We get new lawyers about every six months. Most of the time they are hardworking people who want to try out the life of a trial lawyer and we oblige them. Then six months later we’re looking for a new one. However, every now and then one comes through who actually likes the work and they stick around a little while longer. I can tell they’re into it because I see their minds working when they talk to me about their cases. They usually tell me that they were thinking about trying some novel strategy last night at dinner and they want to know if it’s OK.
They only get the simple cases anyway, so why not? If they want to try to argue to the jury that their client was justified in stealing because their kids were hungry, and their client says it’s OK to go ahead after full disclosure, then I say go give it a shot. Of course, most of the time I tell them they can only do it if they also prepare a more conventional defense as a fallback. Just in case, I say with a wink.
One of these bright young thinkers came running up to me a little while ago and said she wanted to try something new. There’s really nothing new under the sun with these newbie lawyers but sometimes I get surprised. Besides, she had a bright look on her face like she was really excited about her idea. I gave her a few minutes to run it up the flag pole.
“Go ahead and tell me,” I said. I want to put up a sign in the break room that says they can’t do anything that starts with the phrase ‘hey watch this’ or ‘wouldn’t it be cool if’ but until I do I have to get them to talk to me.
She pulls out the file and says that her client is charged with buying dope, but he says he was doing it for his grandmother. I nod sagely and say “OK, tell me more.” She says that yeah, the client was doing something technically wrong but it was for a good reason. The grandmother qualifies for one of those medical cards to smoke dope for her glaucoma. Grandma hasn’t gotten one yet but this guy was really doing something good and he shouldn’t go to jail.
I had two thoughts at this point. First, I can’t believe she fell for the old “I was buying it for my grandma” line and I’m going to have to watch her a little bit more. I’ve heard that lie so many times that I don’t even let the guys finish the sentence when they try to say it to me. They never say it with a straight face anyway. Second, I’m a little worried that our new associate is a little too pot friendly. I make a mental note to search her desk after she leaves tonight. We don’t drug test these people but the last thing we need right now is to have the police executing a warrant search in our office.
I skip over the grow up speech and I ask her “OK, so what is your big plan?”
She sits back and smiles like the cat who just ate the canary. “I want to put on a jury nullification defense. I want to ask the jury to acquit him anyway to send a message to the government to leave pot alone.”
There, she said it. One of the newbies comes up with something like this about once a year. You have to jump on this hard as soon as you hear them even get close to the nullification thing. I know exactly what I have to do here, and it isn’t pretty. This just came up again in another context for me yesterday so I’m going to share with you what I told this young lady:
“OK, I’m only going to tell you this once so don’t ever forget it. I don’t care if you come up with some crazy plan or some wild idea as long as it’s legal, ethical, won’t get me yelled at, and you have a real defense waiting somewhere just in case.”
I didn’t raise my voice or get mad, mostly because I don’t want to discourage her from telling me about the other crazy ideas she comes up with so I can nip those in the bud too. Literally.
“But doing what you just said you want to do is not a legal argument. It’s a political and emotional statement. Jury nullification pleas are heavily and highly disfavored by every Judge for hundreds of miles around. When you try to make a ‘jury nullification’ argument you run into a number of very serious problems.”
I leaned forward in my chair at this point for some non-threatening emphasis and I held up my hand as I counted off these points on my fingers.
“First, the Judge in your trial is a huge, imposing presence in the lives of the jurors. The Judge is going to tell them what the law is and the Judge will instruct the jury to apply the law to the facts. By asking the jury to do something based on your emotional or political appeal you are asking them to ignore what the Judge is telling them to do. You are asking the Jury to do what you want and not what the Judge wants. They are going to stick with the Judge every single time. This isn’t some dumb T.V. show.”
I have to make this point because all of our newbie lawyers watch the stupid lawyer T.V. shows and want to be fun and silly like them. Those shows are completely fake, people. I can’t even watch them for five minutes without getting really upset.
