Jury Nullification and the murder of brian thompson

Sean Jarvis

Justice101 Intern

​Hello Street Law Advocates,

Due to the recent events regarding the murder of United Healthcare CEO, Brian Thompson, the idea of jury nullification has gained mainstream popularity, placing it in the common conversations beyond the circles of criminal justice reform advocates.[1] But what exactly is jury nullification? 

For starters, the concept of jury nullification is incredibly controversial, and judges are unlikely to allow a nullification argument in front of a jury and in some instances will remove a nullifying juror.[2] Essentially, nullification is when, despite the prosecution proving beyond a reasonable doubt that a defendant committed a charged offense, the jury still acquits them, or in other words, finds the defendant not guilty for reasons other than a believer in their innocence, or a belief the prosecution did not meet their burden.[3]

​This controversy is not new and has roots dating back to 17th century England.[4] Scholars recognize the first trial where jury nullification was implemented as the trial of William Penn in 1670.[5] Penn, a Quaker, was arrested for “preaching seditiously and causing a great tumult of people”. [6]  During trial, Penn did not contradict the assertion that he was preaching in public but argued that his acts where lawful.[7] The jury agreed, and found Penn not guilty, which angered the judge who ordered them to reconsider multiple times to no avail.[8] While the jury refused to apply what they thought an unjust law which prohibits Quakers from publicly preaching and praying, they were all ultimately imprisoned for not returning a ‘lawful’ verdict.[9]
​
Colonial America soon followed with the acquittal of John Peter Zenger, who was accused of publishing seditionary material without the consent of the British.[10] Zenger’s publication criticized the then Royal Governor of New York for removing the colony’s chief justice, who recently decided against the Governor in a recent case. [11] The Governor charged him with seditious libel, which at that time the fact that a claim was true was no defense.[12] Despite the fact that Zenger was guilty given that there was no defense, the jury ignored the English common law and refused the convict him. [13] Nullification was also used in pre-civil war America to derail the fugitive slave act.[14] Most notably, in 1851, a mob of abolitionists stormed the local courthouse in Boston to rescue Shadrach Minkins, a escaped slave, from being returned into bondage.[15] After the mob succeeded, and Minkins was able to escape to Canada, the Federal government indicted seven co-conspirators.[16] Because of jury nullification, no co-conspirator was ever convicted.[17]

So, if jury nullification is rooted in our country’s history and tradition, then what is all the fuss about? Some advocates of jury nullification claim that this is a part of a defendant’s 6th Amendment rights to a jury trial, while its critics claim that it is undemocratic because it allows average citizens to void duly enacted legislation.[18] In fact, multiple federal circuit courts have refused to hold that jury nullification is a part of a defendant’s constitutional rights and legislatures have refused to provide nullification statutory protection.[19] The entire system from jury selection to requesting jury instructions works to eliminate the concept that a jury can validly acquit even when overwhelming evidence of a criminal violation exists.[20] But there is a silver lining for jury nullification advocates. The no impeachment rule protects jury deliberations from scrutiny after a final verdict.[21] This effectively allows for a jury to acquit a defendant, and the government can do nothing about it except for certain circumstances such as racial or other discrimination.[22] Whether this is a social good or a social evil is for each person to decide. 


[1] Safia Samee Ali, Could fandom cause jury nullification in Luigi Mangione trial? The Hill, (Jan. 1, 2025), https://thehill.com/regulation/court-battles/5070319-luigi-mangione-unitedhealthcare-shooting-jury-nullification/.
[2] United States v. Thomas, 116 F.3d 606 (2d Cir.1997).
[3] Andrew D. Leipold, Rethinking Jury Nullification, 82 Va. L. Rev. 253 (1996)
[4] Penn & Mead's Case, 6 Howell's State Trials 951 (1816) (1st ed.1783).
[5] Id.
[6] William Penn, Criminal Justice, and the Penn-Mead Trial, Quakers in the World, https://www.quakersintheworld.org/quakers-in-action/96/William-Penn-Criminal-Justice-and-the-Penn-Mead-Trial (last visited Jan. 14, 2025).
[7] Id.
[8] Id.
[9] Id.
[10] A Brief Narration of the Case and Trial of John Peter Zenger 78 (J. Alexander ed.1963)
[11] Argument in the Zenger Trial (1735), The National Constitution Center, https://constitutioncenter.org/the-constitution/historic-document-library/detail/andrew-hamilton-argument-in-the-zenger-trial-1735#:~:text=In%20the%20end%2C%20the%20jury,that%20the%20jurors%20deemed%20unjust.(last visited Jan. 14, 2025).
[12] Id.
[13] Id.
[14] Naomi Gilens, It’s Perfectly Constitutional to Talk About Jury Nullification, ACLU, (Jan. 22, 2019), https://www.aclu.org/news/free-speech/its-perfectly-constitutional-talk-about-jury-nullification.
[15] Wright, Lawson, Originalism and Jury Nullification in America: A Legal Basis for the Restoration of a Lost Right, 3 Prin. L. J _ (2024)
[16] Id.
[17] Id. 
[18] Conaway, Mutz & Ross, Jury Nullification: A Selective Annotated Bibliography, 39 Val. U. L. Rev. 393 (2004); Bressler, Reconstruction and Transformation of Jury Nullification, 78 U. Chi. L. Rev. 1133 (2011).
[19] United States v. Thomas, 116 F.3d 606 (2d Cir.1997).
[20] Scott, Jury Nullification: An Historical Perspective on a Modern Debate, 91 W. Va. L. Rev. 389 (1989)
[21] See Fed. R. Crim P. 606(b); Remmer v. United States, 347 U.S. 227 (1954)
[22] Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017)