Blago to Jurors: Be as Crooked as Me

Here's a story from Esquire. It's about the merciless beating that Rod Blagojevich (pictured at right) is taking in court, and hypothesizes that Blago's best strategy, at this point, is to pursue jury nullification. That's the name for the residual discretion that jurors have to decline conviction despite a finding of guilt. While it is not often sought, jury nullification does have an ancient pedigree in the Anglo-American legal tradition.

I take a dim view of jury nullification. The argument for it is, essentially, a plea to the subjective sympathies and views of the jurors. It involves asking the jurors to decline to convict because of some fundamental concern that - the argument goes - is not accounted for in the legal system. Jury nullification was put to ignominious use in the pre-1960s South, when white jurors would often refuse to convict white men guilty of lynching blacks. In theory, it can be a tool for securing justice despite the law; in practice, however, it has more often been a tool for securing injustice despite the law.

Furthermore, it's poor form. An attorney who argues for jury nullification - whether for fair goals or foul - is essentially asking the jurors to abdicate their role in the judicial process. Pressing for nullification is probably never unethical, but I do think that a lawyer actively undermining the judicial system is a tad, well, unseemly.

In Blagojevich's case, to pursue nullification, he would have to argue that, because corruption is widespread among politicians, no politician could withstand such scrutiny. Accordingly, the only just course is to acquit. This is the argument in Esquire.

I have some problems with this.

First, no. A logical chasm exists between the concepts "no politician could withstand such scrutiny" and "the only just course is to acquit." Why? What sense does that make? Since when do we acquit guilty politicians because there are other guilty politicians we haven't caught yet? What would make a juror want to do that? The argument makes no sense at all and is silly.

Second, also no. The factual premise "no politician could withstand such scrutiny" is not true. It just isn't. A juror hearing this argument would think: They're not all as bad as you are, Mr. Blagojevich. You have to face the fact that you are indeed bottom-of-the-class material.

Third, no again. As argued above, I think it's wrong to pursue jury nullification in almost every case - certainly in the case of a corrupt and arrogant pol like Blagojevich. Save it for very rare cases of gross injustice.

Fourth, nowhere in this article is any basis in fact given for the suggestion that Blago's legal team is actually considering such a move. This is a hypothetical scenario. I think it's important to point out things like that.