I disagree. Here's why:

The odds of a terrorist sympathizer getting on a jury in a terrorist trial are extremely slim. Where jury nullification really becomes a factor is in situations where a reasonably large minority -- say, 5-20 percent of the population -- in a democracy strongly disagrees with the moral stand of the other 80-95 percent.

In a situation where an 80-95 percent majority has strong policy differences with a minority, the minority will generally never see its view prevail in a representative democracy. But by being represented on juries, where unanimity is required to convict, the minority can at least ensure that acting according to its ideology is not made a *crime*. In a jury system, even a small minority can often intervene against such an effect.

Where an extremely tiny minority, such as terrorist sympathizers, exists, the odds of them having an impact through jury nullification process are extremely slim. Thus, rapists, murderers, and the like are unlikely to be able to have jury nullification by their peers give them much of a chance to escape.

But where a significant minority, such as those opposed to the drug laws, believe that the majority are in fact brutally oppressing others with extremely narrow-minded policies, jury nullification can allow them to prevent such policies from being enforced with criminal penalties.

Sure, the majority can still use other governmental means -- tax-and-spend incentives, etc. -- to attempt to impose their policies on everyone, but at least they can't make failure to follow such policies a *crime* without the minority throwing a significant wrench into things through jury nullification.

Perjure myself to get on a jury to "use the position to enact [my] policy preferences?" Queasy making all right. Citizen activists in jury trials? No thanks.

"What the jury didn't know --- and wasn't allowed to hear --- was that Rosenthal was not only growing the marijuana for medical patients, he was growing the stuff for the city of Oakland."

However, the actions of the judge and Justice Dept in this particular case, and the Supreme Court in their ruling on state medical-marijuana laws, make what Balko suggests much more palatable ---even reasonable, especially considering that Rosenthal could even be sentenced to life imprisonment. Congress should move on this now, as Justice John Paul Stevens has urged.

But where a significant minority, such as those opposed to the drug laws, believe that the majority are in fact brutally oppressing others with extremely narrow-minded policies, jury nullification can allow them to prevent such policies from being enforced with criminal penalties.

First of all, I don't have any numbers in front of me, but while there may be a lot of people who have some problems with the war on drugs, I am quite conident that there are very, very few who support full legalization - probably about the same number of those types as of terrorist sympathizers.

And I want to be sure that no matter what else, there is a system in place to ensure that people who think [murder, arson, robbery, rape, etc] is okay don't get put on the jury for [murder, arson, robbery, rape, etc] trials. If that means keeping anti-drug activists off of drug trials, that's okay with me.

I was partial to jury nullification once upon a time, but the more thought I gave it, the less I favored it.

First of all, there's the practical reason. Jury nullification is only really an issue if other jurors are convinced by the evidence and want to convict. If the evidence was weak and unconvincing to everyone, then your stance on the law as a juror isn't really relevant. It's only important when others vote to convict and the nullifier doesn't. And unless you're a really great persuader (and that means persuasive on your legal stance, because if you're persuasive on the facts, then your stance on the legitimacy of the statute isn't important), that doesn't lead to acquittal and the implementation of your own view of justice; it leads to a hung jury. That's guaranteed to tick off the rest of the jury, and aggravate the rest of the court. Days of work and effort on the part of the lawyers, and days of time on the part of the jurors, have all been wasted because one guy doesn't believe in enforcing the law in question. I know I would be furious at that juror. And all he's accomplished is creating the need for another trial, one that he won't be part of.

More philosophically, like Eric suggests, jury nullification fails the equivalency test. It's great when it's about a statute you personally oppose; as with the terrorist and abortion examples, it's a lot less attractive proposition when other jurors apply it to statutes you like.

Say our hypothetical case involved domestic violence, and one juror believes that domestic violence laws are illegitimate because they intrude on a husband's authority. Or a murder case where a juror refuses to punish a white man for killing a black man. The latter was undoubtedly the result of any number of lynching trials. To cite one example, the original Edgar Killen trial ended in a hung jury because one juror said that she wouldn't convict a preacher.

It could be somebody who believes the income tax is unconstitutional, or doesn't believe in intellectual property law, or doesn't believe consensual sex with an underage minor (say, 12) should be illegal, or any number of other positions. So what makes it different when it's your own stance? Merely because you're right and they're wrong? You can't defend jury nullification when it's your personal beliefs involved, and then condemn it when someone with radical (to you) but equally fervent beliefs tries to exercise it themselves. That would be trying to create a special rule just for you.

Juries exist to decide questions of fact, not law. Allowing juries to determine law might seem to work when it's you in the juror's seat, but the overwhelming majority of the time, it's somebody else in that seat. An unelected, unaccountable, somebody else, who probably holds views on the law that you disagree with. And that's not going to create much justice in the long run.