Locksmith wrote:Bottom line is if enough Americans are aware of their right to nullify, and they come to be a juror on a case where somebody is is charged with breaking an unconstitutional law, they can make a difference, even if not always permanently, giving another jury a chance to do the same thing or maybe better next time.
So then where did you get the idea that I said there was a law prohibiting it?
My whole point is that jury nullification is something that is very hard to accomplish, as you acknowledge. Creating hung jury after hung jury is not likely to happen either, by the time the second hung jury is declared a mistrial, there will be lots of people wondering about the reasons behind it, and the jurors will be called in for interviews. Once the "conspiracy" is identified, they will find a way to nullify it.
The reason I say "conspiracy" is that eventually they will, in the example given of a single holdout for nullification in each case, realize that their jury pool is polluted with people who believe the law is wrong and needs to be nullified, and adjust voir dire to eliminate that possibility in the next trial. Or they might just adjust the charges. Or they might just arrange for a different charge from the judge.
Yes, nullification is a right, because it is a natural possibility as part of our jury system, but accomplishing it is the hard part. In order for a single juror to even start a campaign to nullify, that juror will have to, at least implicitly, reveal the campaign's purpose. Just saying "The law is wrong. Even if the defendant is guilty of breaking that law, we all know the law is wrong." would be enough to reveal the agenda.
Don't get me wrong, I'm all in favor of doing away with bad law, like the Sullivan Law in NY, and even though "Beth" stridently lectured me on the impossibilities of organizing a nullification effort, it was attempted, and it failed.
Don't underestimate the resiliency of the system either. We sued the same judge in NY four times over the same issue, and we won every time, he just found a different way to do what he was doing. Ultimately we spent a lot of money, established a little case law, which the legislature legislated away next session, and the judge went right on denying pistol permits to people who didn't have political connections. I would be willing to bet that a tenacious prosecutor would keep right on prosecuting despite hung juries, especially if that prosecutor had some small inkling of the reason.
