(CNSNews.com) - The question of jury nullification was taken up recently by the California Supreme Court, which ruled that judges can remove jurors who declare their conscience above the law.
The ruling highlights a long-running debate over whether juries serve, in part, as a tool for society to directly overrule the actions of their representatives in government.
"The reason the founders of this country felt that trial by jury was so important was that it gave the people an independent voice, an ability to veto the government when the government was wrong," said Clay Conrad, a partner with the Houston law firm Lamson & Looney and author of a book on jury nullification. Conrad is associated with a movement seeking legal sanction for the principle of "jury nullification."
"Thomas Jefferson referred to it (trial by jury) as the only way by which the government could be tied to the principles of the Constitution," said Conrad. "The court can tie the government to the black letter of the Constitution, but in order to make sure that the principles are applied instead of just the technicalities, you need the jury exercising independent judgment."
The case in question involved an 18-year-old man who had sexual intercourse with his 16-year-old former girlfriend. He claimed the encounter was consensual; she claimed it was coerced. As the jury was deliberating, one juror refused to hear arguments on the misdemeanor charges of statutory rape or unlawful sexual intercourse.
"I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be a wrong reason," the juror explained to the judge, who promptly removed him from the jury.
Under California law, a trial court's authority to discharge a juror is granted by the state penal code, which stipulates that if a juror refuses to follow the court's instructions, he is unable to perform his duty, and the court may order him to be discharged and draw the name of an alternate.
On appeal, the convicted man argued in part the juror should not have been discharged because the juror's refusal to follow the law was proper under the concept of jury nullification.
Nancy King, associate dean at Vanderbilt University Law School, disagrees with Conrad and believes the California decision to be consistent with the mainstream of legal thought and opinion.
"There are pros and cons" to jury nullification, said King. "It's just a question of what you want to believe. I believe that the Constitution does not allow a juror to disregard the law. Jurors have the power to acquit for any reason they want, but that doesn't mean they can stay on the jury and declare themselves willing to violate the law."
"If the juror is bound and determined to defy the judge and the oath, then what other rules is he willing to violate," King asked.
In the May 7 decision in People v. Williams, the court acknowledged that in criminal cases juries can and do disregard the law sometimes. Judges are powerless to do anything about it after the fact, except to set aside a guilty verdict not supported by the evidence.