The history of jury trials is rich with individual examples of nullification, a practice meant to bring about a just result or signal a change in the community conscience. Over time, the practice has become disfavored; civilian and military judges have prohibited nullification tactics in voir dire, 10 arguments, and instructions. Yet present panel guidance tells members to decide cases through consideration of the law, the evidence, and each members own conscience. And consequently, despite the military’s emphasis on strict obedience to the law, discretion exists within its justice system to allow members to hear arguments on the merits of both the facts and laws charged. Military judges should use this discretion and allow nullification in appropriate cases.

Major Michael E. Korte, He Did It, but So What? Why Permitting Nullification at Court-Martial Rightfully Allows Members to Use Their Consciences in Deliberations, 223 Mil. L. Rev. 200, 103-104 (Spring 2015) (direct link to article).

Recognizing that (and discussing the reasons why) efforts at obtaining jury nullification in a criminal case are generally barred, the author sketches out reasons why “in the limited circumstances of the factually guilty but morally blameless accused, nullification is an appropriate exercise of the discretion and trust entrusted to a panel comprised of those the convening authority hand-selected for their judicial temperament and experience.” Korte, supra, at 129. Those limited circumstances include a case that does not involve “only universally accepted criminal charges,” that presents evidence to “support an eventual nullification argument,” and that ends with an argument that “contain[s] the hallmarks of a nullification argument” (including appeals to the members’ conscience, discussion of the direct consequences of conviction, and questioning of the law at issue). Korte, supra, at 133.

The author also illustrates how current law allows for nullification. For example:

The military judge’s standard Benchbook instructions, however, allow panels the opportunity to acquit even when there is no reasonable doubt as to guilt. This opportunity is written into the standard instructions relating to the instructions on findings. These instructions state that where there is reasonable doubt as to the guilt of the accused, “that doubt must be resolved in favor of the accused, and (he) (she) must be acquitted . . .”

The instructions continue, describing the alternate scenario: “However, if on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.”

The significance of the differing standards cannot be understated. The rules for courts-martial protect the accused by mandating a “not guilty” verdict when more than one-third of the panel members have reasonable doubts as to guilt. The same rules, as delineated in the standard Benchbook instructions, do not expressly require a “guilty” verdict when the members have no reasonable doubt as to guilt. Thus, panel members who find that the government has met the elements beyond reasonable doubt have latitude to find the accused “not guilty” because the members merely should find the accused guilty. This deliberate language allows for nullification in the limited cases where the panel members find that the accused committed the offense, but they do not wish to convict. These instructions are not inconsistent with Article 51(c), which does not specifically require instructions on panel obligations where all elements are met, opting instead for a clear instruction that the accused is presumed innocent until guilt is established by evidence beyond reasonable doubt.

Korte, supra, at 133.

31 Responses to “Scholarship Saturday: Nullification”

  1. DCGoneGalt says:

    Thanks for the great read!  Excellent article and a fascinating topic.  If anyone is interested in additional reading there is additional history of jury nullification you can try:
    Law Review Article – Nullifying the Jury:  “The Judicial Oligarchy” Declares War on jury Nullification –
    Book – Jury Nullification: The Evolution of a Doctrine
    Are there are provisions in the service ethics rules that could be used against a counsel for arguing for nullification?  
    However, once one is able to argue for nullification there would have to be  crystal clear guidance on what is allowed.  The article uses the curfew example as an unjust as applied example.  However, would the judge be able to deny the use of nullification as a defense if the accused turned down an Art 15?  I would hope so, even though that would be depriving the accused of a defense since at the argument stage the government would not be able to offer the Art 15 in rebuttal and that would signal to the members that even if they convict the government only saw the case as Art 15-worthy for sentencing purposes.  Would the “unjust as applied” nullification argument be allowed to argue it is unjust to prosecute a male for a complainant blackout sexual assault if the male also blacked out or had a higher BAC than the complainant?  Would it allow argument against marijuana charges?  The article seems to indicate this would be a step to far, but would it also allow an as applied racial disparity arguments?  And could this open the door to veiled “acquit because of race” arguments infamous from the post-Reconstruction to Jim Crow era? 
    I view nullification as a (necessary but certainly capable of abuse) check on the governments ability to pass laws that its’ citizens disapprove of.  I have never been able to understand how the instructions allow for it but no one in the courtroom is allowed to mention it.

