it was not to judge the law. And yet, the jury found him not guilty. This case became the foundation upon which truth as an absolute defense to libel eventually became the law in the United States.
It is because of cases like these that the right to trial by jury in the Sixth and Seventh Amendment was created. Why even have a jury? A jury is a check on the power of the judge. It is critical for the purpose of the jury that if the law is unjust or not justly applied to the defendant, that juries find the defendant not guilty.
In Georgia v. Brailsford, 3 U.S. 1 (1794), the first Supreme Court Justice noted: “the good old rule that on questions of fact, it is the province of the jury; on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”
Later American juries effectively nullified the Navigation Acts by refusing to find people guilty. And even later people nullified the Fugitive Slave Law. Sometimes the law is unjust, or as is more often the case, the law is applied in a manner not intended to accomplish an unjust result. Now, we might disagree about when that occurs, but that it occurs is a statement of fact that I don’t see how anyone can disagree. The jury properly acts as a bulwark against injustice when the refuse to convict in such a case. The real problem is the lack of proper instruction to the jury on jury nullification and the reason it exists in our law.
Democrats are like spoiled 2-year-olds. They want what they want, and they’ll pull any lever or string to get it. Bedrock American institution? Screw it if it gets in our way! Horrific unintended consequences? Well, it’s YOUR fault for getting in our way! Economic or societal catastrophe? Great! We need a crisis to make people want change, and we can be assured the media will carry our water!
It’s “jury rigging” or “jury cancellation” or “jury killing” – DON’T CALL IT “nullification”, as tons of people don’t know what that means!! Good God, let’s get blunt and TO THE POINT: it’s “fraudster thieves” and “fraudulently stolen money” and “theft”, not just “fraud” and “fraudsters”. When will conservative play hard ball? When we all are imprisoned by the leftist commies/socialists in re-education camps?
The left is always corrupting our American institutions of individual rights, truth, honor and ethics in order to turn them to their political advantage, leaving the country with no basis left for exceptionalism.
This explains the desire for MAGA. . MAGA seeks to reverse that political rot.
Jury nullification is just a tool that can be used for evil or virtue. Focusing only on the evil because of advocacy by our enemies loses the virtuous side as well.
In a rare moment, Turley is way off base here—either due to a misunderstanding of Jury Nullification, or purposely dishonest.
Most people have a profound misunderstanding of what Jury Nullification is. JN is the last, great bulwark against tyranny—and it’s why we must never relinquish it, nor our right to a jury trial of our peers. It’s narrowly applied, when used legitimately: Only where a jury, in good conscience, believes either (1) the law is unjust, and should not exist (“If the law is shit, you must acquit”), or (2) the law is defensible but this defendant before the jury would face an unduly harsh punishment, given his particular circumstances.
Juries applying JN for policital reasons, racial bias, or reasons other than those stated above, are NOT practicing JN, and it’s wrong to characterize it as such, and doing so undermines the value, utility and storied reputation of JN going back hundreds of years to British jurisprudence.
Blackstone said “It’s better that 10 guilty men go free, than an innocent man be convicted.” Jury Nullification facilitates this prevention of injustice upon innocent men.
And people forget: JN only works in one direction—to acquit defendants in a criminal trial; Examples of racist juries in the Jim Crow South, who wrongully ignored the law and found black defendants guilty, were NOT practicing Jury Nullification; They were not acting out of good conscience in determining the law was unjust or unduly harsh. And the final injustice in those cases was the failure of the Judge to overturn the finding of guilt and set the defendant free.
I have researched JN extensively in the past, partly as part of my candidacy for Wayne County Prosecutor, in Detroit, in 2012 and 2016: Jury Nullification was part of my Libertarian platform (to always inform, or allow defense attorneys to inform, juries of this right to wield this tool). The U.S. Supreme Court upheld the right of a jury to practice JN (Sparf v. Hansen), but affirmed that judges and prosecutors do not have to allow juries to know of it—hence efforts by both to bar defense attorneys from mentioning it in court.
There are rare cases where jury nullification is justified.
It’s still nullification if done to attack the system.
@suijurisblog — Jury nullification is simply the jury ignoring the law in favor of doing what it happens to believe is right. By adding your own favored qualifiers, you are fabricating your own idiosyncratic definition in order to rescue the concept from criticism. It would be more accurate, and more honest, to simply distinguish appropriate from inappropriate uses of JN.
