Chauvin’s Hidden Defense Strategy – Juror Nullification?; Maybe His Attorneys Hope to Play The Reverse Race Card
The Constitutional Right Of Juror Nullification
WASHINGTON D.C. (April 14, 2021) - While most of the media's reporting on the defense's presentation in the Derek Chauvin trial has focused on two main announced defense strategies - to create reasonable doubt as to whether Chauvin's actions were a legal "cause" of George Floyd's death, and to suggest that the officer's actions were not criminally unreasonable in light of his training in restraint tactics - there may also be a third hidden strategy, suggests public interest law professor John Banzhaf.
The prosecution's strong case could be derailed by - in additional to the defenses openly offered by Chauvin's lawyers - the constitutional right of juror nullification, says Banzhaf, who correctly predicted outcomes based upon the related concept of jury nullification.
Jury nullification, a constitutional right recognized and upheld by the U.S. Supreme Court, occurs when jurors, despite concluding beyond a reasonable doubt that a defendant has violated the criminal law as explained to them by the judge, nevertheless unanimously votes "not guilty"; a decision which is final and not subject to any appeal or other review.
Jurors may do this because they believe that the law is unfair or unreasonable, either in general or as applied in a specific situation, to send some kind of message to prosecutors and/or to the general public, because a conviction in a specific situation might seem unjust for some reason, to register strong discontent with the conduct of the prosecutor, because of public pressure for - or concern about - a finding of guilty, or for a myriad of other similar reasons which in some situations might even include issues related to race.
In short, this constitutional right permits jurors to nullify the law as it was meant to be applied, says Banzhaf.
Familiar historical examples include the unwillingness of many northern juries to convict persons accused of helping slaves escape, even though that's what the law at the time would seem to require, or the refusal of some southern juries to convict white citizens who committed crimes against Blacks in an effort to maintain what they might see as the southern way of life - arguably playing the reverse race card, suggest Banzhaf.
Also, jury nullification apparently played a major if not controlling role in many more recent criminal verdicts involving varied defendants including: penis-slicer Lorena Bobbitt; the Menendez brothers (Trial 1); subway shooter Bernhard Goetz; Iran-contra figure Oliver North; former Philippines first lady Imelda Marcos; New York Black activist Al Sharpton; reputed mob boss John Gotti (early trials); and the beating trials of Reginald Denny as well as Rodney King (Trial 1).
Moreover, many also believe that jury nullification, based in part on race, was one reason why a jury refused to convict O.J. Simpson of murder, especially after Johnnie Cochran was able to subtlety suggest it to them by arguing that they should vote their consciences rather than being bound by the law and the judge's instructions; i.e., that they should decide guilt or innocence "where you don't do violence to your conscious (sic), but you do the right thing. And you are the ones who are empowered to determine what is the right thing."
Banzhaf notes that the phrase "Do The Right Thing" was, apparently not coincidentally, the title of a Spike Lee movie, well known to most Black jurors, in which theater goers are asked to decide whether a frustrated black teenager who threw a garbage can through a window was justified; with Lee arguing that Black viewers would never vote for such a conviction.
In what is probably a much larger number of situations where only one or two jurors are reluctant for such reasons to vote for a verdict of guilty, the related doctrine of JUROR nullification occurs.
In such instances, one or two jurors refuse - despite their belief that a guilty verdict is warranted by the facts and the judge's charge about the law - to vote for conviction, and this causes a hung jury and a mistrial.
While ordinarily such a defendant can be tried again, prosecutors may be deterred from trying the defendant again by many factors, including the risk that the same reasons and unwillingness to convict will affect at least one juror in a subsequent trial.
Legal experts know that, historically, it has been notoriously difficult to criminally convict police who have killed suspects in confrontations, especially if the victims are criminals or are otherwise seen or portrayed as less than model citizens.
This is especially true if the victims seem to have contributed to their own deaths - e.g., by refusing to follow police commands or otherwise being confrontational, being under the influence of alcohol or illicit drugs, being engaged in criminal activities, etc., says Banzhaf - all factors which the Chauvin defense seems to be emphasizing.
Giving Law Enforcement Officers Leeway And Discretion
Also, many jurors routinely feel that law enforcement officers must be given considerable leeway and discretion because they are seen as standing between the criminal element and law-abiding citizens, because the officers are often required to make decisions under stressful circumstances (e.g., confronted with an allegedly threatening crowd), so as not to unreasonably deter them from taking forceful action when it may seem to be required to enforce laws and protect the public, etc.
In other words, jurors may apply a policy similar to that used in self defense situations - a person is not to be convicted of using force, including deadly force, when he reasonably believes it is necessary to protect himself or others, even if he makes an honest mistake.
For these general reasons, and possibly others specific to the Floyd case, one or more jurors may refuse to vote guilty despite the evidence and the judge's charge.
For obvious reasons, they may also decline to disclose their real motivations to fellow jurors and others, even if based upon arguments by highly regarded legal experts which they might have followed, especially if their justifications are based upon direct defiance of the judge's charge and other judicial decisions.
For example, renowned lawyer and constitutional scholar Alan Dershowitz has publicly charged that the trial judge's decision not to grant a change of venue - e.g., to try the case in a more rural area where the risk of violence to jurors and to their families in the event of an acquittal is arguably less - was not only wrong but unconstitutional.
Consequences Outside Of The Courtroom
In his words, "not only is the thumb on the scale, but the elbow is on the scale. No juror should have to worry that if they acquit there will be consequences to them outside of the courtroom. That's why this trial should be held in a rural area, far away from where there may be violence."
This is a legal decision made by a judge which, by conventional law, jurors must accept.
But nullification doctrine permits jurors to override this legalistic decision, and to refuse to vote for a conviction, if they believe that it was unfair to the defendant to try him in a jurisdiction where it is more likely that jurors might feel pressured to convict him out of fear for their own safety, their employment or social relationships, and similar concerns related to family members.
Similarly, criminal law expert and law professor Jonathan Turley, among others, has publicly suggested that Chauvin may have been overcharged; i.e., charged with more serious crimes than can reasonably be expected to be proven beyond a reasonable doubt.
This is an all-too-common tactic for prosecutors to engage in, says Banzhaf, either as a reaction to public pressure calling for more serious charges, or to put undue and perhaps unfair pressure on defendants to agree to plead guilty to a lesser charge - a decision which can be made by the defendant anytime until the jury returns a verdict.
Juror Can Simply Refuse To Convict
Although the propriety of the charges permitted to be tried is ordinarily a legal matter to be determined by judges, any juror who feels that Chauvin has been unfairly overcharged can, despite a judge's instructions, simply refuse to convict on some or even all of the charges as a way of expressing strong displeasure with the prosecutor's tactics.
Race may be a factor regarding trials in many ways, including on the issue of juror nullification, says Banzhaf, noting for example that criminal law expert and law professor Paul Butler has publicly urged African American jurors in certain situations to refuse - despite overwhelming evidence - to convict defendants who are Black, especially of those charges involving alleged violations of criminal laws related to drugs.
According to Banzhaf, a recent example of that concept might have been the criminal trial where jurors refused to convict former D.C. Mayor Marion Barry despite a videotape showing him smoking crack.
Thus one or two jurors who might come to believe that race was a factor in unfairly influencing the charging and/or the trying of Chauvin for crimes such as murder might utilize their right of juror nullification by refusing to convict him of several - or even all - of the charges against him, warns Banzhaf.
Jury nullification or juror nullification, whether based upon race or other factors, can be a powerful two-edged sword, and its use is often shrouded in mystery and silence, says Banzhaf, but it could play an important role in Chauvin's criminal trial.