I've spent the last week trying a major sexual assault case at Fort
Bragg. An army master sergeant was accused of raping his adult biological
daughter. It's a rare type of accusation. Our expert psychiatrist
searched over 12 million records in a medical database and could not find
any literature on the topic.
Nonetheless, the persistence of the army prosecutors at 82nd airborne
was dogged. He was accused of rape, incest, and adultery. They also resurrected
old allegations for which he had previously received a reprimand - including
fraternization, disrespect, and false official statement. The rape accusation
included a fresh report, but a lack of dna evidence. The case was weak
to put it politely.
The fraternization charge was more problematic. Text messages between
the master sergeant and a private proved that an inappropriate relationship
had existed.
The master sergeant had also previously accepted responsibility for the
inappropriate relationship. It was basically borderline ina
It's always challenge litigating a case where the client is not guilty
of some charges and seemingly guilty of other charges. In this case, we
were fortunate because the charges that he was seemingly guilty of were
pretty minor in the grand scheme of things.
Our strategy was simple. I put the client on the witness stand to deny
the rape, incest, adultery, disrespect, and false official statement allegations.
We admitted to the fraternization charge in front of the jury. Then I
argued for jury nullification in closing arguments. In other words, I
asked the jury to find the master sergeant not guilty of charges that
he admitted to under oath.
Judges and lawyers don't like talking about jury nullification. Cases
on nullification are few
There is a great law review article on the subject: "jury nullification
- calling on candor from the bench and bar: Major bradley huestis, army
lawyer, volume 173." he spells out the fascinating history of jury
nullification. The short version is that criminal trials began in england
around 1200 ad. Early english courts kept juries on a tight leash. Judges
could even direct juries to return a particular verdict. If the jury refused,
they could wind up in front of the notorious star chamber.
The first well known instance of jury nullification was in 1649. It was
the famous case of mr. John l
Fast forward to 1997. Hardy was really the first case where the military's
highest court discussed the topic of jury nullification in great detail.
They had discussed it in passing before. The general consensus was that
juries can do whatever they want during their secret deliberations. But,
we aren't going to tell them they have the right to disregard the
law. After hardy, we know that in the military, jury nullification is
basically a check and balance on overzealous prosecutors.
The courts have said clearly that judges do not have to instruct juries
on nullification. In practice, judges do not ever instruct on nullification.
The law, however, remains silent on whether a defense lawyer can ask a
jury to nullify a charge.
Standing before a military jury and asking them to
1) The jury has to like your client. You must humanize the client and
the mistake, by showing good character;
2) The offense must be relatively minor. A jury is not likely to nullify
a charge that involves egregious conduct;
3) You can't expressly ask for nullification. An express request to
ignore the law is sure to draw a vigorous objection and admonishment from
the judge; And,
4) The key is to acknowledge your client's responsibility. Tell the
jury that you are asking for their help. You need an acquittal. Give them
a justification for a not guilty finding. For example, with an offense
involving prejudice to good order, argue that there was no prejudice to
good order and discipline. It does not have to be a strong argument. Simply
argue that the government failed in proving one of the elements of the
offense beyond a reasonable doubt.
If I learned anything this weekend from the 82nd airborne jury, it's
that military members have a sense of fairness. They do not like overzealous
prosecutions. And in the right case, they will give you jury nullification
if you ask them. The master sergeant was found not guilty of all charges
and specifications
The military and jury nullification is a topic that the bench and bar do no like to talk about. Military juries, however, will nullify a charge if you ask them