  2. RY says:

    i had looked at this years ago and I think the author is relying on the Army version of the instructions, unaware the Air Force version says the jury “must” find the accused guilty.  I had a colleague file a motion in the Air Force moving for the Judge to read the Army version.  It didn’t work but I don’t think many realized there was a difference in this instruction.

  3. stewie says:

    I don’t think you can argue for nullification…that is, you can’t say, yeah the government has proven it BRD, but this is a dumb law and you shouldn’t follow it, or even, the law didn’t anticipate this situation so you shouldn’t apply it.
    What you can do is emphasize that at the end of the day, it’s their call, if they don’t think he should be found guilty in this situation, they have the final say (which I believe is pretty much what MAJ Korte says in his article–although granted I’ve only skimmed it) and the instructions and oath even include the word “conscience” which strongly suggests nullification as a possibility (again as Korte clearly points out).
     So all in all I agree with his position, although I doubt we will ever see an actual instruction.

  4. Tami a/k/a Princess Leia says:

    I think “jury nullification” is a fantastic concept that should be, and I dare say, is already, in practice.  Many kinds of cases where technically the accused is guilty, but finding the accused guilty just isn’t “right.”  Child porn where the accused has a sexual relationship with a 16 yo who sends naked pictures of herself.  Technically child porn, but if the accused can legally have a sexual relationship with her and see her naked with his own eyes at anytime, then is it just to have a federal conviction (with SO registration, etc.) for the rest of his life for naked pictures? 
    Sexual assault!  I have seen several cases that included video footage, it was obvious that the victim was indeed “too drunk” to consent, yet the accused is acquitted.  “Nullification” can be the only explanation.  What if I wanted to give Han a pleasant wake-up call by giving him a blowjob?  Since he is sleeping when I start, technically I have committed a sexual assault.  Is it right that I have a conviction and have to register as a sex offender due to such technicality?  Or should I be able to get a bunch of rebels on the panel (except for Luke, he would be challenged for cause) and be able to argue “if none of you would complain about your woman giving you a BJ when you’re asleep, then you must acquit?”
    I have argued for “nullification” in a case where my 25 yo client slept with his 16 yo stepdaughter.  Government charged it as aggravated incest under state law as opposed to indecent acts under Article 120.  At the end of the government’s case, I succeeded in getting the charge dismissed for failure to state an offense under the preemption doctrine, which of course the government appealed, and of course ACCA reversed.  So back at trial, I argued that the judge should find my client not guilty, because ACCA got it wrong, and a not guilty verdict would end the matter because a not guilty verdict can’t be appealed.  She laughed, then later found him guilty, but definitely it was worth arguing, and the TCs were scared she was going to find him NG.
    I would argue nullification is completely legal in our system, given that we only require 2/3 majority to convict instead of unanimous verdict.  This system allows someone who has a doubt, but that doubt is not objectively “reasonable,” to vote NG.  How many cases in the civilian sector result in hung juries because one juror felt sorry for the defendant?  What about Holmes, it was only 1 juror who was a hold out for the death penalty!  Are we going to say that was wrong?
    RY, I’d say the AF instruction that requires a finding of guilty is a great appellate issue, under our system, an accused is presumed innocent until proven guilty, there can NEVER be a requirement to find someone guilty when you have a doubt about guilty, whether that doubt is honest and reasonable, or just honest.

  5. Joseph Wilkinson says:

    An interesting article and I loved the historical background.  Though I think he missed the most notorious form of nullification before the Revolution: the tendency of New England juries to acquit people on smuggling charges.  (The Royal response was to move smuggling cases into Course of Admiralty, where there were no juries.  That is what the Declaration of Independence refers to when it says the King deprived people “in many cases, of the benefits of trial by jury.”)
    Jury nullification is a terrible idea…because of its twin partner, jury anti-nullification. Tell a juryman that he can follow his own conscience, regardless of what the law says, and you’ve told him he can convict innocent men as well as releasing guilty ones.  Unfortunately, that, too, has a history, and the temptation to it is especially strong in our own time. 
    This is a bad policy in any event, and it makes an especially bad match with military justice, where there are no <I>Alford</I> or <I>nolo contendere</I> pleas, and you can’t make a deal unless you are in fact guilty.  It’s even worse during moral panics or “command emphasis events”…where commanders or Congressmen want to make examples of certain kinds of crimes, and the pressure to Get More Convictions is already there. 
    The article rightly points out that nullifaction isn’t <I>unlawful</I>…but that’s for obvious reasons: the power to investigate and enforce such a law would be extremely pernicious.  The judge still ought to instruct strictly against it.  
    The solution in the article’s hypothetical would be to convict the officer, sentence him to no punishment or a reprimand, and leave the defense to petition the commander (or a higher commander) to throw out the conviction.   In fact letting the jury sentence — as we do in military justice — allows them this perfectly reasonable alternative to nullification: pronounce little or no punishment when they think the crime doesn’t deserve it. 

