Dog Whistles In Arbery Closings Seek Juror Nullification

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Dog Whistles In Arbery Closings Seek Juror Nullification; Paucity of Black Jurors Increases Odds Against Convictions

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The Constitution Right Of Juror Nullification

WASHINGTON, D.C. (November 23, 2021) - As several different commentators and pundits were quick to point out, defense arguments in the Ahmaud Arbery case contained dog whistles seemingly aimed at convincing at least 1 of the 11 White jurors to exercise his constitution right of juror nullification by refusing to vote "guilty" even if the evidence clearly shows guilt under existing law, argues public interest law professor John Banzhaf.

The dog whistles - coded or suggestive language ("whispering") addressed to a specific group while trying not to provoke opposition from a more general audience; language that appears normal to the majority but communicates specific things to intended audiences - was so blatant that a commentator on MSNBC called it a "decision to put down the whispering and the dog whistle and pick up the bullhorn," and a noted defense attorney on CNN called this use of the race card "reprehensible" and "unethical."

"Juror nullification" (similar to "jury nullification") occurs when a juror exercises his constitutionally protected right to refuse to vote "guilty" even when he is convinced of a defendant's guilt under the law - which could occur because he simply believes that a conviction would be unfair or unjust under the circumstances, when he wants to "sent a message" to the prosecutor or hopes to encourage citizens to fight crime (as in this as well as in the Rittenhouse case), out of sympathy for a defendant, or simply because of different perceptions and experiences based upon race, racial bias, racial hatred, or other reasons.

The odds that 1 or more jurors will exercise this right is much higher because there are 11 White jurors out of 12, rather than 9 which would more closely mirror the racial makeup of the surrounding county [Glynn] from which the jurors were selected [26% Black], or 6 Black jurors if the jury more closely reflected the racial makeup of Satilla Shores [56% Black], the town in which the shooting took place.

If we assume that no Black juror would exercise this constitutional right to vote "not guilty" here, but that the chance that any single White juror would do so is even as high as 1.0%, the chances that at least 1 juror would refuse to convict because of juror nullification [about 10%] with 11 out of 12 White jurors is about 20% higher than if there were 9 White jurors, and a full 78% higher than if there were only 6 White ones.

On the other hand, if we assume that the odds that any single 1 of the 11 current White jurors would exercise this right is as high as 5.0%, the chance that the defendants would be freed because of juror nullification, even if every juror believed that the evidence required a conviction, is about 43%.

However, if there were only 6 White jurors, and the chance that any one would exercise his right of juror nullification was again 5.0%, the odds of verdict influenced by juror nullification is only about half that [26%].

Juror's Vote

These simple mathematical calculations assume that each juror's vote is completely independent of how any other juror would vote, but this ignores the great body of evidence about how groups (including 12-person juries) reach decisions, as well as common sense and everyday experience.

Any one juror considering being the sole holdout by voting "not guilty" - i.e. voting contrary to the views of all of the other jurors - would feel enormous group pressure not to, especially if he is challenged by some of the other jurors during jury deliberations to explain or otherwise justify his vote.

But if a second juror - even one who previously was just on the fence about how to vote - voices even lukewarm support for not convicting, the odds that either of these jurors (if not both) would vote "not guilty" becomes much higher because the potential holdout has now found some support for his views and is no longer trying to stand alone.

In addition to juror nullification, many experts have suggested - again based upon extensive research - that Black and White jurors may well honestly perceive events such as this one quite differently.

For example, Black jurors - based upon their own experiences (e.g., being pulled over for "driving while Black") and/or the experiences and views of their friends (many of whom are likely to be Black) - might be less likely to believe that the defendants were in fact seeking to make a citizen's arrest and therefore might be legally justified in doing so under these circumstances; a narrative White jurors might honestly be more likely to accept, and to motivate then to vote "not guilty" out of honest conviction, rather than to exercise their rights under the juror nullification doctrine.

So, whether the reason that White jurors might vote not to convict is based upon juror nullification (under which they believe that a defendant is guilty), or is based upon a different perception that White rather than Black jurors might have of the same situation (under which they believe that a defendant is not guilty), the chances that one or more defendants will not be convicted if there are 11 White jurors in likely to be much greater than if the jurors more closely reflected the racial composition of the county from which they were drawn, or the town in which the shooting occurred, suggests the law professor.

Moreover, suggests Banzhaf, if there is no conviction, there will be even more reason to suspect that juror nullification played a role - something jurors themselves will be very reluctant to admit.