Our constitution provides: “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” That is the protection against double jeopardy. It’s not an American invention. The common law had a wonderful name for the plea that since a defendant had already been acquitted of a crime, or even since he had already been convicted of the crime, he couldn’t be tried for the same crime again: autrefois acquit (or autrefois convict).¹ This rule has an astonishing consequence. Once a jury finds a defendant not guilty, the defendant is not guilty, no matter how flagrantly wrong the verdict is.² So the jury has the absolute and unreviewable power to return wrong or unjust verdicts. This is often called jury nullification.

There have been some famous cases of jury nullification in American history. Maybe the most famous was the Zenger case, in the early eighteenth century. Zenger published a newspaper that criticized the governor of New York. The grand jury refused to indict him, but the attorney general charged him with seditious libel. At the time, truth was not a defense to the charge. But Zenger’s lawyer, Andrew Hamilton (no, not that Hamilton) argued to the jury that it should acquit Zenger because what he had written was true. The jury acquitted him, even though based on the law of the day, he was clearly guilty.

That’s great, but jury nullification has also been used for shameful purposes. As Judge Bazelon noted in United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972):

One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks. That repellent practice cannot be directly arrested without jeopardizing important constitutional protections-the double jeopardy bar and the jury’s power of nullification.

No one doubts that the power of jury nullification exists. The question, if there is a question, is whether judges should tell juries that they can ignore the law, or if lawyers should be allowed to tell juries that they can ignore the law.

This brings us to the case of Rajiv Menon KC, an English barrister who defended members of a group called Palestine Action, who in 2024 “drove a repurposed prison van into the compound” of Elbit Systems UK, which was part of Elbit, the Israeli defense contractor, “breached security fences, entered the facility and caused damage to property and equipment,” and who also had “confrontations with security personnel and police.” Palestine Action was proscribed as a terrorist organization after its members “broke into RAF base Brize Norton in Oxfordshire and spray-painted two military planes red.” The Court of Appeal upheld the government’s decision to ban the organization, reasoning that while Palestine Action “is engaged in peaceful as well as non-peaceful protest,” it is

a fundamental mistake to overlook the fact that Palestine Action overtly promotes unlawful violence amounting to terrorism. It is not, as it claims, a direct action civil disobedience protest group like the suffragettes operating transparently in the open. It is a covert organization that operates using secret cells to avoid the detection and prosecution of those using violence to destroy the property of third parties. Palestine Action’s activities have caused injury as well as property damage.

This brings us to Mr. Menon. At the trial of the Palestine Action members, the judge had already told the jury that there was no defense of justification in the case, as Mr. Menon acknowledged in his closing speech to the jury, quoting the judge’s remarks:

As I told you when you asked a question about this, if a defendant believed that they were morally justified in doing what they did to prevent what they thought was a genocide, then that would not amount to a lawful excuse. There is no evidence in this case of anything that is capable in law of amounting to a lawful excuse, so that is not something that you need to consider.

But he went on to tell the inspiring story of William Penn, a Quaker, who was prosecuted for preaching outside an Anglican church. The judge directed the jury to find Penn guilty, because, under the law of the time, he was guilty, but the jury refused, finding him not guilty. The judge remanded the jurors in custody for two days, without food and water. They still refused. They were then fined for contempt of court. Most of the jurors paid the fine, but one, Bushel, refused, and was kept in prison. He eventually was released on a writ of habeas corpus, “establishing,” as Mr. Menon told the jury, “the right of a jury to return a verdict without fear of punishment from the trial judge.” He went on to argue that juries have the right to return a verdict according to their conscience, and concluded:

Putting that all together, members of the jury, you can find Charlotte and her co-defendants not guilty of criminal damage. It is a perfectly fair and proper verdict for you to return in this case.

The jury acquitted the defendants of the most serious charge, aggravated burglary, and could not reach a verdict on the other charges. The judge, however, referred Mr. Menon for consideration of whether he should be tried for contempt of court. I won’t review the twists and turns of the case, beyond saying that a decision on whether the charges can proceed is pending.

