You couldn't be more wrong.  Jury nullification is illegal.  Before you get to be a juror, you have to swear to uphold the law.  Nullification of a law is not upholding it.  If you're nullifying, you are yourself breaking the law.

The only legal authority you cite is that you think the "first chief justice" might have said jury nullification is OK.  You need to do better research.  The Second Circuit Court of Appeals has repeatedly held that jurors do not have the right to nullify, and other courts have agreed. Another appeals court, in a panel that included Ruth Bader Ginsburg before she went onto the Supreme Court, said it well:

"A jury has no more 'right' to find a 'guilty' defendant 'not  guilty' than it has to find a 'not guilty' defendant 'guilty,' and the fact that the former cannot be corrected by a court while the latter can be, does not create a right out of the power to misapply  the law."

Jury nullification has all sorts of fans on the Internet, for some reason; bald, unsupported assertions that jurors have a "right" to do it float around like infectious urban legends.  But it's just completely, totally wrong.  Jury nullification has an ugly history; it was probably behind the not-guilty verdicts for the assassins of Medgar Evers.  No sane justice system endorses it.  If you do this, you're breaking the law.

Despite the fact that jurors are rarely or never informed of it, and regardless of the debate among legal scholars if nullification is approriate, it is quite clear that juries have the de facto power of nullification.

The disturbing part of jury nullification advocates is that they either do not or cannot distinguish between a "power" and a "right."  Drawing that distinction is one of the major accomplishments of the last 900-odd years of civilization.

Yes, jurors have the power to ignore their oath and acquit the assassin of a civil rights leader.  They also have the "power" to stomp on the defense attorney's foot, go downstairs and raid the cafeteria without paying, and steal the courtroom flag.  They do not, however, have the right to do any of those things.

Jury nullification powers can be seen as a check on government, when the government oversteps the boundary between its own rights and its powers.  Governments throughout history have exercised powers well beyond their rights, and often the people have no recourse.  The jury in the American system acts as a check on the various branches of government.  It is preferable to revolution.

Yes, juries have done all sorts of bad things over the years.  But they have also used nullification for good.  And, I would like to point out, the debate about nullification is not nearly as cut-and-dried as you seem to believe.

Yes, jurors have the power to ignore their oath and acquit the assassin of a civil rights leader.  They also have the "power" to stomp on the defense attorney's foot, go downstairs and raid the cafeteria without paying, and steal the courtroom flag.

Jury nullification is not a crime. The rest of your examples (except possibly going downstairs) are.

A blog which imo inaccurately summarizes the ruling of US v. Sean Carr is no way to go through life son...I mean no way to prove the point. Instead lets look at United States v. Dougherty, 473 F.2d 1113 where the court ruled on issue of jury nullification this way - a case which agreed that jury nullification was a right but that the court didn't have to tell the jury that it was a right:

The existence of an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge, has for many years co-existed with legal practice and precedent upholding instructions to the jury that they are required to follow the instructions of the court on all matters of law. There were different soundings in colonial days and the early days of our Republic. We are aware of the number and variety of expressions at that time from respected sources -- John Adams; Alexander Hamilton; prominent judges -- that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court. BAZELON, Chief Judge, concurring in part and dissenting in part. . . . My disagreement with the Court concerns the issue of jury nullification. As the Court's opinion clearly acknowledges, there can be no doubt that the jury has "an unreviewable and unreversible power . . . to acquit in disregard of the instructions on the law given by the trial judge. . . ." More important, the Court apparently concedes -- although in somewhat grudging terms -- that the power of nullification is a "necessary counter to case-hardened judges and arbitrary prosecutors," and that exercise of the power may, in at least some instances, "enhance, the over-all normative effect of the rule of law." . . . We could not withhold that concession without scoffing at the rationale that underlies the right to jury trial in criminal cases, and belittling some of the most legendary episodes in our political and jurisprudential history

US v. Thomas is another case which specifically defines jury nullification and it happens to be a case which is specifically referenced in the US v Case ruling - when in doubt go to the original source rather than a blog - first link requires a login. As you'll see what concerned US v. Case was a different matter - the issue of whether a court can say that jurors have a duty to follow the law:

Our case law makes clear, as Carr concedes, that a trial court is not required to inform a jury of its power to nullify. See, e.g., United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996) ("While juries have the power to ignore the law in their verdicts, courts have no obligation to tell them they may do so. It appears that every circuit that has considered this issue agrees."); see also id. at 19-20 (citing cases). Nothing in our case law begins to suggest that the court cannot also tell the jury affirmatively that it has a duty to follow the law, even though it may in fact have the power not to.

