SEPARATING JURORS FROM THEIR PEERS

Serving as a juror can be an awkward-feeling, strange-fitting task for many
of us.

There you are, one-twelfth of the most important part of a jury trial. Yet
you aren't required to know anything about the job when you report to work.
You haven't been tutored about how to weigh evidence on the scales of
justice. You haven't had to memorize any rules or answer any test questions
about what ajuror may or may not do.

It is all on-the-job training.

As a matter of fact, the less you know about being a juror, the more likely
you are to get picked to be one. Judges and prosecutors generally don't want
jurors who know too much.

They don't want jurors who understand jury nullification enough to know that
they can acquit a factually guilty defendant if they determine a law is
unjust or unjustly applied.

They want jurors who will "sit down, shut up and take orders," said local
criminal defense attorney Clay S. Conrad.

Conrad said he was several years older than most of his classmates at the
University of Texas law school. They came there directly from college, which
they went to directly after high school. Having spent some time working as
an engineer before becoming interested in jurisprudence, Conrad brought
real-life observations to his classes with him.

Speaking Condescendingly

He said that may explain why his reaction was different from the typical
student's when law professors spoke condescendingly about juries. He said
the typical attitude in law school is that a jury consists of 12 people who
were too stupid to get out of jury duty. And the main topic taught regarding
juries is how to control them.

What he learned about juries in law school wasn't enough to satisfy Conrad.
He believed they were more important and were supposed to play a more active
role as an independent voice in trials.

So he embarked upon some post-graduate research on his own. Spent five years
doing it, and the result was his book, Jury Nullification: The Evolution of
a Doctrine, published in 1998 and now in its second printing.

He said in the book's introduction that jury nullification, also called jury
independence, is a simple doctrine that states "jurors in criminal trials
have the right to refuse to convict if they believe that a conviction would
in some way be unjust. If jurors believe enforcing the law in a specific
case would cause an injustice, it is their prerogative to acquit. If they
believe a law is unjust, or misapplied, or that it never was, or never
should have been, intended to cover a case such as the one they are facing,
it is their duty to see justice done."

Judges don't tell juries about this power and don't allow defense attorneys
to point it out, either. But it has been an important element of justice in
some unusually trying times of American history. A couple of examples:
Juries in the 1850s often refused to convict people charged with breaking
fugitive slave laws. Juries in the 1930s often refused to convict people
charged with breaking Prohibition laws.

Nullification in Drug Cases

Conrad said we are beginning to see some instances of jury nullification in
some drug cases, particularly in California when the medicinal use of
marijuana is the issue.

But the power is largely unknown and unwielded. Thus we sometimes see a
distraught juror on TV, apologizing for a guilty verdict. Like a case in
Florida, Conrad said, wherein an elderly man was convicted of murder for
ending the suffering of his terminally ill wife. A juror said they didn't
want to find him guilty but the law doesn't allow for mercy.

After similar experiences many jurors have joined grass-roots movements such
as the Fully Informed Jury Association, Conrad said, and in recent years
have helped to distribute millions of brochures "informing potential jurors
of their power to judge the law."

More information about Conrad's book can be found on the Internet --
www.cato.org -- where you can even download the introduction as a sort of
free sample.

Here's my favorite part of that: "Trying to keep juries in the 1990s from
finding out about their power to nullify laws they find morally
objectionable is like trying to keep teen-agers from finding out about sex;
if they do not learn about it from a responsible source, they are
increasingly likely to learn about it on the streets."