Jury nullification and military courts - it's basically don't ask, don't tell

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 inappropriate text messages back and forth with the private. A reprimand is not a criminal conviction. There is no double jeopardy. The government is free to resurrect reprimand allegations in a court-martial if the statute of limitations has not expired.

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 fewand far between. However, the state of the law is fairly simple. The court of appeals for the armed forces has stated clearly that no right to jury nullification exists. United states v. Hardy, 46 m.J. 67 (C.A.A.F. 1997). A military judge does not have to instruct a military jury of their right to nullify the law. Whether a defense lawyer can argue for jury nullification is a trickier proposition.

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 lilliburne. He wrote some phamplets critical of oliver cromwell. That didn't sit well with the crown. He boldly argued that the jury had the right to judge both the facts and the law. The jury found him not guilty.

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 find your client not guilty of a charge that he is clearly guilty of is a tricky task. A couple of things have to happen:

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