Colorado Law Review
Fall, 1996
67 U. Colo. L. Rev. 1109
LENGTH: 5132 words
ARTICLE: REFORM: THE LAWYERS: NOT JURY NULLIFICATION; NOT A CALL FOR ETHICAL REFORM; BUT RATHER A CASE FOR JUDICIAL CONTROL
Justice Rebecca Love Kourlis*
* Justice, Supreme Court of Colorado. I would like to thank my law clerk,
Kami
Pomerantz, for her assistance with this essay.
SUMMARY:
... Professor W. William Hodes posits that jury nullification
is a
time-honored American tradition; that criminal defense attorneys not
only
routinely argue jury nullification in defense of their clients but
may do so
ethically; and lastly, that the Simpson attorneys laced the theme of
jury
nullification throughout their defense, particularly in their closing
argument.
... An Ethical Criminal Defense Attorney May Not Argue For Jury
Nullification
... Can any of those arguments truly be characterized as a plea
for jury
nullification? If Cochran had been arguing jury nullification in a
classic
sense, he would have inferred that Simpson was guilty but that murder
laws
should not be applied to African American men in Los Angeles, or that
murder
laws should not be applied to O.J. Simpson. ... Because Cochran's
main
arguments were based on assessing the credibility and reliability of
the
evidence, I do not believe Cochran stepped over the bounds of ethics
to argue
jury nullification. ... The judge should be in charge of the
courtroom, not in
an authoritarian or rude manner but in a firm, fair manner. ...
TEXT:
[*1109]
Professor W. William Hodes posits that jury nullification
is a time-honored
American tradition; that criminal defense attorneys not only routinely
argue
jury nullification in defense of their clients but may do so ethically;
and
lastly, that the Simpson attorneys laced the theme of jury nullification
throughout their defense, particularly in their closing argument. n1
I disagree
with all three theses.
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n1. Professor Hodes delineates three kinds or forms of
jury nullification.
W. William Hodes, Lord Brougham, the Dream Team, and Jury Nullification
of the
Third Kind, 67 U. Colo. L. Rev. 1075, 1088-1097 (1996). However, because
each
form equally undermines the judicial system and it is impossible to
know which
form a jury has undertaken in any specific case in order to make a
normative
judgment, I find the encouragement of any form of jury nullification
unethical
and unjust.
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In response, I must first state that I find jury
nullification akin to
anarchy. Under its auspices, twelve people become self-appointed legislators,
changing the law to fit the circumstances of a particular crime or
a particular
political climate. It is intolerable in an ordered society. Further,
clear
ethical standards and caselaw prohibit a criminal defense attorney
from urging
a jury to disregard the law, and, ultimately, it is the responsibility
of the
presiding judge to intervene to prevent such an overt or covert argument.
Finally, it is my thesis that Johnnie Cochran flirted with jury nullification
in his closing argument in the O.J. Simpson case, but considerably
less so
than the press or Professor Hodes has inferred.
I. History of Jury Nullification
Jury nullification occurs when a jury concludes that a defendant actually
committed the offense charged, but refuses to convict due to the jury's
disavowal of the law n2 under which the [*1110] defendant
is charged. Jury
nullification is a direct violation of the jurors' oath, by which all
jurors
swear to "render a true verdict according to the evidence." n3
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n2. Professor Hodes suggests that a jury may acquit an
otherwise guilty
defendant not because the jury disagrees with the law but rather to
send some
message. Ultimately, this is a disavowal of the law and of the jury's
role
within the judicial system. Thus, I disagree with Professor Hodes's
statement
that any doubts as to the wisdom of allowing jury nullification of
the first
kind are lessened with respect to jury nullification of the second
and third
kinds. Hodes, supra note 1, at 1091.
n3. Colo. Jury Instructions-Crim. 1:08 (1983).
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Jury nullification is not a modern phenomenon. It
can be traced to the
English common and medieval law. n4 As early as 1670, William Penn
and William
Mead were acquitted of charges of seditious libel by a rebellious jury
that was
proceeding contrary to the trial judge's direction. n5
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n4. Chaya Weinberg-Brodt, Note, Jury Nullification and
Jury Control
Procedures, 65 N.Y.U. L. Rev. 825, 829 (1990).
n5. Id.
