Jury nullification is indeed a two-edged sword. The OJ trial is a case, really, of jury nullification. They simply refused to convict based on a general mistrust of the police that his attorneys played on.
The second, civil, trial bothered me in much the way that the re-trial of the Rodney King cops bothered me; it smacks of double-jepardy. Someone didn't like the first verdict, so they re-try the case until they get the answer they want. Actually, I wasn't that happy with the verdicts, but under our system, once the jury has spoken, that it supposed to be the end of it. Re-visiting the crime with federal civil rights prosecution, or a civil suit after aquittal "nullifies" the first jury.
So if juries have almost forgotten that they can nullify laws, lawyers and judges have discovered ways to nullify juries.
Whatever its imperfections, jury nullification stands as the penultimate popular veto (the ultimate being the second ammendment). Both of these are blunt weapons. If things have deteriorated to the point that they are needed, things are in bad shape indeed. But knowing that they exist provides a corrective that more often than not prevents the need to invoke them. And if things really go sour, thats what they are there for. In a democratic republic, laws have to have popular support or they are not law.
That gets spooky in cases where the majority are oppressing a minority, which happens from time to time, where the victim is not very likeable and the perp is a sympathetic figure. In such a case jury nullification could leave the victim without any redress. But this is intended as a corrective against state misconduct, it can't do much in the case where the good neighbors have gone off the track. But that is the weakness of democracy in general, not merely of the jury system.
So if you are a victim and the jury has refused to convict your victimizer, you have the option of leaving it to God, or taking justice in your own hand, either of which stands in its own way as another kind of jury nullification. Judges and police, in the final analysis are our agents, not our rulers.
Or you endure and work to change the hearts of your neighbors. Its slow, but its how people finally change. Thats where preachers and pundits come in to play their role.
You can never achieve perfection, you can only set up enough checks and balances and back doors and parallel routes so that you can't game the system indefinitely, and no one has the absolute advantage.
Oh yes it is, dear marron. The OJ case you cite is most instructive. Many Americans took great umbrage at the result of the first, criminal trial, feeling that justice had not been served. American popular opinion had been turned against the very idea of jury independence by the mass press at the time: "Popular justice" called for the return of a guilty verdict.
But the jury evidently had problems with police procedure and so forth. If the DA's case is sloppy or otherwise questionable, any sane jury might refuse to convict -- under the judge's very instructions that guilt must be ascertained beyond a reasonable doubt. The performance of the DA and the police gave the jury capacious scope for entertaining notions of reasonable doubt.... At best, the performance of the prosecutorial authorities was confusing.
Whatever we think of the trial outcome, that should have been the end of it. But it was not: The criminal jury was overridden -- as it were nullified -- by the civil jury. Such a development does not seem to be authorized under constitutional rules.
So the public needs to ask itself whether such an "evolution" of legal rule is justified or authorized by the Constitution under which it has long lived. That is, the public must ask this question, and answer it, if it expects to maintain the rules of existence as it knows them from its own direct experience over time. Either that, or it must be prepared to quickly adapt to whatever pipe dream legal theory has been conjured up and articulated by the newest "bright boy" that the New York Times might want to feature on its front page....
As for me, I would rather set a guilty man free than ever to see the Constitution undermined.
Think of our sovereign, unalienable rights this way: (1) Never have any of them ever been grants of the state -- They have a divine source, and thus the state may not touch them in any way. (2) The state will try, not only to touch them, but to make them go away. (3) Natural rights -- that is, God-given rights -- are like muscles: You use them, or you lose them.
Thank you, dear friend, for your beautiful reply, and for letting me rant here....
p.s.: As I mentioned a while back, the Fully Informed Jury Association (www.fija.com) is an excellent source of materials that educate people in their sovereign rights as jurors. I also mentioned this was a Libertarian organization -- which is not to impugn the outfit in any way. Just noting the vintage here.
In any case, FIJA justly sees the sovereign rights of jurors as a potential check on the excesses of government authority. I get the impression they think the next "test cases" will come in the area of marijuana decriminalization/legalization. The point is, whether they're right or wrong about this, if there is any real, solid public enthusiasm for anything that statutory law cuts against, if the people insist on their own preferences rather than those their elected officials give them, as enforced by the courts -- under the theory of the Constitution, the people ought to prevail. It seems FIJA believes it has methods and tools that can help in the prosecution of public goals whose proponents achieve a certain critical mass....