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Sadly, I suspect that
many of those who most vehemently criticize my colleague Paul Butler’s law review article on jury nullification do so out of ignorance or for reasons related to race (“Innocent Even if Proven Guilty,” 4/19). The doctrine of “jury nullification” is not illegal, radical, or even new, nor is it confined to the grievances of blacks.
The doctrine goes back at least as far as the refusal of a colonial jury to convict John Peter Zenger of libel even though he was clearly guilty under the law at that time. The doctrine has been upheld repeatedly by the U.S. Supreme Court, as well as by lower federal and state courts.
Indeed, the doctrine of jury nullification is probably as well established as the “doctrine of necessity” or even the “doctrine of self defense”—both of which also excuse conduct that would otherwise be criminal, often to the outrage of many observers.
It appears that jury nullification played a major if not controlling role in many recent criminal verdicts involving defendants of various skin colors, including: D.C. Mayor Marion Barry; penis-slicer Lorena Bobbitt; the Menendez brothers (Trial 1); subway shooter Bernhard Goetz; Iran-contra figure Oliver North; former Philippines first lady Imelda Marcos; New York black activist Al Sharpton; reputed mob boss John Gotti (early trials); and the beating trials of Reginald Denny as well as Rodney King (Trial 1).
Two other law review articles also published during 1995, and many written earlier—presumably most by nonblack authors—likewise support the right of juries to serve as a check on the power of legislators who pass bad laws, and on prosecutors who either abuse their powers or seek punishment where it would not serve justice. Why have these others aroused none of the controversy of Butler’s article?
Why haven’t leaders of the “Fully Informed Jury Association,” which likewise not only advocates jury nullification but actively seeks to persuade persons reporting for jury duty to act under it been featured on many TV programs and in major articles? And why wasn’t the same vehement if not venomous criticism directed against me (a white law professor) when I publicly supported the right of juries to refuse to convict Barry, Goetz, and many others?
At a time when there are a growing number of persons at both ends of the political spectrum who distrust the law enough to advocate and practice illegal and dangerous acts to resist it—from tree-spiking and ecolodge to armed resistance and even bombings—Butler’s remedy is a completely lawful (albeit controversial) one.
Perhaps one of Butler’s messages—that race matters—is reinforced by the number of those so willing to criticize him for doing what law professors are supposed to do: effectively propose new legal ideas for public discussion. By the way, how many readers (including D.C.’s many lawyers) can remember even one new legal idea proposed by any other George Washington University law professor over the past several years?
Professor of Public Interest Law
George Washington University