In Duke Rape Case, Justice Relies on Jurors

Tuesday , October 17, 2006

By Wendy McElroy

On Sunday on CBS's "60 Minutes," the key witness against the three Duke University students accused of rape flatly contradicted the story their accuser gave to police.

Prosecuting District Attorney Mike Nifong now has exculpatory DNA tests, a solid alibi for one defendant, a string of contradictions from the accuser, an irredeemably tainted police identification and a witness who benefits the defense.

Nevertheless, charges are unlikely to be dropped in the immediate future -- at least not until the election for D.A. is concluded.

Politics, not justice, will be done.

Those in charge of the legal system are damaging justice itself. It is time for average people to bring fairness and standards back into the courtroom.

Certainly, those with authority over the Duke case cannot be trusted to do so. Nifong has virtually turned the prosecution into a campaign promise. And, if he wins the election, he may proceed rather than alienate his voter base which is black; the accuser is black as well and her alleged rape by three white men has become a racial flash point.

Governor Mike Easley, who appointed Nifong, won't ask him to step down from the case perhaps for fear of alienating the same voter bloc.

The Bar Association seems strangely uninterested in sanctioning Nifong for violating its own rules. (Specifically, Nifong's public statements about the case violate Rules 3.6 and 3.8 of the N.C. State Bar.)

The police haven't acted as a check. For example, against established procedure, they followed Nifong's instructions to have the Duke accuser identify her alleged attackers from a photo line-up that consisted only of white Lacrosse Team members; this made it de facto impossible for her to pick the 'wrong' man.

To many, Nifong now represents the unchecked power of government to destroy innocent people.

If the case proceeds, then the best hope for justice may well lie in the common sense and decency of people on the jury. Even if Nifong demonstrates that some technical violation of a broadly-interpreted law did occur -- e.g. 'sexual assault' which can include verbal threats or attacks -- the jury can refuse to convict.

The controversial process is called jury nullification. It means jurors can reject the law itself when that law or its application is unjust. Despite the fact that jurors are routinely instructed to judge only 'facts' and not 'the law', there is precedent for their judging both.

No question: the history of legal rulings and opinions on jury nullification is confusing. Some courts have upheld the practice; others have denied its validity. But it is a practice that deserves to be closely re-evaluated.

Jury nullification was established in British common law in 1670 when an English jury refused to convict William Penn, who later founded Pennsylvania. His crime was "unlawful assembly"; he preached Quakerism at a meeting, which was not 'the established' religion. The jury was imprisoned and then released when the English high court ruled that a jury must be free to reach its own decision without fear of punishment.

In 1735, jury nullification was affirmed in America when publisher John Peter Zenger was tried for printing "seditious libel" against the Governor of the New York Colony. No facts were in question since Zenger admitted the sedition. Thus the judge instructed the jurors to find Zenger guilty.

Within 10 minutes, they declared him not guilty and, so, overrode the law. Historians view the verdict as an important factor in the development of freedom of the press which, in turn, was key to founding America.

John Jay, the first chief justice of the U.S. Supreme Court, wrote, "The jury has the right to judge both the law as well as the fact in controversy."

That right was rooted in the reason juries arose in the first place; they were introduced in order to protect the individual from abuse by government. Justice Byron White stated in the Supreme Court case Duncan v. Louisiana

(1968), "Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge."

In recent decades, jury nullification has fallen into disfavor for one basic reason: in the '60s and '70s, some all-white juries in the South refused to convict white defendants of crime against blacks. Advocates of jury nullification argued that the problem resulted because the juries were neither representative of the population nor randomly chosen.

Nevertheless, the possibility that jury nullification could sanction violence against unpopular minorities remains a strong argument that should not be dismissed. It should be resolved by constructing safeguards -- for example, on the method by which juries are selected.

To those not familiar with how vigorously many of the Founding Fathers defended jury nullification, the practice may sound too radical.

But when John Adams declared that a juror had a " find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court," he expressed a core value of the American Revolution: suspicion of unchecked power.

As a D.A., Nifong is out of control. If the governor, the bar association and the police will not ensure the very basics of justice, then common people with common decency should say "no, I will not convict."

Wendy McElroy is the editor of and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.