Jury nullification is a fancy term for what it's called when juries — or, in this case, grand juries — say no. It doesn't happen very often, which is why you may have never heard of it.
The old line is that a good prosecutor could get a grand jury to indict a ham sandwich.
Not so fast.
Not in the District of Columbia right now, where a federal grand jury refused to indict a man for throwing a sandwich at a federal agent.
It was one of three cases where a grand jury in D.C. refused to return felony indictments when asked by prosecutors — in some cases, backed up by videotaped evidence — to do so.
Now, three is not a lot of cases in the grand scheme of things, but for something that never happens, three is practically a trend.
And not a good trend.
Jury nullification is the last resort of a system out of sync.
Are prosecutors overreaching?
They have been put in a terrible position, politically speaking, enforcing policies that have been imposed from on high without the input and consent of those governed by them.
It's a dangerous thing to do, because it breeds disrespect for the criminal justice system.
It suggests something is wrong with the system — that there is a disconnect, or overreaching, which can only be corrected by the grand jury standing up to the prosecutor, the law be damned.
An army has been imposed on the district.
President Donald Trump claims that he's solved the crime problem; that's debatable, but what's not debatable is that he has created a new and different problem in the siege mentality that his takeover has provoked.
The locals are not happy about what's happening to their city.
This is a top-down imposition of martial force, not a community working together.
And if any more evidence is needed that it doesn't work when you do it this way, jury nullification provides that proof.
Los Angeles prosecutors ran into similar problems last spring, when they had trouble getting indictments against those who had participated in the protests against immigration raids.
Some years ago, jury nullification in crack cases, which were punished more severely than cases involving powdered cocaine, helped contribute to the ultimate reform of the law to remove what was seen by many as a race-based enhancement.
You see jury nullification only when the system is badly broken.
That's because, in the usual case, the prosecutor controls everything the grand jury sees and hears. It's not a balanced proceeding; it's an investigative tool, the adversary system with only one side represented, and if you can't win under those rules, what does it say?
It says you are doing something fundamentally wrong, which undermines respect for the rule of law.
What will happen if Trump imposes what looks and feels like martial law in Chicago?
Why would we expect it to be any different than what has happened in D.C. and L.A.?
If anything, Chicago will be worse.
It's not a federal protectorate.
It's not as used to the feds calling the shots as D.C. is.
Susan Estrich is a politician, professor, lawyer and writer. She has appeared on the pages of The New York Times, the Los Angeles Times, and The Washington Post. Ms. Estrich has also served as as an on-air contributor, on CNN, Fox News, NBC, ABC, CBS, and NBC. Her focus is on legal matters, women's concerns, national politics, and social issues. Read Susan Estrich's Reports — More Here.