On July 2, Occupy Wall Street protester Cecily McMillan was released from Rikers Island, completing a sentence that her jury never wanted her to serve. On May 19, that jury of twelve convicted McMillan of felony assault against police officer Grantley Bovell. The verdict came after a four-week trial, during which McMillan’s defense team argued that it was actually Bovell who assaulted McMillan, and that she had elbowed him as a reflexive response after he grabbed her breast. The trial carried symbolic weight because it was the last Occupy criminal case, one of the few Occupy-related felonies, and an incident of alleged police violence that many protesters felt characterized NYPD norms. Still, the jury returned a “guilty” verdict. As is typical, jurors had been instructed by the judge not to read or research any further details of the case on their own, including the punishment that McMillan would face if convicted.
After the conviction, members of the jury learned that McMillan faced two to seven years in prison, according to sentencing guidelines. An anonymous juror told The Guardian that “they felt bad,” and that “even a year in jail is ridiculous.” The juror added that he hadn’t been convinced of McMillan’s guilt, but gave in to his fellow jurors and, not expecting harsh sentencing, voted to convict. Nine of the twelve jurors petitioned Judge Ronald Zweibel for leniency and no incarceration. At that point, however, the power was out of their hands (Zweibel ended up sentencing McMillan to ninety days in jail and five years’ probation). Many of McMillan’s supporters expressed frustration that the jurors who had held Cecily’s freedom in their hands didn’t take the consequences of the trial seriously until after it was over.
In trials that involve police testimony, as McMillan’s did, jurors are often inclined to trust state authority: the police and prosecutors. “When juries refuse to acquit people, it’s a nod to authoritarianism and our natural willingness not to be skeptical,” says Mariame Kaba, founding director of Project NIA, which works to end youth incarceration. In fact, according to an article published last year in the journal Law and Social Inquiry, “as jurors indicate more trust and confidence in the police, their likelihood of favoring the prosecution increases,” a serious problem for defendants in trials like McMillan’s. And “white jurors overall are more likely to favor the prosecution and are more willing to vote for guilt on the first ballot than are black jurors.” This fundamental trust in the criminal justice system betrays a profound ignorance of what Kaba calls “the inconceivable notion that the system could be railroading you.” Jurors become an extension of state power, trusting rather than checking it.
In fact, the right to a trial by jury is meant to be “part of the system of checks and balances to rein in the power of the state,” explains Paul Butler, a law professor and former prosecutor, and the author of Let’s Get Free: A Hip-Hop Theory of Justice. “You could call it political or you could call it constitutional. But the right of jurors to establish justice is deeply embedded in both the Constitution and our Anglo-American tradition.” This includes the practice of jury nullification, in which jurors may acquit a defendant whom they believe to be guilty, due to objections to the law or sentencing practices. No judge can overturn a “not guilty” jury verdict, and such cases cannot be retried.
Nullification dates back to the trial of William Penn and William Mead in 1670 in England. When jurors refused to convict them of unlawful assembly, the judge imprisoned the jurors. On appeal, a higher court released the jurors and found that they could not be punished for acquittal. The first chief justice of the United States Supreme Court, John Jay, said in 1794: “The jury has the right to judge both the law as well as the fact in controversy.” And it remains entirely legal for a jury to acquit, regardless of the evidence, as a means of resisting unjust laws and sentencing. Juries have nullified to protest injustices throughout American history—in defense of the Boston Tea Party, against the Fugitive Slave Act, against Prohibition.