If you watched today’s coverage of the Jodi Arias’ trial on InSession, you may have caught their lengthy discussion on jury nullification.  They essentially made it out like it was a possibility.  I can assure you it is not.

What is Jury Nullification?

Jury nullification occurs in a trial when a jury acquits a defendant they believe to be guilty of the charges against them. This may occur when members of the jury:

  • disagree with the law the defendant has been charged with
  • believe that the law should not be applied in that particular case

Jury nullification has served a somewhat overlooked importance in our justice system.  For example, jury nullification first appeared in the pre-Civil War era when juries sometimes refused to convict for violations of the Fugitive Slave Act and later during prohibition juries refused to convict people who violated alcohol control laws (as much as 60% of the time).  The trial of James Hickok (1865) is a textbook example where the jury acquitted him due to the unwritten “fair fight” rule.

In the 21st century, many jury nullifications have centered on drug laws that some consider unjust in principle or are discriminatory.

A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification.

The courts of the United States have repeatedly made rulings on jury nullification:

  • 1895 – the U.S. Supreme Court ruled a trial judge has no responsibility to inform the jury of the right to nullify laws.
  • 1969 – the U.S. Supreme Court recognized jury nullification, but upheld the power of a court to refuse to permit an instruction to the jury to this effect.
  • 1972 – A D.C. Appeals Court recognized the de facto power of juries to nullify, but upheld the denial of the defense’s chance to instruct the jury about the power to nullify.
  • 1988 – the 6th Circuit of Appeals, which covers Kentucky, Michigan, Ohio, and Tennessee, ruled “there is no such thing as valid jury nullification.”
  • 1997 – the 2nd Circuit of Appeals, which covers Connecticut, New York, and Vermont, ruled that jurors can be removed if there is evidence that they intend to nullify the law.
  • 2012 – New Hampshire passed a law explicitly allowing defense attorneys to inform juries about jury nullification.

Several states have allowed judges to penalize anyone who attempts to present a nullification argument to jurors and to declare a mistrial if such argument has been presented. In most states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law of their state.

Jury nullification however can be used incorrectly with discriminatory and horrible results.  Many white defendants, especially during the Civil Rights Era, were routinely acquitted by all-white juries when their victims were African American regardless of evidence.

InSession gave one great example of jury nullification, Dr. Jack Kevorkian.  He effectively admitted through his advocacy of physician-assisted suicide that he murdered patients, including a taped, broadcast voluntary euthanasia on 60 minutes.  He was tried five times, but acquitted in three of those and a hung jury in another.  A fifth jury, 5 years after his first trial, found him guilty of second-degree murder and his sentence was 10-to-25 years.  He was released from prison in 2007 due to his terminal illness.  In 2008, he received almost 3% of votes in a bid for U.S. Congress.

However, InSession went off the rails in their later examples, including O.J. Simpson, Lorena Bobbitt, and Jayson Williams.

Explain to me how you believe the jury acquitted O.J. Simpson because they believed he killed both Simpson and Goldman, but he didn’t deserve punishment?  The jury acquitted due to insufficient evidence and questions surrounding a racist lead detective.

Lorena Bobbitt’s defense was able to successfully establish that her husband was sexually, physically, and emotionally abusive towards her.  She was found not guilty due to insanity and she was remanded to treatment.  This verdict was based purely on her mental status being insufficient for her to be held accountable.  This is not jury nullification because the jury chose a verdict available to them as per law.  Before there were laws that provided a not guilty by reason of insanity, it would have been jury nullification to find her not guilty because the jury would have disagreed with there being no special provision for a person in her position.  They actually agreed with the law, they didn’t nullify it.

Bobbitt actually went on to found a domestic violence prevention foundation and have a family.

In the case of Jayson Williams, anchor Jean Casarez said that the jury knew he was playing with the gun, but still called it an accident.  This isn’t jury nullification, this is a disagreement between Casarez and the jury.  I happened to think he should have been found guilty of a more serious charge myself, but it isn’t jury nullification if you disagree with the jury.  She apparently believes that her opinions are the law, so when juries disagree that is nullification.  Wrong.

I could almost feel the expert guy wanting to point to the Casey Anthony case (which they referenced Wednesday at least 4 times), but you can’t and we’ll leave it at that.