Your comment succinctly gets to the heart of the problem in this discussion, which is the wrong-headed notion that the law represents perfection. Some folks really like rules because it makes life simpler, however, it’s impossible for the law, however carefully written, can always represent justice. If justice is the goal of a legal system, which it is, then you have to have ways around an imperfect system. That’s why we have judges to interpret the law and appropriate penalties. The judge can only do so much. Laws that are outright stupid and outdated stay on the books long past usefulness. Jury nullification is a wonderful aspect of our legal system. The law should represent what a community agrees upon. This is why folks get concerned when a community is disrupted, among other things, but also change happens. It’s life. What we think is okay today has changed a lot, compared with even fifty years ago. It’s not about left or right. The legal system, especially today, simply can’t keep up.
I like how his note to his editor is left on top of his article.
NOT SURE EXACTLY HOW MUCH TIME WE HAVE LEFT
A North Korean diplomat reportedly told an Israeli diplomat in 1999 that Pyongyang would provide ballistic missile technology to Iran, a state sworn to destroy Israel, unless it paid up to the tune of $1 billion.
North Korea has a long and well documented history of providing weapons technology, including chemical and nuclear weapon infrastructure, to countries like Iran and Syria.
Its real threat to the world lies not in starting an outright nuclear war, but in selling nuclear weapons to states, or terrorists, that may use them.
It’s unclear if Israel ever paid North Korea’s blackmail, though Israel would later destroy an Iranian nuclear reactor that North Korea was suspected of helping build.
It should be easy enough to devise a set of questions for potential jurors, that reveal bias. Then, if a juror has lied and blatantly nullifies a just verdict that juror can be charged with perjury. Shouldn’t need to be too many prosecutions before the problem goes away.
Who is deciding what is a “just verdict”?….you?
If you believe the system regularly delivers unjust verdicts, work to getit changed by legislation.
.
Prof. Turley while I have personal problems with the way left wing nuts are seeking to go forward with Jury nullification – and you are correct that some of what is being done is illegal.
The FACT is that Jury nullification is perfectly legal and constitutional in the US and it has long been a part of the US legal tradition.
It occured frequently in pre-revolutionary times.
While I would hope those who engage in jury nullification would not do so for partisan political reasons.
I will take even that as an unfortunate consequence of a perfectly legitimate check on the power of the government.
As you noted – some forms of encoraging jury nullification are illegal. And SCOTUS has unfortunately found that laws to be constitutional.
They are NOT they are violations of several amendments int he bill of rights including the first amendment.
Frankly I have major problems with ALL limitations on what a criminal defendant may argue in trial.
If a defendant wishes to argue for jury nullification let them.
If they want to argue justification – let them.
If they want to argue that – twinkies made them do it – let them.
I am sorry but a defendant in a criminal trial shoudl be able to argue anything they want.
EVen the standard jury instruction that the Jury must follow the law as outlined by the judge is UNCONSTITUTIONAL.
A jury can do whatever it damn well pleases.
Contra Judges, the courts even SCOTUS – the ACTUAL final authority on our laws and constitution is “the people” – and that includes juries.
The courts are free – and even obligated to reverse if a jury goes outside the law and constitution to violate a defendants rights and convict.
But they CAN NOT interfere with a jury that choses to acquit – regardless of why.
I fully realize this will at times produce bad results. But the good outweighs the bad.
We would have far less bad laws if defendants could argue that the law itself is wrong and the jury should ignore the law and acquit.
Your argument suffers from a major logical conflict regarding who holds final authority. You state that a jury can “do whatever it damn well pleases” because “the people” are the ultimate authority, yet you immediately follow this by admitting that courts are “obligated to reverse if a jury goes outside the law… to violate a defendant’s rights and convict.” If a jury truly had the legal right to do whatever it pleases as the final authority, a court would have no basis to overturn a wrongful conviction. By acknowledging that a judge must step in to protect a defendant from a runaway jury, you inadvertently admit that the law and the courts—not the temporary impulses of twelve jurors—are the actual final authority.
Furthermore, your premise conflates jury power with courtroom procedure. While a jury has the de facto power to nullify because an acquittal cannot be overturned under the Double Jeopardy Clause, it does not follow that a defendant has a constitutional right to argue absolutely anything. As the Supreme Court ruled in the foundational case Sparf v. United States (1895), juries have the physical power to acquit against the evidence, but they do not have the legal right to ignore the law.