Don't just believe me..read the case for yourself.

Memory is a strange bell, jubilee and knell.

...lets look at United States v. Dougherty, 473 F.2d 1113 where the court ruled on issue of jury nullification this way - a case which agreed that jury nullification was a right...

Just to underline what profwhat wrote, if you read the entire decision in US v Dougherty, rather than the page you cited that only has excerpts, you'll note that Leventhal carefully avoided calling jury nullification a "right." Rather it is called a "prerogative" or a "power" or, most damningly to your position, a "so-called right" of juries. I am certain the use of terms was not coincidental.

If we are arguing the semantics of 'right' v. 'power' -- then for the practical purposes/context of this discussion I have to ask - whats the difference?

Its pretty clear to me that the judges across several cases have contorted themselves into hiding the inherent 'ability' of jurors to render a decision as they see fit. There is no reason for us (as lay people) to fall for semantic games which seek to hide the actual raw reality.

Memory is a strange bell, jubilee and knell.

I find it extraordinary that you claim to have read the Carr case, yet conveniently failed to quote the part that eviscerates your entire argument and supports mine:

Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court -- in the words of the standard oath administered to jurors in the federal courts, to  "render a true verdict according to the law and the evidence. " Federal Judicial Center, Benchbook for U.S. District Court Judges 225 (4th ed. 1996) (emphasis supplied).  We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.

Thomas, 116 F.3d at 614 (footnote omitted).  The Court continued:

[I]n language originally employed by Judge Learned Hand, the power of juries to  "nullify " or exercise a power of lenity is just that -- a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.  It is true that nullification has a long history in the Anglo-American legal system, and that the federal courts have long noted the de facto power of a jury to render general verdicts  "in the teeth of both law and facts. "  However, at least since the Supreme Court's decision in Sparf v. United States, 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact,  "it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them "), courts have consistently recognized that jurors have no right to nullify.

In other words, you are completely and utterly wrong; there is no right to jury nullification.  As for the first case you cite, it absolutely does not hold that jury nullification is a "right;" to the contrary, it, too, describes it as just an "unreviewable and unreversible power" but not something jurors have a right to do.  You even ignored Carr's cite to a Supreme Court Case that undercuts your position, even though you claimed that the "first chief justice" supports your position.

It is frankly astounding to me that you could either miss or ignore this crucial stuff, and then have the temerity to accuse your opponent of failing to do proper research.  For future reference, pulling shit like that serves only to piss me off.  Stuff like this suggests you aren't interested in finding out the truth, but just in frantically Googling about the Internet to find any out-of-context morsel you can.  Ordinarily, I don't press people to admit they are wrong, but in this case there's actually a danger that some future Googler could happen upon this thread and fall under the mistaken belief that he has some legal right to nullify laws.  You owe that person the truth.

It is hardly fair to use as your supporting point a 2nd degree case reference to a separate case when the case in question (US v. Carr) actually rejects that very argument. Moreover (and I'll get to this in a bit -- the quote you refer to as the Sparf supreme court case "courts have consistently recognized that jurors have no right to nullify." is actually from the Thomas case and not the Sparf supreme court case. Sparf affirms what Carr says -- courts aren't obliged to tell juries they can nullify.

From the actual Sparf opinion:

[Juries] have the physical power to disregard the law, as laid down to them by the court. But I deny that ... they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime that the jury should respond as to the facts, and the court as to the law ... This is the right of every citizen, and it is his only protection.

Lets sum up:
You believe that US v. Carr makes clear that juries have no right to nullify. As proof, you are offering a separate case citation (Sparf v. United States, 1895)  which itself is included in the case notes of the Carr case as a supporting cite to US v. Thomas as referenced in Carr.

Whereas in the actual case discussion of what Carr says - the following paragraph states quite clearly:

Our case law makes clear, as Carr concedes, that a trial court is not required to inform a jury of its power to nullify. See, e.g., United States v. Edwards, 101 F.3d 17, 1932(2d Cir. 1996) ("While juries have the power to ignore the law in their verdicts, courts have no obligation to tell them they may do so. It appears that every circuit that has considered this 10issue agrees.")