  6. stewie says:

    I don’t think anti-nullification is a concern here. The specific instructions are pretty clear that “conscience” only flows one way, and if the government has not proven BRD you MUST acquit. There’s no room left. Is it possible to have some rogue panel member who goes full
    Honey Badger? Sure, but that’s there regardless of what rules/instructions you throw out there.

  7. Advocaat says:

    Terrific topic.  As a younger, more idealistic counsel I did the things suggested in the article (e.g., ask the MJ for V-D questions and instructions regarding nullification) for the right cases.  I later switched to a more indirect, layered approach.  As long as there are juries/panels, there will be a thread of nullification in the fabric of reasonable doubt, and the concept takes the entire trial to incubate within at least one member where it then has a chance to spread during deliberations.  The oath is a great foundation for argument but I’d first take every opportunity to ensure the members knew their preeminence right from V-D and then reinforce that concept even for mundane things like when to take lunch.  I also think you need to give the members something else to hang their vote on, like character evidence, to weave this powerful thread into an acquittal.

  8. Concerned defender says:

    Perhaps the laws should be more wisely written to avoid this issue.  Taking the “wake up to sexual acts” point- this is one of the most absurd laws in the modern UCMJ.  The mere idea that one is technically committing a federal offense by waking their previously consensual sex partner up to more sex is such a poorly drafted law.  And consent can’t really be given after the fact so the “perpetrator” is really “guilty” indefinitely.   Taken to the extreme, a happily dating couple could practice this act, get married, and 25 years later during a bitter divorce one could claim the other sexually assaulted him/her with this practice.  The same is true with the way intoxication is drafted and explained.  I doubt there is a sexually active human (who consumes alcohol) who hasn’t had sex when he/she is very intoxicated at some point.  Also the example of throwing a pie at someone and part of that pie enters their mouth – as a sex assault (humiliation and body opening).  These examples can technically be charged and would REQUIRE nullification to avoid a conviction where all other elements are met BRD.  NO SYSTEM SHOULD RELY ON NULLIFICATION to avoid injustice.
    I guess I just don’t understand why drafting laws is so difficult – or why the drafters cannot see the glaring problems with the laws they pen.  Article 120 is so cumbersome and useless to the average person that you can’t sneeze without a violation.  
    It seems to me that a group of smart people could easily draft usable laws that don’t have these sweeping absurd applications.  
    We all know what a sex assault or rape is.  It could be written in a few hundred words.  Consent should be implied in the elements through conduct and prior relations, and not rely on a defense of “honest and reasonable mistake of fact.”  For instance, if there were prior relations or implied consent, the elements should require a CLEAR refusal of sex (or an overpowering) to create a 120 offense. 
    (EG, a dating relationship or marriage where sex is regular – and the ‘victim’ claims she didn’t want sex – it should incumbent on the ‘victim’ to prove she affirmatively communicated this.)  
    Again, 120 is easy to attack for nullification because the laws are so absurd, cumbersome, and nonsensical.  It takes experienced lawyers hours to figure out the Article – yet hormone driven college aged men and women are held to unreasonable standards to not violate a very non-common sense technical law for sexual relations.  

  9. stewie says:

    So you’d put the onus on the alleged victim to clearly refuse sex, not on the accused to show consent (or even the government for that matter). So what equals clearly refuse? How can someone unconscious or passed out “clearly refuse?” 
    It’s one thing to say 120 isn’t the best written piece of law, I’d agree. It’s another to say “this stuff is soooo easy.”

