The criminal justice system stumbles along on the road mumbling lip service to complete transparency, but we still lie to jurors. When jurors find out about these lies, they are often unhappy. A potential jury in Montana took matters in its own hands the other day, revolting during jury selection in a routine drug case. The spared a man a felony conviction and focused a judge to consider what justice requires. This was an example of the good that jury nullification can do: It can force prosecutors to rethink their private conceptions of justice. Nullification can empower the people.
Jurors were being selected in Missoula County District Court in the case of State v. Touray Cornell. Cornell was an accused drug dealer. The state wanted him to go to prison. But he possessed less than a fifth of an ounce of weed. Jurors thought the prosecution was ridiculous and they made no secret of that. Judge Dusty Deschamps doubted a jury could be selected, given the revolt among panelists. The judge directed the lawyers to work out a less onerous plea deal.
This should be a shot heard around every courthouse in the nation. A jury that knew the truth set a man free. Imagine that.
In Connecticut, jurors would be told not to worry about the consequences of their decision. Their task, they would be told, would be simply to determine whether the state could prove the crime charged. Once the jury decided that, the judge, at a later date, would worry about the consequences. This is the customary manner of the law's moral schizophrenia, depriving fact finders of knowledge of the consequences of their decision deprives jury's of any practical efficacy, transforming jury service into little more than a high-stakes parlor game.
Juries should be told about the consequences of the decisions they make. It makes little sense for prosecutors to intone that the defendant should be held accountable for his or her actions while at the same time making the imposition of sanctions resemble a magician's trick. If jurors are to serve as conscience of the community, then they should also be permitted to second guess prosecutors, who claim to be acting on behalf of a client we will never see -- the state.
Cornell stood before jurors accused of being a drug dealer, and facing a felony convictions. But jurors told the judge they objected to the law under which he was being charged. The judge wonders whether a fair cross section of the community could be empaneled if opponents of the law were excluded. “I think that poses a real challenge in proceeding,” says Deschamps. “Are we really seating a jury of their peers if we just leave people on who are militant on the subject?
Death penalty opponents wonder the same thing. Why are we excluded routinely from serving on a jury when we say that we will not permit the state to kill in our name? Connecticut's Steven Hayes was this year convicted and sentenced to death by such a rump jury, and few complained. Would Deschamps have been as courageous if he faced a courtroom of folks clamoring for the death of an unpopular man and rallying behind a family who behaves as if they are entitled to the death penalty as a matter of personal right?
In high stakes cases, juries know the law. But in most cases, jurors have no idea what a defendant faces if convicted. Would jurors be so quick to convict a man accused of fondling a child on the mere say-so of the child if those jurors knew the consequence could carry a decade or more behind bars? We don't permit children to make binding legal contracts, but we use their words to bind men and women to the hard service of imprisonment. It makes no sense.
Why not a law requiring the judge to read to jurors an accountability statement? This would include not just the potential imprisonment to which a defendant is exposed, but the collateral consequences as well. What would be the harm in requiring jurors to act with full knowledge about what they are doing? Perhaps jurors facing reality will revolt more often; perhaps those acts would yield a greater sense of efficacy and meaningful citizenship.
Jury service is the closest many Americans will ever get to being able to perform an act of revolutionary importance. Saying no to the government is vital. Doing it from a jury box strikes swiftest and hardest: It is a punch to the gut of lawmakers and prosecutors marching lockstep to some distant drummer the rest of us cannot hear or do not care to heed. The good folks in Missoula County set an example. Who cares to follow it?