First, we covered the basic legal definition and history of jury nullification. Next, we explained four reasons why you might consider using jury nullification if you’re called to serve. Now we’ll explore the hardest part – how to get onto the jury and nullify the law if your conscience compels you to do so.
Cathleen Converse at PorcFest
If you get picked to serve on a criminal trial, you might face the opportunity to free a defendant facing a harsh mandatory minimum prison sentence for a victimless crime. That’s exactly what self-described “straight-laced little old lady” Cathleen Converse did when she helped acquit New Hampshire marijuana grower Doug Darrell.
It’s commonly believed among many jury nullification supporters that simply knowing about jury nullification disqualifies one from jury service. (A popular, but misguided viral video helps propagate this myth.) Yet Converse reveals to Flex Your Rights that she intimately understood jury nullification. In fact, years earlier she was a FIJA activist who handed out jury nullification flyers at courthouses!
So how did she pull it off? Converse credits Darrell, who she describes as “a perfect defendant” and a “peaceful man.” She also credits New Hampshire’s unique, new law that allows defendants to pitch a jury nullification defense. But the final, indispensable agent of justice was Converse herself. Her winning combination of knowledge, principled restraint, and open-mindedness helped her get selected to the jury and eventually persuade her fellow jurors to vote “not guilty.”
Jurors who emulate Converse’s strategic approach to jury service will dramatically improve their odds of delivering a just verdict. Or at worst they might deliver a hung jury.
Skeptics might point out that Converse’s success cannot be easily replicated outside of New Hampshire. They are correct, but only to a point. While it’s true that judges in the other 49 states mostly forbid any mention of jury nullification, the real power remains with the jury. Even when judges are hostile, jurors who emulate Converse’s strategic approach to jury service will dramatically improve their odds of delivering a just verdict. Or at worst they might deliver a hung jury.
Cathleen Converse Q&A
Was there a jury questionnaire administered up front? If so, how did you answer those questions?
We did mail a questionnaire back. Those questions were about our history, age, occupation, names of family members. Also if we had ever been on a jury and if so when, where and what kind of case. My answers were ordinary. I am a grandmother, housewife and nothing that would red flag me.
What specific kinds of questions were you asked during voir dire?
The questioning was extensive but was posed to the jury pool as a group. There were no individual questions unless you self selected as biased.
The questions began with an introduction of the parties and lawyers and asked if any were known to us. They continued with the fact that this was a drug case. If we had any personal experience with such we were to self select. It continued with any other associations or work or opinions that we thought would bias us or interfere with our objectivity. Then they pulled names out of the basket. As each name was called, the person responded with either “no” (meaning no reason to not be considered objective) or “yes” (meaning there is a reason you can’t be objective).
Related Article: Can I Go To Jail for Jury Nullification?
Each person responding “yes” was interviewed in private with the judge and both lawyers. Then they were either excused or seated anyway as the judge determined. After 13 (12 plus 1 alternate) were seated, 3 or 4 more were called for replacements. I was one of those. The lawyers then consulted their notes which included information from our pre-jury questionnaires and used their preemptions to excuse people they didn’t want on the jury. I was substituted for someone they excused.
My thinking during [jury selection] was that I felt that I could be objective and that there may be circumstances in which I could convict someone.
My thinking during this process was that I felt that I could be objective and that there may be circumstances in which I could convict someone. It had been years since I had handed out FIJA flyers at a courthouse.
Did you go into the trial planning to nullify as soon as you heard the charges against the defendant?
I may have been naïve in thinking a drug trial might be some nasty violent gang activity or dangerous meth lab or something. I did not know that I would be handed an almost perfect defendant and an excellent case for nullification.
During deliberation, did the jury discuss potential legal penalties for the crime?
We were ordered before deliberation that possible penalties could not be discussed. I found out afterwards that Mr. Darrell was offered that morning a plea that would give him no fine and no jail time. He refused it. If the other jurors had known that, they would not have nullified. I am convinced that they would have seen that as a stubborn refusal to make it all go away and not a principled stand.
Did anything said during deliberation stand out or surprise you?
Not really surprising but extremely stressful, as deliberations extended overnight. We were ordered not to talk to spouses about it so I did not.
