I had a “eureka moment.” I had it when I recently served jury duty at the Supreme Court of New York State, which recently relocated to a recently built skyscraper at 320 Jay Street in Brooklyn. (This immense edifice houses both the Supreme Court and Family Court. And judging by its immensity, it must mean there is an awful lot of space for those two Courts to mete out an awful lot of justice.)
I was sitting in the vast auditorium, known as the “Jury Room,” for over three hours without being called for a “chance” at “voir dire,” the questioning process for selecting jurors, when several persons, “voir dire rejects” no doubt, returned to the Jury Room. One took a seat in front of me, so just to break the monotony, I asked this person what case he came from. He said the defendant was charged with possession of a weapon.
“Possession of a weapon? What kind of crime is that? The next thing you know, we’d be charged with possession of a nutcracker or duck tape,” I indignantly said.
“But he had a gun,” was the reply.
“Even so, how could it be a crime just to possess a gun,” I plaintively asked.
Then I went into my spiel à la Lysander Spooner about the definition of a crime as those acts in which a person, with malice, harms another person or their property. Murder, rape, armed robbery and arson were examples I gave as “classic crimes.” And I added that since a crime needs a victim and a perpetrator, there is no such thing as a “victimless crime.”
As I ended my “soliloquy,” I heard a voice from behind me, “You know, we were told that the defendant had pointed his gun at someone.”
I tuned and asked the person, evidently another “reject” from the same jury panel, “He pointed his gun at someone? I think that’s called “menacing,” which is a real crime, with a real victim and a real perpetrator! How come he wasn’t prosecuted for that?”
The “reject” looked at me with questioning eyes, which also showed understanding.
I looked around, almost afraid that I might have created a scene, and I saw some people nodding or shaking their heads. I also saw two or three persons staring blankly at me as if I were crazy. And then the person on my right said, “You should have been on that panel.” The first “reject” I first spoke with also agreed, as did the second “reject” behind me..
I laughed as I supposed those “suggestions” were made partly in jest. But before I responded, we were told to break for lunch. Still, I later imagined myself being on that jury panel and “socking it to” the prosecutor by asking those “impertinent” questions and making those “impertinent” comments. While I probably couldn’t acquit the defendant, I could at least have some fun and spoil the prosecutor’s (and judge’s) day.
If I couldn’t acquit the defendant, my actions could at least “poison the well” of the prospective jurors present and those already impaneled, which could cause delays, maybe even start a mistrial. And my actions might even suggest strategies for the defense. (Of course I’ll never be selected for the case.)
That was when I had my “eureka moment.”
I thought I came up with the makings of “virtual jury nullification” (VJN). Indeed, that was exactly what I came up with!
I think you can readily understand VJN and see how you can easily conduct it during voir dire. But if you’re concerned that you might be mistreated by the prosecutor or judge, rest assured. According to the Trial Juror’s Handbook, a booklet given to the jurors, among four “Every Jurors’ Rights” is 1) “Be treated with courtesy and respect at all times”; 2) “Express concerns,complaints and recommendations to court personnel [which I suppose includes prosecutors and judges],” 3) “Have questions answered plainly and clearly.” (The fourth is “Remain informed about the schedule.”)
So should you conduct VJN, you’re only expressing “concerns” and “complaints,” and asking questions which, as per your rights as a juror, should be “answered plainly and clearly.” Nothing more, nothing less. And you don’t even have to be on a jury panel to conduct VJN; you could do it in the Jury Room, as I did when I held “court” there.
Very simple idea, yes? Effective?
But, while VJN seems like a good “Plan B” for the “real deal,” should your prefer to try to get on a jury to conduct “actual” jury nullification, don’t let me stop you. And speaking of “actual” jury nullification, I looked in my juror’s handbook to see what it said about jury nullification.
Unsurprisingly, it said nothing about it. In the section, “What Happens in a Trial,” in the “Jury Instructions” part, it merely gave the “standard game plan”: After the judge explains to the jurors the laws that apply to the case, he/she then tells the jurors the issues they have to consider.
Anyhow, I couldn’t actually try VJN that day because I was not selected for any case (the Court employee did tell us it was a slow day) and I was dismissed after that day. So it will years before I could try VPN. But if you or anyone else want to try VJN, don’t hesitate to do so. I don’t even expect or want you to pay me a “royalty.” And you don’t even have to say I told you about it. Indeed, don’t even mention my name!
So, if my idea for VJN could delay or set back, however shortly or slightly, the government’s never ending incursion on our freedoms, then I like to think I made a contribution, however small, to the freedom movement.
Thanks for reading.