From United States v. Polouizzi, decided two weeks ago (the latest phase in a case noted by Orin two years ago):
Perhaps the issue is as well summed up as it need be by quoting briefly from Professor Roscoe Pound and Judge Learned Hand. Pound referred to jury nullification as “the great corrective of law in its actual administration.” And Learned Hand declared that nullification introduces the necessary “slack into the enforcement of law.” It allows the jury to temper the law’s rigor “by the mollifying influence of current ethical conventions.” See, e.g., Andrew J. Parmenter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L.J. 379, 426 (2007) (providing other supporting citations). See Polouizzi I, 549 F.Supp.2d at 450-54 (providing selected bibliography on powers of jurors when Sixth Amendment was adopted).In Harry Kalven, Jr.’s and Hans Zeisel’s comprehensive and still valid study, The American Jury (1966), the authors concluded that in the relatively rare cases where the jury reaches a “different conclusion from the judge on the same evidence, it does so not because it is a sloppy or inaccurate finder of the facts, but because it gives recognition to values which fall outside the official rules.” “It … will move where the equities are. And where the equities are at any given time will depend on both the state of the law and the climate of public opinion.” See also, e.g., Valerie P. Hans, Judges, Juries, and Scientific Evidence, 16 J.L. & Pol’y 19, 23 (2007) (“[M]any disagreements [between judges and juries] are explained by the fact that compared to judges, juries appear to require a stronger case by the prosecution to convict the defendant; or by the fact that juries infuse community notions of justice into their verdicts.” (citing, inter alia, Kalven and Zeisel, supra )).
The experience of trial judges is that the jury is among our most conservative institutions. When in doubt we should trust its judgment, as did those who adopted the Sixth Amendment….
The Supreme Court has recognized that the jury has a significant role in determining punishment. See United States v. Booker, 543 U.S. 220 (2005); Crawford v. Washington, 542 U.S. 360 (2004); Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court of Appeals for the Second Circuit has conceded the appropriateness of instructing the jury about punishment in some cases. Courts recognize the limits of their new rulings to the special situation before them. As one commentator put it, in “predicting the administrative feasibility of a proposed remedy” on instructing the jury, the courts must move gingerly, limiting themselves to special situations — as this court now does in the present case..
In those decisions reducing the constitutional role of the jury and arrogating to courts themselves greater control of jurors than the Constitution permits, modern federal judges have assigned the ugly name “nullification” to the jury’s exercise of discretion-a word having negative connotations dating back to some juries’ post-Civil War harsh treatment of minorities. A more apt word for modern juries’ exercise of their constitutional power to soften the application of overly harsh laws in specific cases would be “rectification.” Exercise of this corrective power relies on the jury’s historic role, going back to Colonial times, of bringing the law as applied into better accord with current community human considerations.
The argument that the jury will abuse its rectification powers, as it has in some instances in the past to enforce racist local social prejudice, is no longer persuasive in our more tolerant America. Unjustified verdicts of conviction based upon racism can and should be set aside by the court. The fact that a few juries may refuse to convict for racist or other disreputable reasons does not justify denying the jury its historic constitutional role in exercising clemency in appropriate cases. This slippery slope argument is not, in any event, persuasive in the Eastern District of New York where our heterogeneous juries discharge their duties without prejudice.
Federal judges who deal with these cases and diverse defendants are increasingly disenchanted with strict and unnecessarily punitive minimum sentencing requirements in child pornography cases that treat with the same harshness those requiring control and medical help outside of prison and those requiring long incarcerations to incapacitate. This view reflects the same dynamics as the increased flexibility in Guideline Sentencing ultimately approved by the Supreme Court following strong judicial opposition to the harsh rigidity originally required. Compare too, the reduction of death sentences in response to increased opposition, through its elimination in the states, refusals of prosecutors to seek its imposition, opposition of judges, and denial by juries, based upon community sentiment. Judges as well as juries are not immune to the views and influence of an informed community.
Each Article III judge is granted the responsibility to interpret the Constitution as he or she understands it. History confirms — what the Supreme Court has now held of sentencing generally — that the jury’s power to ameliorate the harshness of the law is built into our system of justice. The Sixth Amendment’s right to a jury trial was designed to confirm the opportunity and power of the community (speaking through its cross-section of the petty jury) to forgive, condone or mediate punishment under special circumstances warranting that grace.
Because of this, the court concluded, “it would exercise its discretion on retrial to inform the jury of the five-year mandatory minimum sentence of incarceration required by a conviction for receipt of child pornography through the Internet” (one of the charges involved in this case). For the whole picture on this case, see the opinion, which was long enough that it was split into two documents on PACER: Part I and Part II.
