A Texas jury was recently lambasted in open court for committing jury nullification by visiting judge Jerry Ray because they acquitted a defendant in a driving while intoxicated (DWI) case. Judge Ray went so far as to equate the jury’s verdict with the acquittal of O.J. Simpson. Unfortunately, like many judges, Judge Ray did not understand what jury nullification is, what juries do, or his own obligations as a judge.
Jury nullification occurs when a criminal jury votes not guilty, in spite of proof of guilt beyond reasonable doubt, because they believe the law is either unjust or is being misapplied. Jury nullification has a heroic history, having laid the foundation for the First Amendment, helping to bring about an end to slavery, and precipitating the demise of Prohibition. It was because juries refused to send all killers to the gallows that American courts carved out degrees of homicide; it was because juries refused to convict women who killed their abusive husbands that courts began to recognize Spousal Abuse Syndrome.
Social change moves more rapidly than legal change, and that is probably for the best. We do not want the laws whipsawing with every trend or fad. On the other hand, we don’t need to be filling prisons with harmless people who violated laws that no longer serve to protect society. Jurors, acting in a deliberative body, are capable of properly balancing social change with the law, acting as a safety valve to prevent the law from destroying good people who have run afoul of outdated or ill-conceived legislation. In the process, jurors can send a message to the legislature as to how the law needs to change to better serve society.
In short, jury nullification is not a “bug” within the criminal justice system – it is a feature. Jury discretion was protected by the Founders, who understood that legal professionals did not have all the answers. The Founders guaranteed a right to jury trial to ensure the public has a voice in seeing that justice is done – a very different thing from merely seeing that the law is enforced. That is why the jury is so often referred to as the “conscience of the community.”
But a jury cannot nullify the law by acquitting a defendant who has not been proven guilty. The first step is for the jury to decide the evidence is adequate to prove guilt; if the jury cannot get to that point, they have nothing to nullify. There is no reason to believe the Tarrant County jury in this case nullified.
What the jury decided was that an “Intoxilyzer” (a machine that purports to measure blood alcohol levels by measuring the amount of alcohol in the breath) was not sufficiently reliable to credit in a close case. The ‘Intoxiliar,’ as criminal defense attorneys call it, came up with a blood alcohol level of .095 percent, only .015 percent over the legal limit of .08 percent. This amount – three parts in 20,000 over the legal limit – is so close the jury had an absolute right to doubt the Intoxilyzer’s accuracy.
Because the State had not proven the reliability of the machine, the jury was obligated to vote not guilty. They were left with nothing to nullify. Judge Ray should have known that.
Judge Ray’s outburst showed that if anyone was not following the law, it was Judge Ray. By chastising the jurors and describing their verdict as “one of the most bizarre  I’ve seen,” he violated numerous provisions of the Texas Code of Judicial Conduct, which requires judges to remain impartial and to treat both litigants and jurors with patience, dignity and courtesy.
Before a judge criticizes jurors for not following the law, he should make sure that he both knows the law, and is following it himself. Judge Ray either did not understand or did not follow the laws prescribing the State’s burden of proof, or the laws regulating his own conduct in court. He did not understand what jury nullification is, either in history or practice. Texas courts should hold out a big “No Vacancy” sign when this particular visiting judge comes knocking.