This is my last sabbatical talk. If death is the Big Sleep, as the in the Bogart movie, then I suppose retirement, for us academics, is the Big Sabbatical, and that\u2019s where I\u2019m heading. Sabbaticals are an academic necessity, but they are also a great privilege, and blessed is the person whose necessities
\nare also sometimes his privileges. I wish you all as enriching and enjoyable necessities as I have been privileged to have in my years at CBU.<\/p>\n
One of things I did on my sabbatical was to finish editing a book to honor my doctorate supervisor, Jonathan Glover. In the 60s and 70s Jonathan was one of the central figures behind the rise of what\u2019s called applied ethics, and my talk today is an exercise in applied ethics. I spent most of my sabbatical as a visiting scholar at University of Ottawa, where I sat in on two graduate courses, one the philosophy of law and the other in moral psychology. What I learned there has direct relevance to the talk I\u2019m going to give, which takes me in new directions from the work I earlier did on the Latimer case and what\u2019s called jury nullification.<\/p>\n
The focus of my talk is on Jury Nullification, or the practice of a jury, for reasons of conscience to hand down a verdict contrary to the law. I use the Latimer case as my example, but I am not in this paper directly concerned with the rights or wrongs of what Latimer did, though indirectly these issues will be raised. It is also true that the Latimer case is what led to my interest in JN.<\/p>\n
Why is JN worth thinking about?<\/p>\n
Jury deliberations are done in private, and there are no public records kept. This means that juries have the de facto power to decide contrary to the Law. They have the power to acquit or convict for whatever reasons they choose, and nothing can be done to stop them.<\/p>\n
One can see why jury deliberations must be done in private, but one can also see why JN is morally problematic. A trial proceeds in terms of clearly defined roles. The jury is meant to determine the facts and, in the end, to determine whether a person is guilty or not guilty in light of these facts. The
\njudge, on the other hand, is the communicator of the law, and also acts as a kind of referee. A democratic legislature, representing the people, creates the law. It would seem that jury nullification violates these roles, and undermines the trial system itself. It would indeed be odd for a judge to say to a jury, in his or her initial instructions, \u201cHere are the rules of the game: your job is to determine the facts. But if you disagree with the law, then you can ignore it\u201d. This seems self-defeating, and to make a mockery of the
\nwhole process\u2014a process integral to democracy and indeed to civilized society. So one understands why the Courts in both Canada and in most jurisdictions of the US prohibit a lawyer from encouraging a jury to nullify, and indeed forbid a lawyer or judge to even inform a jury that they have that power. In Canada at any rate, encouragement to nullify is grounds for a mistrial. The view of the courts is that JN is a power juries possess, but that it is better left unsaid.<\/p>\n
There is moreover the oath a jury member swears. Wouldn\u2019t it be dishonest to swear an oath to abide by the rules while at the same time intending to break the rules if you don\u2019t like the way the proceedings are going?<\/p>\n
These considerations make it seem that JN is always wrong. But of course things are not so simple. What if a juror thinks an application of the law would be a miscarriage of justice? Should the juror still follow her oath and apply the law?<\/p>\n
Let us briefly see how this conundrum played itself out in the Latimer case. In 1992, Robert Latimer, a Saskatchewan farmer, painlessly killed his 12-year-old daughter, Tracy. He was arrested on first-degree murder. Latimer underwent two jury trials (the first trial having been overturned). In these trials, evidence was produced by doctors, nurses, and other caregivers that Tracy had suffered \u201cunremitting and excruciating pain\u201d in the last years of her life. She had undergone numerous operations to relieve the pain, but to no avail. She was about to undergo a further operation to remove part of her thighbone (this after an operation that placed steel rods in her back, drilled into her pelvis, an operation that left one of her hips fully and painfully dislocated. The rods were deemed necessary because previous operations had left her spine curved at a 58-degree angle, forcing liquid into her lungs). Doctors said that there would be a lot of post-operative pain, and after that there would be need of another operation; there was no guarantee at all of permanent relief of the pain. Tracy couldn\u2019t take pain-killers stronger than Tylenol on account of her medication for epilepsy. She suffered from an extreme form of cerebral palsy, and was a quadriplegic (earlier operations had cut the abductor muscles at the top of the legs so she couldn\u2019t wiggle her legs, again in an attempt to relieve pain). Tracy herself couldn\u2019t express a view, as she had the mental abilities, it was estimated, of a 4 month old.<\/p>\n