In the Jodi Arias case, there is zero chance of jury nullification and here is why.  When a defendant gives a self-defense argument they are effectively admitting that they did the deed.  They are essentially saying they are guilty, but not guilty because it was justified.  So, therefore, a decision of not guilty would be an agreement with justification not a nullification due to disagreement with law.  Self-defense is a law and they are agreeing with it.

Before there were self-defense laws, it would have been jury nullification for a jury to find someone not guilty because they would have disagreed with the law that murdering someone is always unjustified.  It is similar to the Bobbitt case in this regard.

Again, they are only saying this is jury nullification because they disagree with the verdicts and interpret only a guilty finding as what follows the law.  Either that or they just don’t know what it really means.

  1. JanCorey says:

    I do believe there is a strong probability of Jury Nullification in this case.


    • As far as I can tell, it would only be jury nullification if they don’t think she killed him in self-defense, believe that she murdered him, on purpose, but that’s okay because he deserved it (for lack of a better phrase). I think that’s a rough concept for a capital jury (they tend to be pro-prosecution). While I believe that he was emotionally abusive to her and that he was a womanizer and user, I cannot see physical abuse. I do not agree with the prosecution’s strategy or his “proof” that she is lying about the abuse (for example, it is a bunch of malarkey that if an abuse victim doesn’t write it in their journal it didn’t happen, please!). P.S. I do see her finger bent in the picture. I would not be able to find her not guilty of any and all culpability, so far. But, the case isn’t over yet. The defense has re-direct, then there is re-cross, then two more defense expert witnesses. Then there are closing arguments and remember, in Arizona, the jury gets to ask questions to witnesses, so only time will tell what the verdict will be.
      He obviously had a double life and he was deviant as a Mormon Church Elder. He was all and all not your “regular” guy as the media portrays. You can tell on the phone recording that he wasn’t being “controlled” or “manipulated” by her. He wasn’t a child, or some “dumb guy”, he was an adult, religiously convicted man, who was a motivational speaker, preacher, and law insurance salesman. He made certain choices, he wanted the best of both worlds, so to speak. To me the case is quite simple, it boils down to a toxic relationship for Arias.
      The worst part of this case is the sexism in the media coverage. They portray men as stupid, immature, not responsible for any of their actions when a woman is involved, and lustful beyond control and women as manipulative, sirens, witches, and femme-fatales. That’s just the tip of the iceberg, it’s outrageous!


      • JanCorey says:

        As you said, “As far as I can tell, it would only be jury nullification if they don’t think she killed him in self-defense,” EXACTLY. As testified to by several people already, no one should be charged with murder when they are defending themselves from an attach from someone like Travis who was clearly livid that he was caught by Jody whacking off to child-boy-porn. But, who knows, may be there are child-molesters on the jury too.


        • I see what you are saying JanCorey, however, with capital juries, they tend to be pro-prosecution, so the likelihood that they will look at the case in such a way is probably low. There is always a possibility though. Child molestation is a polarizing topic, as one can see from people’s propensity to automatically not believe accusers (despite their assertions otherwise, actions speak louder than words *cough* Jane Velez-Mitchell *cough*). So whether they get mad at Travis Alexander or Jodi Arias depends on their outlook on the issue. Also consider that she stated he wasn’t looking at porn per say, he was looking at boys in underwear (still disturbing, but an important difference to people). So, what level of disturbance does that rise to? It is up to the individual. Another thing to consider is, since there was no explicit evidence to the issue perhaps the jury will completely disregard it. A jury is instructed that they can believe all, part, or none of a witness’s testimony. The defense hopes that the jury will see it as a piece of the larger picture to the way that Travis Alexander treated Jodi Arias and that they will understand, through the experts yet to come, how that can affect someone with her mindset. In my opinion, the prosecutor’s cross did nothing for his case. In fact, I thought she was much more sympathetic and connectable on cross than direct. He ran around in circles and only made any progress in questioning on the last, 5th day. He mostly tried to corner her into improperly impeaching herself by asking her unreasonably confusing yes/no questions. It was ridiculous. He has strong elements to his case and he could have played on them, but he instead decided to “beat her up” on the stand. I don’t know if the jury will see it like that, though.


