Creators: Jury Nullification -- An Expression of Discontent with Government

Matthew T. Mangino
CREATORS
November 11, 2025

Jurors play a prominent role in the criminal justice system. Although few cases go to trial — statistically as few as four defendants in 100 — jurors wield the same power as legislators and judges.

Being a juror is a form of democratic participation, applying and interpreting the law through the lens of the community's values and experiences, and acting as a check on government power.

Traditionally, the role of a juror is portrayed as merely the "finder of fact." Juries make crucial decisions on the credibility and believability of witnesses — they decide the facts. A trial judge determines and instructs jurors on the law, which the jury must follow. Through the determination of facts and the application of the law, decisions of guilty or not guilty are to be made.

However, it is not quite that simple.

Beyond determining the facts, a juror's conscience is also a protected element of the justice system. The act of jury nullification — when a jury returns a verdict of not guilty despite its belief that the defendant is guilty of the crime charged — is the final check on governmental power.

That check on power has grown so much more important at a time when the president of the United States is ignoring limits on executive power.

In 2004, conservative U.S. Supreme Court Justice Antonin Scalia acknowledged the role of jury nullification. He wrote, "(The jury) right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary."

Jury nullification is taking hold in places like Washington, D.C. Recently, over a period of three weeks, grand juries in Washington rejected three separate efforts by federal prosecutors to obtain an indictment against persons accused of felony assault against federal agents.

A grand jury rejecting an indictment is extraordinary. A grand jury needs only to find probable cause that a crime has been committed to move forward. Robert Morgenthau, a longtime Manhattan district attorney, said he could get a grand jury to indict a ham sandwich.

According to The New York Times, the pattern of failure to obtain indictments "(I)ndicated that the ordinary people called upon to sit on grand juries were pushing back against efforts by prosecutors to harshly charge fellow citizens who had encountered law enforcement officers on the streets."

Something similar happened in Los Angeles recently as federal prosecutors struggled to obtain indictments against protesters arrested during demonstrations against federal immigration actions. Justice officials told The Los Angeles Times that prosecutors have struggled to get several protest-related cases past grand juries. In some cases, prosecutors reduced charges against defendants to misdemeanors after repeatedly falling short at the grand jury level.

Then there is Kendall Diaz, who was found "not guilty" of assaulting a U.S. Border Patrol agent in Spokane, Wash.

Diaz was arrested by federal immigration agents, accused of elbowing an ICE agent in the eye during a struggle in his own front yard. While the agent emerged from the encounter with a black eye, it appeared the jury, which reached a verdict in less than two hours, determined that Diaz's conduct, although captured on video, was not an intentional assault.

Last week, a Washington, D.C. jury acquitted Sean Dunn — the "Sandwich Guy" — of assaulting a federal officer. Dunn became the symbol of defiance when he hurled a sub sandwich that hit the chest of an agent wearing body armor. He went to trial, admitting he hit the officer to divert his attention from fleeing protesters.

Jurors are, in a sense, speaking for their fellow citizens. They are challenging the government's overreaching, overcharging and overzealous prosecution of protesters who were expressing their displeasure with the government.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Creators: Trial by Jury Is Vital to American Democracy

Matthew T. Mangino
Creators Syndicate
August 20, 2024

In colonial America, the British deprived colonists the right to jury trials. This prohibition was cited as one of the causes of the American Revolution. In 1776, the Declaration of Independence, the document that delineated the Founders' grievances with Britain, included, "Depriving us in many cases, of the benefits of trial by jury." With that document, America's Founding Fathers made trial by jury a right for which they pledged "[their] lives, fortunes, and sacred honor."

Thomas Jefferson, the author of the Declaration of Independence, wrote, "I consider [trial by jury] as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution."

Jury trials represent an important and expanding symbol of American democracy. With the advent of questioning the outcome of elections, the idea of one person, one vote is demonstrated by the jury trial.

The jury system, both civil and criminal, is vital to the American way of life. The United States Constitution provides through the Sixth Amendment, "In all criminal prosecutions, the accused shall enjoy the right to ... trial, by an impartial jury of the State and district wherein the crime shall have been committed."

Unfortunately, from that simple sentence, jury trials have become extremely complex and exceedingly rare. In the criminal realm, state jury trials occur in less than 5% of cases, and in federal court, there are even fewer trials.

On the civil side, trials have become so costly and unwieldy that cases are often settled, not on the merits but instead on the cost of seeing the case through to a verdict.

Although juries and jurors are sacrosanct to the justice system, a significant majority of people would rather expend time and effort at evading service than just doing their civil duty and serving — in much the same way that a significant number of people don't bother to vote.

