Humboldt County District Attorney Paul Gallegos was interviewed on the Civil Liberties Hour call-in program on KMUD Redwood Community Radio, on September 4th, by CLMP host Bonnie Blackberry.
The district attorney responded to questions concerning challenges of jail realignment and budgetary concerns, priorities in the prosecution of marijuana growing, the categories of criminal offenses, jury nullification, civil disobedience, his political philosophy, the difference between "nuisance" and "nuisance per se," and the prosecution of homeless campers. This review focuses on the jury nullification part of the conversation (and the whole program can be found on KMUD archives).
A caller introduced the subject of nullification. He said, "In the 6th Edition of the BLACK’S LAW DICTIONARY [p. 1067] with jury nullification: one person, effectively, can have the determination that with all things considered in the circumstances this should not apply, and therefore vote not guilty. It is a legal precept," and, "It does bother me that jury nullification is such a freak-out for district attorneys and the legal system."
The district attorney explained, "Jury nullification is literally where a juror or series of jurors make a decision without reference to the law, and although they are not authorized under the law to do so, they have the power to do so, and they do that with some frequency.
"The question is: if this is a legal precept, that we recognize the power of jurors to nullify, make a decision without reference to the fact of the law, then why don’t we instruct them of this? What we want the jurors to do is follow the law. You are charged with finding the facts of applying the law to the case. That’s the law that we’ve all passed, to honor the law, and apply the law, and then, if the law should be changed, use our legal system to change it. The question is: In a court of law, whose laws are we going to apply, the laws that are passed in a legislative process, or yours and my laws that no one has ever had the chance to have a discussion on and decide the merits of them? Are they going to be God’s law, and if so, which God? You know, and that is the problem we have, where you say, ‘Hey, we don’t care, whatever values you want to apply here in this courtroom you are allowed to do.’ That’s not fair to the state. It’s not fair to the citizens in the community. And it’s not fair to the person that’s accused."
CLMP host Bonnie Blackberry interjected: "The thing is there’s civil disobedience and this jury nullification where people believe the laws are not just, and you say, ‘Well, change the law.’ Well, people have been trying to change this marijuana law for as long as I can remember, and it’s still a big mess, and the same with the slavery, and women’s vote. All these things were wrong, and at least now we recognize that. And so, I think there comes a time where the people figure that whatever law is prosecuting somebody, it isn’t fair, and therefore they do the jury nullification or they do civil disobedience outside of the court or whatever."
"I could not agree more," Gallegos responded and shared this dialogue: "Years ago, before Iran and Iraq, before there was 9-11, you know, the whole thing about legalization of torture in prisons, and someone asked me, ‘What’s your position?’ I said, ‘Absolutely it should never be legal; it should be illegal, and that’s the way it is.’ And the question that was posed to me was, ‘Well what if here’s the situation: you knew if by torturing this person you could get information to save 9,000 lives.’ And my answer was, ‘Well, if that’s the factual scenario, and I actually would save those lives, absolutely I would torture them.’ Then it was: ‘Okay, it should be legal.’ ‘No! It should be illegal. Because, if you make it legal, then suddenly everyone’s going to do it, but if you make it illegal then periodically people will say, ‘The right thing to do is this, and I will take the consequences.’’"
Blackberry remarked, "Well, we haven’t had our government taking the consequences, the people that did all the torture...”
"No, no, no. But that’s what civil disobedience is, too. It is saying, ‘Here is where I stand. I can do no other.’"
Gallegos stated: "I’ve been district attorney for 12 years, and I think in every stage of the way people have heard me say, ‘I think marijuana should be legal.’ I will enforce the law, because that’s my obligation, but I have clearly, emphatically said, ‘This law should change.’ It should change, but should I, as the district attorney, say ‘Just because I don’t like it, I’m not going to apply the laws of the state?’ Should you? And it’s one thing if I were to say, ‘No I’m going to take a stand, and if you are going to prosecute me, great.’ But it’s also fair to expect people in our community to honor the law, and if they don’t, to expect that there will be consequences, too. And I don’t think there’s a disconnect. And no one is asking anyone to be amoral or immoral. They’re saying, ‘Do what you feel is right. Be honest about it. If you cannot follow our laws maybe you should not...’"
Blackberry: "There are a lot of people that feel that they should only follow the just laws."
And Gallegos went on, "Can I speak a little about some past acts of jury nullification? Lynching in the south, where the people that everyone knew were guilty were acquitted; the massacre of Native Americans, the list is endless of cases where jurors didn’t follow the law, and terrible wrongs were committed. And then there are times when they don’t follow the law and they prevent terrible wrongs. But let’s not only look at one side of the point. When you validate, ratify, and authorize people to violate the law, the problem is: When does it stop? Where do you draw the line? And as a member of the society, that’s what I always have to ask myself. Where does society draw the line, in saying some acts of violation of the law are acceptable, and some aren’t. Are they only one’s that hurt people? These are all deep subjects, worth talking about. We should talk about them regularly, and reinforce our own commitment to our values. But I think it’s important to look at it in both its positive aspects and its negative applications."
Suzelle is the in-office monitor for the Civil Liberties Monitoring Project.