  10. Joseph Wilkinson says:

    I don’t think anti-nullification is a concern here. The specific instructions are pretty clear that “conscience” only flows one way.
    No they don’t.  Read the proposed instruction on page 154 of the article: “Argument is made by counsel to assist you in understanding and evaluating the evidence, but you must base the determination of the issues in the case on the evidence as you remember it and apply the law as I instruct you in accordance with your conscience.” 
    And that’s it.  That’s all it says about “conscience.”  There is no one-way gate, and since the “in accordance” words modify the phrase “apply the law,” it can nullify any part of the law, even the presumption of innocence.  If your conscience says “convict the innocent,” you can do that; if it says “acquit the guilty,” you can do that.   The same goes for the voir dire questions on the page before…”use your conscience in reaching a verdict of guilty or not guilty.”
    It’s not hard to imagine cases where the temptation is there.  Imagine a terrorism case where the juror realizes the accused is not guilty of the specific crime charged…but he is an unrepentant Jihadist, spoke plenty of anti-American rhetoric on the stand, the prosecutor brought in plenty of weeping victims wanting “closure,” and if you let him go he’s just going to do something bad.  Your conscience might well say…”better to soothe the victims and protect the community – convict.”    
    Or imagine a white cop shooting a black defendant…and the facts suggest it was self-defense or reasonable use of force, but the defendant is a yucky racist, you think “whites in general” owe a historic debt to “blacks in general,” and besides, you’re worried about a new round of Rodney King/Ferguson-style riots if you acquit.   Your conscience might say “this villain isn’t worth all the suffering – convict.” 
    Which brings me to another terrible thing about nullification: retaliatory nullification.  A friend of mine used to work for a prosecutor’s office in the South…and told me that for many months after the “Rodney King beating” verdict, black juries wouldn’t convict a black defendant of anything.  (The DA patiently kept bringing cases, for which I admire him; and eventually they came around.)   Some people think the O.J. verdict — which gets a citation in the article, with a note about Johnnie Cochran’s closing — was more of the same.  “One of yours beat up one of ours, and got away with it?  Okay, when one of ours kills one of yours, we’ll let him get away with it.” 
    That is the negation of the rule of law, and judges ought to instruct against it every time, in strong language. 

  11. Joseph Wilkinson says:

    (Obviously I’m using a generic “you” there; you might not feel that way about either hypothetical but I bet you’ve known people who would.)

  12. Joseph Wilkinson says:

    (Also substitute “black suspect” for “black defendant” and now it is bedtime!)

  13. Cloudesley Shovell says:

    Concerned defender said,

    I guess I just don’t understand why drafting laws is so difficult – or why the drafters cannot see the glaring problems with the laws they pen.  

    Just try it sometime.  Walk a mile in the shoes of those who have done so.  And remember, you’re not writing a statute in a vacuum, you have to actually get the current Congress to enact your proposal.  Also remember that no matter how hard you try, you cannot envision every set of facts, or every possible interpretation of seemingly clear and unambiguous words. 
    Since you mentioned Art. 120, start with that.  Ask CAAFlog to post your proposal.  See what others think of it.  Enjoy!
    Kind regards,

  14. stewie says:

    I have a crap computer in my new assignment so it’s taking forever to load the MJBB…but there are other sections of the instructions that talk about how you must acquit if you find that the government did not prove the case BRD. There is no wiggle room there. If does not say you must convict if you do, it says you must acquit if you don’t.

    I think your worst case scenarios certainly have happened more frequently in the past, and in certain areas of the country I suspect they still do from time to time…I have much less fear of those things happening in a military trial, and the reality is, if someone really wants to convict someone for the reasons you state, they’ll find a way to BRD…they won’t need anti-nullification to get there…and if they really don’t want to convict, they’ll find a way to the government didn’t prove it BRD…they won’t need nullification then either.

  15. dyskolos says:

    I have a war story on this topic.  I’m a Capt TC at a SAC base in the 70’s trying a case in a SPCM for disobedience of orders. The weapons storage area had to be monitored 24/7/365 and the weapons security folks worked in shifts to do it. Our hero is a 7th Day Adventist and doesn’t work on Saturdays, so if he if he is scheduled to pull duty on a Saturday, he swaps days with one of his buddies or gets the scheduler to make a change.  He tries hard to make this work because he has a previous LOR and Article 15 for not showing up on a Saturday. This arrangement works well for a while, but unfortunately the stars do not align and he get assigned Saturday duty during the holiday season when the scheduler and his buddies can’t accommodate him. He goes to the 1st Sergeant and the Commander, but the unit is minimally manned at this time and they can’t accommodate him, so he informs them he just won’t show.  Their response is we don’t have anyone else, this is a critical mission, and you have to show — and if you don’t this will be your third strike and we’ll prefer CM charges.
    Which is what happened.  Long story short, the accused takes the stand to explain himself and on cross I get a judicial confession to all the elements.  He even gratuitously mentions the the previous LOR and Article 15. I’m feeling pretty good  —  since the case is proven twice, once by me and once by the accused — and I’m preparing for sentencing until … the panel acquitted him.  I was stunned. 
    But the judge explained to me that the panel just didn’t want to have to punish the guy, so they acquitted him.  Nullification, pure and simple.

