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Judge Brett Kavanaugh’s Monday night nomination to the U.S. Supreme Court is still sending shockwaves across the legal landscape. But even as they interpret law and chisel precedent in stone, the high court’s nine justices are — as appellate judges — powerless to try the facts of a given case.
The most influential people in the criminal justice system don’t sport black robes or wield gavels. Nor do they carry the tattered briefcase of the trial lawyer or wear the bailiff’s badge and gun.
They aren’t elected or appointed. They don’t seek their position of prominence — in fact, it’s a stand-up comedy canard that some take great pains to avoid it by inventing improbable excuses.
Jurors determine a defendant’s guilt or innocence, and juries of 12 must be in unanimous agreement to convict or acquit. A lone juror’s disagreement can deadlock deliberations and force a mistrial.
That’s a solemn responsibility and a great deal of power, and it’s entrusted to ordinary citizens — men and women, white, black and Hispanic, young professionals, middle-aged parents and retirees. Our friends. Our neighbors. Ourselves.
The N.C. Supreme Court has designated July as Juror Appreciation Month in recognition of the burden and privilege jury service represents. The Sixth Amendment of the U.S. Constitution and Article I of the North Carolina Constitution recognize criminal defendants’ right to be tried by a jury of their peers, a practice derived from English common law.
“We set aside this time each year to thank and recognize the thousands of North Carolinians who perform this important service to our courts,” Chief Justice Mark Martin said in a prepared statement.
Nice gesture, but until North Carolina commits to informing jurors of their nullification rights, it’s little more than lip service.
In the instructions given prior to deliberation, judges tell jurors they’re legally required to apply the law as it’s explained to them. If jurors believe the state proved its case beyond a reasonable doubt and that a defendant has broken the law, judges say they have a duty to convict.
Those directives obscure the long history of jury nullification, which occurs when jurors judge the law along with the facts of the case. If juries believe a person has broken an unjust or unnecessary law, they can refuse to return a conviction.
Nullification can be used for noble purposes — in the days of the Underground Railroad, Northern juries acquitted those charged with helping slaves flee from their masters in violation of federal law. It can also reflect popular prejudice — in the Jim Crow era, white juries were known to set suspects free after lynchings and beatings of African-Americans.
“If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision,” the 4th U.S. Circuit Court of Appeals acknowledged in the 1969 case U.S. v. Moylan.
While the 4th Circuit — whose decisions are binding on North Carolina — made that clear, its ruling in the Moylan case also states that judges should not inform jurors of their right to nullify, fearing the far-reaching consequences of jury panels unmoored from statutory strictures.
Activist groups like the Fully Informed Jury Association believe nullification should be used to prevent punishment for victimless crimes. It’s been successfully deployed in marijuana possession cases, as polls show a majority of Americans now support the legalization of cannabis.
The Tenth Amendment Center, which believes the federal government has encroached on powers the Constitution reserves for states and individual citizens, calls nullification “a vital tool in defense of liberty.”
While we acknowledge that juries don’t always reach the right conclusion, we put more faith in the wisdom and understanding of our fellow citizens in the jury box than in the supposed inerrancy and infallibility of the lawbooks.
Nullification might already be a subconscious factor in many jurors’ minds. But forceful instructions from presiding judges that require strict adherence to the law can intimidate jurors and deter them from exercising their common-law right to nullify.
North Carolina courts should tell jurors the truth about the power they wield — for better or for worse.
Editor’s Note: A version of this editorial was first published in the Times on July 22, 2017. It is reprinted here to commemorate Juror Appreciation Month.