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In our country, the trial of John Peter Zenger is
a celebrated example of
jury nullification. Zenger was acquitted of seditious libel against
the
English crown on the basis of Andrew Hamilton's passionate plea to
the jury
both to "expose and oppose arbitrary power" and to "overturn tyranny
by
rendering an impartial and uncorrupt verdict." n6 In other words, Hamilton
asked the jury to disregard the law because it was unjust. The jury
complied.
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n6. J. Alexander, A Brief Narrative of the Case and Trial
of John Peter
Zenger 78, 99 (Stanley N. Katz ed., 1963).
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In Sparf & Hanson v. United States, n7 the United
States Supreme Court
specifically rejected the notion that juries have a right to disregard
the law
and nullify a conviction. The Court explained that the law was the
province of
the judge and the facts the province of the jury. Federal circuit courts
have
followed suit and rejected the argument that defendants are entitled
to a jury
nullification instruction. n8 In Strickland v. Washington, n9 the Court
noted,
albeit in dicta, that "an assessment of the likelihood of a result
more
favorable to the defendant must exclude the possibility of arbitrariness,
whimsy, caprice, "nullification,' and the like." n10
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n7. 156 U.S. 51 (1895).
n8. See United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988).
n9. 466 U.S. 688 (1984).
n10. Id. at 695.
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We must remember also, as we examine jury nullification,
that it can be
used not only for heroic causes, such as that of John Peter Zenger,
but also
for base causes, such as the protection of [*1111]
segregationists who
attacked civil rights workers in the 1960s. n11 Clearly one problem
with jury
nullification is that the determination of which laws are unjust is
entirely
dependent on an individual's point of view. By allowing or encouraging
juries
to follow their individual consciences to determine which laws are
unjust, we
are enabling the views of a very small minority, for better or worse,
to
become the law. n12
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n11. Joseph L. Galiber et al., Law, Justice and Jury Nullification:
A
Debate, 28 Crim L. Bull. 40, 44 (1992).
n12. Professor Hodes states that he is disturbed by my
condemnation of jury
nullification because he is troubled by the suggestion that "I or anyone
else
[could be] empowered to "rule' authoritatively on which instances of
jury
nullification are "proper' and which are not." Hodes, supra note 1,
at 1090.
However, I disagree with all forms of jury nullification because each
at base
diverts the verdict away from the guilt or innocence of an individual
to
broader moral questions facing society. I believe the forum for addressing
these greater moral issues in a democratic society is at the polls
and not in
the jury box.
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Various states have wrestled with the propriety of
instructing the jury on
nullification. Two states retain laws that permit the jury to evaluate
the law
as well as the facts of the case, although even those laws are carefully
circumscribed. The Indiana Constitution provides: "In all criminal
cases
whatever, the jury shall have the right to determine the law and the
facts."
n13 The related jury instruction directs the jury as follows:
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n13. Ind. Const. art. I, 19.
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The constitution of this state makes the juries the judges of the law
and the
facts. But this does not mean that jurors may willfully and arbitrarily
disregard the laws; or that they may make or judge the law as they
think it
should be in any particular case .... [Jurors] shall so judge the laws
as to
give them a fair and honest interpretation to the end that each and
every law
in the case may be fairly and honestly enforced. n14
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n14. Id. at 47-48.
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Maryland's constitutional provision and jury instruction
are similar to
those of Indiana. n15 Yet, though Indiana and Maryland are cited as
approving
of jury nullification, the very language of the instruction takes away
what it
purports to give: the power to nullify laws.
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n15. See Md. Declaration of Rights, art. 23.
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The fundamental issue that jury nullification raises
is who should be
empowered to change the law. Is it healthy in a democratic society
for a twelve
person minority to decide a law is [*1112] unjust,
disregard it, and then
substitute its own understanding of what is just for that of a democratically
elected legislature? Allowing juries such power leads to anarchy. It
establishes a system of justice where the fate of both society and
a defendant
is left to the arbitrary and capricious notions of at most twelve individuals.
