Harry’s Law: Is Advocating For Jury Nullification a Crime?

When I watched the season premiere of Harry’s Law, “Hosanna Roseana,” I was skeptical. The evil prosecutor, played by the wonderful Jean Smart, decided our hero, Harriet (the excellent Kathy Bates) was too formidable an opponent. Harry had previously advocated in the courtroom for jury nullification, that is, the concept that a jury should ignore a law it doesn’t like and refuse to apply it to the case at hand. A jury, of course, is sworn to uphold the law. It’s a controversial subject.

SPOILER ALERT! Don't read if you haven't seen the episode.

The prosecutor had Harry arrested for jury tampering. She said that advocating for jury nullification is illegal. I’m thinking, what a crock! Free speech and blah-di-blah. But I was wrong. There have been people actually prosecuted for advocating jury nullification. 

In the most famous recent case, a professor was handing out pamphlets on the courthouse steps to prospective jurors as they walked into the courthouse, telling them they have the right to jury nullification. This peeved the prosecutors who think juries should uphold the law even if they think it is stupid, or that it would be unjust to apply the law in a particular case. So they slapped the professor in handcuffs. He was convicted and the appeals have commenced.

Other jury nullification advocates have been prosecuted for jury tampering. Courts in Alaska and Wisconsin have found that handing pamphlets to jurors is not protected free speech. In Florida, an injunction against pamphleteers was upheld.

Now, let’s go back to Harry’s Law and whether an attorney who advocates for nullification in the courtroom in front of the judge and jury can be convicted of jury tampering. The answer is, probably not. The federal law says, “Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member” commits jury tampering. But the tampering laws generally apply to conduct outside the courtroom and outside the scope of the trial. If the lawyer for the defendant advocates nullification, the judge can hold the lawyer in contempt, instruct the jury to ignore the comments, or even declare a mistrial. But it’s unlikely that the lawyer would be charged with a crime. And the writers got this right too, because in the second episode the judge reamed the prosecutor for having Harry arrested and told her to cut it out.

Getting cutting-edge issues right is one of the reasons why I enjoy watching Harry’s Law. Season 2 is, at least so far, safe for lawyers to watch. Kudos to the writers who did their research.