In other words the central factor in play re: US v. Carr is NOT whether juries can nullify, but whether the courts have to inform them. It has hardly deceitful of me to exclude other citations (such as the Edwards case which happens to support my argument) because other cites are not relevant to the point that Carr did not overturn jury nullification or in any other way disclaim jury nullification - all Carr did was basically re-affirm that the court could say whatever it liked on the issue of the duty to enforce the law but at the end of the day the jury can return any verdict it likes.

A fair reasonable reading of the total case will lead anyone to this conclusion.

Now if you want to say that the federal judicial center benchbook (the first half of your cite) should be the guiding authority on the issue. I categorically reject that argument as the precedent of virtually any actual court ruling would supercede guidance.

If you however wish to rely on the 2nd circuit court Thomas case ruling  as more authoritiatve than rulings such as the Daugherty, Edwards, and Carr case - that is certainly an argument you can make; however it would be a fallacious argument because the actual full Thomas case (rather than that selected quote) merely says you can kick people off the jury if you believe that they are practicing jury nullification.

From the Thomas case itself (sorry I can't find a public link save this review- perhaps you can provide one?)

We categorically reject the idea that jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent it. Although our protection of the jury trial system provides with a power to "nullify" the law or exercise a power of lenity, is just that - a power; it is not a right or something that a judge should encourage or permit if it is within his authority to permit..."

As such I believe it is you who is in error not I. If your nuanced position is that juries have the 'power' to nullify, but not the 'right' to do so -- then I'll have to ask: what are the negative consequences of exercising that power which limits jurors rights?

On a completely separate note: let us grant to each other that we are both seeking to honestly represent the truth as we know it. Neither you nor I have significant incentive to lie.  I will certainly admit if you can provide sufficient reasonable proof to show I am in error, and I assume you will do the same.

Memory is a strange bell, jubilee and knell.

Let me summarize my exact disagreements with you:

wetkarma, comment 5: "The jury system allows the jury to judge both the accessed AND the law."

Wrong.  "it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them."  United States Supreme Court in Sparf v. United States, 156 U.S. 51, 102 (1895).

wetkarma, comment 5: "jurors have had the inherent right to override the law by judging the whole case and not just the facts."

Wrong.  "the power of juries to  'nullify' or exercise a power of lenity is just that -- a power; it is by no means a right" Thomas, 116 F.3d at 614, quoted approvingly in Carr.

All you cite in response is quotes about a "power" to nullify.  A power is not a right!  You say I am making a "nuanced" distinction between a power and a right, but as you'll read above, it was courts (starting with Learned Hand) who made that distinction.  I agree, juries CAN do it--Sparf aptly calls it as a "physical power," in the same sense that I have a physical power to stomp on people's feet.  They don't, however, have a "right" to do it, as you claimed in comment 5.  That's why court after court has said that juries don't need to be told about the "power" to nullify.  It's also why Thomas held that jurors can be disqualified for saying they'll do it--how could that be legal, if it's their "right?"

The negative consequence to a juror from nullifying is mostly theoretical: the juror has violated an oath, and there might be civil or criminal consequences for that.  In practice, I don't know of that ever happening.  But there are oodles of cases of people doing things they don't have a right to do and not getting punished, so that doesn't establish that might makes right.

And, you can read Thomas here.

wetkarma, comment 5: "The jury system allows the jury to judge both the accessed AND the law."

Wrong.  "it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them."  United States Supreme Court in Sparf v. United States, 156 U.S. 51, 102 (1895)

I don't see these statements to be in conflict with each other (other than my abysmal spelling of accused)

The negative consequence to a juror from nullifying is mostly theoretical: the juror has violated an oath, and there might be civil or criminal consequences for that.  In practice, I don't know of that ever happening.  But there are oodles of cases of people doing things they don't have a right to do and not getting punished, so that doesn't establish that might makes right.

It is said that power abhors a vacuum. Given that we agree that jurors can do it -- then there are two remaining issues worth examining 1) what are the consequences if they choose to do it, and 2) whether they have indeed violated their oath.

The core of my argument is that as there can be no negative consequences to a juror who has rendered a verdict (unless said juror had been bribed) , then the act of nullification cannot be considered to be against the law. I.E. If you can't prosecute me for stepping on your toe, then stepping on your toe is not wrong in the eyes of the court. Were nullification some sort of inappropriate use of a jurors power, then much like stomping on someone's feet, legal remedies would be available.  The fact that jurors face no legal consequence for rendering an impartial verdict, inherently means that they have the right (via the power ascribed to them as jurors) to do so.

