Apart from awareness and protest there are several ways for the judiciary and we the people to push back against Trump’s authoritarian weaponization of federal criminal justice system. Rare though it is, we recently saw a grand jury refuse to indict “the sandwich guy” in Washington in a rebuke of an overreaching Trump-appointed prosecutor in Washington, D.C. We may soon see a second form of pushback to Trump’s engineered prosecution of James Comey: Although Trump’s hand-picked sycophant, Acting U.S. Attorney Lindsey Halligan, managed, on short notice, to obtain a grand jury indictment of Comey, her flimsy case may yet be thrown out of court by the federal district judge assigned to the case as unsupported, selective, and vindictive. Failing dismissal, if the case eventually comes to a formal trial it will be up to a jury to decide if Halligan can prove the charges “beyond a reasonable doubt”.
Jury deliberations in any trial can result in any one of three outcomes: a conviction, an acquittal, or a hung jury. In criminal cases, to reach a conviction or an acquittal all twelve jurors must agree. If they cannot reach unanimous agreement the result is a hung jury. A hung jury differs from an acquittal in one very important way: a hung jury leaves open the possibility of another trial. Acquittal closes that possibility. Following acquittal the accused cannot be re-tried. That would be the double jeopardy prohibited by the Fifth Amendment. One fine point: an acquittal in a state court does not necessarily prevent a prosecution in a federal court for the same or a related crime prosecuted under federal statutes, and vice versa.
Acquittal by a jury in a criminal trial ordinarily means that the jury has found that the prosecution did not prove the crime “beyond a reasonable doubt”. However, there is another possibility worth noting: a jury may decide that, even though the facts presented were compelling and proved the defendant’s guilt, the prosecution should never have brought the case and the application of the law to the case was unjust in itself. A jury may decide that the law itself is unjust, that the law has been unjustly applied in the case at hand, or that the application of the law in this case was an abuse of power. This is jury nullification.
The jury is under no obligation to explain why it acquitted, nor may jurors be punished for issuing an acquittal.
In the lead up to the American Civil War prosecutions under the federal Fugitive Slave Act of 1850 were nullified with considerable frequency. Juries in the north often nullified federal prosecutions under the Act for harboring or refusing to arrest and turn over a fugitive slave. Nullification became a clear statement of the belief that the law was inherently unjust. In the current day climate of federal prosecutorial overreach we may be approaching a similar situation.
It is not only considered improper for defense counsel to argue for jury nullification, it is also grounds for declaration of a mistrial, although jury nullification is sometimes subtly addressed in closing arguments.
In jury deliberations it only takes one determined and informed juror to steer a jury toward nullification by acquittal. With Trump’s weaponization of the prosecutorial prerogative of the executive branch, keeping in mind the possibility of jury nullification as a final brake on prosecutorial excess is essential. Such could be the case, moreover, right here in Spokane, should the Spokane 9 eventually come to a federal felony jury trial under the new and inexperienced Trump-nominated prosecutor (apparently delayed until next year).
For a scholarly, but entirely readable, dissertation on jury nullification I recommend “The Underused Power of Jury Nullification”. Check it out. It is available by simply clicking the title.
Keep to the high ground,
Jerry