Strong evidence was further produced that Robert Latimer was a deeply devoted, caring father, who had undergone \u201ctortured anxiety\u201d on account of his daughter\u2018s pain. Over the 12 years of her life, Tracy\u2019s father, her mother, and her three younger siblings, showed utter devotion to Tracy, according to the trial evidence.<\/p>\n
In Canada, there is a mandatory 25-year sentence without possibility of parole for first-degree murder. Latimer\u2019s act, since it showed planning and deliberation, fit perfectly the criterion for first-degree murder (motive is irrelevant). But the jury in the first trial acquitted him of first-degree murder, and convicted him of second-degree murder.. The punishment for second-degree murder is a mandatory minimum sentence of 10 years without parole (though we\u2019ve seen over the past few months that some form of day parole is possible after 7 years). There is strong reason to think that this first jury acquitted Latimer of first-degree murder because it thought the 25 year sentence was disproportionate to Latimer\u2019s crime. The jury exercised its conscience and intentionally acted contrary to what it believed
\nthe law demanded. This is a paradigm case then of JN. For technical reasons, this trial was overturned. A less typical form of nullification occurred in the second jury trial in which Latimer was tried for second-
\ndegree murder. In this trial the jury refused to recommend a 10 year\u00a0sentence as mandated by the law but instead recommended 1 year, after convicting him of second-degree murder.<\/p>\n
An appellate court insisted on the 10-year sentence. Latimer appealed to the Supreme Court of Canada, and argued (amongst other things) that the jury ought to have been informed of the mandatory 10-year sentence before passing sentence, since not being informed violated the jury\u2019s right to nullify. When the jury convicted Latimer of second-degree murder they hadn\u2019t known about the 10 year sentence. It was after they found out about the sentence that they recommended, contrary to the law, 1 year. After the
\ntrial, jurors said they would have found Latimer innocent (i.e. nullified) if they\u2019d known about the 10 year sentence. The Supreme Court rejected this argument, saying that jury nullification was \u201can inherently dangerous, inarticulate and lawless mechanism that should never be encouraged\u201d.<\/p>\n
Well, is jury nullification a legitimate practice? Or is the Supreme Court correct? I want to argue that this is the wrong way to put the issue. The beginning of wisdom is to realize that there are three distinct
\nperspectives that yield different answers that may appear opposed to each other but in reality are complementary. There is the perspective of the democratic citizen who asks whether it is good for democratic culture that JN occasionally, in extreme situations, happens. Second, there is the perspective of the juror who swears an oath to abide by the rules of the trial. Lastly, there is the perspective of the judiciary which asks whether JN should be publicized or encouraged within, or outside, the confines of a trial. I examine each of these perspectives in turn. At the end, I ask whether, or how, the different perspectives can be integrated.<\/p>\n
I have two arguments that suggest the democratic citizen should look favorably on jury members occasionally nullifying the law. The first is that openness to nullification speaks to one of the most fundamental principles of democracy, namely the moral rightness, in the extreme case, of an individual\u2019s exercising her conscience to disobey an unjust law or authority, however legally constituted the law or authority. We recognize this principle when we think of civil disobedience during the civil rights movement, the rightness of soldiers to disobey immoral commands, the Nuremberg trials, and so on. We can call this broad category of disobedience, democratic-disobedience, and jury nullification, I want to say, is a species of this broad category. This in turn ties jury nullification, like other forms of democratic-disobedience, to our understanding of what it is to be a dignified and autonomous citizen living in a democratic society.<\/p>\n
The second consideration is grounded in an historical argument. Jury nullification has sometimes resulted in unjust decisions, but on the whole, looking at the historical record, it has been decisive in the growth of democratic rights and traditions. History tells that some of the most central practices to our democratic traditions have been brought about, or strongly influenced, by jury nullification. Here are some examples that hinged on juries refusing to convict in terms of the laws of the day: freedom of
\nassembly, freedom of speech, the abolition of capital crimes for such things as stealing food, the overturning of the fugitive slave law, the rise of trade unions, the overturning of prohibition, and the liberalization of the abortion laws in Canada.<\/p>\n
I conclude then that from the perspective of the democratic citizen JN should be regarded with tempered approbation.<\/p>\n