  16. Advocaat says:

    Do you remember how DC approached/argued the case, @dyskolos?

  17. dyskolos says:

    Barely.  My recollection is that DC argued this as a failure of the unit to provide a religious accommodation.  He also touted the sincerity of the religious beliefs of his client. 

  18. Concerned defender says:

    We’ve all sat through 90 minutes of instructions for complex sex assaults in particular.  Who can digest 90 minutes of logic equations and verbal gymnastics?  Who can expect that a college aged guy had any idea that he needed a witnessed and notarized breathalyzer before sleeping with this woman who was all over him at the club now amounts to facing 3 decades in prison and a DD?  The benefit of doubt should be written right into the elements.  We need to restore the rights to the accused where they should be rather than what we have now, which is a burden shift to compel him to testify.  
    Laws should be simple and straight forward for anyone to understand.  I’ve not given this much thought, but it can’t be too hard.  This represents 10 minutes of thought.  Surely a group of people smarter than me could hammer our a really good and easy to use law. Elements of sex assault or rape (which would be narrow because they carry with them the SO registery – all other are simple or aggravated assaults as appropriate):
    1. A sex act (which would be defined as what folks commonly understand, one sex organ or an object into or another sex organ – penis, mouth, vagina, anus, dildo, broom handle, etc.)
    2. For gratification, power, discipline, the purpose of sexual arousal, etc.  Sexual in nature, not a pie throwing contest at a fair, or a legitimate medical exam, for instance. 
    3. With an objectively unwilling, asleep, or passed out participant, or one otherwise compelled by force or coercion or duress.  Objective unwilling means that there was no indication from prior sexual relations, prior consensual acts.  Things like marriage or prior consensual acts or the behavior of the complaining witness will amount to consent without any affirmative denials nullify this element absent proof of some objective severing or refusal (a divorce, a breakup, an affirmative “no” or “not tonight.”).  A complaining witness must demonstrate affirmatively that she did not consent or withdrew consent.  
    4. Any unusual delays in reporting or evidence of motives to report by the complaining witness shall be affirmative defenses to which the complaining witness must affirmatively overcome with evidence. 
    This obvious raw idea reestablishes the burden on the government where it should be.  

  19. Tami a/k/a Princess Leia says:

    Here’s another situation where the concept of jury nullification comes into play:  “wrongful” recording.  How many guys have had friends record them engaging in sex with someone who is obviously willing participant and not drunk?  I saw this happen many times when we still had indecent acts as a crime.  The female would later claim rape, then when the guy produced the exonerating video, CID wout drop the rape charge but the guy would get busted for indecent acts, due to the presence of the third person recording the event.
    Of course, instead of saying “nullification,” hou would argue the recording isn’t “wrongful.”

  20. 917 and Object! says:

    The danger of type 1 errors (members convicting innocent accused) associated with jury nullification is reduced, as previous commenters have pointed out, by the instructions that doubt *must* be resolved in favor of the accused.  Type 1 errors are also reduced substantially by the power of the military judge to return a finding of not guilty.  More strident use of that power by military judges than currently occurs would be required, however.  Accordingly, providing for a truly independent military trial judiciary would be a good first step in making the military justice system safer for jury nullification arguments.  Until that time, I think arguing nullification is a little dangerous for a defense counsel.  Inviting the members to be governed by conscience rather than sober application of the law can sting if they turn on you.  That being said, defense counsel should be particularly on-guard for anti-nullification arguments by prosecutors.  Just because the defense is prohibited from arguing nullification does not mean the members lack that power – it is inherent, and fundamental, to jury-like systems of criminal justice.  A prosecutor who argues to a jury or members panel that they “must” convict has misstated the law and the panel’s role in the criminal justice system.  A panel always has the power to nullify, and therefore merely “should” convict if the government has met its burden.  A prosecutor who argues otherwise has invited an objection and an on-the-spot corrective instruction to the members regarding the long-established power to nullify according to their own consciences. 