Eric Rasmusen says:
It’s interesting to read this just after the Roeder conviction for killing Dr. Tiller, the abortionist. The question came up there of whether anti-abortion people could be excluded as jurors. What would Judge Weinstein say?
February 2, 2010, 3:22 pmDavid Schwartz says:
JudgesForJuryNullification.com was one of the joke blogs suggested, right? Up there with JudgesForMandatoryMinimums.com.
February 2, 2010, 3:23 pmAnderson says:
Well, damn, what do you expect when he’s quoting Roscoe Pound, History’s Greatest Monster?
February 2, 2010, 3:26 pmSuperSkeptic says:
Now that is a decision that reads like a law review article…
February 2, 2010, 3:38 pmBob from Ohio says:
Where is this “power” found in the Constitution?
Anybody here agree with that?
February 2, 2010, 3:39 pmAnderson says:
Each Article III judge is granted the responsibility to interpret the Constitution as he or she understands it.
Hasn’t been controversial since Marbury, has it?
February 2, 2010, 3:41 pmBob from Ohio says:
No duty to follow higher courts? Or past precedent?
February 2, 2010, 3:44 pmgorgon says:
The one time I was called for jury duty (didn’t serve, though) the judge seemed to threaten us over the possibility of J.N. Whether a jury can do it isn’t my question – what could a judge do if one did?
February 2, 2010, 3:56 pmHouston Lawyer says:
And where are all these juries refusing to apply the death sentence? Given the choice and the evidence, juries have shown little squeamishness in this area.
February 2, 2010, 3:56 pmShelbyC says:
The 6th Amendment.
Absolutely.
February 2, 2010, 4:10 pmBen P says:
Kind of a silly question?
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed,”
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, ”
If you don’t see the 7th Amendment’s prohibition on a court reexamining facts concluded by a jury as an explicit reference to the possibility of jury nullification, the common law system of jury trials pretty much allowed jury nullification in the prohibition against punishing jurors for failing to reach a verdict.
February 2, 2010, 4:14 pmBen P says:
To be fair, I think you’re ignoring the fact that our judicial system has spent quite a bit of time and effort developing the concept of a “death qualified jury.” If you’re talking about a jury’s willingness to impose the death penalty think it’s probably pretty significant that we can exclude any jurors categorically opposed to the death penalty on the front end.
February 2, 2010, 4:18 pmS says:
Yes, Ben. And I recall, in California, a few years ago, stories that finding death qualified juries was becoming increasingly difficult because the jury pools would get too small and the people left were not desirable for other reasons.
February 2, 2010, 4:22 pmS says:
I suppose you wanted him to spill more ink in this HUGE opinion expanding on this contextually innocuous comment?
February 2, 2010, 4:27 pmfwb says:
“Each Article III judge is granted the responsibility to interpret the Constitution as he or she understands it.”
Marbury DID NOT say the judges could interpret the Constitution. It said the judges could decide which laws conformed to the constitution and which did not. The judges took it on themselves to invent alternative forms of interpretation in order to do what they were not authorized to do, alter the Constitution.
The Constitution is the superior and the judges are subordinate to it. Next time you go to work why don’t you try telling YOUR boss what to do or try deciding what your boss means when he/she tells you what to do. The subordinate cannot define the superior. The judges DO NOT HAVE and never have had the authority to interpret. That is a lie perpetrated on the people in an attempt to usurp powers not intended.
Tiocfaidh ar la!
February 2, 2010, 4:29 pmPeteP says:
My recent statement to a judge that I would consider not only ‘his instructions’, but also my own deeply held beliefs of ‘right and wrong’, justice, etc, in rendering a verdict won me the honor of being the first member of the jury pool to be excused.
He seemed a tad bit irritated. And I never even mentioned the ‘N (ullification )’ word.
February 2, 2010, 4:32 pmiowan2 says:
This brings up the question of jury questioneers. Are potential jurors required to fill them out? What if they refuse. Simply state. I am qualified to sit on the jury, I have not prejudged the case and will render an honest opinion.
February 2, 2010, 4:50 pmGaltish bus driver says:
I served on a jury just a few weeks ago. Criminal case, involving a psychoactive chemical substance and the defendant’s culpability vis a vis State-level criminal law. The jury deadlocked; the judge accepted that and declared a mistrial despite the prosecutor’s motion that an “article xyz” something aruther instruction be given to the jury.