“Second, you are offending the Judge. It is their duty to protect the legal system and the constitutional framework of our courts. Your jury nullification argument is the exact opposite of the legal process the Judge has been charged with protecting. You are threatening the foundation of the court system. Our legislature and our courts have established legal principles and laws that apply to everyone. Juries are the scales upon which the evidence is weighed and you want to cheat. When you attack the legal system you make the Judge take control of their courtroom to preserve the legal process and it is painful to watch. I’ve seen judges stop a trial and publicly humiliate the lawyers making those kinds of jury nullification arguments right there in the courtroom in front of God, the jury, the newspaper reporter in the back row, and everyone else.”
I was really hoping that one got through. I don’t need to deal with stepping in to finish her trial after she runs away crying, and then pick up her caseload after she quits that evening. I have enough work to do as it is.
“Third, your nullification stunt puts you in the position of fighting the Judge. The Judge is telling the jury to apply the law to the facts and you are telling the jury to ignore what the Judge told them to do. Instead of being a part of the legal system and making a legal argument to the jury, you are now outside the system. I realize you might like that rebel image thing, but please don’t fight the Judge. It completely kills your credibility in the eyes of the jury and gets me yelled at. If you act bad enough, you might have to pay large attorney fee awards, enhanced prevailing party fees, and anything else the Judge can tack on to punish you.”
That last part wasn’t too likely for a newbie lawyer, and we have insurance to cover these kinds of things. But the Judge just might give me a chewing over for not controlling these kids and I don’t need another one of those.
“Fourth, when you make that argument you are admitting he’s guilty. Don’t do that. Nullification is a last ditch, Hail-Mary pitch for the guilty-as-sin. The jury members are going to be smart and they are going to know what is going on. When you ask the jury to find your perp not guilty to ‘send a message’ or whatever, you are telling them to ignore the fact that he did it. You admit defeat when you ask the jury to make an end run around the truth. Fight the case on the merits of the facts and the law. Don’t give up and try to ask a jury of smart people to do something else.”
What I didn’t say here was that I also didn’t want her to do something dumb and end up dealing with the stress of a bar complaint. Clients file these things all the time. Don’t basically admit your client is guilty unless they are pleading guilty. It’s their choice, not yours.
“Fifth, the nullification appeal you want to make is a highly politically charged ‘legalize marijuana’ kind of thing. If you know for sure that there are enough people on the jury to appeal to the nullification argument, you don’t need to say it out loud. Otherwise, as soon as you go political you create a group of jurors who don’t like your grandstanding. They now dislike everything else you said just because you tried to turn the rational trial into a hempfest protest. You may have been winning on other grounds but not anymore. Don’t unify a large block of jurors against you unless you really have to. And is there ever a time when you do? Leave your baggage at home.”
I almost said ‘leave your baggies at home’ because as I was talking I was getting the strong signals from our new associate that she was indeed highly opinionated on the legalization issue. I was definitely searching her desk.
“Oh, one more thing.” I was out of fingers so I started using my other hand. “Judges often grant mistrials when a defense lawyer makes a nullification argument. You might have to pay some fees and costs, but the worst thing is that the Judge now doesn’t like you personally. The Judge almost always retains jurisdiction over the case and will be really hard on you from this point forward in this case and all of your other cases. Good luck getting any setovers or help with motions to compel witnesses, etc. Lastly, at the second trial, which will be set according to the best time for the prosecutor and without any regard for you at all, the Judge will convey their displeasure with you at every opportunity. Juries have their feelers out everything they can pick up and the Judge’s non-verbal cues are going to come through loud and clear. Clients don’t like it either.”
I was done and I sat back. She tried to say that New Hampshire just passed a law making it legal to argue nullification to the jury. I’m sure she read about it in High Times Magazine but I told her absolutely not and she scampered away. As she was leaving I told her to tell the guy why he was guilty according to the law and to man up and take his lumps. She apparently didn’t do it or did a lousy job because the guy forced it to trial. He was, of course, a jerk to everyone and went to jail for 7 months. I sat right there through the entire thing with her so that she didn’t go crazy and do the nullification thing anyway. I could see she was just barely holding it in the whole time.
She quit a couple of weeks later. It was for the best, though. We stopped giving her the dope cases so she lost her reason for coming in to work.