California Bar Journal
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A blow to juror independence
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Alan ScheflinJudges always have had an uneasy relationship with juries, who have the power to see cases differently than they do. Many judges have urged the abolition of the jury system; others have sought more modestly to reduce the jury's influence by limiting the types of cases brought before them.

 As commentators universally have recognized, the jury system entered the 19th century with enormous law-making powers but left that century virtually under the complete control of judges as the exercise of judicial power whittled away at the role of the jury. What is at stake today is the question of whether the last vestige of independent jury influence, the right to acquit on the basis of conscience, will survive contemporary judicial assault. The California Supreme Court, in the recent People v. Williams and People v. Cleveland decisions, has provided the wrong answer.

Since the 1960s, the pros and cons of jury nullification have produced a vigorous national debate conducted in courts, legislatures, educational classes and media presentations. Proponents have pointed to juries protecting freedom of the press in the William Pitt and John Peter Zenger cases, while opponents have pointed to civil rights decisions in the South acquitting white killers.

One point is clear - the issue of jury nullification will never go away. Any time morality and law appear to be in conflict, jurors will, and should, feel the call to prevent the unfair or oppressive application of the criminal law upon a person the community is not prepared to condemn.

Shortly before he was elevated to the highest judicial office in the land, the late Warren Burger kindly appeared in one of my classes to talk about the philosophy of judging cases. His central point to the class was his view that the judicial system could only function on the basis of respect because it had no real enforcement authority. Its prestige had to be its power.

Recently, public respect for the judicial system has suffered seriously. The O.J. Simpson case, President Bush's announcement that he was no longer interested in neutral appraisals by the American Bar Association of his judicial appointees and the Bush administration's recent statements that selection of judicial candidates will be based solely on their conservative political ideology are causing public support for the courts to plummet.

When the modern nullification debate began in the 1960s, few people had ever heard of it. Today, by contrast, jury nullification has been the subject of literally thousands of media articles, television shows and documentaries. It is taught in high schools and colleges. Potential jurors are aware of the nullification power, though they may be mistaken as to its scope.

 That is why clarifying judicial instructions is preferable to removal of jurors. Will the court eliminate from jury service every potential juror who states that he or she has heard of nullification? There is evidence in California that potential jurors will lie on voir dire about their knowledge of nullification.

This disrespect for the judicial process will be amplified by the Williams and Cleveland decisions. And what about the juror who did not know that he or she could vote on the basis of conscience and does not do so, only to learn later that the judge withheld this information? What juror, or citizen, should respect a judiciary that has turned jurors into handmaidens of judges?

Ironically, the California Supreme Court's unwarranted fear of runaway jury power led the court itself to nullify the law by stripping the jury of its constitutional right and responsibility to act, as the United States Supreme Court held in Duncan v. Louisiana, as the conscience of the community. Thus, after the Williams and Cleveland decisions, when the jurors take their oath in California, they must swear to obey the judge, but violate their constitutional duty. 

Everyone agrees that the jury has the power to exercise mercy on the basis of conscience. Proponents argue that they should have the right to be so instructed. In that way, of course, jurors would be obeying the judge's instructions, and judges could fairly and clearly articulate the difference between valid nullification and impermissible emotion or bias. For proponents, in keeping with the desire for public respect for the judiciary, honesty is the best policy.

Apparently, and sadly for the judicial system, the California Supreme Court prefers deception to truth.

Alan W. Scheflin is a professor of law at the University of Santa Clara School of Law.