The concept of jury nullification is an important concept for experienced criminal defense lawyers to understand. As a by product of our system of justice, a jury has the power to acquit even those who have had the charges poven against them. This is a fact, largely kept secret from the public and not sanctioned by the Courts. In People v. Goetz, the Court of Appeals stated: “While there is nothing to prevent a petit jury from acquitting although finding that the prosecution has proven its case, this so-called mercy-dispensing power,’ . . . is not a legally sanctioned function of the jury and should not be encouraged by the court.”
Jury nullification is when the jury ignores the law because it believes that its application in a specific case is unjust. Essentially, a jury who nullifies believes that the defendant was guilty of the crimes he was charged with, but that convicting him under the specific circumstances would not be in the interest of justice. Jury nullification is not an official part of the criminal law, and in some jurisdictions attorneys who advance a nullification theory to the jury can be sanctioned by the court for violating the profession’s ethical code. Indeed, a defense attorney cannot explicitly request the jury nullify, and if she chooses a nullification strategy, she must go about it subtly.
In June, a state appellate court issued an interesting opinion in a New York burglary case discussing whether an attorney’s strategy to argue for jury nullification constituted effective representation. The court concluded that, given the facts of the case, the chosen jury-nullification strategy was appropriate and a potentially effective defense to the crimes charged. Thus, the court upheld the defendant’s conviction.
Jury nullification relies on two unique premises of the criminal justice system. First, that jurors cannot be punished in any way for their decision in a given case. Thus, jurors can decide a case freely without fear of needing to answer to the judge, police, or prosecutors. Second, under principles of Double Jeopardy, a criminal defendant can only be charged once for a crime. Moreover, the prosecution has no right to appeal a verdict of not guilty. The result is that when a defendant is found not guilty – regardless of the reason – both the individual jurors and the defendant are essentially immunized from further prosecutorial action.
The Facts of the Case
According to the court’s opinion, the defendant was charged with burglary after he was allegedly seen on video walking into an apartment complex and taking packages from residents’ doorsteps. At trial, the defendant’s attorney told the jury that the case was “no big mystery” and that it was a “rock solid” case because the defendant was seen on video taking the packages. However, defense counsel argued that the defendant did not enter anyone’s home and that the only items that were taken were “doggie pee pads.” In his closing, the attorney again conceded that the case was “no big mystery,” but urged the jurors to “be fair,” arguing that the crime was overcharged.
The defendant was convicted and, in a post-conviction claim, argued that his counsel was ineffective for essentially conceding his guilt. The court, however, upheld the defendant’s conviction, explaining that “given the truly overwhelming evidence against his client on all the charges, and constrained by the limited legitimate defense strategies available, counsel raised what he reasonably perceived could be factual issues in the case.”
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