Posted on Apr 6, 2022
What are all y'all's thoughts on jury nullification?
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Question for folks who pursue the law as either a career or a serious hobby:
Situation: I am recently served on a grand jury. Under current state law, there is no such thing as possession of fentanyl. Possession of any quantity of fentanyl, even inadvertent or unintentional possession, is charged as trafficking. Which means if you buy drugs for personal use, and the drugs come back from the lab as having been laced with fentanyl, you are immediately charged as a felony drug trafficker.
I am not attempting to say drugs are good, or those buying drugs are harmless, innocent people doing nothing wrong. But in my opinion, slapping a trafficking charge on an addict who got tainted drugs is absurd.
Technically, the individual was eligible for a trafficking charge, and there was enough evidence to indict. But the law itself was, in my opinion, wrong.
Would love to hear opinions about jury nullification in general, or about this specific situation.
Situation: I am recently served on a grand jury. Under current state law, there is no such thing as possession of fentanyl. Possession of any quantity of fentanyl, even inadvertent or unintentional possession, is charged as trafficking. Which means if you buy drugs for personal use, and the drugs come back from the lab as having been laced with fentanyl, you are immediately charged as a felony drug trafficker.
I am not attempting to say drugs are good, or those buying drugs are harmless, innocent people doing nothing wrong. But in my opinion, slapping a trafficking charge on an addict who got tainted drugs is absurd.
Technically, the individual was eligible for a trafficking charge, and there was enough evidence to indict. But the law itself was, in my opinion, wrong.
Would love to hear opinions about jury nullification in general, or about this specific situation.
Law
Lawyer
Posted >1 y ago
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Your job on the jury is to weigh the evidence in relation to the law as it stands. Whether or not you believe the law is right or wrong is not the issue. That issue you need to take up with your elected officials.
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Sgt (Join to see)
SFC Casey O'Mally - But not whether or not the law should be on the books or not. That's my point.
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SFC Casey O'Mally
Sgt (Join to see) In this case, the questions I was addressing were if I thought the charge was reasonable, and if I thought the action was worthy of punishment. In both cases, despite the letter of the law, as it was described to us, I felt the answer to both questions was "no.". Of course, the law was also explained to us inaccurately (see Convo with CSM Everoad for more), but that is neither here nor there for the concept at hand.
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CSM William Everroad
Sgt (Join to see) that is the point of SFC Casey O'Mally's question. Juries have the power to vote "not guilty" in the face of preponderance of evidence. The issue, discussed in legal theory, is whether they have the "right" to. Precedence suggests that they do since judges used to advise juries to "judge the facts and the law". Telling juries this legal "loophole" fell out of favor, but the power to nullify the law did not go away. There really isn't anything stopping a jury, that knows it has the power to nullify, to carry it out.
I believe the discussion that SFC O'Mally is looking for is; should, and in what cases, juries use that power. In theory, juries could nullify the law if they believe it to be immoral or wrong, like with some obscure laws like KRS 252.130 in Owensboro, KY that prohibits women from buying hats without her husband's permission. Alternatively, juries could consider nullification if they believe the law is be applied inappropriately, such as the case that OP is referencing where the DA is misapplying the law to the situation.
In this case a defendant is obviously not trafficking, which presumably carries a harsher sentence than mere possession. The prosecutor and the judge could imply that the law is applicable based on quantity, but the power remains with the jury to convict or not.
I believe the discussion that SFC O'Mally is looking for is; should, and in what cases, juries use that power. In theory, juries could nullify the law if they believe it to be immoral or wrong, like with some obscure laws like KRS 252.130 in Owensboro, KY that prohibits women from buying hats without her husband's permission. Alternatively, juries could consider nullification if they believe the law is be applied inappropriately, such as the case that OP is referencing where the DA is misapplying the law to the situation.
In this case a defendant is obviously not trafficking, which presumably carries a harsher sentence than mere possession. The prosecutor and the judge could imply that the law is applicable based on quantity, but the power remains with the jury to convict or not.
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So, I am not a fan of drugs. Be that as it may, I am also not a fan of unjust laws. If the addict purchases the drugs that are, unbeknownst to the buyer, laced with fentanyl, then the buyer should not be charged with trafficking but the seller should be charged with trafficking...if arrested, that is. Now, if the buyer turns around and tries to sell the laced drug, then yea I can see them getting hit with that charge....but if it is for personal use with no intent to distribute, then kick the trafficking charge to the curb.
But then, I'm not a lawyer and I did stay at a Holiday Inn.
But then, I'm not a lawyer and I did stay at a Holiday Inn.
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SFC Casey O'Mally
I pretty much agree.
I, personally, am a huge fan of jury nullification. The thought that the citizens can tell the lawmakers that yes, this person broke your law, but that is because your law is, itself, broken is a powerful check on the power of Congress.
I, personally, am a huge fan of jury nullification. The thought that the citizens can tell the lawmakers that yes, this person broke your law, but that is because your law is, itself, broken is a powerful check on the power of Congress.