Allowing the jury full rein would provide our judicial system with
little
consistency in verdicts and little faith that the law is being applied
equally
and dispassionately to all. Our representative form of government dictates
that laws should be changed through the democratic process, not at
the whim of
a jury.
Jury nullification may well be the outgrowth of schisms
in society itself.
Certainly the acquittals of William Penn and John Peter Zenger represented
a
quiet rebellion against what was perceived to be an anarchical government.
The
less commendable examples of jury nullification, such as the refusal
to convict
those who had attacked civil rights workers, also represent a minority
faction's refusal to follow the laws enacted by the majority. Hence,
the
impetus for jury nullification lies in the unwillingness of a minority
group
to accept the laws as written: the verdict may be directed toward a
condition
in society, rather than toward an adjudication of the facts. Perhaps
the real
goal, in order to avoid eruptions of jury nullification, ought to be
"to
discover the cement to bond the heterogeneous strains into one nation,
one
polity, one civilization." n16
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n16. See Jack B. Weinstein, Considering Jury "Nullification":
When May and
Should a Jury Reject the Law to Do Justice, 30 Am. Crim. L. Rev. 239,
248 n.43
(1992) (quoting Leslie Gordon Fagen, Preface to Simon Rifkind at 90,
On the 90s
at iii (1992) (quoting Judge Rifkind)).
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II. An Ethical Criminal Defense Attorney May Not Argue
For Jury
Nullification
The American Bar Association Standards for Criminal Justice provide:
(a) In closing argument to the jury, defense counsel may argue
all reasonable
inferences from the evidence in the record. Defense counsel should
not
intentionally misstate the evidence or mislead the jury as to the inferences
it
may draw. [*1113]
(b) Defense counsel should not express a personal belief or opinion
in his
or her client's innocence or personal belief or opinion in the truth
or
falsity of any testimony or evidence.
(c) Defense counsel should not make arguments calculated
to appeal to the
prejudices of the jury.
(d) Defense counsel should refrain from argument which
would divert the jury
from its duty to decide the case on the evidence. n17
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n17. ABA Standards for Criminal Justice, Prosecution Function
and Defense
Function, Standard 4-7.7 (3d ed. 1993).
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The commentary to the standard clarifies that a lawyer
may not appeal to
the prejudices of the jury, unless prejudice is itself an issue in
the case;
and that lawyers should not make arguments that encourage the jury
to depart
from its duty to decide the case on the evidence and the inferences
reasonably
derived therefrom. n18
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n18. Id. 4-7.7 commentary. It should be noted that the
commentary to ABA
Standard 4-7.7 provides that the defense may argue "jury nullification"
in
jurisdictions permitting such argument - presumably referring to Indiana
and
Maryland.
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The American Bar Association Model Code of Professional
Responsibility
directs that a lawyer appearing before a tribunal shall not
assert his personal opinion as to the justness of a cause, as to the
credibility of a witness, as to the culpability of a civil litigant,
or as to
the guilt or innocence of an accused; but he may argue, on the analysis
of the
evidence, for any position or conclusion with respect to the matters
stated
herein. n19
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n19. Model Code of Professional Responsibility DR 7-106(C)(4) (1981).
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When prosecutors violate those mandates, the appellate
courts do not take
it lightly. For instance, in Harris v. People, n20 the Colorado Supreme
Court
reversed a conviction and ordered a new trial because on the eve of
the Gulf
War the prosecutor compared the defendant's alleged acts of violence
to those
of Saddam Hussein. The Court quoted the ABA Standards with [*1114]
approval
and concluded that the references to Saddam Hussein were "improper
encouragement to the jurors to employ their patriotic passions in evaluating
the evidence." n21
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n20. 888 P.2d 259 (Colo. 1995).
n21. Id. at 265.
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The United States Supreme Court noted, in United
States v. Young, n22 that
defense counsel are subject to the same constraints in the scope of
their
argument to the jury as are prosecutors. In State v. Bennefield, n23
the
Delaware Supreme Court echoed the principle that defense and prosecution
alike
are subject to ethical constraints in argument, and concluded that
a defense
attorney's characterization of State witnesses as "scum", "liars",
"snakes" and
"scoundrels" was improper.