Did any of the jurors struggle with lack of information – i.e. did they feel they needed to know more/see more evidence before issuing the verdict?
We did ask for clarification on a number of things. But it wasn’t evidence. We had that in the room with us, meaning the plants pulled from Mr Darrell’s yard. One piece of information was about the law regarding intent. We never questioned the act.
He admitted the act but what exactly is needed to prove intent? Mr Darrell testified that he thought he was protected because of his religion. The prosecution avoided any first amendment religious argument so we were left hanging regarding his religious rights. We were given the legalese about intent. After intent was beaten to death, we then discussed nullification and asked for that in writing. We were given a definition that I wish I could recite but have forgotten the exact words. It was key to the final verdict for two reasons.
One, the prosecutor in closing arguments had said that nullification should only be used for defendants committing crimes under extreme life or death circumstances as if they have no choice. That was clearly not evident in the definition but secondly what was in the definition was the ability for the jury to use their conscience in order to reach a fair verdict.
To what extent did your knowledge of the law influence the conversation in the jury room?
The first comment in the deliberations was asking what nullification was. I casually mentioned that I knew it had a history and mentioned its use during prohibition. I do think key to this case was the legitimization of nullification. I think I helped with that in discussions.
How do you think you might have responded if the other jurors had been more actively hostile to nullification and initially favored conviction?
The jury was a broad range of ages and political leanings from progressives all the way to strict law and order types. I could tailor my comments to what I thought would be most effective. We had 4 or 5 who were quite adamant that it is always wrong to knowingly break a law. I was convinced that I was going to hang that jury. I did not plan to convince those people to nullify.
I was convinced that I was going to hang that jury. I did not plan to convince those people to nullify.
How would you have responded if another juror had argued that your job was to convict any defendant who is proven to be factually guilty of breaking the law, regardless of the justice or injustice of the law itself?
I did face those people and spent time in a few different directions. One being the outrageous tactics used in going after Mr Darrell. A military helicopter over his house is over my house as well. I live nearby. That revelation earned me a visit to the judge’s chambers and a discussion with the attorneys regarding my objectivity.
I had never met Mr Darrell but recognized the house from the aerial photography taken from the helicopter. Satisfied, the judge then asked the entire jury if my being a neighbor of Mr Darrell’s would affect their objectivity. No one objected so we went back to deliberations.
After that discussion, I moved on to the intent determination, asking how much intent to break the law can occur if one thinks they are protected? While I may have made some minds waver with the military aspects of it, I got no support for the lack of intent. Everyone was convinced that that his intent was clear. Only then did we discuss nullification.
What impact, if any, did the specific wording of the judge’s instructions have on the jurors’ decision to nullify?
The explanation of nullification came first from the defense attorney. The prosecutor responded in closing arguments that it shouldn’t apply here and then the judge included his nullification instruction tacked on the end of the regular instructions. That is a lot of nullification talk and still the jurors seemed unclear about it when we got in the deliberation room. It is not seen as a legitimate option in the eyes of ordinary jurors.
The jurors asked for the instructions again and we were denied them in writing but were trotted into the courtroom and the judge recited the instructions again verbally, again including the nullification option.
Are there any nonviolent drug-related crimes of which you would have been willing to convict a defendant?
I told myself it was possible and that is why I felt I could be objective. It would probably be some case where my sympathies lay with an apparent victim, maybe a child having been involved. I’m really not sure. The fact that this jury nullified and I didn’t have to hang it probably points to the probability that there were smokers on the jury. Some of those men never opened their mouth until one said “Oh he did it, but I could nullify”. Then everyone down the line said the same words. Even the strict conservative types who ultimately admitted to having broken a law or two.
I don’t recommend deciding in advance what the outcome should be. Try to be honest in voir dire, knowing that you will apply your principles and see justice done.
What general advice would you offer to any believer in jury nullification who wants to make it onto the jury without revealing his/her intent to nullify early on?
I don’t recommend deciding in advance what the outcome should be. Try to be honest in voir dire, knowing that you will apply your principles and see justice done.
Traffic Stop
At Your Door
General Questions
Popular Myths