THE RECORD - New York City Bar Association

P R O F E S S I O N A L R E S P O N S I B I L I T Y
argue that a jury should not be ordered to follow the law because it has
the power to nullify the law. This argument has no merit. Jury nullification
is ‘not to be positively sanctioned by instructions,’ but it is to be
viewed as an ‘aberration under our system.’ “ (quoting U.S. v. Anderson,
716 F.2d 446, 450 (7th Cir. 1983)); Duggan v. State, 483 S.E.2d 373 (Ga. Ct.
App. 1997): “The trial court may never direct a verdict of guilty, but it
may refuse to charge on the principle of jury nullification and may limit
jury argument on that point.” 483 S.E.2d at 377-78.
Thomas is explicit that a nullifying juror is a juror who is not following
the law, that there is a “duty and authority of the judge to assure that
jurors follow the law” and that “it would be a dereliction of duty for a
judge to remain indifferent to reports that a juror is intent on violating
his oath.” 116 F.3d at 616. This seems to be the strongest judicial statement
to date against jury nullification, and may signal a shift in the
uncomfortable balance between the concepts that a jury has the power,
but not the right, to nullify. Indeed, although Thomas considers the jury
nullification issue as it affects the relationship between judge and jury, its
reasoning suggests that courts in the future may be less tolerant of lawyers
who appeal to a jury to exercise its power of leniency.
JUDICIAL NULLIFICATION
On the other hand, in one recent controversial case, a judge in a
bench trial explicitly engaged in nullification. United States v. Lynch, 952
F.Supp. 167 (S.D.N.Y. 1997) was a criminal contempt case against a bishop
and a monk who violated an injunction that they not block access to an
abortion clinic. Judge Sprizzo acquitted, in part because he found that
the defendants acted out of a sincere religious belief, and therefore could
not be guilty of [criminal] willful contempt. 952 F. Supp. at 170. Judge
Sprizzo then added, however:
[E]ven assuming arguendo that the Court were satisfied that
the Government’s proof established the requisite willfulness, the
Court would still find the defendants not guilty. The facts presented
here both by sworn testimony and a videotape depicting
an elderly bishop and a young monk quietly praying with
rosary beads in the clinic’s driveway, clearly call for what Judge
Friendly once referred to, in United States v. Barash, 365 F.2d
395, 403 (2d Cir. 1966), as that exercise of the prerogative of
leniency which a fact-finder has to refuse to convict a defendant,
even if the circumstances would otherwise be sufficient
to convict. Id. at 171.
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