Photo: Tom Brenner/The Washington Post via Getty Images

When I was a brand new prosecutor at the Southern District of New York, the office’s elite mob prosecutors tried John Gotti Jr. three times within a year. All three times, the jury hung. Throughout the doomed prosecutorial trilogy, I’d go over to the courtroom and watch bits of the trial, enthralled at the cinematic spectacle: witnesses named Mikey Scars and Little Joey, bugged social clubs, beefs and sitdowns and hits gone good and bad.

Prosecutors technically can re-try a case after a hung jury, but generally will stop after two tries, maybe three if there’s a compelling need. After the third Gotti trial resulted in a hung jury, the SNDY did the right thing and dismissed the indictment.

Three years later, federal prosecutors in Florida decided to give it another go. They indicted Gotti again, a fourth time, on charges that incorporated much of the SDNY’s original case but added a few wrinkles. By that point, I had become a supervisor in the organized crime unit, and we wanted no part of it. Long story short: Gotti successfully moved the case back up to the SDNY, it landed in my lap, we tried him again, and the jury hung again. After the trial ended, we spoke with the jurors. About half of them wanted to convict, and the other half thought he was guilty but objected to the serial prosecutions of the Gambino Family boss. “You can’t try the same guy four times. That’s just not fair,” one juror said to me.

This was my hard but vital lesson in jury nullification. Sometimes juries just tell prosecutors to screw off.

Jury nullification has a potent but largely unspoken role in our criminal justice process. Judges do not instruct jurors that they can disregard the actual evidence and reject a case for political or emotional or other extraneous reasons. But who can stop a jury from doing just that, after all? They don’t attach a “Statement of Reasons” to a verdict form; they simply check “Guilty” or “Not Guilty,” no explanation sought or given. Defense lawyers at times try to give jurors a little wink-and-nod, but prosecutors and judges aggressively police any suggestion of nullification.

Even though it’s not formally on the books, jury nullification has its role in our democracy. Just as the jury serves as a bulwark of liberty by determining whether a defendant’s guilt has been proved beyond a reasonable doubt, so too can a jury reject cases that might be technically valid but just too much bullshit, in the broader (non-technical) sense.

This is what’s happening now to Justice Department prosecutors in Washington D.C. and elsewhere. The contagion will spread as the DOJ systematically abuses its discretion and power.

Take, for example, Sean Dunn — the D.C. Subway sandwich thrower who was acquitted last week on charges of assaulting a federal officer. A grand jury had initially rejected felony charges, and prosecutors should’ve gotten the hint right there, given that grand juries apply a low burden of proof and typically will indict anything the prosecutor puts in front of them. (Not doing the ham sandwich joke — and it was salami, anyway.) Undeterred, prosecutors pressed on with a misdemeanor assault charge and took Dunn to trial. It didn’t go any better.

This feels ridiculous to declare out loud but here goes: The sandwich thrower was obviously guilty. He intentionally and angrily threw an object at a uniformed federal officer, and hit him. The problem, of course, is that the charges don’t pass what we at the SDNY used to call the straight-face test: If you can’t make the case without cracking a smile, it’s not worth bringing.

The D.C. jury apparently applied that test and came out with an acquittal, notwithstanding the prosecution’s valiant effort to paint the hurling of a footlong as a dangerous attack. The law enforcement agent testified that he “could feel it through his ballistic vest” and, in the tragic aftermath, he “could smell the onions and mustard” before finding an onion string hanging off his equipment, and a mustard stain on his shirt. Courtroom observers reportedly laughed, and the jury apparently did too with its verdict.

This is a developing trend. In the weeks after President Donald Trump deployed the National Guard in Washington D.C., various grand juries rejected proposed federal cases involving silly or sympathetic conduct and petty (potential) charges. One case involved verbal threats made by an intellectually disabled man who had consumed seven alcoholic beverages and politely thanked the officers who arrested him. In California, grand jurors rejected proposed indictments of anti-ICE protesters, while trial juries have returned at least two acquittals. And in Virginia, a grand jury voted down one of the proposed charges against James Comey, and barely approved the other two. (If either the Comey or Letitia James cases reach trial, don’t be surprised if jurors engage in a bit of nullification, given the political tone of those prosecutions.)

Part of the problem lies in the cases that the Justice Department has chosen to bring. But more fundamentally, this is about a loss of trust. Before the current Trump administration, it was exceedingly rare for federal judges to call out the truthfulness of DOJ prosecutors. Sure, judges routinely rebuke prosecutors and reject their arguments – I’ve been there – but typically impugn the prosecutor’s honesty only in the rarest circumstances.

But in a string of federal cases, judges have openly chided the DOJ for its overreach, its failure to comply with at least the spirit of judicial orders, and its tendency to not quite fully tell the truth. One federal judge in Maryland lambasted prosecutors for their conduct on the Kilmar Abrego Garcia case: “You have taken the presumption of regularity and you’ve destroyed it in my view.” A judge in Washington D.C. flayed prosecutors for flouting his orders in an immigration case, characterizing the government’s position as, “We don’t care, we’ll do what we want.” Another D.C.-based judge noted pointedly, “Trust that has been earned over generations has been lost in weeks.” A federal judge in Illinois determined that the government’s portrayal of violence in Chicago was “simply untrue.”

Trump presently faces little meaningful opposition to his agenda, and to his excesses. The Executive Branch has largely been purged of objectors (or even some who faithfully do their jobs). The Republican-controlled House and Senate provide no friction, while Democrats flail helplessly. And the Supreme Court generally (though not always) has gone Trump’s way on executive power.

One of the few remaining checks comes from the most humble of sources – the everyday civilians who get that dreaded notice in the mail and wind up serving on grand juries and trial juries. Other than voting, it’s the most basic, populist exercise of American democracy. As long as the Justice Department continues to play politics and undermine its own credibility, don’t expect the nullification trend to stop. As I learned years ago on the Gotti case, sometimes the people have simply had enough.

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