Now what Thomas established is that among the many reasons that jurors can be struck from a jury (and there are many), jurors who believe in the use of nullification is one such  rationale.  The 6th amendment guarantees the right of a defendant to a jury of his peers. If his peers are constrained from finding him not guilty, then what I ask you is the point of having him face a jury of his peers? And moreover are you not then abrogating the 6th amendment by advocating any approach which would curtail this review? Juries have an inherent power - and thereby right - to err on the side of mercy.

Lets move on then to the issue of violating their oath -- jurors swear to render a true verdict. We can argue till the cows come home as to what this means, but at the end of the day as I noted the constitution guarantees to the defendant cannot be  waived with an oath taken by the jury. If the oath is in conflict with the constitution, then the constitution wins.

At this point I feel we are close to an impasse of opinion. I will concede to you however if you can provide one instance in US jurisprudence where a jury was punished (and that punishment upheld) for exercising jury nullification. Given the 200 year plus history of the USA filled with illegal activities -- there should be at least one case law which you can use to show that the courts have the authority to prevent jury nullification beyond jawboning against it.

Memory is a strange bell, jubilee and knell.

Before you get to be a juror, you have to swear to uphold the law.

This is usually right about when I get sent home.

- derumi (del-me)
"Bobby Fischer? Man, that guy is crazy!" - Mike Tyson

" For all the reasons profwhat cited, I agree it would be a bad idea and one which would lead to weakening the fabric of laws in our society. Do you really want a radical anarchist to sit in on a trial where the thug who wandered into your store with a gun shot you and stole the contents of your cash register. After all, according to my putative anarchist, you have no more right to that money than the thug did and, if your juror is the sort of person who believes might makes right, it sort of tips the scales of justice in the direction the armed thug.

Challenge those wingnuts during jury selection. Throw that guy off. Don't throw me off because I have a science background and can easily tell if the forensic science experts are blowing smoke or not.

Do you really want a radical anarchist to sit in on a trial where the thug who wandered into your store with a gun shot you and stole the contents of your cash register. After all, according to my putative anarchist, you have no more right to that money than the thug did and, if your juror is the sort of person who believes might makes right, it sort of tips the scales of justice in the direction the armed thug.

The inherent premise behind a jury trial is that your peers (the average man on the street) can indeed come to a just decision on your case. If the average man on the street is an anarchist, then why should his views be excluded from the jury trial process?

Memory is a strange bell, jubilee and knell.

... is the average man on the street an anarchist?

Illegitimi non carborundum.

... is the average man on the street an anarchist?

I dunno -- you are the one constructing the scenario where an anarchist commits a crime and is freed by a fellow anarchist who somehow is selected for jury duty.

Memory is a strange bell, jubilee and knell.

Well, I really didn't speculate on the political viewpoint of the thug. I was merely showing why not allowing the prosecution (or defense) to have some discretion in which "peer" gets to sit in judgment isn't really that bad an idea.

Illegitimi non carborundum.

San Francisco

The inherent premise behind a jury trial is that your peers (the average man on the street) can indeed come to a just decision on your case

That is not at all the premise. The reason for a trial by one's peers is to have persons who are not part of the government assess the guilt of the accused based on 1) the law, and 2) the evidence. Would you accept a juror who would arbitrarily disregard evidence?

In the feudal system, people were divided into four classes (clerical, royal, noble, and common - later, journalists were sometimes described as the "fifth estate").  Many legal abuses arose from the fact that commoners were judged by the nobility rather than by their fellow commoners.  However, in the US all citizens are legally considered to be peers of each other and to belong to the same class (even though we still have an effective class separation based upon economics rather than descent).  Hence the requirement that juries must be composed of peers of the accused is a bit superfluous; it cannot be any other way, at least in the US.  In England where titles of nobility still exist, this would be a more significant requirement.

Journalists are the "fourth estate."

He was confusing that and "Fifth Column." We're talking about journalists, so it's an easy mistake to make.

You are correct.  I lost count of my estates because sometimes royalty is considered a separate class from the nobility, but the two were combined into one noble class at the time journalists were counted as a theoretical fourth estate.  

There is a TV news program (in Canada) called "The Fifth Estate" which also lead me astray.