In keeping with the jury theme that Alex has been addressing over the past couple of months, and my own fascination with the interrelationship between law and resistance, I am going to discuss the concept of jury nullification as a form of resistance as depicted within film and television. Jury nullification takes place where a jury intentionally acquits someone who is otherwise presumably guilty on the basis of sufficient evidence to convict them of the crime charged. Such acquittals may be due to some moral consideration(s) or equally, a sense of justice whereby the application of the law to the facts of the case would create a greater injustice (See Gormlie, 1996: 49; Levine 1994: 473). Jury nullification dates back centuries (Rucker, 1998-1999) and has even been endorsed by state actors such as John Adams and Alexander Hamilton (Gormlie, 1996: 54).
Depending on the case, jury nullification can serve as a legal act which legitimizes and endorses the unlawful act(s) perpetrated by the accused against the “victim” of the crime in order to advance a more important objective – e.g. unlawful public protests against discriminatory laws; acts of civil disobedience that challenge a state’s decision to engage in an unlawful war.
In film and television, instances of jury nullification have arisen in the context of murder to correct a pre-existing injustice. In the film, A Time to Kill (based on the novel by John Grisham), Carl Lee Hailey, an African-American man kills two White male racists who brutally raped and attempted to murder his ten year old daughter Tonya. Just prior to his executing the two accused individuals, Hailey visits Jake Brigance (a White lawyer who had represented Hailey’s brother previously) where we come to find out that 4 white males the previous year were acquitted for raping an African-American girl. This sets up the context that southern justice in the United States essentially permits White men to commit violent sexual acts against young African-American girls with impunity, sanctioned by a (presumably) White jury. Sensing that no justice will prevail for his daughter, he decides to take the law into his own hands.
Brigance advances an insanity defence for Hailey, notwithstanding that the act was premeditated and Hailey knew the consequences of his action. Yet as the film progresses and the film audience is privy to the sequestered jury’s discussions about the case during supper (which is unlawful given that jurors are not to discuss the case before all the evidence is heard), we learn that the jury is prepared to convict Hailey of the murder, in part due to racial animus. During the trial, Hailey emotionally declares while on the stand that the two rapists "deserved to die, and I hope they burn in hell!" As the film closes, Brigance asks the jury to visualize in graphic detail the rape and attempted murder of a ten year old girl and to imagine what their reaction would be had the girl been White – would they be willing to convict her father of committing the same vigilante murder as did Hailey. The all-White jury then acquits Hailey of the murders.
Hailey’s acquittal was in essence an act of jury nullification for he clearly committed the murders. His conduct is constructed as an act of resistance against a socio-legal normative order that permits the rape of African-American girls without penal consequences to its perpetrators. The jury’s nullification of the law as applied to Hailey legitimizes his act of resistive murder.† It sends a message that where racialized violence is allowed vigilante actions taken to correct such injustices ought to be permitted. Hailey’s actions here seem justifiable given that the individuals who had fallen victim to his rifle were rapists and racists who may have been able to evade conviction. The objects of the resistance were clearly defined and few tears would be shed for their demise.
Jury nullification is a ripe topic for both film and television scripts. It brings into question the validity of the law and the necessity to violate it at times to perhaps effectuate a more humane result. This is particularly the case in the context of euthanasia and the suffering of individuals with terminal diseases. In most jurisdictions, mercy killing is still unlawful despite the suffering of many who seek to terminate their life with the assistance of medical doctors. Various television shows, including those written by David E. Kelly have attempted to handle the issue of euthanasia. For instance, in the season finale of the Emmy-award winning television series Picket Fences (“Howard’s End”, season 2, episode 22), the Alzheimer’s-afflicted mayor, Howard Buss is killed by his adult son, Kevin, as an act of mercy when Howard, in an advanced degenerative state, sheds his clothes and rides a rocking horse in his office. Kevin, having seen his father’s condition progressively worsen over several months decides to pull out a gun from Howard’s desk and shoot Howard. Ultimately, Kevin is prosecuted but the jury acquits him of the murder, due in no small part to the testimony of the lead protagonist, Sheriff James Brock who testifies sympathetically in Kevin’s favour by openly questioning how the district attorney could prosecute Kevin in these circumstances. The jury is given clear endorsement by the chief law enforcement official in the town.
Through dramatization through television and film, viewers learn that the application of law in courts is not a simple clear cut process even where the defendant is apparently guilty and no defenses realistically apply (in A Time to Kill, it becomes abundantly clear that Hailey was not insane at the time of the killings). There are times when convicting a defendant can lead to a further injustice in addition to the one that prompted the unlawful act in the first place. Such dramatizations provide the viewing public of the power that juries hold in nullifying the law and thus enable resistance to be legitimized. Yet one should not imagine that jury nullification only works to correct some injustices. There is a double-edged sword. Indeed in some circumstances, jury nullification could conceivably result in certain prevailing prejudices being endorsed if the majority of the jury is comprised of members of an identifiable majority that is pre-disposed to acquitting a defendant who hails from that majority and who has committed an unlawful and violent act against a member of a despised minority.
