The Wire and Jury Nullification...

While the last episode of "The Wire" may not have wrapped up as many of the plotlines as some closure-loving commentators may have liked, the final act of the writers-captured not on screen but on the pages of Time Magazine-may represent the high water mark of a politically engaged Hollywood.

In the magazine this week, David Simon and his staff take dead aim at this country's war on drugs and conclude that "If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented." Citing the legendary example of John Peter Zenger, they declare jury nullification in drug cases to be an act of righteous civil disobedience.



The problem is that in taking their pledge to nullify, the authors have gently finessed a rather difficult and practical point-in order to acquit or hang the jury, they'll have to lie to get on the jury in the first place. This is no small omission. Many people will take comfort in Zenger's example but far fewer will be willing to intentionally shield their convictions from official scrutiny once a Federal judge or state prosecutor starts asking them directly. It's hard to lie as a juror, and particularly hard to do so in open court, but without the lie there will be no nullification.

In fact, the jury selection in drug cases around the country increasingly resembles the kind of "death qualification" that capital juries go through. So common is the revulsion to our misguided drug war that judges and prosecutors routinely ask jurors if they have a principled objection to it, following up with questions specifically designed to expose anyone who would have a moral or political objection to voting to convict. Avoiding disclosure often takes more than just failing to raise one's hand in response to a general question. More and more, specific jurors that prosecutors suspect for one reason or another may harbor anti-drug way sympathies are directly queried about their views making withholding look very much like outright deception.

The problem with all of this, of course, is that in the end, more and more juries are comprised not of a fair cross-section of the population, but rather by conservative folks who have no compunction about convicting someone of a drug crime regardless of the of the eventual sentence. And generally speaking those same jurors are more likely to view the evidence in ways that are favorable to the government in a drug prosecution, increasing the likelihood of conviction.

In the end, taking the pledge that Mr Simon proposes may be a wonderful thing when it comes to raising awareness of the terrible injustices perpetuated every day in drug cases around the country. But if called down to the courthouse, a more moderate position will most likely be the more effective one.

Of course the true ideologues may be able to look a judge or prosecutor in the face and claim they'll convict when they won't, but this is far harder in practice than it seems in theory. There is something about the majesty of the process that makes lying difficult. The solution then, is a bit of existential trickery: Don't decide yet. Make no pledges you'll feel the need to disclose, insist that you will listen fairly to all the evidence presented, tell them honestly that you care passionately about the law, and that you'll withhold decision until you've heard the entire case. Get yourself on that jury. But when closing arguments are through and the judge has instructed you on the law, do precisely as Mr. Simon urges. "think for a moment on Bubbles or Bodie or Wallace. And remember that the lives being held in the balance aren't fictional."