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n22. 470 U.S. 1 (1984).
n23. 567 A.2d 863 (Del. 1989).
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Asking a jury to ignore the law and acquit a defendant
who would otherwise
be found guilty on the facts and law of the case is not a proper request
for a
defense attorney to make. The question, then, is whether that is what
Johnnie
Cochran did in his closing argument appeal to the Simpson jury.
III. The Cochran Closing Argument
As we focus our analysis on the Simpson case itself, let me first urge
us to
restrict our opinions to the language that was used in the trial and
avoid
forming impressions based upon media accounts. Some commentators have
contended
that Cochran's closing argument was a call for jury nullification;
n24 others
have suggested that he was playing the "race card." n25 Let us form
our own
conclusions.
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n24. William Raspberry, Reasonable Doubt Not Unreasonable,
The Detroit News,
Oct. 11, 1995, at A9.
n25. See Nina Burleigh, Preliminary Judgments, A.B.A. J.,
Oct. 1994, at 55,
56.
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First, we can all certainly agree that it is both
proper and imperative for
a defense attorney to argue that the prosecution has not proven its
case beyond
a reasonable doubt. It is also clearly permissible to argue that the
prosecution witnesses are not credible and that their testimony is
not to be
believed.
Cochran's closing argument had three main themes:
(1) the evidence was
insufficient to support a verdict of guilt (for example, the glove
did not
fit); (2) the police were biased, sinister, and therefore not credible;
and
(3) the police felt they were above [*1115] the law
and the jury should
punish them for that arrogance by returning an acquittal.
Can any of those arguments truly be characterized
as a plea for jury
nullification? If Cochran had been arguing jury nullification in a
classic
sense, he would have inferred that Simpson was guilty but that murder
laws
should not be applied to African American men in Los Angeles, or that
murder
laws should not be applied to O.J. Simpson. Of the three themes, the
only one
that comes close to suggesting jury nullification is the third. n26
Let us
examine the language that Cochran used in his closing argument as it
related to
this theme to determine if he was urging the jury to overturn the law.
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n26. Professor Hodes suggests that Cochran successfully
induced the jurors
to engage in jury nullification of the "third kind" - to send a message
presumably to the Los Angeles Police Department. Hodes, supra note
1, at ms.
6-7, 23-25. Although Cochran's rhetoric could be understood in this
manner,
alternatively, Cochran could have meant only to criticize the investigatory
tactics of the police in an effort to question their credibility. Understood
in this way, Cochran's argument comports with acceptable ethical standards.
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Cochran opened by saying that the case "talks about
justice in America and
it talks about the police and whether they're above the law and it
looks at the
police perhaps as though they haven't been looked at very recently.
Remember, I
told you this is not for the naive, the faint of heart or the timid."
n27 He
continued:
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n27. Official Transcript, Defense Closing Argument, People
v. Simpson, No.
BA 097211, 1995 WL 686429, at *10 (Cal. Super. Ct. L.A. County Sept.
27, 1995)
(statements of defense attorney Johnnie Cochran).
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That's what this case is all about, not following the rules. n28
....
So this is not for the faint of heart. This is not for the timid. As
I said,
this is for the courageous who understand what the Constitution is
all about.
n29
....
It all comes back to Fuhrman when he says in that letter, "If I see
an
interracial couple, I'll stop them. If I don't have a reason, I'll
make up a
reason." This man thinks he's above the law. n30
....
This whole thing about the police and what they've done in this case
is
extremely painful to us and I think to all right-thinking [*1116]
citizens
because you see, we live in Los Angeles and we love this place. But
all we want
is a good and honest police force where people are treated fairly no
matter
what part of the city they're in. That's all you want. So in talking
to you
about this, understand, there is no personal pride. But I told you
when we
started, this is not for the weak or the faint of heart. n31
....
Then we come, before we end the day, to Detective Mark Fuhrman. This
man is an
unspeakable disgrace. He's been unmasked for the whole world for what
he is,
and that's hopefully positive. His misdeeds go far beyond this case
because he
speaks of culture that's not tolerable in America. n32
....
You are the consciences of the community. You set the standards. You
tell us
what is right and wrong. You set the standards. You use your common
sense to do
that. n33
....