  21. stewie says:

    I think another reason why type 1 errors are reduced is because it is only the defense counsel that can speak to the panel member’s conscience…I highly doubt a TC would try that argument, and they’d be quickly shut down if they did by the MJ and by objection from DC or even on appeal.

  22. Defender1 says:

    Jury nullification can and does occur in the military courts.  Mike Korte’s article is great for the legal history and a start of a plan.  I m of the opinion that in the end if you are seeking jury nullification, you must first realize MJ’s will stop you if you are 1) obvious about it, or 2) the TC realizes what you are doing and objects.  So the key is to cleverly disquise your nullification argument in such a way that the panel “gets it” without you ever having to come out and directly use words that amount to a nullification argument.  It takes a good plan and clever semantics.  From experience, there are some judges that will realize what you are doing, but if the TC is clueless, or inexperienced and does not catch on, and therefore fails to object, the judge won’t sua sponte stop you.       

  23. Phil Cave says:

    There was a day when we did argue for nullification, without calling it that, and occasionally got it.
    This was also in the days when the members could reconsider findings up until the time of announcing a sentence.  Some of us remember that?  So on sentencing we’d see if we could get a reconsideration on the merits.  Of course the gubmint didn’t like that and so after a surprisingly long time they changed the timing of reconsideration.

  24. RY says:

    Agree it’s about how you argue it. That being said, I’ve seen prosecutors successfully fight against it by arguing juries must convict and they may like the accused or they may not like the charge much but that’s a matter for sentencing not findings. I think that is how I got a no punishment sentence in a case before I left litigation.

  25. TV says:

    Many moons ago as a new TC, I was assigned every ticky-tack NJP refusal case that percolated its way into a SPCM.  Based on that experience, I found jury nullifications to be an occupational hazard.  I doubt the panels called it that in their deliberations, but it would be reasonable to assume that either consciously or subconsciously when they weighed the gravity of a federal conviction against the minor misconduct at bar, they were more likely to find reasonable doubt hidden in some nook or cranny (particularly if the accused was a SNCO with an otherwise sparkling record).    It was a valuable lesson in humility and gave me a good perspective when I advised commanders later in my career. 

  26. Concerned defender says:

    There was an extreme example of nullification at JBLM circa 2012-13.  Short version, panel convicted accused of sex assaults/rape, etc based presumably on a very very sympathetic married female victim and fact pattern involving her deployed husband.  Apparently the accused had raped her in an acquaintance rape situation, in her home.  The defense was that the “victim” was a cheating spouse and willing participate after a long period of sexual flirting.  Anyway, on sentencing, the “victim” suddenly developed a studder she did not have for the entire trial.  Then the “victim’s” mom testified that the dog developed PTSD (mind you this was not a violent rape/assault).
    Having already convicted the accused, the panel asked the judge if they could reconsider.  They did, and acquitted him based on their anger toward feeling manipulated by the “victim” and her mom.     

  27. Joseph Wilkinson says:

    The danger of type 1 errors (members convicting innocent accused) associated with jury nullification is reduced, as previous commenters have pointed out, by the instructions that doubt *must* be resolved in favor of the accused. 
    Standard voir dire (section 2-5-1 in the benchbook) charges the panel both ways – “The accused…is presumed to be innocent until his guilt until his guilt is established by legal and competent evidence beyond a reasonable doubt.  Does anyone disagree with this rule of law? . . .  On the other hand, can each of you vote for a finding of guilty if you are convinced that under the law, the accused’s guilt has been proved by legal and competent evidence beyond a reasonable doubt?”   So the  message is that you’re supposed to follow the evidence whichever way it leads…unless you stick in the “conscience” language suggested by the article, which politely asks the panel whether they would be willing to do what they feel like doing regardless of the evidence.
    I just reread the judge’s closing substantive instructions on findings (section 2-5-12).  They are not as one-sided as you think they are and they do not say that “doubt must be resolved in favor of the accused.”  They say that the Government must prove its case beyond a “reasonable” doubt and limit what kind of doubt is considered “reasonable” (i.e., not “fanciful or ingenious”).
    Reread the last sentence of the first long paragraph: “However, if on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.”  The article makes much of that “should” but panels aren’t full of lawyers, and even lawyers won’t nitpick that much unless it’s for a cause they favor.
    So, on the one hand the judge is telling the panel to judge according to the facts and the law, to find guilt if the evidence proves it and not otherwise.  On the other hand (if the new instructions are added), they’re being told to do whatever they want (i.e., “follow your conscience”).   Human nature being what it is, when you tell people to do what they want and not do what they want, they’re going to hear the “do what you want” part much louder…and there are plenty of incentives to “want” to convict an innocent man, at least if the case is politically, ideologically, or emotionally charged.  The better way is for the judge to do his damnedest to keep the politics, ideology, and emotion out of the case, by sternly instructing the members to consider the evidence and only the evidence on findings.  There will be time enough for mercy when sentencing rolls around.
    917’s don’t help much on jury anti-nullification.  You get 917 when the gov’t hasn’t brought anything on an element.  They’re used all the time and quite aggressively, or at least that was always my experience — but the standard is so low that it’s very easy for the Government to meet if they don’t get careless.  Judges raising the standard on 917 would be “judicial nullification” and even worse than the panel kind, so I can’t really blame them. 