Because courtrooms are not open public forums for unrestricted free speech, judges routinely and legally restrict arguments to ensure due process. A defendant cannot argue that a law is unconstitutional or invent arbitrary justifications like a “Twinkie defense” because deciding the law is strictly the judge’s domain; the jury’s only job is to apply that law to the facts. Allowing a trial to become an open-ended debate where written laws are dismissed on a whim would completely collapse the rules of evidence, turning courtrooms into chaotic political arenas and destroying any semblance of predictable justice.
This just goes to show you have no idea how the law actually works or understand why it works the way it does. Your approach invites pure chaos.
Well-said. I couldn’t have stated it better myself.
People have a profound misunderstanding of what Jury Nullification is—including, sadly, the great Jonathan Turley. JN is the last, great bulwark against tyranny—and it’s why we must never relinquish it, nor our right to a jury trial of our peers. It’s narrowly applied, when used legitimately: Only where a jury, in good conscience, believes either (1) the law is unjust, and should not exist (“If the law is shit, you must acquit”), or (2) the law is defensible but this defendant before the jury would face an unduly harsh punishment.
Juries applying JN for policital reasons, racial bias, or reasons other than those stated above, are NOT practicing JN, and it’s wrong to characterize it as such, and undermines the value, utility and storied reputation of JN going back hundreds of years to British jurisprudence.
Blackstone said “It’s better that 10 guilty men go free, than an innocent man be convicted.” Jury Nullification facilitates this prevention of injustice upon innocent men.
And people forget: JN only works in one direction—to acquit defendants in a criminal trial; Examples of racist juries in the Jim Crow South, who wrongully ignored the law and found black defendants guilty, were NOT practicing Jury Nullification; They were not acting out of good conscience in determining the law was unjust or unduly harsh. And the final injustice in those cases was the failure of the Judge to overturn the finding of guilt and set the defendant free.
I have researched JN extensively in the past, partly as part of my candidacy for Wayne County Prosecutor, in Detroit, in 2012 and 2016: Jury Nullification was part of my Libertarian platform (to always inform, or allow defense attorneys to inform, juries of this right to wield this tool).
It’s like civil disobedience. It is sometimes justified.
But if laws are broken just for the purpose of damaging or subverting the system of law or society itself, it’s inexcusable.
Tell that to the young woman found strangled and dumped in the woods because a juror nullified a clearly guilty man and put him back on the streets.
Tell that to the young woman found strangled and dumped in the woods because a juror nullified a clearly guilty man and put him back on the streets.
Did this juror “put him back on the streets” because he believed it should be legal to strangle a woman? Because, if he did so simply because he didn’t believe the evidence, it’s not jury nullification even if he was wrong.
Not believing the evidence is not jury nullification. Jury nullification is disregarding the evidence and voting motivated by bias, perhaps, or by opposition to the law itself.
Don’t give an f about hand-wringing over a definition. If somebody refuses to convict a criminal who is obviously guilty by the evidence for any reason – race, objection to the system…whatever they are voting to subject another innocent person to becoming a victim. Wait until somebody kidnaps your daughter and then give me bs about a definition.
That’s fine but it’s not what this article/discussion is about, just to let you know.
It’s truly insane requiring sanctuaries for the sane.
The political system may fail but if economics keeps the talent and good will it’ll keep running. It may be courts will fail and become irrelevant.
How will economics make courts irrelevant?
WordPress claims to publish Res Ipsa Loquitur.
WordPress denies freedom of speech on Res Ipsa Loquitur.
In fact, WordPress literally eliminates speech on Res Ipsa Loquitur.
Freedom of the Press.
No Freedom of Speech.
WordPress is antithetical and unconstitutional.
Freedom? WordPress is the dictatorship of the Press.
Then don’t use it.
You are aware that you are not on a government-operated or government-moderated comment system, right?
Back to legal theory, what legal theory did the 5 justices utilize in the Barbara case? Political theory? Gangster theory?
Asking for a friend.
Have a bountiful evening.
Lets say there’s a little island of lawlessness in a state and juries nullify all laws or the reverse. Does that become tombstone territory?
What of the victims in jury nullification? Are victims entitled to protection, justice, fairness? What of the 3 victims in the Linsey Clancy case?
What victims? If Lindsay Clancy was having a bad day, or took too many drugs, those kids are just collateral damage.
Modern psychology at its finest