Depending on the case, jury nullification can serve as a legal act which legitimizes and endorses the unlawful act(s) perpetrated by the accused against the “victim” of the crime in order to advance a more important objective – e.g. unlawful public protests against discriminatory laws; acts of civil disobedience that challenge a state’s decision to engage in an unlawful war.
In film and television, instances of jury nullification have arisen in the context of murder to correct a pre-existing injustice. In the film, A Time to Kill (based on the novel by John Grisham), Carl Lee Hailey, an African-American man kills two White male racists who brutally raped and attempted to murder his ten year old daughter Tonya. Just prior to his executing the two accused individuals, Hailey visits Jake Brigance (a White lawyer who had represented Hailey’s brother previously) where we come to find out that 4 white males the previous year were acquitted for raping an African-American girl. This sets up the context that southern justice in the United States essentially permits White men to commit violent sexual acts against young African-American girls with impunity, sanctioned by a (presumably) White jury. Sensing that no justice will prevail for his daughter, he decides to take the law into his own hands.
Brigance advances an insanity defence for Hailey, notwithstanding that the act was premeditated and Hailey knew the consequences of his action. Yet as the film progresses and the film audience is privy to the sequestered jury’s discussions about the case during supper (which is unlawful given that jurors are not to discuss the case before all the evidence is heard), we learn that the jury is prepared to convict Hailey of the murder, in part due to racial animus. During the trial, Hailey emotionally declares while on the stand that the two rapists "deserved to die, and I hope they burn in hell!" As the film closes, Brigance asks the jury to visualize in graphic detail the rape and attempted murder of a ten year old girl and to imagine what their reaction would be had the girl been White – would they be willing to convict her father of committing the same vigilante murder as did Hailey. The all-White jury then acquits Hailey of the murders.
Hailey’s acquittal was in essence an act of jury nullification for he clearly committed the murders. His conduct is constructed as an act of resistance against a socio-legal normative order that permits the rape of African-American girls without penal consequences to its perpetrators. The jury’s nullification of the law as applied to Hailey legitimizes his act of resistive murder.† It sends a message that where racialized violence is allowed vigilante actions taken to correct such injustices ought to be permitted. Hailey’s actions here seem justifiable given that the individuals who had fallen victim to his rifle were rapists and racists who may have been able to evade conviction. The objects of the resistance were clearly defined and few tears would be shed for their demise.
Jury nullification is a ripe topic for both film and television scripts. It brings into question the validity of the law and the necessity to violate it at times to perhaps effectuate a more humane result. This is particularly the case in the context of euthanasia and the suffering of individuals with terminal diseases. In most jurisdictions, mercy killing is still unlawful despite the suffering of many who seek to terminate their life with the assistance of medical doctors. Various television shows, including those written by David E. Kelly have attempted to handle the issue of euthanasia. For instance, in the season finale of the Emmy-award winning television series Picket Fences (“Howard’s End”, season 2, episode 22), the Alzheimer’s-afflicted mayor, Howard Buss is killed by his adult son, Kevin, as an act of mercy when Howard, in an advanced degenerative state, sheds his clothes and rides a rocking horse in his office. Kevin, having seen his father’s condition progressively worsen over several months decides to pull out a gun from Howard’s desk and shoot Howard. Ultimately, Kevin is prosecuted but the jury acquits him of the murder, due in no small part to the testimony of the lead protagonist, Sheriff James Brock who testifies sympathetically in Kevin’s favour by openly questioning how the district attorney could prosecute Kevin in these circumstances. The jury is given clear endorsement by the chief law enforcement official in the town.
Through dramatization through television and film, viewers learn that the application of law in courts is not a simple clear cut process even where the defendant is apparently guilty and no defenses realistically apply (in A Time to Kill, it becomes abundantly clear that Hailey was not insane at the time of the killings). There are times when convicting a defendant can lead to a further injustice in addition to the one that prompted the unlawful act in the first place. Such dramatizations provide the viewing public of the power that juries hold in nullifying the law and thus enable resistance to be legitimized. Yet one should not imagine that jury nullification only works to correct some injustices. There is a double-edged sword. Indeed in some circumstances, jury nullification could conceivably result in certain prevailing prejudices being endorsed if the majority of the jury is comprised of members of an identifiable majority that is pre-disposed to acquitting a defendant who hails from that majority and who has committed an unlawful and violent act against a member of a despised minority.
† The jury’s legitimization however is only forthcoming when they are able to imagine Hailey’s daughter as a humanized being, as a white girl.
Sources consulted:
G. Frank Gormlie, “Jury Nullification: History, Practice, and Prospects” (1996) 53 Guild Practitioner 49.
James P. Levine, “The Role of Jury Nullification Instructions in the Quest for Justice” (1994) 18 Legal Studies Forum 473.
Sources consulted:
G. Frank Gormlie, “Jury Nullification: History, Practice, and Prospects” (1996) 53 Guild Practitioner 49.
James P. Levine, “The Role of Jury Nullification Instructions in the Quest for Justice” (1994) 18 Legal Studies Forum 473.
Robert D. Rucker, “The Right to Ignore the Law: Constitutional Entitlement Versus Judicial Interpretation” (1998) 33 Valparaiso University Law Review 450.
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