Blagojevich May Have Been Spared by Jury Nullification, Says Law Professor

Former Illinois Gov. Rod R. Blagojevich was apparently saved from a guilty verdict on the most serious criminal count by one holdout juror who may have been exercising her legal right under the doctrine of jury nullification to block a conviction.
Aug. 19, 2010 - PRLog -- Former Illinois Gov. Rod R. Blagojevich was apparently saved from a guilty verdict on the most serious criminal count he faced, and perhaps from almost two dozen additional charges, by a single holdout juror who may have simply been exercising her legal right under the doctrine of jury nullification to block a conviction, despite the evidence, because of a feeling that the prosecution was largely political, concern about the government's tactics, or simply sympathy for the defendant, and the same thing could happen again on retrial, says public interest law professor John Banzhaf, who has been quoted on many other apparent jury nullification cases.

Although many do not realize it, and judges usually refuse to let defense attorneys argue -- or even mention -- it to members of the jury, jurors have a legal right, upheld by the U.S. Supreme Court, to refuse to convict for any reason and all, or for no reason at all.  Indeed, under the doctrine of jury nullification, jurors may disregard a judge's instructions and return not guilty verdicts even if the evidence of guilt is overwhelming.

If a jury finds a defendant not guilty because they believe that the law is unjust, there was governmental overreaching, or simply out of sympathy for the accused, that verdict cannot ever be overturned or even reviewed, and the defendant can never be recharged, even if overwhelming evidence eventually comes to light.

Recent cases widely believed by many to be examples of jury nullification include including trials of  football great O.J. Simpson, former D.C. Mayor Marion Barry; penis-slicer Lorena Bobbitt; the Menendez Brothers (trial 1); subway shooter Bernhardt Goetz; D.C. contractor John B. Clyburn; Iran-Contra figure Oliver North; former Philippines first lady Imelda Marcos; New York Black activist Al Sharpton; reputed mob boss John Gotti (early trials); D.C. government official David E. Rivers; Bensonhurst (NY) defendant John Vento; and the beating trials of Reginald Denny as well as Rodney King (trial 1).

A single juror may also exercise a similar power to prevent a conviction despite overwhelming evidence if he (or she, in the Blagojevich case) simply refuses to join all of the other jurors in voting to convict.  In such cases a retrial is declared, but a single juror in a second Blagojevich trial who likewise was sympathetic to the defendant or antagonistic to the government could again derail the trial at a cost of millions of dollars, warns Banzhaf.

Hundreds of years ago jurors could be punished for the verdicts, notes Banzhaf, but this has thankfully been abolished.  Although jurors who proclaim their intent to exercise this prerogative have occasionally been removed as "problem jurors" -- as in the famous Robert Luisi case -- those who are not dismissed, and refuse to go alone with a unanimous guilty vote from fellow jurors, can keep a defendant out of jail, and are not subject to punishment themselves.

Jury nullification has a long history in this country, starting with the trial of John Peter Zenger for defamation.  Even though the evidence of his guilt was overwhelming -- especially since the law at the time declared that the truth of the publication was no defense -- the colonial jury nevertheless found him not guilty -- and thereby helped establish freedom of the press in the colonies.

Northern jurors likewise often refused to convict people helping Blacks escape from the South even when proof of their guilt under the fugitive slave laws -- which were often unpopular in the North -- was overwhelming.  On the other side of the coin, southern juries often refused to convict Whites of crimes aimed at keeping Blacks "in their place" because such acts were sometimes seen as justified in preserving the southern way of life.

"We certainly do not employ the very expensive and cumbersome system of having criminal trials decided unanimously by groups of twelve ordinary men and women because juries are somehow smarter or more insightful than judges who could easily make the same determinations," says Banzhaf.

Rather we employ them in large part so that they can stand as an addition bulwark, and act as the conscience of the community, when convictions are sought under laws deemed unjust, by using governmental processes or tactics which -- though technically legal -- may seem unfair, and anything else which might shock the conscience of jurors enough that they will disobey the judge's instructions and perhaps their oaths, notes Banzhaf.

If the power of an individual juror to prevent a conviction is occasionally used in ways many would consider improper or inappropriate, that is simply the cost of having this additional protection in trials where it is appropriate or even necessary, argues Banzhaf.

Professor of Public Interest Law
George Washington University Law School
FAMRI Dr. William Cahan Distinguished Professor,
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