The Menon case has engaged a lot of interest, including from human rights groups, pro-Palestinian activists, etc. The case raises serious issues of what we would call “zealous advocacy” (perhaps in England the term is a little different). Lawyers need to be free to advocate zealously for their clients in court. I agree with that entirely.³ But there is another frame for understanding what’s going on: the failure of European courts in some cases to deliver justice to Jews and, as here, to Israelis. Some examples:

• The Sarah Halimi case. The killer, Kobili Traoré, killed Sarah Halimi, a retired French doctor, in her apartment, shouting “Allahu akbar” during the attack and claiming that he “killed the Shaitan” afterwards. The court held he was not criminally responsible, as he had consumed cannabis before the attack.
• The René Hadjadj case. The killer, Rachid Kheniche, was convicted of throwing his elderly Jewish neighbor, René Hadjadj, a retired tailor who had taught him how to sew, from the 17th floor of their apartment building. While the court convicted Kheniche, it did not find an antisemitic motive, which would have been an aggravating circumstance, and it found that his “discernment” had been impaired, leading to a lighter sentence.
• The Geneva stabbing. An unnamed suspect who had stabbed a Jewish man in front of his family was held unfit to stand trial, in part because he had an “irrational fear of an international conspiracy.”
• The Bourdon stabbing. The suspect stabbed a 58-year old neighbor, later telling police he did it because he wanted to “kill a Jew.” The irony is that the neighbor was not a Jew. The suspect was never tried because he was found to have psychiatric problems.

These are not, of course, jury nullification cases or even cases about lawyers’ conduct. But where there is a will there is a way, and the cases suggest that there is sometimes a will, sometimes on the bench, sometimes in the bar or in society more generally, to find non-responsibility when the victims are Jewish.

There is a “law” question here that only English lawyers can answer. Is a contempt proceeding appropriate? If not, is there some other consequence for Mr. Menon’s encouragement to jurors to nullify? But there is also a “morals” question. Was Mr. Menon like the lawyer suggesting to the jury that it should not convict a journalist of seditious libel or should not convict a Quaker of preaching? Or was he like the lawyer suggesting to the jury that it should not convict a white man of lynching a black man?

Actually, that’s not quite right. The advocate is not responsible for the moral rightness of his client’s cause and does not endorse it just by advocating on his client’s behalf. That’s just as true in England as it is here, and maybe more true insofar as barristers in England are subject to the cab rank rule, whereas lawyers here are free to turn down work from distasteful clients if they wish.

But here, too, there is another lens, a lens that focuses on the people and groups who are supporting Mr. Menon as a matter of human rights and justice and so forth. Suppose a British Jew had broken in to the offices of “Friends of Hamas” in London and destroyed equipment the group was using to accept credit card donations. The vandal claimed his acts were justified by necessity: he was trying to prevent the genocide of the Jews in Israel and the destruction of the Jewish state. Suppose Mr. Menon had said to the jury, “I know the judge just told you that necessity is not a defense to the charge, and you have to accept that, but I want you to remember that you have the power to acquit this defendant no matter what the law says, and here is a stirring story about British history to inspire you to do just that.” If the judge referred the lawyer for discipline or a contempt charge, would leading chambers of barristers and “luminaries from across the human rights world” be gathering to express concern and solidarity? I’d like to think the answer is yes, but everything about the last three years suggests to me that the answer is probably “no,” or at best, “meh.”

1. As with a lot of our bill of rights, it’s a good thing that the Founders thought to write it down. In England and Wales (I’m going to write that way once just to show I know the technicality, and I’m going to write just “England” from now on) I gather that the old rule has been modified by statute, and that today an acquittal can be quashed and the defendant retried if there is “new and compelling evidence” of guilt. ↩︎
2. Or in American criminal law–I don’t know if it’s the same in England–once a judge acquits a defendant before the case goes to the jury–the defendant is not guilty, he cannot be retried, and the government cannot appeal. I saw this happen once, when I was a law clerk. This was in the winter of 2001. My judge was hearing a case of receipt of illegal drugs that had been concealed in the leg of some furniture and then shipped to the defendant. I forget the details, but what I remember is that the judge felt strongly that there was insufficient evidence to sustain the charge, and that she directed an acquittal rather than sending the case to the jury. I remember thinking, “what is happening?” I have never seen a lawyer as angry as the assistant US attorney who was trying the case. The more usual practice is to send the case to the jury and then, if the jury returns a guilty verdict, enter judgment notwithstanding the verdict. That decision, unlike the decision my judge made, is appealable. ↩︎
3. On the other hand, there are limits to what a lawyer can say in court, especially in front of a jury. If I mention, in a jury’s hearing, highly probative but inadmissible evidence (especially if the court has already ruled in limine on its inadmissibility), I’m going to find myself in some kind of trouble. Or if I make an argument to a jury that is clearly impermissible, I may find myself in trouble. ↩︎