There has been a lot of discussion about jury nullification
lately. When juries acquitted O.J. Simpson
(in his criminal trial) and the Los Angeles
police officers who beat Rodney King, there were
loud and sharp claims in newspapers and coffee
shops that these verdicts were based on racial prejudice,
class bias, an irrational desire to punish the
police, or naivete about police practices, not on
the evidence presented. . . .
Paul Butler of George Washington University
Law School, has helped fuel the debate. . . . These
events and discussions have led some people to the
brink of despair about juries: “It seems like guilt
or innocence doesn’t matter anymore,” they think.
“Today, trials are about politics and about power;
the only thing that matters is who is on the jury.”
It would be easy to draw this conclusion from
watching the nightly news—easy, but wrong. The
truth is that juries rarely acquit against the evidence,
at least in serious cases. Most jurors are
quite sensible and recognize that, if they acquit a
factually guilty defendant, they may be turning a
dangerous person loose, perhaps into their own
neighborhoods. Juries may be merciful, but they
are not stupid. More to the point, most garden-variety
street crimes don’t raise any issues that might
lead a jury to nullify. Most crime is intraracial, so
any ethnic kinship a jury might feel for the defendant
is blunted by the greater sympathy for the victim.
Most crimes also have no political overtones
or present obvious examples of police misconduct
or prosecutorial overreaching. Perhaps most importantly,
the majority of criminal cases never go
before a jury. Most criminal charges end in a guilty
plea prior to trial, often as a result of an agreement
between the prosecutor and defendant. While it is
true that prosecutors sometimes offer an attractive
plea bargain because they are worried about what
a jury will do (what lawyers euphemistically refer
to as the “risks of...