WASHINGTON - TelAve -- In dealing with a situation which occurred this afternoon, which appeared to concern a reluctance or even unwillingness of one of more jurors to follow the judges instructions, Judge Sullivan told them again that they must follow his instructions.

But this is both misleading and incorrect because, legally, jurors need nor follow the law in delivering a verdict, says an expert on jury nullification, who notes that there are many cases in which all the jurors delivered a verdict which they well knew was contrary to the law with which they judge had charged them.

Although judges are encouraged to tell jurors that they must follow the law as the judge explains it to them, this hasn't been true since 1670 when it was decided that jurors could no longer be punished for rendering an "incorrect verdict"; i.e., one with which the judge disagrees because it's contrary to law, explains public interest law professor John Banzhaf.

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Since jurors cannot be punished if they vote contrary to what the judge tells them the law requires, and a defendant once acquitted by such a vote cannot be retried for the same offense, jurors unquestionably can refuse to vote to impose criminal responsibility even if they are convinced the defendant is guilty.  If all jurors do it, it's called "jury nullification,"

If only one or a small number of jurors refuses to vote to impose criminal responsibility - because of sympathy for the defendant, anger at her medical care, etc.- which is more likely in the Clancy case, it's "juror nullification."

The result then would be a hung jury and a mistrial.

Perhaps suspecting that some jurors, whether or not they have ever heard of juror nullification, would have such strong feelings that they would simply refuse to find the defendant guilty of murder regardless of their own conclusions about her mental state as the time, the judge - surprisingly and at the last minute - gave the jury an option of voting for manslaughter.

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Although most legal scholars and other observers have pointed out that a charge or verdict of manslaughter makes little sense given the uncontested facts - and, indeed, would seem to be inconsistent with the uncontested facts - it does provide an opportunity for the jury to reach a compromise verdict if it wished; for example if one or a few jurors simply refused to vote that she was criminally responsible.

If even one or just a few jurors refuse to vote to convict her of murder, these holdouts just might be willing to vote for a verdict of manslaughter as a compromise, explains Prof Banzhaf.

http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf