It seems that Duane's main argument is that the jury has the
power to nullify. I don't dispute this. But then that's a bit like saying that a person has the power to murder someone else. No doubt a jury is
able to disregard the judge's instructions and render a verdict that contradicts the law. Indeed, in the American justice system, if a jury acquits a guilty defendant, then there is no appeal of its verdict, so there is no chance for the state to erase the results of the jury's nullification. Saying, then, that the jury has the power to nullify isn't saying anything new. It also isn't saying anything worthwhile.
Duane further suggests that courts should also tell juries that they have the power to nullify, but he lacks any kind of justification for that proposal. A jury should be instructed on nullifcation only if it has the
right to nullify. If the jury acts lawlessly when it nullifies, however, it would seem rather odd to tell it that it nevertheless has the
power to act lawlessly, just as it would be odd for a law against murder to remind people that, although it is unlawful, they nevertheless
can kill their fellow citizens.
It should be added that proponents of jury nullification (including, it appears, Duane) think that it only works
in favor of criminal defendants. But jury nullification works both ways: a jury can just as easily convict an innocent man as it can acquit a guilty one. In the "Time to Kill" hypothetical, I wonder how many of the participants here would agree with jury nullification if the evidence showed that the defendant was unquestionably innocent, yet the jury decided that it wanted to punish him anyway and rendered a guilty verdict that ignored both the law and the facts.
