Last Friday night, I was cruising through all the various channels on my old black and white TV, from 2 right through channel 13, when I happened upon a show starring the woman who used to be a nurse in one of the hospital shows, ER.  I can’t remember her name, but she played a lawyer named Canterbury.  I had heard about this show, and the reviews were not kind.  While a defense lawyer, she suborned perjury as if it was something we all do.  Or so I heard.

I watched the show, and much to my surprise, her defense against an admitted rape was jury nullification.  She went to trial because the judge would only give the defendant life on a plea.  She opened to the jury that he would have taken the plea but for the life in prison, which was too long.  The judge sustained the objection.  She wasn’t held in criminal contempt.  Nothing. 

Later, she asked a witness against her guy, who also raped the woman, what sentence he received (3 years suspended), and whether the defendant should get life.  Objection overruled.  Closing she argued again.  So it was all pretty silly from a legal perspective, but the mere fact that a TV show was about jury nullification was astounding.  Imagine, all 37 people watching would forever know that jury nullification exists.  And this is all because of the  Texas Tornado’s reviving nullification, I’m sure.

Now  Kip Esquire brings it up in a different context, asking whether nullification applies to “blocked defenses.” 

Question for the nullifiers: At least one state forbids the use of the so-called “gay panic defense.” Should a nullifier be entitled to disregard that prohibition and vote to acquit a gay-basher in defiance of both the law and the jury instructions?

My thoughts immediately went to the words of a Buffalo lawyer, Mark Mahoney, who for as long as I can remember has been pushing the agenda that the right to present a defense is of constitutional magnitude.  By this, he means that it is entirely up to the defendant to pick how he wants to defend against the charges, what evidence he wants to present in support of his defense, and that the state (including the judge) is constitutionally precluded from stopping the defendant.  After all, if there is a 6th Amendment right to counsel for the defense, there has to be a defense.  Moreover, the 9th Amendment precludes government from making laws that impair the defendant’s right to defend any darn way he chooses.

This is where theory and practice diverge.  While a lawyer is free to argue this proposition to the court, try pulling a Canterbury and you’ll find yourself getting slapped silly, first by the prosecutor, then the judge, then, if you persist, the hairy knuckles of a court officer and, maybe just for fun, the male court officers will thereafter join in.  In other words, the rules are designed in such a way as to limit what defenses are available to a defendant.

And what’s the primary defense that’s unavailable?  Why that would be jury nullification.  You can’t even say the “n” word in front of the jury.  How, you ask, could that be, since you’ve read Bennett thoroughly and watched every episode of Canterbury Tales and now realize that this is a fundamental criminal defense? 

Welcome to the world of legal reality.  There’s reality, and then there’s legal reality.  Imagine that a judge decides that the sun rises in the west and sets in the east.  That becomes the legal reality.  It’s what lawyers learn to work with, because we have no choice.  The rule is comply now, appeal later. 

The law says that there is no such thing as jury nullification.  Of course, there is, except that there isn’t.  In a courtroom.  On TV, yes.  In a courtroom, no.  It doesn’t exist.  And we know it doesn’t exist because whatever the jury decides is based upon the jury instructions.  That’s another piece of legal fiction as well, and you can’t argue on appeal that the jury convicted your defendant on the wrong legal basis if they were properly charged, because the legal fiction is that they had to convicted for the correct reason because the instructions were correct, and the jury always follows the instructions.  See?

Defendants regularly try to call witnesses on subjects such as false confession or mistaken identification, only to have the judge blow them out of the water by refusing the accept expertise on these issue or holding that the jury is competent to understand the problem without an expert.  Of course, this comes after the prosecution has called an expert on the subject of how your client is guilty as sin because he says so.

Some judges, when the constitutional right to present a defense is argued, will allow a lawyer to push the envelope a little further than she might otherwise.  I’ve used it with some small success at trial.  But big success, such as allowing a “blocked defense” to be openly presented or argued?  Never. 

When Kip asks if nullification works for this purpose, the answer is that it does, just as well as it works any other time.  The problem is that it’s the secret defense, the one you present without saying you’re presenting it.  You argue as far as the judge will let you, then back away before you push the judge far enough to give a curative instruction designed to cut your legs out from under you and make you look like an idiot to the jury.

Should this be the case is an entirely different matter.  If the jury acquits a defendant, the game is over.  No one can look behind the verdict to question why the jury found the defendant not guilty, whether for nullification, a blocked defense, or the way the cop combs his hair. 

When I talk to jurors after a trial to find out why they decided as they did, I frequently learn that their decision made no legal sense at all, and they engaged in some bizarre jury room voodoo that one would have never anticipated.  But if the verdict is not guilty, I thank them profusely and tell them what a fine job they did.