May 2014 eJournal - Pg 14
Conrad cites the infamous Milgram study in which test subjects were directed to administer increasingly harmful electrical shocks to another person upon direction from authority. “Do we want that sort of slave-like, passive response from jurors? Or do we want jurors who are willing to defy authority, if they are conscientiously convinced that what authority is demanding is unconscionable?” he asks.
Conrad wishes judges to inform juries upfront of the right to return an independent verdict. Sadly, it is more common for a judge to tell the jury to decide the guilt or innocence of the defendant based on the evidence, but rely entirely upon the bench for instruction about the law. Jurors need to be the “conscience of the community,” Conrad emphasizes repeatedly. “Charging jurors with unquestioningly applying the law, as laid down by the judge, strips them of the essential element of personal responsibility for the verdict they deliver,” he writes.
In the face of entrenched attitudes in the courts against jury independence, Conrad still puts his faith in the jury. “Even though most courts adamantly refuse to inform juries of their powers to reach an independent verdict, there clearly exists a large group of cases in which juries not infrequently reject the written law in favor of a merciful verdict based on their own concepts of justice and equality,” he writes. “When the defendant has already suffered enough, when it would be unfair or against the public interest for the defendant to be convicted, when the jury disagrees with the law itself, when the prosecution or the arresting authorities have gone ‘too far’ in the single-minded quest to arrest and convict a particular defendant, when the punishments to be imposed are excessive or when the jury suspects that the charges have been brought for political reasons or to make an unfair example of the hapless defendant, the jury is likely to refuse to convict,” he concludes.
The history of independent jury verdicts extends across cases about liquor laws, witchcraft, slavery, labor law, and more currently, the war on drugs, battered women’s cases, assisted suicide, and activism on both sides of the abortion debate, as well as anti-war protests. In addition, excessive mandatory minimum sentencing may spur an independent verdict, Conrad shows. While he includes gun rights when naming groups concerned about over-reaching laws, he doesn’t identify specific cases about firearms restrictions, the topic on which our constituency is most likely to have concerns. (Alternatively, a search of “gun law” on www.fija.org reveals a few stories our members may find interesting.)
Conrad’s chapters about the practical skill of presenting a case to encourage jurors to vote their conscience would, I expect, arouse varying opinions among practicing criminal defense attorneys! Still, these interesting pages quote successful arguments from landmark cases, identify evidence likely to convince a jury to acquit, and outline the delicate task of informing the jury that they may return an independent verdict.
Because gun rights and self-defense issues were not addressed in this book, I was left to wonder just how applicable the independent jury doctrine is to cases of self defense because of the common exception for self defense to crimes of assault and murder. However, in light of gun laws one could violate concurrent to self defense, strategies to invoke a sympathetic verdict become of vital interest. The independent verdict requires a jury that identifies and sympathizes with the defendant. With so many citizens brainwashed to fear and loath guns, that’s a tough challenge.
Jury nullification of the law is not a magic bullet, and it would be foolhardy for the armed citizen to depend on it as a way to defend unlawful choices. Still, the better we understand our criminal justice system, the better our choices are. Clay Conrad’s book helps us understand how juries and courts work and how they should work.
[End of Article.
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