Jury Nullification Can Highlight the Law's Flaws

By Bob Egelko
San Francisco Chronicle
July 9, 2012

www.sfgate.com/crime/article/Jury-nullification-can-highlight-the-law-s-flaws-3694716.php

The case of William Lynch, who admitted beating a priest in retaliation for a sexual assault 35 years earlier, was a classic example of jury nullification - jurors' power to acquit a defendant based on their sense of justice or subjective feelings, rather than the law's definition of guilt or innocence.

Juries used that power in 1670 to free William Penn over a British judge's vehement objections, and later to exonerate foes of slavery, Prohibition and the Vietnam War draft - and, less nobly, Southern lynch mobs.

On Thursday, a Santa Clara County jury used that power to clear Lynch of the most serious charges against him and deadlocked on a lesser charge, despite what appeared to be clear-cut evidence of his guilt on that charge.

"It's a way of saying the law isn't perfect," said Michael Saks, an Arizona State University law professor who has written extensively about jury behavior. "Maybe it's a good thing that when circumstances call for it, 12 citizens ... will try to do better than the legal system."

At least 2 punches

By all indications, that's what happened in Lynch's case.

In his courtroom testimony, the 44-year-old San Francisco man essentially admitted that he was guilty of at least misdemeanor assault against retired priest Jerold Lindner.

Lynch said he went to a retirement home in Los Gatos two years ago to confront the 67-year-old Lindner, who he said had sodomized him on a camping trip in 1975. When Lindner declined to sign a confession and instead leered at him, Lynch said, he punched Lindner in the face, at least twice.

In closing arguments, defense lawyer Pat Harris said Lindner's injuries - bruises and cuts that required two stitches - weren't serious enough for a felony assault conviction. Harris offered no legal defense to the misdemeanor assault charge, but told jurors that they were the defense against an overzealous prosecution.

The jury voted unanimously Thursday to acquit Lynch of felony assault and elder abuse. Jurors deadlocked 8-4 for conviction on the misdemeanor charge, and even some who voted to convict said afterward they had done so with extreme reluctance.

The district attorney's office hasn't said whether it will retry Lynch on the deadlocked charge. The author of a book on the jury practice said Monday the entire prosecution was questionable.

"When a public jury is saying these aren't cases that are worth trying this way, the prosecutor should be listening," said Houston attorney Clay Conrad, who wrote "Jury Nullification: The Evolution of a Doctrine" in 1998.

The converse side is that unfettered discretion to elevate jurors' views of justice above the law can lead to institutionalized bigotry - as in the unpunished killings of blacks and civil rights workers in the mid-20th century South - or vigilantism.

"Revenge outside of the law is not justice within it," said Alex Bastian, a San Francisco assistant district attorney and spokesman for District Attorney George Gascón.

Jury nullification rare

Courts are wary of jury nullification. Judges in most states, including California, tell juries they have no power to disregard the law.

One case that stands in contrast to Lynch's involved Ellie Nesler, who in a Tuolumne County courtroom in 1993 fatally shot a man accused of molesting her 6-year-old son. She was convicted of manslaughter and sentenced to 10 years in prison.

Saks noted the differences between the two cases - Lynch's victim was not severely injured, and although Lindner's church paid sizable settlements to Lynch and other alleged victims, the priest was never criminally prosecuted because the statute of limitations had lapsed.

"It sounds like the jury decided that justice had been done" in Lynch's case, Saks said. "The priest should have been prosecuted, but since he couldn't be prosecuted, the victim got his own justice."

The practice is rare these days, when a complex and detailed criminal law leaves the jurors with relatively few judgment calls, and increasingly long sentences make plea agreements far more common than trials, said Robert Weis-berg, a Stanford law professor.

Lynch's case, he said, is a throwback to the trials of a century ago, when "we accepted juries making moral decisions like this."

Contact: begelko@sfchronicle.com