TOPEKA, Kansas — Merely mentioning it in court could lead to a mistrial.
Jury nullification, where juries look the other way when someone breaks a law they find unjust, can help a defendant land an acquittal. That get-out-of-jail-free card is all but disappearing from courtrooms.
Defense attorneys want it back and some say the rise in laws criminalizing abortions or continued criminalization of marijuana — or other drug laws — could make the technique more prominent in the future.
Kirsten Tynan, executive director of the Fully Informed Jury Association, is usually scanning social media to find people talking about jury nullification. But the rare legal maneuver rarely popped up until The U.S. Supreme Court overturned Roe v. Wade.
“That topic blew up,” she said. “There is great potential for that to be something with broader applications.”
If it regains prominence, it will be a long and unlikely path back to courtrooms because juries are rarely told they have this power. The Kansas Supreme Court ruled there is no right to nullification and therefore no reason for judges to tell juries they can do this. Even as it railed against the process, the state’s high court said juries have the power to overlook the law. There is no law against a jury ignoring the law.
Opponents of jury nullification say it will push the legal system into chaos if used more often.
“We are a nation of laws,” Sedgwick County District Attorney Marc Bennett said in an email. “If citizens disagree with the laws to which they are subject, they are free to seek changes to existing law by lobbying their respective legislature(s), running for office or raising awareness.”
Bennett said allowing jurors to disregard the law and deliberate with feelings or political opinions will bring disproportionate convictions.
Jury nullifications have a long past. They helped citizens avoid prosecution during prohibition and some pre-civil war juries refused to convict people who helped people escape enslavement. But the tactic also allowed all-white juries to free defendants who killed Black people.
That’s why critics of jury nullification worry the practice leads to more random outcomes, ones that hinge on the makeup of a jury or shifting political moods in a community. Juries that stick to applying the facts they’re presented and applying them to the law, that side argues, ultimately produce something closer to justice.
Tynan with the Fully Informed Jury Association knows juries will acquit people she would convict. Those kinds of cases are worth the cost, to her, if it spares some people the injustice of an inflexible court system.
Tynan said prosecutors can decide whether to pursue charges or not. Judges can overturn some guilty verdicts and presidents or governors can pardon someone who was convicted of a crime. She argues juries deserve the same level of discretion other parts of the legal system enjoy.
“We have had over 800 years of common law legal systems with juries empowered to nullify, and we have yet to devolve into this anarchy I’m constantly told will happen at any moment,” Tynan said.
It isn’t clear how many Kansas cases end in nullification, though a Wichita trial in the early 2000s was retried because one juror voted not guilty because they felt the defendant was overcharged.
Lana Jackson, who was later found guilty in that case, was charged with felony murder after a drug deal she set up went wrong. The deal fell through and one person she was with killed the other. Jackson didn’t kill anyone and was found guilty because her actions indirectly led to someone else’s death.
Jackson is still in prison and could be released in 2024.
Micah Kubic, executive director of the ACLU of Kansas, said jury nullification is still relevant today even though it isn’t widely used.
Kubic said more people should know about nullification but stopped short of saying every jury should be told about it. He said there is no harm in letting more juries know about the power granted to them.
“Jury nullification is a tool like anything else that can be used for good or it can be used for ill,” he said.
Blaise Mesa reports on criminal justice and social services for the Kansas News Service in Topeka. You can follow him on Twitter @Blaise_Mesa or email him at blaise@kcur.org.
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