There is something about corruption. There is something about a rotten
apple
that will ultimately infect the entire barrel, because if the others
don't have
the courage that we have asked you to have in this case, people sit
sadly by.
n34
....
Stand up, show some integrity. n35
....
And so Fuhrman, Fuhrman wants to take all black people now and burn
them or
bomb them. That is genocidal racism. Is that ethnic purity? What is
that? n36
....
But you and I, fighting for freedom and ideals and for justice for all,
must
continue to fight to expose hate and genocidal racism and these tendencies.
We then become the guardians of the Constitution, as I told you yesterday,
for
if we as the people don't continue to hold a mirror up to the face
of America
and say this is what you promised, this is what you delivered, if you
don't
speak out, if you don't stand up, if you don't do what's right, this
kind of
conduct will continue on forever and we will never have an [*1117]
ideal
society, one that lives out the true meaning of the creed of the Constitution
or of life, liberty and justice for all. n37
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n28. Id. at *59.
n29. Id. at *61.
n30. Id. at *71.
n31. Id. at *73.
n32. Id. at *75.
n33. Official Transcript, Defense Closing Argument, People
v. Simpson, No.
BA 097211, 1995 WL 697928, at *2 (Cal. Super. Ct. L.A. County Sept.
28, 1995)
(statements of defense attorney Johnnie Cochran).
n34. Id. at *8.
n35. Id. at *11.
n36. Id. at *13.
n37. Id. at *16.
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Is this jury nullification? I do not think so. Cochran
is not arguing that
O.J. Simpson should be above the law; he is arguing that the Los Angeles
Police
Department should not be above the law. He is not arguing that the
law is
inappropriate or unfair; he is arguing that the conduct of the police
was
racist and unfair. He is not Andrew Hamilton suggesting to a jury that
even
though Zenger might be guilty as charged, the law itself should not
be upheld.
Rather, he is arguing that justice required the acquittal of O.J. Simpson
because the Los Angeles Police Department so tainted the evidence through
word
or deed that it was not credible.
Because Cochran's main arguments were based on assessing
the credibility
and reliability of the evidence, I do not believe Cochran stepped over
the
bounds of ethics to argue jury nullification.
IV. Ethical Violations in General, and a Solution
To return to our original theme, Professor Hodes and I were directed
to address
ethical violations of the lawyers in the Simpson trial and proposed
reforms
designed to redress those violations.
Although I conclude that jury nullification was not
one of the
transgressions of the Simpson defense team, that does not amount to
a blanket
vote of approval. I do believe that both the defense and prosecution
committed
ethical violations during the course of the trial and that the solution
lies
not so much in reform but in control.
A. Media Relations
When the Simpson case began, the California Rules of Professional Conduct
did
not prohibit the attorneys from discussing the case with the media.
In October
1995, the California Supreme Court adopted Rule of Professional Conduct
5-120,
n38 which proscribes lawyer statements that are likely to materially
[*1118]
prejudice a criminal or civil jury trial. Hence, during most of the
Simpson
trial, no ethical constraint circumscribed the lawyers' comments to
the media;
that has now changed. If the Rule had been in effect from the beginning
of the
trial, the media coverage outside the courtroom would have been altered.
A
problem was addressed and a solution adopted.
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n38. See Ca. Order 95-57, 1995 Cal. Legis. Serv. 9 (West 1995).
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B. Closing Argument Violations
Cochran committed three persistent violations of ABA Standard 4-7.7
during the
course of his closing argument. n39 The first was his personal association
with
the jury. Repeatedly, he spoke to the jury in terms of "we." For instance,
"we
live in Los Angeles and we love this place. But all we want is a good
and
honest police force ...." n40 Or, "But you and I, fighting for freedom
and
ideals and for justice for all, must continue to fight to expose hate
and
genocidal racism and these tendencies. We then become the guardians
of the
Constitution ...." n41 Just as Cochran placed himself on the ledger
in the
jury's column, so too, he placed the prosecution on Fuhrman's side.
He did not
just attack Fuhrman's credibility, he attacked the credibility of the
prosecution. He inferred that not just Fuhrman but the prosecution
itself was
sinful and malicious.
