Via the usual source, we are directed to a Randy Barnett post over on VC, which in turn discusses Juror Becomes Fly in the Ointment. The key passage, largely ignored in subsequent discussion, is (emphasis added):
Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.
In other words, the guy persuaded no one else of the validity of his position; if anything, it made the rest of the jury just want to get it over with as fast as possible.
To underscore the point, back at the Volokh Conspiracy, a commenter refers us to Who is Tom Eddlem? and ‘Rogues’ and Humpty Dumpty Judges. Nearly any randomly-selected juror trapped in a room with this guy would want nothing more than for him to either shut up or leave.
So as a practical matter, as long as the concept of jury nullification — which I generally support — is being promulgated by such people, it will get nowhere. For some tips on how innovations can be successfully diffused, see this review. Jury nullification hits a wall at step 2.
As VC commenter David M. Nieporent says, nullifiers are “unwilling to admit that the battle for public opinion is all that matters” — which is unsurprisingly followed by the tellingly pseudonymous “Malvolio” heaping scorn on the public for its failure to follow his/her lead in supporting nullification.
NB: comments to this post attempting to persuade me of the validity of jury nullification will be summarily mocked as having egregiously missed the point. I’m already a nullifier. I think Randy Barnett and Clay Conrad are great guys (I knew Clay slightly when I lived in Texas in the ’90s). But too many of friends like the ones it’s got are the kind that keep it from needing enemies.
Now to break an elementary rule of posting by mixing topics. Commentary over on VC is heavily biased toward arguing the principles, or lack thereof, behind jury nullification as a concept. There is, however, one comment by Orin that I cannot resist mentioning, because it gets into an area rarely discussed in the context of courtroom operations … statistical quality control:
… if juries are given unlimited power to nullify by majority vote, 1 in 5 people can expect to be acquitted even if 2/3rds of the population supports the law in question.
It gets much worse than that if we allow a minority of the jury to nullify convictions by forcing mistrials. In we allow just 3/12 jurors to block a conviction by nullification, than even for a measure with 85%(!) popular support, 25% of those tried for the law will be acquitted.
Intuitively, that sounds about right, by which I mean, about as sloppy as the system is now. In the mid-90s I was told by a Houston-area lawyer that ~20% of defendants in Harris County were known to be innocent by prosecutors, who got them indicted anyway because of political pressure. A few years later it came out that, whaddaya know, 20% of convicted rapists in Travis County (Austin) were being exonerated by DNA evidence. Whatever the actual figures, it is easy for me to believe that the error rate characteristic of the criminal justice/law enforcement industrial complex is orders of magnitude higher than anything the public would tolerate in, to pick a not-so-random example, the wireless telecommunications industry. Jury nullification could hardly make it worse.