To understand this perspective I introduce the concept of the ideal juror. I recognize of course that there will be many non-ideal jurors. But the ideal juror is a useful notion because it tells us what want out of jury nullification, what kind of juror we are aiming for, and helps us ask and answer the question what social conditions would produce and sustain the ideal juror.<\/p>\n
I want to say that the attitude of an ideal juror going into a trial would be a very delicate and indeed curious mental state. It should be that she sincerely swears to an oath that she will abide by the rules of the trial, knowing nevertheless that her conscience may force her to violate the rules. There\u2019s a lot to think about here, and I haven\u2019t puzzled it all out myself. But let me draw an analogy, which I think helps. People sometimes swear a wedding vow that they will remain married and committed to their partner for the rest of their lives. But most people know the divorce statistics, and so know, if they are in the relevant population, there\u2019s a good possibility that they will not remain married to the same person their whole lives. Does knowing the divorce statistics mean that a person cannot rationally believe, and so swear, with every fibre of his mind, that he is going to remain married for life? Is a vow based on that belief insincere or unjustified? I don\u2019t think so, and a similar point holds of the ideal juror. We gain further insight into this feature of the ideal juror through the consideration of the following point.<\/p>\n
Democratic-disobedience, when it operates properly, works as a moral safety valve; and this is true of jury nullification as well. Most citizens in a democracy, and so the ideal juror, are strongly disposed to obey the law. There are evident reasons for this. There is the sense of fair play that grows in people who believe they\u2019ve had a say in creating, however indirectly, the laws they are asked to obey; there are reasons of self-interest, there is pride in doing one\u2018s part as citizen, and so on. It follows that most jury members are (or ideally should be) strongly disposed to act in accord with the rules of a trial. There are further pressures on jurors that go beyond those on citizens in ordinary life. There is the fact that juries are collectivities operating together at close quarters, and so there will be strong peer pressure. There is
\nthe fact that the juror willingly enters into a explicit set of regulations, the rules of the game, as it were. I infer from these facts that generally speaking the ideal juror will contravene a law only when a lot of pressure builds up in her mind as to the wrongness of the law that she is asked to apply.<\/p>\n
On the other side, the ideal juror will know that democratic-disobedience sometimes contributes to the moral health of society. She will know that democratic governments can make immoral laws; the application of a generally good law might nevertheless lead in a specific situation to a gross injustice (as I believe is the case with Latimer); the government might need a push to overhaul an outdated law, and so on. What the safety valve of democratic-disobedience allows for is a distinctive voice to be heard that
\nenters into dialogue with the other voices in the public domain. Several things must be said more specifically about juries in this regard.<\/p>\n
The distinctive position of the jury gives it access to information and reasons that others in the democratic dialogue do not have. For example, they are able to pay attention to the vagaries and specifics of situations which necessarily general laws are brought to bear. This is not true of elected representatives who make the laws or of the police who apply them. The fact that jurors deliberate in private gives them the opportunity to ask questions about motive and about morality. And this is not a standpoint that the judge, the police or the lawyers are able to occupy. The viewpoint represented by a jury with the power and the willingness to nullify is an irreplaceable voice in the dialectic of a healthy democracy.<\/p>\n
It might be said that the voice of jury is not heard because the deliberations are confidential. But, as we see in Latimer, the message is often clear enough when a jury has nullified. And when a jury nullifies, it
\ncan have a resounding effect on public debate.<\/p>\n
I now turn to the<\/p>\n