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n39. See also California Rules of Professional Conduct Rule5-200 (1989).
n40. Official Transcript, Defense Closing Argument, People
v. Simpson, No.
BA 097211, 1995 WL 686429, at *73 (Cal. Super. Ct. L.A. County Sept.
27, 1995)
(statements of defense attorney Johnnie Cochran).
n41. Official Transcript, Defense Closing Argument, People
v. Simpson, No.
BA 097211, 1995 WL 697928, at *16 (Cal. Super. Ct. L.A. County Sept.
28, 1995)
(statements of defense attorney Johnnie Cochran).
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Similarly, Cochran expressed his personal opinions
about the credibility of
witnesses. The most egregious example was the comparison of Fuhrman
to Adolf
Hitler. Cochran was injecting his personal beliefs into his argument
in an
overt manner, in violation of the California Rules of Professional
Conduct.
The last violation is a more nebulous one and is
the area in which
Professor Hodes argues that Cochran spilled over into jury nullification.
I
view it differently. Cochran inappropriately appealed to the sympathies
and
biases of the jury by asking them to identify with Simpson as an African
American man in a racist society. He did not cleave entirely to the
evidence
but rather drew broad inferences about the racist police conduct and
the
[*1119] duty of the jurors to punish that conduct. That,
too, was
technically a violation of the ethical standards. n42
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n42. See California Rules of Professional Conduct Rule5-200
(1989).
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C. The Solution
In each instance, the conduct of the attorneys that I identify as inappropriate
is already the subject of an ethical rule. Hence, reform in the area
of ethical
mandates for attorneys would not appear to be the answer to the problem.
Rather, the solution lies in stricter judicial enforcement
of the existing
standards. The United States Supreme Court has stated that "the judge
is not
the mere moderator, but is the governor of the trial for the purpose
of
assuring its proper conduct." n43 Canon 3 of the Code of Judicial Conduct
directs a judge to maintain order and decorum in the courtroom; to
require the
lawyers to be patient, dignified, and courteous to all participants;
and to
dispose promptly of the business of the court. n44
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n43. Quercia v. United States, 289 U.S. 466, 469 (1933).
n44. See also California Code of Judicial Ethics Canon 3 commentary (1996).
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In short, the judge charged with presiding over a
trial has a superseding
responsibility to assure that it is conducted appropriately and that
the
lawyers comport with their ethical mandates. The prosecution did not
object to
the statements made by Cochran during his closing argument that I have
identified as questionable. They may have had their own reasons for
choosing
not to interrupt; however, that does not permit the judge to sit idly
by. In
my view, Judge Ito did not take the authoritative role that the law
and the
Code of Judicial Conduct requires of him in conducting the Simpson
trial. He
permitted the lawyers to set the pace, the tempo, and the tenor of
the
proceedings. With due regard for the danger of armchair judging, I
am
compelled to assign fault to Judge Ito for overlooking the transgressions
of
the attorneys during the course of the trial. He did not set and enforce
time
limits; and he rarely exercised independent discretion to control the
scope
and tenor of the proceedings.
Hence, if reform is our subject today, I must advocate
a path of increased
judicial control over courtroom proceedings. I hasten to add that the
Simpson
trial was not a truly representative example of the hundreds or thousands
of
trials that take place around the country daily; however, the problems
it
highlighted [*1120] are most probably present to
some lesser extent in those
trials. The judge should be in charge of the courtroom, not in an authoritarian
or rude manner but in a firm, fair manner. Ultimately, it is the judge
and only
the judge who has responsibility for assuring that the trial is conducted
fairly, effectively, and efficiently.
I conclude by restating an absolute opposition to
jury nullification of
existing laws and a belief that no attorney may ethically argue for
nullification. The abuses of the Simpson trial may have culminated
in a
questionable verdict, but they most certainly originated from a societal
schism
that all citizens must heed and heal. Racism was the undercurrent sweeping
the
shores of the Simpson trial from beginning to end. Stricter judicial
control of
courtroom proceedings is certainly only one answer to the forces that
surfaced
in that courtroom. The broader answer is to work to achieve a system
truly
characterized by justice for all.