Below is my column in the Hill on the Smollett trial and his strategy of jury nullification. The jury is now out but we will learn soon if the nullification arguments worked with all or some of the jurors. The question is whether jurors will show greater circumspection and responsibility than some political or media figures.
Here is the column:
In his testimony before a Chicago jury this week, actor Jussie Smollett talked about how he has had to carefully maintain his image as “a black Cary Grant.” The “Empire” star, however, seemed more like a modern version of Humphrey Bogart as Captain Queeg in “The Caine Mutiny,” a delusional witness lashing out at every other witness as “scoffing at me, spreading wild rumors.”
Many have marveled at the audacity of Smollett, who literally is asking jurors to discard not just every piece of material evidence, videotape and eyewitness testimony but to defy any semblance of logic in accepting his account of a racist attack by Trump supporters. That’s because he is not really trying to convince anyone he didn’t stage the attack with the help of Nigerian brothers Abimbola and Olabingo Osundairo. He is trying to get the jury to vote for him despite his guilt. It is called jury nullification, and this may be the most raw example of the practice in decades. Even if he can get a single holdout juror, he has a hung jury.
After all, Smollett followed a similar strategy successfully in the media for months. He knew that “facts” are whatever people want them to be. Some of us expressed skepticism over Smollett’s initial account: two Trump supporters coming upon him around 2 a.m. in Chicago on a freezing night in January 2019, and then allegedly beating him, putting a noose around his neck, pouring a chemical on him and declaring — perhaps for the first time in history — that Chicago is “MAGA country.” Making this even more bizarre was that the spontaneous attack occurred shortly after Smollett was the target of a racist letter threatening to lynch him — a letter that prosecutors believe he wrote.
None of that mattered, though, because Smollett knew his audience. Vice President Kamala Harris, then a U.S. senator, denounced what happened as an “attempted modern-day lynching.” House Speaker Nancy Pelosi (D-Calif.) said it was a “homophobic attack and an affront to our humanity.” In a fawning interview, ABC’s Robin Roberts described Smollett as “bruised but not broken” and breathlessly concluded the segment with “Beautiful, thank you, Jussie.”
Even when evidence mounted that this was a hoax, some media figures lashed out at Smollett’s doubters. ABC’s “The Talk” host Sara Gilbert was irate: “I find so personally offensive that a gay Black man is targeted and then suddenly he becomes the victim of people’s disbelief.”
Smollett’s attack was simply one of those “facts too good to check.” It made more sense to assume there are roaming bands of MAGA-hatted Trump supporters attacking Black people on Chicago’s streets.
In a courtroom, such willful blindness is supposed to yield to objective evidence. However, that is where jury nullification comes in. Georgetown law professor and MSNBC legal analyst Paul Butler has been a long-standing advocate of Black jurors engaging in jury nullification in some cases involving Black defendants. Butler wrote in the Washington Post in 2016: “Confronting the racial crisis in criminal justice, jury nullification gives jurors a special power to send the message that black lives matter.”
Jury nullification is not an act of willful blindness. Rather, it is an act of willful disregard of the evidence. It occurs when jurors acquit regardless of the evidence of guilt. It is not that they don’t see or understand the evidence; they simply choose the individual over the evidence.
Lawyers usually cannot expressly ask jurors to disregard the evidence of a case in contradiction to the judge’s instructions. But they can make the case for nullification in not-so-subtle ways. In Smollett’s case, the defendant talked about his mistrust of the police and openly accused the prosecutor of misrepresenting facts to the jury. In front of the jury, he declared: “I’m a Black man in America and I do not trust police.”
Smollett was curt on cross examination, insisting that the two Nigerian brothers (one of whom he said was once his lover), the Chicago police, the prosecutors and others all sought to frame him. Smollett even chastised prosecutor Dan Webb for reading from Smollett’s Instagram messages, which included the N-word; Smollett told Webb to spell or abbreviate the word so as not to offend “every African American in this room.”
There have been historical uses of jury nullification to resist government abuse, including racist prosecutions. One of the first such instances was the acquittal in 1735 of publisher John Peter Zenger, who printed seditious libels against abusive colonial governor William Cosby.
However, jury nullification can have a darker side, when jurors refuse to convict people because they agree with a crime, including possible hate crimes. That was the argument once made implicitly to some white Southern jurors in the early to mid-20th century to disregard crimes committed against African Americans, even murder.
The Smollett defense is a classic plea for nullification, which is why it seems so bizarre to most people weighing the evidence. The trial becomes a struggle over perceptions rather than proof. Even Smollett’s lawyers claimed to be victims in the courtroom. Defense attorney Tamara Walker demanded a mistrial in a sidebar conversation with attorneys from both sides and Cook County Judge James Linn. Walker reportedly broke into tears after accusing the judge of lunging at her in the courtroom and making faces from the bench.
Jurors can develop a strange sense of improvised justice in nullification verdicts. In Ireland, there was a famous verdict in the case of an Englishman who accused an Irishman of stealing a pair of boots. The guilt of the defendant was glaring, but the Irish jury ruled against the Englishman — and added one line to the jury form: “We do believe O’Brien should give the Englishman back his boots.”
Smollett is seeking the same conscious act of nullification from this Chicago jury. There is, however, more at stake than a pair of boots. Smollett is the very definition of a race-baiter seeking to use our racial divisions for his personal aggrandizement and advancement. If successful, he would reduce the court to the same narrative-driven reality of our politics and entertainment arenas.
In that sense, Smollett is still playing to his audience. He knows reality is not what is true but what an audience wants to be true.
In politics, Vice President Harris, Speaker Pelosi and others proved that with their protestations over his “attempted lynching.” In the media, not only his story but questioning of his story were cited as evidence of a viciously racist society. Now, in his latest performance, Smollett hopes to convince jurors that he may not be innocent, but he should not be found guilty. The question is whether jurors, like some journalists, will see the same “beauty” in Jussie Smollett’s tall tale.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.