Fair enough. I don’t buy it, and I think that theory presumes an awful lot, especially the relative chilling effect of the possibility of jury nullification vs the chilling effect of fear of prosecution, but I appreciate you raising the point.
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Yah, it’s more a hopeful scenario than a likely one. I definitely concede that. Everyone is looking for some silver lining here, I think. 
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It’s a real thing, in as much as you cannot be persecuted for coming to the “wrong” decision, and you are not required to provide justification for why you’ve come to your verdict. However, instructions to the jury can state that jury nullification is invalid, and if you say that you’re practicing jury nullification, you may be legally removed from the jury (depending on the circuit).
So, while I will not give anyone legal advice here and I am not an attorney, it seems to me that in the hypothetical scenario where someone wanted to practice jury nullification, they would be best served by simply stating that they do not believe the state proved their case beyond a reasonable doubt.
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Logically, shouldn’t evidence like that not being found and presented in the previous trial count as a fairly fucking big procedural problem?
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Here’s an example where one could answer that answer truthfully. In my state, if a driver is in an vehicle accident where there is injury or the possibility of at least $2000 damage to either vehicle, all drivers involved must exchange their name and address. Not email, not phone number, not twitter handle, name and address. It is potentially a felony not to exchange that information.
Almost no one does. People exchange name and phone number, name and insurance information, all that jazz. But few people actually follow the letter of the law and include their address. What jury is going to convict someone of a felony for giving another driver their mobile phone number rather than address? That’s functionally jury nullification.
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I’d certainly prefer to see more such prosecutions nullified than fewer; but does anyone else suspect that, rather than a potential blanket chilling effect, we’ll instead see DAs and prosecutors who possess at least the low cunning of the criminal type, if not genuine talent and insight, adapt by picking cases according to the estimated amount of sympathy the defendant will elicit?
This ought not to be a factor for people who are willing to nullify in abortion rights cases, full stop; and will (one hopes) make touching rape and incest cases much less desireable; but it also seems like a situation where it’s a disproportionately good idea to be a promising young woman from a good family who wasn’t quite finished enough with college to have their first child with their high-school sweetheart; and a disproportionately bad idea to be a promiscuous poor with 3 children who all have different fathers; even if the latter case is the one who needs the abortion even more desperately and would have had a harder time discretely obtaining one out of state.
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I’m pretty sure they already do that as a matter of course, what with limited resources and time.
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Having gone back to the decision, I mischaracterized it a bit, apologies. This is another example of this court shouting “STATES RIGHTS” when it wants to find a result that conservatives like. The issue is that the defendant had ineffective counsel in his trial, and then during his appeal, his new attorney was also ineffective and both did not discover the evidence of his innocence nor make a claim of ineffective counsel for the first case. Since his second ineffective counsel (in state court) didn’t argue that his first lawyer was ineffective, he can’t go to federal court and claim ineffective counsel in the trial, because it’s “too late”.
So, yes, you’re right that it’s a procedural problem, but since his second lawyer was also bad, he can’t raise the issue. Now, irrespective of that, I’d argue that procedural deficiencies or not, evidence of innocence should be sufficient, but here we are.
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The existence of jury nullification also means you can hang a jury in any trial where the victim (of the crime, not of the system) is a republQuian. If they don’t want people to get the protection of the law, they don’t get it either.
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Thanks for clarifying, @anon23281680 . From that wikipedia article: A judge may not enter a JNOV of “guilty” following a jury acquittal in United States criminal cases. Such an action would violate a defendant’s Fifth Amendment right not to be placed in double jeopardy and Sixth Amendment right to a trial by jury.
That makes me feel a bit better about serving on a jury and not potentially wasting my time.But I have a feeling I’m on the DoNotCall list in my county’s DA office due to my comments during jury selection a few years ago.
The case was something about a husband and wife team doing something along the lines of pimping but not really pimping; they didn’t get into it. But the judge said this was to be a case of the cops’ word versus the defendants’. And we should think about where we should put these people in a spectrum of trust. On one end, you have people like your doctor, your grandmother, or your rabbi. On the other end, you might have drug dealers or con artists.
When it was my turn to talk, I told them that I put cops on the side of the con artists (and while I’m at it, the ADAs). They’re whole job in life is to put people away. Cops are allowed to lie. They hang out with these criminals so why wouldn’t some of that element rub off on them? After my soliloquy, all the lawyers met with the judge at the bench, and I’ve never heard my name whispered so much and in such earnest tones. Expectedly, I was excused from serving. And I’ve never received a summons since (it’s been 5 or 8 years, probably more).
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You might be right, but FWIW, when I showed up a couple of weeks ago, it was my first time since 2010 or 2012. (Granted it was everyone’s 1st time since March or April 2020.) That time (and the time before) I didn’t even get as far as voire dire so it couldn’t have been anything I said.
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