          • JanCorey says:

            I get it, you’re pro-prosecution. I am, however, pro-Justice. Like I said, if Travis did to me what he did to Jodi, I would expect that Travis got off super-easy sustaining only one bulletwound and thirty or so cuts. Travis’s friends and family should be grateful to victim-Jodi that’s all that happened to Travis. I just cannot even force myself to like child porn molesters like Travis.


          • Whoa, don’t get me wrong. No one would describe me as pro-prosecution. I am also pro-justice. I just happen to believe, in this particular case, that the truth is somewhere in between the defense and prosecution, with a lean toward the defense. I don’t particularly like Travis Alexander, but I don’t know him. I don’t like to judge people from things I’ve heard. However, in this case, the prosecutor has gone back and forth on Alexander. At points, he describes him as working for a “pyramid scheme”, which would make him a con-man, to him being a dumb, seduced guy, to him enjoying the “depravity”, consensually with her. Martinez makes no sense to me. There are a few aspects of this case that bother me (rope shavings, or something like that, were found, but never explained by the prosecution and she stated on the stand that she thought the forensics would match two people, etc.), but overall, would I blame you for acquitting her, absolutely not.


          • JanCorey says:

            I understand your position and you described it very clearly, and thank you for that. I just don’t see Jodi as acting as many other people act to controlling people like Travis, let alone he’s a child-molester (possibly in his mind only) but a controller of Jodi and I truly believe Travis got off pretty easy after he attacked Jodi from his line-backer-position. My only real question in this case is why Jodi only shot Travis once and only cut him only 30-some times.


          • I actually surprisingly agreed with Holly Hughes, a former prosecutor who appeared on Evening Express on HLN a few days back. She described the attack as a sort of frenzy due to there being cuts on his feet, front, and back. It is possible that in her reaction, she just went into a frenzy mode and when it was over, panicked.


          • JanCorey says:

            I totally agree. Victim’s of crimes like Jodi react to the moment, like the attack, how they respond is in regards to when they might feel the immediate threat has passed and a lot of damage can be accomplished in that very un-nerving time which can last from seconds to days, imo. If Jodi had beheaded Travis, I could easily understand and I could easily understand why she may or should have shot him more than once. Knowing the history of Travis now, I feel he got what he created and the family should be thankful they had something large enough to bury of Travis who I hold zero sympathy for.


          • I don’t think that Travis Alexander’s family comports themselves appropriately in the courtroom and I don’t think that Jodi Arias’ family gets the sympathy owed them. In fact, in 99% of all cases, the family is indicted with the person whether guilty or innocent. I think the judge should not go as far as to contempt them for their actions, but at least tell them that she understands their emotions are hard to control, but to keep it to a minimum for the sake of fairness. The truth is 99.999% of all victims’ families believe the police and prosecution have the right person and some even believe it after acquittal and/or exoneration (shockingly, tragically true). Their pain and suffering is so much that they easily assign it to a person to hate and then can’t go back on it. It isn’t a healthy way to cope with one’s grief, but it is quite common. Jodi Arias’ family is certainly just as concerned and hurt that she faces death herself, yet they stick to the decorum of court and show respect for the process. In this case, I have sympathy for both Travis Alexander and Jodi Arias. I do, despite what he did when he was alive, sympathize for one big reason with Travis Alexander. He never had the time to stop and truly practice what he preached. People make bad decisions, they do bad things, but you aren’t defined by the bad things you do. If he had realized what he did wrong and changed, that would mean something. It is never a guarantee, but we won’t know now. We don’t get enough time in life to truly make a lot of things happen, so it is tragic in that point. I sympathize with Jodi Arias because I don’t believe that she was in a good place in her life, certainly this relationship was no good for her, and she made decisions that will follow her forever. I am glad to see that despite her indigence, her public defender’s are doing quite well. Just a side note, if she is convicted, that won’t be the end of it. There will be appeals and I do believe she has grounds, the biggest one being the deception by Det. Flores at the aggravator hearing. She wouldn’t even, most likely, face the death penalty if the truth had been told at that hearing.


          • JanCorey says:

            You articulated this case so well and so accurately, I thank you for that; truly!


          • Thanks for having an open discussion with me.


          • JanCorey says:

            Ohh, thank you! I appreciate you rationale and analytical skills.


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