Clay S. Conrad, the author of Jury Nullification, the book under discussion this week by Instapundit, How Appealing, the Volkh Conspiracy and others, has responded to TalkLeft's post on the issue. It's in the comments section of the post, but we are reprinting it here so more people can see it. Thanks, Clay!

"As so many are citing my book on here, I rather thought I should offer my own two cents worth.

First, it is useful to think of jury instruction as an affirmative defense that the law is unjust or is being unjustly applied. Now Eugene Volokh is concerned that juries will nullify defenses, acquitting the innocent. If a JN instruction is only available at the urging of the defense, however, there is no reason to believe this would increase nullification convictions (what I call "reverse nullification" in the book.) Defendants are unlikely to ask for nullification instructions in cases where they don't believe the jury is likely to go their way. And the State should never be able to request such an instruction, because, in the words of Duncan v. Louisiana, the purpose of trial by jury is to prevent oppression by government. (That's also one reason JN is mainly a criminal law doctrine: there is little government oppression in most civil cases, property forfeiture cases being the major exception to that rule.)

Secondly, it should be noted that in Old Chief, the Supreme Court noted that prosecutors are already permitted to put on evidence to establish the moral underpinnings of their cases. If they can do this, then certainly the defense should be entitled to reciprocal evidence showing that the law is not morally supportable. Once such evidence is in, the jury should have somewhere to go with it.

Many federal judges - like Judge Weinstein in NYC and Judge Hoyt in Houston - already broaden the scope of admissibility to allow a defendant to put on nullification evidence. And this, I think, is proper and good. However, it is ridiculous to allow the evidence in, and then not to give either instruction or allow argument as to how the jurors should use the evidence.

Jurors have a role to play as a pressure valve, as a regulator, in the American system of justice. We shouldn't try to seal off the safety valves too tightly, because when the pressure builds up it should be released. Thanks to the war on drugs and our increasingly prosecutorial society, the pressure can get pretty intense some time.

We need some common sense - and jurors are the best source for keeping the actions of the criminal justice system in line with the thoughts of the community. Prof. Norman Finkel, in his wonderful study Commonsense Justice, demonstrated that juries do a remarkably good job of reflecting public sentiment - a better job than the legislature can do. We need to let that voice speak, and then we need to listen to that voice very carefully.

Finally, I think being honest about jury nullification simply shows respect for jurors - to tell them "yeah, you have this prerogative, and this is how it is intended to be used, this is the purpose of this power which the Founders meant for jurors to retain."

I actually went for jury duty today, and was not seated in a civil case. The lawyers for both sides went on and on about how they wanted an impartial jury. During a break, the whole venire panel had a good laugh at those lawyer's expense. Everyone realized that NOBODY wanted an impartial jury. The judge was a possible exception, but he was more concerned with getting 12 people who'd come back on time from lunch than with whether they were partisan or not.

Let's treat jurors like adults. Let's tell them the truth about their role in our courtrooms. Let's tell them that if they cannot conscientiously convict, whatever the evidence, whatever their instructions, they retain the lawful prerogative to, in our former First Lady's words, "just say no." "

Clay S. Conrad