THE JURY'S DUTY WHEN THE LAW IS UNFAIR

To the Editor:

Re "Jurors Need to Know That They Can Say No," by Paul Butler (Op-Ed,
Dec. 21):

The concept of jury nullification is more complex than Mr. Butler
suggests. Because juries deliberate in secret and do not provide
reasons for their decisions, there is no doubt that jurors have the
power not to follow the governing law. The critical question is
whether jurors have the right to do so.

For more than a century, the courts have ruled that juries have no
right to decide what the law is, but rather have a duty to apply the
law to the facts based on the trial evidence.

In a 1983 decision, for example, the District of Columbia Circuit
Court of Appeals ruled: "A jury has no more 'right' to find a 'guilty'
defendant 'not guilty' than it has to find a 'not guilty' defendant
'guilty.' ...Such verdicts are lawless, a denial of due process and
constitute an exercise of erroneously seized power."

If laws are unfair, our democratic process provides that legislatures
will change those laws. Jurors are not elected and not accountable to
the people.

How are we to distinguish those juries that decline to follow the law
to achieve a good outcome from those that do so for reasons related to
gender, religion, race, sexual preference or politics?

Jury nullification raises important questions about whether we are
better protected from unfair results by laws that are uniformly
applied and then lawfully changed, or by decisions of juries that may
well vary from one jury to another.

RAYMOND J. BRASSARD

Boston, Dec. 22, 2011

The writer is a Massachusetts Superior Court judge.