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Justices Say Jurors May Not Vote Conscience

Ruling: The law must be followed even if panelists believe the result will be unjust, state's highest court finds.


SAN FRANCISCO — Jurors must follow the law--not their consciences--even when they strongly believe the law will produce an unjust result, the California Supreme Court ruled Monday.

The court rejected a centuries-old doctrine called "jury nullification," which gives jurors the power to follow their convictions rather than the law.

"A nullifying jury is essentially a lawless jury," Chief Justice Ronald M. George wrote for a unanimous court.

Nullification, a doctrine rooted in old English law, has been debated by judges, lawyers and legal scholars for decades. In recent years, advocates of nullification have seen it as a weapon against unpopular tax laws and increasingly harsh criminal sentences.

Monday's ruling was the first in which the state high court directly confronted the principle. The court held that a judge properly excused a juror who said he could not convict an 18-year-old man of unlawful sex with a minor--the defendant's 16-year-old former girlfriend.

"Encouraging a jury to nullify a law it finds unjust or to act as the 'conscience of the community' by disregarding the court's instructions may sound lofty," George wrote, "but such unchecked and unreviewable power can lead to verdicts based upon bigotry and racism."

The court acknowledged that in criminal cases, juries may continue to nullify the law unless the judge discovers it before a verdict. Although a judge can throw out a guilty verdict if it was not supported by the evidence, a jurist has no authority to override a verdict that favors a defendant.

Monday's decision, however, is likely to deter nullification because a new jury instruction requires jurors to inform the judge whenever a fellow panelist appears to be deciding a case based on his or her dislike of a law, said Deputy Atty. Gen. Karl S. Mayer.

Mayer, who represented the prosecution in the case before the high court, called the court's decision a "clear rejection" of jury nullification.

"If it comes to the attention of the court, this should stop it," Mayer said.

University of Santa Clara law professor Gerald Uelmen said the ruling is particularly timely because the new jury instruction will increasingly force judges to decide whether to remove jurors for nullification.

Even with the instruction, nullification probably will persist, he said. In most cases, "jury nullification is not explicit," Uelmen said. "It is almost subliminal. The jury applies a higher standard of reasonable doubt because they don't like the law."

Nullification's history in the United State is long and broad: Northern jurors used it to protect runaway slaves prior to the Civil War and, conversely, some juries in the South refused to convict whites who killed or assaulted blacks or civil rights activists.

More recently, juries have spared draft resisters and marijuana users. Juries also have refused to find some defendants guilty because they believe sentences under the three-strikes law are too harsh.

American courts that have considered nullification have generally ruled against it. On the other hand, the constitutions of three states--Georgia, Indiana and Maryland--say that jurors should judge questions of law as well as fact.

Judicial decisions in those states have "essentially nullified" the constitutional provisions, George noted in Monday's ruling.

Until this week, the California Supreme Court had not clearly confronted jury nullification because the practice is generally hidden from a court's scrutiny, lawyers said. Most jurors do not admit that they are basing their decisions on disagreement with the law.

Lawyers said the court also might have been more inclined to take on the subject now because of debate about jury nullification in the wake of such highly publicized cases as the O.J. Simpson murder trial. Once considered an arcane subject, jury nullification is frequently debated in scholarly circles and in the news media.

In ruling against nullification, the court considered the Santa Clara County case of Arasheik Wesley Williams, who was charged with raping his former girlfriend. To find that a rape had occurred, the jury also had to find that the defendant illegally had sex with a minor.

Williams had admitted he had sex with the teenager but said it was consensual. On the first day of juror deliberations, the foreperson informed the judge that one of the jurors refused to follow instructions on statutory rape because he believed the law was wrong.

Superior Court Judge Paul R. Teilh questioned the juror. "It's been reported to me that you refuse to follow my instructions on the law in regard to rape and unlawful sexual intercourse, that you believe the law to be wrong, and therefore, you will not hear any discussion on that subject. Is that correct?" the judge asked.

"Pretty much, yes," the juror replied.

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