Anti-abortion groups used to think jury nullification was swell. But now jurors could use it to fight back against forced-birth laws

Originally published at: Anti-abortion groups used to think jury nullification was swell. But now jurors could use it to fight back against forced-birth laws | Boing Boing


If you bring up jury nullification because of genuine beliefs that a law is completely unjust* the judge will yell at you, but that’s about the worst of it. Just sit silently (don’t argue) and take it until you’re finally told in a disgusted tone to get out of the courtroom.

I’ve never been put in the position of bringing it up myself, but I’m the kind of potential juror who’s bound to be peremptorily challenged by one attorney or the other for merely answering their regular questions truthfully and frankly.

[* Not as a way of getting out of jury duty]


Yeah, they’re always super grumpy when people refuse to convict peace protestors but it’s nice for judges to get a comeuppance every now and again. Being god in your private realm (the courtroom) has to be bad for you.


In my county, grand juries hear from the defendant, who testifies during the process of deciding whether to bring the charges for which the defendant was arrested. As it turns out, it has the effect of putting a human face on the arrest, and they tend to recommend against charges for smaller-level “victimless” crimes. During one period, when a friend of mine was empaneled, they threw out every single marijuana possession charge that was in front of them, as long as it was clearly personal use. They also threw out almost every other drug possession charge that was a few grams or less, if it was the person’s first arrest. The cops and the DA were furious, but the GJ told the court and the cops to stop wasting people’s time with that kind of thing. The GJ on which he served was pretty diverse, and the defendants were as well. Apparently his experience was typical of what grand juries do in my county.


Also, a lot of judges forget that not everyone thinks like an attorney, where all that matters is the letter of the law and the technicalities surrounding it that can be exploited. Non-lawyers have the erroneous notion that things like morality and genuine personal convictions and empathy (rather than performative and empty appeals to them) have any place in a courtroom.


IIUC, a defendant who is able to get jury nullification in a jury trial:

  1. Has to have had a lawyer or public defender;

  2. Has to have mounted a defense;

  3. Has to have spent time preparing for the case including having her/his/their life turned inside out during discovery phase of the case;

  4. Has to have relinquished loads of information, some of it likely to be very personal, to the opposing counsel’s team–just think of what kind of fishing expedition a truly hostile district attorney is willing to engage in;

  5. Will likely undergo a lot of stress and may lose friends, business, family relationships, income, job, etc. during and after the trial;

  6. May still have to pay legal fees and/or court costs. The lawyers need to be paid a retainer, in real time, in the span leading up to the a jury trial.
    @Kii may know more about this–does the protestant ultimately have to pay (reimburse?) the defendant’s legal costs if the protestant does not get a conviction in a jury trial? is this one of those YMMV things based on what U.S. state or county the trial is held in?

  7. Surely I am forgetting other awful stuff to add to this list. Like whether the possibility for re-litigating some not-quite-the-same case can go forward–and some similar-but-not-legally-the-identical charge can be filed against the defendant, so that the defendant ends up financially destroyed, having gone broke being forced to defend against followup cases.

Please understand that even if the defendant avoids jail time or fines, there’s still a IRL cost to be paid, not all of it in money.


And that’s only if all twelve jurors vote to acquit. With a hung jury, they just have a mistrial and have to go through everything all over again.



Can totally see this happening in Texas.



I just finished reading the article below about Louisiana’s forced-birth enforcement. The state law specifies that any doctor performing an abortion serves at least a year in prison, and up to 15 years. New Orleans has already said it won’t enforce the law, and the author (who clearly wants it enforced) concludes that in practice only failed procedures in which the patient then goes to the emergency room for care are likely to produce charges. So jury nullification is unlikely to come up.

The damage is all in the suppression. There are 3 abortion clinics left in the state, but they haven’t been open since Dobbs. Sending abortion pills from out of state faces a 5 year sentence for the sender, which the state can’t enforce but will still scare away most. Doctors are terrified to help with an abortion. Women are terrified to ask about one. That is the whole point of the law; controling through fear.


Certainly, but I think the thesis of the OP is that the spectre of nullification will have a cooling effect on what DAs and prosecutors will charge. Knowing there’s a 60% chance of someone in the jury having a soul means they won’t want to bother (hopefully). Furthermore if they do charge, the threat of going to trial from a public defender may be enough to get the charges dropped. Prosecutors want conviction stats above all else, so they don’t tend to charge stuff that they don’t feel strongly they can win.

What’s unusual about this situation (so goes the theory) is that so many people disagree with this law. It’s rare that a large majority of the general population disagrees this strongly with a law that DAs are now expected to enforce.


