How just spreading the idea of jury nullification may save freedoms

[ck4829]

Recent polling from the Pew Research Center shows that 61% of Americans think abortion should be legal in most or all cases. On net, 90% of Americans think that abortion should be legal in at least some circumstances. And a large supermajority of Americans treats abortion as legitimate under the particular sets of circumstances in which it is usually sought. States’ new abortion bans do or will criminalize abortions in many of the exact circumstances in which the public supports them most.

Consider Texas’s “trigger” law on abortions—a near total ban—set to automatically go into effect 30 days after Roe is overturned. What is the likelihood of drawing a juror who would consider nullification in a prosecution under this statute? In many, many possible cases, the likelihood seems high. Nearly 93% of abortions occur in the first 13 weeks of pregnancy. Thus, in 93% of cases—nearly all potential prosecutions—over 40% of potential jurors, on average, will view the prosecution as unjust, no matter the other facts. And an additional 22%—for a total of over 60%—might view it as such, depending on the circumstances. The odds of nullification rise commensurately as the prosecution becomes more extreme. In cases involving rape, serious fetal disability, or serious maternal health risk (though falling short of death or major disability), almost all jurors will view conviction as either certainly or potentially unjust.

Prosecutors will take note. This is critical. It is not the rate of actual nullifications that matters, but rather the equilibrium effects that the probability of nullification generates. Actual nullification may happen rarely precisely because prosecutors foresee its possibility and adjust their behavior accordingly. Given the above polling, how likely are prosecutors to ask a jury to convict a doctor for performing a 6th-week abortion of a fetus with a deadly chromosomal disorder? If prosecutors apprehend the likelihood of nullification, we think it unlikely. What about prosecuting a 14th week abortion to allow the mother treatment for a serious, but likely non-fatal, cancer discovered during the course of the pregnancy? Here again, if prosecutors understand the possibility of nullification, we think it would be unlikely. Prosecutions are more likely regarding abortions performed for family planning reasons. Though even here, early-term cases may be hard to win.

Prosecutors in red states may feel political pressure to bring at least some abortion prosecutions. But given the factors discussed above, we suspect that they will prefer cases where public opinion favors them: later-term procedures without extenuating circumstances. They will likewise prefer stronger factual cases, since jurors’ willingness to nullify may be magnified by shaky facts. (And hoping the jury doesn't know that nullification is an option)

http://www.dorfonlaw.org/2022/05/nullification-in-abortion-prosecutions.html

The police don't have to protect you...

The SCOTUS can arbitrarily use "originalism"...

We need something in our corner against these abuses, it's time to start talking about jury nullification.

[H2O Man]

1. Recommended.

Thank you for this!

[brooklynite]

2. But if conservatives nullifed, say, a Blue State clinic bombing?

Both sides can do this.

[ck4829]

4. If Trump's fate was in the hands of a jury and one juror nullified, then I would be OK with that

That would be quite the coverage for the issue of jury nullification and he still got to be in front of a jury, that would be an improvement over him being teflon.

[ck4829]

6. As for it being a blue state clinic bombing? Unfortunate, but I'm not going to say "off the table"

[EYESORE 9001]

3. Would overzealous prosecutors seek a change of venue

to some peckerwood paradise populated by fundies and MAGAts?

[ck4829]

9. That's a good question,

In most cases, the prosecution can't.

https://www.nolo.com/legal-encyclopedia/change-venue-criminal-case.html

Sounds like it could violate the sixth amendment in most cases if prosecutors wanted to change venues.

[Mosby]

5. Lawyers can't mention nullification in court

So they would have to be aware of the option.

[ck4829]

7. That's why it's up to us

Last edited Fri Jul 29, 2022, 04:02 AM - Edit history (1)

http://cococo.pbworks.com/w/page/143457723/FrontPage

[ck4829]

11. On that note

The US already has a dismal maternal mortality rate.

I can say with strong confidence: It's going to go up in the near future.

And people are going to look at the news of that with a slack-jawed stare and declare "What's going on? Why is this happening?"

And I will be saying "You know why!"

And nobody (In power where these rises are happening anyway) will want to hold anybody responsible for that rise.

But maybe it's time to prosecute our beliefs, one way or another.

[David__77]

10. It will take that plus DA abd law enforcement pledges not to enforce.

And novel action by FDA and perhaps USPS as well.

[drmeow]

13. Judges can, and do,

ask potential jurists about jury nullification and remove those who support it from the pool.

It enrages me and a long ago Supreme Court ruled that it is OK for lawyers and judges to bar people from serving on juries if they support jury nullification.

Asking that question is SOP for any trial involving marijuana (confession - I used it to get out of jury duty which would have prevented me from getting a job I desperately needed).

[ck4829]

14. Funny. "Jury of your peers - Not those peers"