There are hardships with serving as a juror. Getting away from work, following behind in class or scrambling for child care are just a few of the barriers to jury duty. However, the absence of working people, young people or child-rearing parents skews the jury pool. The idea of a jury of one's peers does mean a pool of jurors who don't work or can't work, are retired or disabled, or are older jurors with adult children or no children.

A robust and thriving justice system conducts trials. Forcing the government to prove an accused guilty beyond a reasonable doubt is vital to a democracy. Yet in the U.S., few people are proven guilty beyond a reasonable doubt. In a typical criminal prosecution, the first stage is a probable cause hearing. The burden of proof at that stage: "Is it more likely than not that a crime has been committed and the accused may have committed the crime?"

That is not a very demanding burden, and yet if the defendant pleads guilty, that is the only burden the government must meet. Although we speak in glowing terms of the state having to prove someone guilty beyond a reasonable doubt, very few prosecutions are ever tested at that threshold.

Jurors can also be an important check on overreaching by the government and prosecutors. Jury nullification has long been a means to protect defendants from unjust laws. Juries have the power to nullify the law in individual cases by finding a defendant not guilty even when there is enough evidence to prove the crime beyond a reasonable doubt.

During prohibition, it was alcohol laws. In the late 1990s, it was Dr. Jack Kevorkian and assisted suicide. Today, it is marijuana.

In this era of bashing long-standing institutions — elections, the U.S. Supreme Court, Congress — we would do well to double down on support for our system of trial by jury.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino).

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Judge admonished for encouraging jury nullification

It's not news that most judges balk at the prospect of jury nullification—the right and power of juries to bring "not guilty" verdicts when defendants violate laws that jurors consider unjust or wrongly applied, reported Reason. It is news when judges take a high-profile slap at a colleague who endorsed jury nullification in his own courtroom. And it's an even bigger deal when they barely assemble a majority to join in the public shaming.

That's exactly what happened last month when a divided three-judge panel of the U.S. Second Circuit Court of Appeals rebuked U.S. District Judge Stefan Underhill, who presided over what he called "a shocking case" in his court "that calls for jury nullification."

The prosecution that shocked Underhill was a dubious federal "child pornography" case growing out of a state statutory rape case. It was summarized by the feds themselves in a U.S. Attorney's Office press release, which alleges that defendant Yehudi Manzano "sexually assaulted a 15-year-old female victim in Connecticut, video recorded the assault with his cell phone, and uploaded the video to his Google account."

"The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me about the video.

How did the feds get jurisdiction in what would normally be a state criminal case?

The feds chose to pile on a questionable prosecution for acts already being addressed in the state courts. "Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the [child pornography] statute," as Judge Underhill marveled.

You would think a federal judge would have learned by now that the mere invocation of "interstate commerce" is the legal equivalent of muttering "Beetlejuice" three times, causing federal lawyers in ill-fitting suits to materialize amidst clouds of sulfurous smoke.

And materialize they did, with high stakes for the defendant.

"The charge of production of child pornography carries a mandatory minimum term of imprisonment of 15 years and a maximum term of imprisonment of 30 years, and the charge of transportation of child pornography carries a mandatory minimum term of imprisonment of five years and a maximum term of imprisonment of 20 years," the U.S. Attorney's press release notes.

Such a sentence would be in addition to the one to 20 years in prison faced by Manzano for sexual assault in the second degree, a class B felony in Connecticut, for sex with a 15-year-old who was legally incapable of consenting to the relationship.

Manzano's attorneys argued that the feds were overreaching and that their client should be allowed to inform the jury of the potential sentence and argue for jury nullification. Judge Underhill agreed.

"This is a shocking case," Underhill wrote. "This is a case that calls for jury nullification. …  I am absolutely stunned that this case, with a 15‐year mandatory minimum, has been brought by the government. …  I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct or the lack or seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."

Prosecutors promptly filed an emergency motion seeking a writ of mandamus—an order from a higher court that would bar Judge Underhill from permitting the defense to inform the jury of the potential sentence and to argue in favor of jury nullification.

Given the judicial system's strong aversion to loosening the puppet strings judges and prosecutors routinely fasten on jurors, it's no surprise that two of the three appeals court judges hearing the case sided with the prosecution.

"Our case law is clear: 'it is not the proper role of courts to encourage nullification,'" Judge Richard J. Sullivan wrote in a ruling joined by Judge Denny Chin "As a practical matter, there is no meaningful difference between a court's knowing failure to remove a juror intent on nullification, a court's instruction to the jury that encourages nullification, and a court's ruling that affirmatively permits counsel to argue nullification."

The appeals court did not agree to bar Underhill from allowing sentencing information to be presented to the jury, since there are potentially grounds other than nullification that could justify its introduction.

More surprising is that the decision was close, with Judge Barrington D. Parker opposing writs of mandamus regarding both sentencing and jury nullification.