I am a lawyer but not a criminal lawyer. My understanding is that it’s incredibly rare for a criminal defendant to get their court fees or lawyer’s fees paid. That’s typically a civil court thing, which has a mechanism to facilitate it.

And you are totally right. Even with jury nullification, the accused would still endure quite a bit. If the jury nullification doesn’t work, the jury doesn’t return a not-guilty verdict but instead a few jurors refuse to convict, that means it is a mistrial and the accused could be tried again. Still better then conviction and a mistrial can often lead to a prosecutor deciding to drop the charges.

Some info on how to go about jury nullification: Can I Go to Jail for Jury Nullification? | Flex Your Rights
Frequently Asked Questions about Jury Nullification
Important take aways from the listed link (this is not legal advice). Don’t lie during jury selection. If you must lie, make sure it’s not a lie you can get caught making. When answering questions think like the
fae. Don’t mention nullification during deliberations. A juror can be replaced even though a judge should not do this.
Always remember the burden of proof is on the prosecution.


'Tis to be hoped.

A comforting thought.
Always good to be near those who have full custody of their soul (and I do believe sentient beings have them).

And / but.

Texas AG Ken Paxton is such a… piece of work.

He is just the sort who happily pursues cases with long odds with vigor if those cases or prosecution of those cases are Red Meat for the Texas Republican Base, who daily come up with more performative cruelties to include in their increasingly bizarre state Republican platform.

So I have low confidence about any potential cooling effects at least in Texas.


ETA: spelling


Luckily for Texas, Paxton’s ability to just randomly prosecute people is limited. Of course, this may not stop him from trying. He loves to break the law.
Most of the time, for most cases, the attorney general has to be invited to the prosecution party

Chapter 1, section 1.09, of the Penal Code provides that, “with the consent of the appropriate local county or district attorney, the Attorney General has concurrent jurisdiction with that consenting local prosecutor” to prosecute certain offenses, including:

Misuse of state property or funds
Abuse of office
Offenses against juvenile offenders in state correctional facilities

So until (hopefully never) the legislature specifically grants the AG the ability to prosecute violations of the anti-abortion law, then the discretion of the local DAs stands. Not enough have come out to say they won’t prosecute abortions, but some have. Surprised me when the Bexar County Sheriff came out and said he wasn’t even going to entertain charging people for them
Edit: no, auto correct I really did mean Bexar


Thank you for your responses. Truly a gift of your time.

Wow, I knew that San Antonio was blue but yay Bexar County.
Will be looking at Harris County to see what they say.

Of course… Travis County is blue too:


(… and y’all: it’s “Bay-er” County, not “Becks-ar” County, which is how my friend from the east coast first pronounced it when she was a radio announcer at KERA. Ooopsie! She sure did make the on-air phone lines light up though.)


The sheriff’s statement was actually pretty powerful

“I’m the Sheriff of Bexar County, but also a Dad of two beautiful and intelligent young women. As their Dad I will defend my daughters’ ability to do what they feel is right with their own bodies and to love whomever they choose. As their Dad, I have no control over their adult bodies. As their Sheriff, it is absolutely none of my business. I will not persecute Texas women or anyone else pursuing those same rights.”

“Shame on the Supreme Court and the bureaucrats in Washington D.C. and Austin who are attempting to impose their own supposed morals on others. They will not use my badge or the color of my office to do so. My job is chasing predators, rapists, and human traffickers, not someone exercising a right.”

“If it’s religion those career politicians would like to enforce, then they should remember that there are many other commandments in scripture that they themselves have very publicly chosen to ignore.”

“If it’s truly about protecting children, how about starting with the ones in our schools?”


If Paxton does try to intervene in some of these cases, hopefully the defendants can quote the motions he’s used to delay his own prosecution in order to try to outlast Paxton’s tenure in the post (which may [hopefully] end with his own conviction.)


I’m hoping he’s out of job very soon. His stupid stunt with the “holiday” for overturning Roe earned his opponent a $100 contribution from my family.

Edit: Rochelle Garza is his opponent in the 2022 election. I actually think she’ll do a great job as an AG. Not just better than Paxton, which is an incredibly low bar


Yes! Thanks for posting.

Serious backbone.
Sheriff Salazar has it.

The people of Bexar County are (I hope) cognizant of how lucky they are to have a county sheriff who engages in critical thinking and has the courage to call out the bullies.


“Do you have any beliefs that might prevent you from making a decision based solely on the law.”

This is a bullshit question. The answer, for everyone, is “yes.” Everyone has a belief that would prevent their making a decision based solely on a law on the books, whether it be abortion, murder, drug use, theft, or traffic tickets. Some of those beliefs may be more principled than others, but we all have these beliefs.