Can a juror, faced with clear evidence that a defendant is guilty, still vote to acquit if he or she feels the law is unjust?
Yes, say backers of “jury nullification.” This courtroom tactic was the focus of a Kalispell event organized by the Flathead County Libertarian Party. Presentations on nullification by Kirsten Tynan and Roger Roots drew about two dozen guests to The Museum at Central School Friday night.
“I think it has gone from [being] perceived as a fringe issue to more of a mainstream issue,” said Tynan, executive director of the Fully Informed Jury Association.
Asked about her interest in nullification, she told the Daily Inter Lake that “as a pro-liberty person, I often find it’s difficult to make a difference by voting, because most people are not agreeing with me on issues.”
“But when you are a juror, you don’t need people to agree with you for the most part.” At the federal level, and in every state except Oregon and Louisiana, a jury conviction of a criminal defendant must be unanimous.
“That got me really interested” in the topic, Tynan remembered, “because it actually gave real power to the individual.”
She began the evening with a historical overview of the practice, which she prefers to call “conscientious acquittal.” It figured in the 1670 trial of English Quakers William Penn and William Mead, and, she argued, was an accepted part of the U.S. legal process throughout the 19th century. Defendants engaged in a variety of dissident acts, from helping runaway slaves to protesting the Vietnam War, have been acquitted under jury nullification.
“A lot of people think…[that] this is like an archaic thing that has been set aside, but that is not true,” she said.
Today, nullification has support on both ends of the political spectrum. In 2014, The Nation’s Molly Knefel wrote that it could shield defendants against harsh sentencing laws and racial bias in the legal system. Tynan discussed recent acquittals for low-level drug offenses, and that of a San Diego protester charged with “so-called vandalism” for chalking negative messages about Bank of America.
The second speaker, attorney Roger Roots, began by focusing on nullification’s role in the recent trial of Noah Kleinman, a California medical marijuana-store owner convicted on federal drug charges. But then he shifted to the part it may have played in a courtroom battle well-known to many Montanans: The Bundy trials.
Roots helped defend both Ryan Bundy, in his October 2016 trial for charges related to his role in the occupation of Oregon’s Malheur National Wildlife Refuge, and Cliven Bundy — against charges for his 2014 armed standoff with federal agents in Nevada.
“The juries have been the salvation of these trials,” he told guests. The jury in the Oregon trial found Ryan Bundy not guilty of conspiracy and possession of firearms, but could not reach a verdict on a charge of stealing government property.
The “not guilty” verdicts handed down for Ryan, his brother Ammon, and other occupiers “breathed a lot of life, a lot of hope, into the people down in Nevada” awaiting trial, Roots said.
The Nevada defendants got good news last month, when U.S. District Judge Gloria Navarro dismissed with prejudice the case against Cliven, Ammon and Ryan Bundy, and Ryan Payne, for their roles in the 2014 Nevada standoff, having found that prosecutors withheld evidence that could have helped the defendants.
“We have had great victories in these cases, and it’s all because of the juries,” Roots claimed.
“This East Berlin surveillance society that the government wants to impose on us with undercover informants everywhere, surveillance of all things — I don’t think the juries like it, and the juries have handed the government some major defeats.”
Because jurors rarely discuss their votes, both Roots and Tynan acknowledged the difficulty of proving that any one acquittal resulted from nullification. And the practice can have drawbacks, wrote Cornell University Law Professor Sherry Colb last year.
Discussing the arguments against nullification, Colb observed that nullifying juries can “become a law unto themselves, nullifying the legal rules that say that when the prosecution proves guilt beyond a reasonable doubt, the defendant must be convicted.” She also linked the practice to prosecutors’ longtime difficulty in convicting white defendants charged with crimes against black victims.
But despite these objections, Tynan sees jury nullification as a vital safeguard against government overreach.
“Jury nullification is a tool, and like any tool you can use it in a lot of ways. And one of the ways is to uphold the rule of law when government is violating the rule of law.”
Flathead residents may see more of these arguments in the near future. One of the Fully Informed Jury Association’s main outreach methods is to hand potential jurors literature on nullification outside courthouses. Between the talks, Cindy Dyson-McGlenn, chair of the Flathead County Libertarian Party, remarked, ”I find myself being kind of inspired to want to do one of these pass-outs here in the courthouse in Kalispell.”
Reporter Patrick Reilly can be reached at email@example.com, or at 758-4407.