a rickety bridge of impossible crossing

the power of juries

📯 Content warning: US politics/fascist takeover. None of this is legal advice.

I don't know why jury nullification isn't something that's taken more seriously as a tool for obtaining justice and shaping US law, but if there's any time to start talking about it, it's now.

I'm setting the bar high. Jury nullification happens when every juror votes not guilty regardless of the evidence because they believe the law is unjust. That's not going to happen any time soon. Even in the most progressive district in the country, you're not going to get every single juror to agree on this. Even if there are no conservatives, there's going to be any number of liberal holdouts who, despite all evidence to the contrary, still believe in rule of law and all that lofty ideal horseshit. It's going to take awhile to move the needle on this one.

But in a criminal trial, the jury's vote has to be unanimous to convict, meaning that if there's even one holdout, one juror out of twelve who holds firm and refuses to convict no matter what, it's a mistrial by hung jury. They can have another trial, but you slowed them down. You threw a wrench in the machine. If the next jury also has just one holdout, it's another mistrial. Enough of these in a row, and we grind the wheels of fascist anti-justice to a halt.

The repeal of Roe v. Wade got me thinking about this again, and I do think it's possible to use hung jury as a tool to protect people from the fallout. Not in most places: in states that ban abortion, most of the districts are going to be conservative enough that even a 1 in 12 would be a moonshot. But Georgia has Atlanta, Texas has Austin, Florida has Miami, Missouri has St. Louis.1 There are battleground courts, where, if we make jury nullification a political movement in the vein of abolishing the police, if we make waves and move the overton window, juries can gridlock the courts with hung juries and mistrials, overwhelm them, make them deal with the consequences. This isn't a magic bullet that'll fix all our problems, no more than voting is, but it's one form of protest that'll force the system to pay attention.

The main hurdle is getting public defenders to believe this is a political possibility. As it is, very few of the cases that should end in hung jury or nullification go to trial. It's almost always better for the defendant to take the plea deal, and that's not a political reality we can change overnight. But if we can get enough momentum behind a nullification movement, we can start building up steam. There are parts of the country where this could be very effective.

If I'm ever a juror, there are almost no cases where I'd vote to convict. Victims of corporate and state malfeasance don't get real justice, the best they can usually hope for is getting some token financial compensation in civil court.2 I guess if I ever get to decide what happens to someone like Elizabeth Holmes, I'd vote to convict; obviously I don't give a fuck about the rich investors she defrauded, but I'm willing to accept her guilty verdict as a kind of proxy justice for all the people she hurt. Power is the only criteria I care about.

Of course, you have to pretend you care deeply about the principles of law and justice until you get to deliberation, otherwise you'll get weeded out during jury selection, or disqualified if you talk openly about nullification while the trial is ongoing.3 That makes building a movement tricky. I don't know how thoroughly they check a potential juror's background during the selection process. If you're a well-known jury nullification activist, they give you the boot regardless of what you say during the interview. I'm not sure how to make it a movement without disqualifying people. It's worth thinking about, though. If a few high-profile enough people talk about it, even if it disqualifies them from jury duty forever, they might change enough hearts and minds to make it worth it.

If you're a liberal reading this who objects to the notion of lying to a court, look at SCOTUS pouring gasoline on the tire fire of our justice system. Compare the way they talked during their confirmation hearings to what they're doing now. Read the 100% bad-faith opinions they can't possibly justify in any actual legal framework. They're lying through their teeth. They don't give a fuck. We shouldn't either. We are not obligated to hold ourselves to a higher standard than the supreme court holds themselves. The time of honesty and decorum and going high and respectability politics is in the past. Everyone who cares about justice needs to use every tool available to push back against the fascist takeover. Protest is a tool. Voting is a tool. Jury nullification is a tool. Court packing is a tool. Rioting is a tool. Violence is a tool. Some of these tools "aren't allowed", but when people play by rules that power ignores, power wins. I promise that whatever value you place on your perceived moral superiority won't make you feel better when there's a boot stomping your face forever 🦝

  1. These aren't all places you're guaranteed to have a pro-choice juror, but they're more progressive districts in otherwise red states where you'd have the best chance of fighting those bans and other unjust laws.↩

  2. Pretty much none of this applies to victims of civil trials. I don't know under what circumstances a civil trial is decided by jury (I think it varies by state) but when it is, the vote doesn't have to be unanimous, and even in cases of full jury nullification, the judge can overrule it with "judgment notwithstanding verdict", so civil juries are kind of fake. There's not much juries can do to stop shit like Texas' abortion vigilante law (sorry, Austin) but that doesn't mean we shouldn't try to gum up criminal court as much as possible. Prison is more life-ruining than a civil judgment.↩

  3. None of this is legal advice; I don't believe there can be legal repercussions for a juror who simply votes contrary to the majority, but I don't know everything. Just brainstorming↩