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CSM William Everroad
SFC Casey O'Mally - It is an interesting concept. It is likened to prosecutorial discretion, where a prosecutor can choose not to take up a case for much the same reasons that a jury would choose nullification. Opponents of nullification sometimes argue that prosecutorial discretion is better because they can hold prosecutors accountable for not trying a case, whereas nullification is "one and done" because of double jeopardy.
In certain cases, it is dangerous. We studied a few cases in the law classes I took, looking at issues that may arise when nullification is used in different situations. In the civil rights era, all-white juries would often nullify in cases that involved white criminals accused of crimes against black defendants, but theory suggests this is less common because it spawned the equal protection clause that contributed to jury selection reform.
The OJ case is often used to highlight edge cases where "preponderance of evidence" and "reasonable doubt" were at odds with each other. Maybe not nullification, but an example of when a not guilty verdict could have shown that the jury opted to implement its own moral view of the case.
There is quite a number of State Supreme Court cases that touch on the jury nullification concept, some going so far as to either permit or ban courts, prosecutors, and defenders from informing juries of the concept.
In certain cases, it is dangerous. We studied a few cases in the law classes I took, looking at issues that may arise when nullification is used in different situations. In the civil rights era, all-white juries would often nullify in cases that involved white criminals accused of crimes against black defendants, but theory suggests this is less common because it spawned the equal protection clause that contributed to jury selection reform.
The OJ case is often used to highlight edge cases where "preponderance of evidence" and "reasonable doubt" were at odds with each other. Maybe not nullification, but an example of when a not guilty verdict could have shown that the jury opted to implement its own moral view of the case.
There is quite a number of State Supreme Court cases that touch on the jury nullification concept, some going so far as to either permit or ban courts, prosecutors, and defenders from informing juries of the concept.
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SFC Casey O'Mally If the charge doesn't match the offense, I think you are gtg to render a not guilty verdict. It may or may not be nullification in theory, but in practice, most jurors don't dive that deep in the law. They may understand that the law is wrong, but I think in this case you may be leaning towards a simple not guilty for the reason fentanyl may not be included in your state's schedule of prohibited or controlled substances.
They can charge them with trafficking because the language of the law is probably vague enough, depending on your state. But that doesn't mean the state law doesn't have a schedule of illicit substances that should be used as a reference for trafficking.
If this is not the case, I would say if the evidence is clear its just an addict, then jury nullification should be appropriate if the prosecution doesn't make the case for trafficking. It would fall under the inappropriate charge aspect.
For example, if I steal a something (<$10K) but am charged with trafficking stolen goods, nullification would be appropriate because I should have been charged with larceny. In your case, there doesn't seem to be a law against possession of fentanyl, so the DA went went the next best thing.
Nullification should serve as a message to the legislature that the law is not being applied appropriately and if they want to make fentanyl illegal, they could do it.
They can charge them with trafficking because the language of the law is probably vague enough, depending on your state. But that doesn't mean the state law doesn't have a schedule of illicit substances that should be used as a reference for trafficking.
If this is not the case, I would say if the evidence is clear its just an addict, then jury nullification should be appropriate if the prosecution doesn't make the case for trafficking. It would fall under the inappropriate charge aspect.
For example, if I steal a something (<$10K) but am charged with trafficking stolen goods, nullification would be appropriate because I should have been charged with larceny. In your case, there doesn't seem to be a law against possession of fentanyl, so the DA went went the next best thing.
Nullification should serve as a message to the legislature that the law is not being applied appropriately and if they want to make fentanyl illegal, they could do it.
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SFC Casey O'Mally
Fentanyl is indeed a controlled substance by state law. The way it works here is that you asince there is no "possession" level offense for fentanyl, the way there is for most common "street drugs" it is automatically charges as trafficking in a controlled substance.
But I appreciate your feedback, and I find your reasoning mostly in line with my own.
But I appreciate your feedback, and I find your reasoning mostly in line with my own.
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CSM William Everroad
SFC Casey O'Mally - That seems like a shady way of charging folks then. What is the language for trafficking?
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SFC Casey O'Mally
CSM William Everroad It is more legalese, but the trafficking statute lays out quantities of each type of drug. X amount of cocaine, y amount of marijuana, z amount of meth, and ANY amount of heroin, fentanyl, carfentanil, or fentanyl derivatives or synthetics.
It also requires "knowingly and willingly," which the DA conveniently neglected to mention (I went back and looked up the law after the fact). A point which I will be sure to mention the next time we convene. Really sad when the citizens have to tell the DA what the law is.
It also requires "knowingly and willingly," which the DA conveniently neglected to mention (I went back and looked up the law after the fact). A point which I will be sure to mention the next time we convene. Really sad when the citizens have to tell the DA what the law is.
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CSM William Everroad
SFC Casey O'Mally - Yea, that would seal the deal for me for a simple not guilty if they can't prove the "knowingly and willingly" part. Without that, I think that nullification might apply, but that would be in line with the thought experiment you are proposing.
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