"An especially unsettling aspect of this case is that the record the prosecution presented to the District Court and to this Court is barren of anything that would explain, much less justify, the prosecutors' decision to file the most serious child pornography charges available to them against a man who made a single video which no one else ever saw and which he then attempted to erase," Judge Parker argued in his dissent.

"Faced with the Government's charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted," Parker continued. "But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so. … I respectfully dissent from the majority's grant of a writ directing the District Court to allow no arguments for jury nullification."

Those are strong words. But, since they're on the losing side, Manzano won't be allowed to argue in his defense in favor of jury nullification. His trial will feature jurors informed that they must abide by the federal government's legal-contortionist interpretation of the law—though they may be told about the draconian potential sentences in the case.

But Judge Parker's dissent, following Judge Underhill's willingness to entertain jury nullification arguments in his court, have provided dramatic fodder for headlines. A public pissing match between federal prosecutors and judges features in news stories exposing the public to judges' doubts about the wisdom and humanity of the criminal justice system.

An appeals court decision allowing Manzano to argue in favor of jury nullification would have been a better outcome in this case—short of the feds entirely leaving the matter to the state. But despite the loss, we're getting an eyeful of how the system works, and how responsible jurors can bring otherwise-lacking judgment and mercy to courtrooms.

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Philly DA seeks to undo death sentences

Philadelphia DA Larry Krasner, a Democrat and former criminal defense attorney, had made clear while running for office his opposition to capital punishment, reported the Philadelphia Enquirer.  "I will never seek the death penalty — ever,” he said in a 2017 campaign video. “The DA’s Office is not required to do it and there’s no good reason to do it. It costs a fortune. We don’t execute anyone anyway, and Philadelphia does not have to remain the only city in the Northeast that still has the death penalty.”

But his efforts to reverse death sentences in years-old convictions have raised concerns among law enforcement officials and victims’ advocates about whether his office has been transparent with victims’ families. They also have brought pushback from those who say Krasner is attempting to impose his agenda by asking courts to undo punishments decided by juries.

In one filing last year, a former ranking Philadelphia prosecutor now working for the state Attorney General’s Office said letting new district attorneys invoke “prosecutorial discretion” to overturn past verdicts and decisions could lead to “chaos” in the courts.

“Each new prosecutor could quickly work to reverse every legal precedent of predecessors with whom he disagreed,” said the brief from Ronald Eisenberg, senior appellate counsel in the AG’s Office. “Thousands of convictions would be in jeopardy every four years; the law would be a seesaw.”

Asked to elaborate on the office’s stance on death-row appeals, Krasner’s spokesperson Ben Waxman said all post-trial decisions about whether or not to pursue the death penalty are considered by a committee within the District Attorney’s Office, which then makes a recommendation.

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GateHouse: Police officer convictions increasingly elusive

Matthew T. Mangino

GateHouse Media

December 9, 2016

In 2014, 18-year-old Michael Brown was shot and killed in Ferguson, Missouri by police officer Darren Wilson. This incident was described by St. Louis County Police Chief Jon Belmar as a "physical confrontation" that started inside a police car and spilled onto the street.

Attorney Benjamin Crump, who represented the family of Michael Brown at the time, told the USA Today, "Those who shoot and kill suspects often escape prosecution because the criminal justice system places a high value on an officer's word and often accepts their narrative of events."

Crump's words were prescient. Charges were never filed against Wilson and as we've learned during the course of the last month, even when charges are filed against a police officer conviction is difficult.

In the last 30 days, juries in South Carolina, Oklahoma and Ohio have failed to reach verdicts in cases involving police officers charged with murder.

The trial of a South Carolina police officer accused of murdering an unarmed black motorist was declared a mistrial this week. A video showed Officer Michael Slager, who is white, shooting 50-year-old Walter Scott, who is black, multiple times in the back as he ran away from the officer.

The jury deliberated for more than 22 hours over the course of four days, when Judge Clifton Newman announced that the jury was hopelessly deadlocked.

Contrary to original reports, the jury was not hung 11-1 in favor of guilty. Jury foreman Dorsey Montgomery II, told the "Today Show" that the jury had agreed that murder was not the appropriate charge and they considered a lesser charge of manslaughter, but five jurors could not vote for guilty, despite the fact that shooting a fleeing suspect in the back has long been outlawed.

In 1974, the United States Supreme Court in Garner v. Tennessee held that, under the Fourth Amendment, when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless the officer believes that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Justice Byron White wrote, "It is not better that all felony suspects die than that they escape." He continued, "The fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect."

Last month, a judge declared a mistrial in the murder trial of now retired Tulsa police officer Shannon Kepler. The officer was off duty when he confronted his daughter's boyfriend and shot him in the chest and neck killing him and endangering others.

