The Lindsay Clancy mistrial has produced a public trial of its own — of the lone holdout juror.
According to other jurors, the holdout admitted he had reasonable doubt but still refused to vote that Clancy, charged with murdering her three children in her Massachusetts home, was not guilty by reason of insanity. The holdout has since disputed that account, saying he did not doubt Clancy’s guilt and believed she knew what she was doing. The revelation that the holdout may have had reasonable doubt fueled sharply conflicting reactions. Clancy’s lawyer argued that the jury was “robbed by one man” who refused to follow the law, while some defended him, with one person hailing the holdout as a “hero.”
If the other jurors’ account of the holdout is accurate, the episode illustrates the other side of jury nullification, a familiar feature of American criminal justice.
Jury nullification occurs when a jury finds a defendant not guilty, even if the prosecution has proved its case beyond a reasonable doubt. Rooted in English common law, it has been a part of the American legal system since its inception.
Jury nullification is not a legal right so much as a practical power. Jurors are required to follow the law as the judge gives it to them. But the U.S. Supreme Court has also recognized juries’ practical ability to disregard it — an “assumption of a power which they had no right to exercise.”
The same power can operate in reverse. A juror can believe the government has failed to meet its burden and nevertheless vote to convict because the defendant seems dangerous, immoral or deserving of punishment. The motivation is different, but the underlying act is the same: The juror substitutes his or her own judgment for the law the judge instructed the jury to apply.
What happened in Clancy’s case appears to be similar, assuming the other jurors’ account — and not the holdout’s — is accurate. No reverse-nullification verdict actually occurred: 11 jurors disagreed with the holdout, producing a mistrial. But imagine if all 12 jurors had taken his position, returned a guilty verdict and then publicly admitted that they had reasonable doubt about criminal responsibility but believed Clancy deserved punishment anyway.
Those admissions would not, by themselves, invalidate the verdict.
That is because jury deliberations are largely a black box by design. The Supreme Court has long understood the cost of insulating jury deliberations from review. It has acknowledged that a jury may have acted in an “arbitrary and unjust” way and still has refused to permit impeachment of the verdict. More recently, the court has recognized that the rule can even shield “irresponsible or improper juror behavior.” This is not a flaw courts have overlooked. It is a trade-off they have deliberately accepted.
The protection is broad but not absolute. Courts may look behind a verdict in narrow circumstances, including cases involving outside influence or racial bias
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. Courts can also review objective legal questions, such as whether the evidence was sufficient — as Clancy’s lawyer is now asking the judge to do. But they will not look inside the jury room to decide whether jurors followed the judge’s instructions or faithfully applied the reasonable-doubt standard.There are good reasons for that trade-off. Jurors must be able to deliberate candidly without fearing that every argument, compromise or expressed opinion will later become evidence in litigation. Finality matters, too. Otherwise, every losing party would have an incentive to scour deliberations for something improper.
Ordinary and reverse nullification are not equivalent. Our criminal system deliberately places the burden on the government and tolerates the possibility that guilty people will go free rather than lower the standard required to convict. Still, both expose the same institutional reality: Juries possess power that courts cannot control.
That is what makes the Clancy controversy uncomfortable. We tend to romanticize jury independence when it produces mercy — when jurors reject a law they consider unjust or a punishment they consider undeserved. But the legal system cannot preserve that independence only for causes we admire.
The law tells jurors to follow the judge’s instructions. But jury nullification gives them the power to disregard those instructions. We cannot expect that power to operate only in the direction we prefer.
Monu Bedi is a professor of law at DePaul College of Law, where he specializes in criminal law and criminal procedure. Prior to teaching, he served as a prosecutor in the Navy.
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