The end to the criminal trial of Bill Cosby with a hung jury and mistrial is not surprising, and may well be the result of jury nullification; a perfectly lawful doctrine which has been upheld by the U.S. Supreme Court, and which some prominent African Americans have championed, says public interest law professor John Banzhaf, who correctly predicted the outcome of several jury nullification cases, including this one.
Under the doctrine of jury nullification, a jury (or any individual member of the jury) may refuse to vote for a conviction no matter how clear and compelling the evidence, if it is believed that a guilty verdict and punishment would in some sense not be fair, or that the public interest would be better served by not convicting. It was used, for example, by many Northern juries to find people not guilty for helping runaway slaves escape, but it was also used by Southern juries to free white defendants who had unlawfully harmed or even killed blacks.
Many believe that both O.J. Simpson, as well as Marion Barry, were beneficiaries of jury nullification, in large part because of their race. The latter was particularly clear because videotape showed Barry using crack.
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Some prominent African Americans have advocated using jury nullification as a weapon against what they see as unfairness to blacks. For example, law professor Paul Butler argues that “jury nullification gives jurors a special power to send the message that black lives matter. If they think that the police are treating African Americans unfairly – by engaging in racial profiling or using excessive force – they don’t have to convict, even if think the defendant is guilty.”
More recently, AboveTheLaw columnist Elie Mystal suggested that “Black people lucky enough to get on a jury could use [jury nullification] to acquit any person charged with a crime against white men and white male institutions” and thereby create “chaos in the prosecutor’s office.”
Cosby’s situation, of course, does not seem to fit neatly into either situation, since there is virtually no suggestion of racial profiling, and some of Cosby’s accusers are African American.
But some may think it’s unfair that only two of the twelve jurors are black, and Cosby and some family members have themselves suggested that there is a racial element to his prosecution (Dad’s a “civil rights activist” who has been “publicly lynched in the media.”).
In addition, one or more jurors, white as well as black, might feel that it would be very harmful to African Americans at this time in American history, and to the entire issue of racial harmony, to convict someone who, like O.J. Simpson, was a pioneer, hero, shining example, and role model for blacks.
Others, remembering him as the sweet lovable America’s dad Dr. Cliff Huxtable, may simply find it too hard to shake that image, and replace it with the image of a felon who deserves to spend the rest of his life blind and in prison. Cognitive dissonance may play a role, suggests Banzhaf.
There is, of course, also the possibility that jurors might simply disagree at to the weight of the evidence in a largely “he said, she said” case with little forensic evidence (e.g., the composition of the pills), or exactly what the judge’s legalistic instructions mean when applied to the facts of this case. Many may also feel, for example, that he is probably or likely guilty, or even that there is clear and convincing evidence of his guilt, but can’t take the final step and say they have no doubt at all and send him to die in prison, suggests Banzhaf.