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June 12, 2006
by Matt Barr

Buying a juror's vote to acquit: A primer

Julian Sanchez had a problem: A committed opponent of the drug war is called for jury duty, and is asked if he has feelings about the drug laws "that might prevent you from objectively applying the law to the facts of the case?"

I say my moral views would make it impossible for me to render a guilty verdict for a non-violent drug offence. "What if I told you," she says, leaning forward, "that it was your duty to decide according to the law as I explained it to you?" I eye counsel, who are standing to either side of me jotting notes, wonder if the defense lawyer is hoping I'll just go along, consider trying to debate the merits of jury nullification, consider reversing course and solemnly promising to do my very, very best... but ultimately just say: "I wouldn't be able to agree. I think my duty would be to acquit." She shrugs and tells me I'm excused.

Fascinating discussion ensues, in Sanchez's comments as well as from Timothy Sandefur, Matthew Yglesias and James Joyner. Yglesias says, nullify! Sandefur counsels caution. Joyner thinks Sanchez did exactly the right thing.

It occurs to me that if jury nullification were as accepted a device as it really ought to be (Yglesias' post has good reasons why), then you would certainly risk perjury to accomplish it, because when you were charged one of your jurors would probably have your back in kind. Of course there are real costs in addition to risks with this approach.

Perhaps a better way to go that doesn't depend on your number being drawn at the courthouse is buying a juror's vote to acquit in a federal drug case.

Outstanding. That's much safer than perjury. Lackwit, you say. Maybe. Maybe not. 18 USC 1503:

(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States... or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror... or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).

Is incentivizing a juror to exercise his or her right to nullify a verdict "corrupt"? I have a feeling the consensus would be that it is. But it isn't a slam dunk. As long as you don't do any of this in writing. 18 USC 1504:

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

One thing that ought to stand out reading the two sections sequentially is that the drafters of the law had the ability to write things like "attempt to influence the action or decision of any grand or petit juror" without specifying "corruptly," which they did in 1504, but they didn't in 1503.

They also made it illegal to "corruptly persuade" a witness to fail to testify in 18 USC 1512, which seems to contemplate paying them not to show up; but there is a difference. A witness is obligated to testify or participate; the argument is or could be that jurors have a right to nullify. So compensating them for doing so is not persuading them to fail to do something they are obligated to do.

(Obviously, the prevailing argument would be that in fact jurors are obligated to follow the law and apply it to the facts, if for no other reason than they've taken an oath to do so. This goes to the legitimacy of jury nullification itself, and I understand that issue has to be worked out first, before any of this becomes viable, if ever.)

What prevents a rich defendant from simply buying an acquittal? Well, I don't know. Maybe there's nothing. But to get yourself out from under that intuitively absurd result, you might argue that a defendant buying a verdict is an easier case of "corrupt" influence. If you're willing to go to the mat for the right to nullify, you argue that your case is different -- not "corrupt" -- because you're not avoiding a criminal conviction for yourself, but rather effecting the nullification of an unjust law.

If there is a right to nullify, does it really vest only in those whose numbers come up in the lottery? The right or responsibility not to enforce unjust laws isn't limited to 12 people at a time, it's a right we have as citizens of a free country. (I would argue.)

Naturally, this isn't some huge loophole that's going to let people run around federal court buying (in cash! No checks! Cf. Sec. 1504) jurors' votes. The first person to be caught doing this would be absolutely hammered. (A legal term of art.) The juror involved, too. To do it, you'd need to believe in your cause and be willing to take your medicine for it.

But you have an argument from the U.S. Code (note: I have not searched and don't intend to search any case law on the subject) that you're in the right. This might not keep you out of trouble, but it will let you make a point -- a more visible, probably more effective point than acquitting one anonymous drug defendant.

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