I was a homicide prosecutor in Washington, D.C. in the mid 1990s. Washington was known as the murder capital of the country at the time. Violence was rampant. In parts of the city, law-abiding citizens cowered in their homes, afraid to go outside for fear of catching a bullet. At times, law enforcement seemed irrelevant.
One case was particularly discouraging. I tried a member of the LeDroit Park Crew for murder. LeDroit Park is a neighborhood in Northeast D.C. that was plagued with violence. The Crew was terrorizing the place. One of its young drug dealers was trying to eliminate an older competitor.
On his first try, the Crew member succeeded in shooting his rival in the head. But the rival survived – to be given the nickname “Halfhead.” On the occasion that formed the basis of my case, the young thug was trying to finish off his rival. He shot, missed and killed an innocent bystander instead – a guy who was just having a beer on his stoop after work.
All my witnesses were afraid. I had to have some of them locked up as material witnesses in order to get their testimony. Halfhead was one of my key witnesses.
At trial, the thug’s mother provided him with an alibi. Crew members shot one of my witnesses while the jury deliberated. After they acquitted, jurors told me that they didn’t like Halfhead. They did like the mother and couldn’t believe her son was a killer.
Maine is a long way from D.C. Even so, we face some of the same issues. Last summer and fall, juries in two lobster trap molestation cases that were tried in Knox and Lincoln counties acquitted defendants. According to what I read, jurors felt that the punishment was too harsh for the crime.
Juries aren’t supposed to concern themselves with the penalty that a defendant faces – the penalty is irrelevant to the question they are supposed to answer: whether the defendant committed the crime. The defense attorney in those cases acknowledged as much, but said that he still found a way to put the penalty in the minds of the jurors and curry sympathy for the defendants.
Marine patrol officers were frustrated by the verdicts. It is difficult to police the lobster fisheries. One of the victim lobstermen responded to the verdict in his case by saying that it proved he had to take matters into his own hands and defend his own traps.
Of course, it’s always possible that the prosecution fails to prove its case. However, if a jury ignores the law in order to acquit a defendant who is guilty, it engages in nullification. Most consider nullification contrary to basic principles of the criminal justice system and a violation of a juror’s duty to determine the facts based on the evidence.
There are a variety of reasons why a jury might disregard the law. They might do so because the defendant is a celebrity with a reputation of being a good guy. They might because the defendant is a local politician, popular for taking advantage of a system perceived to be biased. A jury might acquit a defendant in order to punish a police officer it believes lied under oath.
One of my former colleagues in D.C., Paul Butler, made a name for himself by arguing that juries are legally, morally, practically and politically justified in acquitting young black defendants of certain non-violent crimes like drug offenses, in order to protest racism in the criminal justice system.
Butler based his legal argument on the constitutional right to a jury trial. The argument is that we live in a democracy. In a democracy, the people are the source of law. A jury is a representative of the people. As such, it has the inherent authority to disregard the law.
The rejoinder is that, in a democracy, people have another option. If they don’t like a law or the system, they should campaign to change it, rather than subvert it.
When juries disregard the law, the system can’t keep the peace, protect people and property. People resort to self-help. They take matters into their own hands. Things get out of control.
Last month, a jury in Knox county acquitted another lobsterman and his daughter. This time the charges were assault and reckless conduct. They arose out of an incident involving cutting lobster trap lines.
The lobsterman and his family were life-long residents of the lobstering community. The victim was a relative newcomer to the resident-only lobstering zone and suspected that the lobsterman was cutting his lines. Their confrontation escalated to the point where the older lobsterman shot the newcomer in the neck and claimed self-defense.
It’s not a happy trend.