Colin McCallin Sept. 1, 2015

Jury nullification is making headlines in Denver and in particular in front of the Lindsey-Flanigan Courthouse, where activists have been distributing fliers about nullification and fighting charges against other activists who have done the same, since July of this summer. 

This issue started receiving attention when Denver prosecutors brought charges of jury tampering against two activists who were distributing fliers to potential jurors arriving at the courthouse, advising them about jury nullification. Then a lawsuit was filed by Denver attorney David Lane in response to the arrests and interestingly, city attorney Scott Martinez agreed with the plaintiffs, ordering police and sheriff’s deputies to stop arresting protesters in the plaza, which he regards as a free speech zone. However, the judge, while overturning the ban as a violation of the First Amendment, did allow certain restrictions to stand, including a ban on putting up structures or blocking areas. This led to a protest where a tent and other property were confiscated from participants. The parties are back in court on Sept. 1 for a hearing to determine whether police Chief Robert White is in contempt of court for allowing his officers to confiscate the items. When the activists began this summer, it was to inform juries of their powers of nullification concerning the death penalty case for Dexter Lewis. The issue has become moot in relation to Lewis as he has been given a life sentence. However, the charges against the protesters who were arrested will still be pursued by the D.A.’s office and the larger issues of free speech and informed juries remain a pressing and vital issue in the dialogue of democracy. 

What is Jury Nullification?  

Jury nullification is a decision by a jury to return a not guilty verdict, despite sufficient evidence to find guilt. A jury nullifies to make a statement about the law itself, or how the law is enforced, and this statement usually reflects a change in values concerning the statutes involved. For example, nullification has been used in several trials related to marijuana possession laws, where the defendant had enough evidence against him to lead to a conviction per the law, but the jury voted not guilty instead to send a message that marijuana should not be illegal.  

Why the Controversy? 

While a jury may have the power to nullify, it does not technically have the right. This is a difficult conundrum. Judges do not instruct juries that they have this ability and a juror could be removed from a case if it is discovered that he/she intended to nullify. But because the jury’s final decision of “not guilty” cannot be questioned, it is a powerful way for the jury to provide feedback, and is therefore considered by many to be an important part of democracy and an additional check to both legislative and judicial power. On the other hand, courts are generally wary of nullification for fear it may lead to more hung juries and undermine the rule of law. And while the argument for free speech is strong, jury nullification has been abused in the past. 

Jury Nullification in History 

Jury nullification has been used to undermine both good and bad laws. For instance, in the early 1850s, juries in the north nullified indictments of those who aided escaped slaves, contrary to the Fugitive Slave Act of the time. But post-civil war, all-white juries used it to free white defendants against charges of crimes against blacks, a terrible abuse of justice. These abuses are rare, but important to keep in mind. Sometimes the evolving culture leads to changes in the laws, and other times the law must influence change in the culture. 

We will be watching closely to see how these clashing Constitutional principles play out as they wind their way through the courts.