Supralegal Justice: Are Real Juries Acting Like Fictional Detectives?

We scarcely bat an eye when heroes of mystery and detective tales engage in illegalities for a greater good-roughly identifiable as "justice." Richard Schickel, commenting on the issue of vigilantism in Clint Eastwood's Dirty Harry movies, reminds us that the eponymous cop's nickname derived not from his tactics but from the "dirty" jobs that devolve upon dedicated policemen (267). Schickel added, "Many, if not most, of the heroes in American popular fiction and film are in some sense vigilantes, obliged eventually to take the law into their own hands because the organizations charged with enforcing it are too dumb, numb, or crooked to do so effectively" (273). Reality may be not just imitating but even surpassing the excesses of escapist popular entertainment. There has been a growing perception that putative felons are being rescued rather than punished in our courts. The instrument of deliverance has come to be known as jury nullification, a practice which was named, defined, and recommended in a Yale Law Journal article at the time of the first 0. J. Simpson verdict. According to the doctrine's originator, law professor Paul Butler, juries should use their power of acquittal to neutralize laws or law enforcement perceived by them to be unjust, even to the extent of dismissing or disregarding evidence and setting free the technically guilty (124). A virtue of escapist popular fiction, perhaps its principal one, is to invite us to indulge vicariously the illusion that an heroic individual or band can righteously nullify or at least ignore laws while administering personalized justice. But it is understood that this virtue is fictive, by no means universal or categorical. It is rather the prerogative of fictional heroes-the Dupins, Holmeses, Spades, Marlowes, and Spensers, who, were they to speak on the point, might stipulate "Just us." Controversy is the least of the outcomes when groups of people legally impaneled as jurors give their own spin to the notion of justice. We might wonder whether nullifying juries have read too much detective fiction or not enough. At the heart of the difficulty is the possibility that true justice may transcend laws; to paraphrase Georges Clemenceau's comment on military justice, institutionalized justice is to justice as military music is to music. If this be so, then heroesand jurors in the real world-have leave to march to a different drummer. What are lay people to do when fine legal minds differ on the relationship of law to justice? A famous Holmes-not Sherlock but a Supreme Court justice and venerated legal theorist-once declared, "I have said to my brethren many times that I hate justice, which means I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms" (qtd. Minow 1). More recent theorists, Abram Chayes and Judge John Noonan, have argued respectively that "law is inevitably concerned with justice" and that lawyers and judges should not avoid responsibility for justice by robing themselves in professionalism (2). Reflecting on these views, Martha Minow concludes that the ongoing debate "is a sobering reminder that justice cannot be left in the hands of lawyers or judges" (3). When the justice system seems compromised or otherwise ineffective, fictional sleuths do what they have to do. But in the real world, absent the heroic private eyes of fiction, overzealous at best and bigoted at worst policemen and prosecutors seem ready to bring down their target by any means. Too often ignored are the dissenting words of Justice Louis Brandeis seventy years ago when the high court legalized federal wiretaps: In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. …