What now is the correct perspective of the judiciary? I think it is evident that the judge cannot allow appeals for nullification while a trial is on-going. If the judge allowed a defense lawyer, for example, to argue for nullification it would destroy the division of roles that are necessary during a trial. The trial would likely become unmanageable. We must especially remember that the purpose of the defense lawyer is to have the jury acquit her client. If we allowed the defense to argue for nullification, which means to explicitl ycontravene the law, it\u2019s hard to see how the trial could carry on. This means that if a juror doesn\u2019t understand that she has the power to nullify, it would be wrong to inform her of that power during the trial. The only argument I can see against this view would that an ethical system that holds transparency and being fully informed are absolute values, not subject to ever being overridden by other values. To be sure transparency and being fully informed are very important values, and they should be practiced more often than they are. But no one could these values should never be overridden. There is for example the point that relationships would collapse if we always revealed to people, including those closest to us, what\u2019s going on in our head. Also, some things just aren\u2019t other people\u2019s business. And anyway what about surprise parties?<\/p>\n
Granting this point, I nevertheless reject the Supreme Courts blanket condemnation of publicizing or endorsing jury nullification; remember the Court\u2019s description of JN as \u201can inherently dangerous, inarticulate and lawless mechanism that should never be encouraged\u201d.<\/p>\n
We know from studies that only 10% of the American public even knows about JN. It is probably a safe assumption that a significantly smaller proportion of Canadians knows about JN. (After all, Canadians are more deferential to authority than Americans. Canadians know this because American social scientists like Seymour Lipset and Edgar Freidenberg have told us so). Given the importance of JN to democracy, as we saw in discussing the citizen\u2019s perspective, I believe it important that knowledge
\nabout JN be available to people. I don\u2019t believe this knowledge would upset the delicate mental balance I said is appropriate when a person is occupying the role of the juror. People should be taught in school the workings of the judiciary, and JN should be part of what is taught. Perhaps there should even be a briefing session for jurors before a trial begins in which jurors are introduced to the concept of jury nullification. It is of course an empirical question whether such a briefing session would tip the balance of the juror\u2019s mind in an unfavorable direction. JN should be treated as a democratic power, and the judiciary should find ways to share that information.<\/p>\n
It looks like these three perspectives are incompatible, pulling in opposing directions. But this so only if a person were to occupy more than one perspective or role at the same time, which could not happen. We are used to the idea from many parts of our lives of actions appropriate when we\u2019re occupying a given role that would be inappropriate if we were not occupying that role. A parent may also be her child\u2019s teacher, and each role will call for different actions that are sometimes inappropriate to the other
\nrole. The spouse that hugs us goodbye in the morning may be the police officer that fines us for speeding later in the day, and, again, the person canvassing for our vote for mayor in the evening (probably unsuccessfully); and so on.<\/p>\n
To summarize: What are the attitudes that encapsulate our three perspectives? The attitude of democratic citizen to JN should be approbation for JN in general, but wariness in specific cases. The attitude of the juror should be conscientiousness determination to stick to her oath, even while knowing she may be forced by the power of her own conscience to act against her oath. The attitude of judiciary in the trial situation should be active discouragement, but, outside the trial, the attitude should be that of
\nopenness to people being thoroughly informed of JN. To these 3 perspectives, we may add a fourth, that of God, if there is one, who would take the attitude, I think, of compassionate inquisitiveness at the tragic but always philosophically interesting human condition.<\/p>\n","protected":false},"excerpt":{"rendered":"
Sabbatical Talk, September 08 Should a Juror Act on Her Conscience? This is my last sabbatical talk. If death is the Big Sleep, as the in the Bogart movie, then I suppose retirement, for us academics, is the Big Sabbatical, and that\u2019s where I\u2019m heading. Sabbaticals are an academic necessity, but they are also a … Continue reading “Talk on the Latimer Case”<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-695","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"http:\/\/cbucommons.ca\/rkeshen\/wp-json\/wp\/v2\/pages\/695","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/cbucommons.ca\/rkeshen\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"http:\/\/cbucommons.ca\/rkeshen\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"http:\/\/cbucommons.ca\/rkeshen\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/cbucommons.ca\/rkeshen\/wp-json\/wp\/v2\/comments?post=695"}],"version-history":[{"count":1,"href":"http:\/\/cbucommons.ca\/rkeshen\/wp-json\/wp\/v2\/pages\/695\/revisions"}],"predecessor-version":[{"id":697,"href":"http:\/\/cbucommons.ca\/rkeshen\/wp-json\/wp\/v2\/pages\/695\/revisions\/697"}],"wp:attachment":[{"href":"http:\/\/cbucommons.ca\/rkeshen\/wp-json\/wp\/v2\/media?parent=695"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}