The jurors said they were stuck at 11-1 in favor of guilty. Kepler, who was off duty, claims that he was looking for his 18-year-old daughter. When he found Lisa Kepler she was with her boyfriend. Kepler then fired at the boyfriend with a .357-caliber revolver -- killing him.

This past month in Ohio, jurors hearing the case against University of Cincinnati Police Officer Ray Tensing could not reach a unanimous decision on charges of murder or voluntary manslaughter.

Hamilton County Prosecutor Joe Deters revealed that after 25 hours of deliberations the jury vote was 8-4 in favor of a voluntary manslaughter conviction. At least three jurors were willing to find Tensing, who is white, guilty of murder in the killing of the black motorist he shot during a traffic stop.

Jury nullification has long been accepted where a jury decides that the evidence supports conviction but renders a "not guilty" verdict because it feels that a conviction would be unjust.
Are these decisions by individual jurors the product of conscientious deliberation or "juror nullification?"

Some jurors may find it simply unconscionable to convict a police officer and by holding out -- juror nullification -- they can take a stand on what they perceive as the unjust treatment of the police.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll, 2010," was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino. 

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Jury nullification and prosecutorial discretion 'one and the same'

Professor Glenn Harlan Reynolds wrote in the Washington Post last week:

About the the need for a little more activism among jurors to counter the ever increasing authority of prosecutors. “Prosecutorial discretion,” is where a prosecutor decides not to bring or pursue charges against you because doing so would be unfair, even though the evidence is strong. Or it can happen through “jury nullification,” where a jury thinks that the evidence supports conviction but then decides to issue a “not guilty” verdict because it feels that a conviction would be unjust.

Strangely, the former is much less controversial than the latter. Prosecutorial discretion is regularly applied and generally regarded as a standard part of criminal justice. Its application may, on rare occasions, create controversy — such as when TV host David Gregory got a pass for what even the prosecutor called a “clear violation” of D.C. gun law when he displayed a high-capacity ammunition magazine on “Meet the Press” or when U.S. Attorney General Loretta Lynch invoked prosecutorial discretion as a reason for not pursuing charges against disgraced IRS employee Lois Lerner. But the concept of prosecutorial discretion is generally regarded as sound.

So-called jury nullification, on the other hand, gets far less respect. Though it is clearly within the power of juries to refuse to convict whenever they choose, judges and prosecutors tend to view this practice with hostility. They may not be able to stop juries from exercising their power, but they do their best to keep people from telling them that they have this option: Periodically, we see stories of people prosecuted for handing out jury nullification leaflets outside courthouses. Prosecutors in the District have even complained aboutbillboards telling potential jurors about jury nullification.

That may change, however, with New Hampshire’s new legislation requiring that juries be informed by the court that they may refuse to convict if they feel a conviction would yield an “unjust result.” The New Hampshire legislation is good, but in my opinion it doesn’t go far enough. Juries should be empowered to punish the prosecution when they feel the prosecution is abusive or malicious.

In today’s system, prosecutors hold almost all the cards. The prosecutor’s unreviewable decision whether to charge someone with a crime is, for all practical purposes, the most important part of the criminal justice system, yet it is a decision to which no due process attaches.

In a recent Columbia Law Review essay, titled “Ham Sandwich Nation: Due Process When Everything Is A Crime,” I noted that “prosecutors count on the fact that when a defendant faces a hundred felony charges, the prospect that a jury might go along with even one of them will be enough to make a plea deal look attractive. Then, of course, there are the reputational damages involved, which may be of greatest importance precisely in cases where political motivations might be in play. Worse, prosecutors have no countervailing incentives not to overcharge. A defendant who makes the wrong choice will wind up in jail; a prosecutor who charges improperly will suffer little, if any, adverse consequence beyond a poor win/loss record. Prosecutors are even absolutely immune from lawsuits over misconduct in their prosecutorial capacity.”

So I think we should give prosecutors some skin in the game. Let juries be informed that they may refuse to convict if they think a conviction is unjust — and, if that happens, let the defendants’ attorney fees and other costs be billed to the government. Also, let juries be informed that, if they believe the prosecution itself was malicious or unfair, they can make that finding — in which case the defendants’ costs should come out of the prosecutor’s budget. (If you want to get even tougher, you could provide that the prosecutors involved should be disqualified from law practice for a year or stripped of their immunity from civil suit. But I’m not sure we need to go that far).

Over the past several decades there has been a massive shift of power toward prosecutors, the result of politics, over-criminalization, institutional leverage and judges’ failure to provide supervision. It’s time to redress the balance. Although it doesn’t go far enough, New Hampshire’s proposed legislation is an excellent start.

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