  28. Joseph Wilkinson says:

    An additional problem for nullification in military court is the nature of military leadership. Nullification on the language suggested in the article needn’t be limited to sympathetic defendants….it can be used to nullify unsympathetic laws or orders, or even reasonable orders from unsympathetic commanders.  Anything goes under the rubric of “conscience.”  Military leadership is not supposed to be a popularity contest, and part of effective leadership is issuing orders that people are going to hate.  But with a “nullification” rule the commander finds that he can’t enforce his orders unless people like them…or him.  Court-martial is his last resort for enforcing his orders; and if he can’t use that, he has nothing. 
    Thus, in the article, what if LTC Smith violated the curfew not because of the sudden uniform emergency, but because wanted to go out “bending the elbow” and trysting with “juicy girls.”  But the panel members have been chafing under the curfew because they want the same thing.  Tell them they’ve got the power of “nullification” and there will be no curfew. 

  29. stewie says:

    I don’t think panels are unerring creatures who always get it right. However, the idea that if you add the word conscience, they will believe evidence wasn’t proven BRD yet convict in spite of that knowledge I find highly unlikely. I think you seriously underestimate the seriousness with which they take their duty if you believe that. That doesn’t mean they don’t sometimes just plain get it wrong, they do, I’ve been on both sides of the aisle when they did it.

    And I disagree on your second point. I think having a panel there to say “why is this at court-martial when any reasonable commander would have dealt with this at a lower level” or “I’m not giving this kid a federal felony conviction for this offense” is mighty fine. And if the order violated technically is legal, but is so absurd or silly that violating it is not worthy of a federal conviction, I’m fine with a panel saying that as well.

    Perfect example: for about five minutes, they were going to have a rule in 670-1 that said you had to be clean shaven at all times, even off-duty, even in military uniform. So SGT Snuffy goes to get formula for his new baby at 2am at Wal-Mart and 1SG Strict Rule-Follower sees he hasn’t shaved, and charges are preferred and he is court-martialed. A panel could very well say are you kidding me? and acquit…and I have no problem with that.

  30. Joseph Wilkinson says:

    In the normal case, I don’t expect them to convict on an unproven case, but per my examples above….there are cases with “content” to give them the temptation.  Take another: Suppose your member has a dubious rape case, but considers it a rare opportunity (because 80% of rapes go unreported, she learned in college), and besides, “rape is the means by which <I>all men</I> keep <I>all women</I> in a state of fear” (italics in Susan Brownmiller’s original, if I remember), and maybe the guy did it anyway…Yes, I think we get ideologically-based convictions already, and I would not raise the odds of getting even one more by having the judge <I>tell</I> them they can do it.  In any language.
    Higher-level clemency can take care of the “court-martial conviction for not shaving” (I see that the “grooming” portions of 670-1 are punitive though most portions are not).  In the current climate, that’s a heck of a lot easier than getting clemency when race, sex, victims, or some new cause <I>du jour</I> are involved.

  31. stewie says:

    Again that hypothetical panel member is going to go rogue regardless of the instructions you give them. I think the fact that you have to list extreme putative panel members highlights the flaws of your argument. There are certainly better ways to take care of my issue than nullification–not preferring in the first place is a great start…but it’s nice to have a fall-back when leaders temporarily lose their minds.