I’ve been thinking a lot about that case and the jury process. It is difficult to say whether the jurors who “held out” for “not guilty” were merely not convinced “beyond a reasonable doubt” or, perhaps more likely, were less than fully convinced of the validity of the law and the process by which the state measures and enforces those standards.
In such a case, how does one categorize whether “jury nullification” occurred here, or not? And how on earth would a scholar looking at the data after the fact do so?
February 2, 2010, 5:00 pmShelbyC says:
I sure don’t know where in the Constitution there is a duty for judges to follow higher courts or past precedents in different cases. Of course, they would have a duty to apply the findings of higher courts in the same case.
February 2, 2010, 5:12 pmShannon says:
TO nullify as a juror, use the same principle as is used in shooting a bear in self-defense…
Shoot, Shovel, and Shut Up.
If you, as a juror, feel that the law the accused is charged with violating is itself unjust, then all you need to do is vote “not guilty”. If asked, all you need to say is “the prosecution was not able to convince me of the the defendant’s guilty beyond a reasonable doubt”.
As long as you don’t open your mouth afterward, there’s nary a thing the system can do to you.
–Shannon
February 2, 2010, 5:19 pmHans Clapton says:
He needs a foot in his can.
February 2, 2010, 5:20 pmShelbyC says:
Not a big fan of judicial independence, eh?
February 2, 2010, 5:22 pmBob from Ohio says:
No, it was a trick question. There is no grant of “power” to citizens in the Constitution, either individually or collectively (i.e. juries).
The Constitution grants certain powers to government and places limitations on other exercises of power. It enumerates a non-exclusive list of rights belonging to the people.
The fact that Weinstein cherry picks some sloppy language from David Souter that mentions “power” does not change what the Constitution does.
Weinstein is a learned crank. Jury nullification is not compatible with a modern liberal democracy where the people, not the Crown, rule.
Don’t like a mandatory minimum, get the Congress to change it.
February 2, 2010, 5:22 pmKenvee says:
I say that if we’re going to go for jury nullification as an acceptable standard, then go for it. That means just putting everything out in front of the jury and let them make the decision. How many juror’s standard of “justice” would be different if they actually heard about the defendant’s criminal history, or heard the hearsay statements from an extra ten people that he did it, or many other things that were excluded from trial as “irrelevant”? But we exclude things like that for a reason — to get the fairest trial possible. If we want to throw out the rule of law in favor of a juror’s sense of justice, then that means also losing the very safeguards we rely on.
February 2, 2010, 5:25 pmSk says:
Interesting that nobody brought up what I thought to be the weakest part of the quote.
“Unjustified verdicts of conviction based upon racism can and should be set aside by the court.”
This sentence displays two things: 1) that jury nullification is really only ok if the judge in the case happens to agree with the jury, and 2) Weinstein obviously either wants to score political points by stating his abhorrence for racism, or has a particular irrational dislike for racism.
Not that racism is ok. Rather, it is not uniquely bad. I’m not sure why it is ok to overrule a jury that makes a racist call, but not a jury that makes a nepotistic call, or bribe induced call, or (as other have noted), a jury that ignores the law with regard to the death penalty, drug laws, and so on. The obvious answer is that Judge Weinstein happens to agree with juries that nullify with regard to the death penalty, drug laws, or leniency towards defendants, and happens to disagree with juries that impose racially-motivated decisions.
In other words, I view faith in jury nullification the same way I view faith in democracy: if you’re not willing to accept it when the majority doesn’t make the choice you would prefer, you really aren’t a democrat (or a proponent of jury nullification).
“Federal judges who deal with these cases and diverse defendants are increasingly disenchanted with strict and unnecessarily punitive minimum sentencing requirements in child pornography cases that treat with the same harshness those requiring control and medical help outside of prison and those requiring long incarcerations to incapacitate.”
This really shows his stripes. He doesn’t agree with jury nullification as a matter of principle: he agrees with jury nullification because in this particular time and place, juries tend to find the way he would prefer in a particular set of cases. Since he, as a federal judge, is charged with enforcing the law, and he doesn’t like a particular law, he likes jury nullification because it allows him to ignore laws he would prefer to ignore.
Jury nullification as a moral/ethical concept is difficult for me to find for one way or the other.
Jury nullification as a tool for particular egos to ignore particular laws that they don’t has a much clearer ethical standing.
Sk
February 2, 2010, 5:30 pmSplunge says:
Jury nullification is not compatible with a modern liberal democracy where the people, not the Crown, rule.
Yeah? How you going to stop us, bucko? You can’t pry into my head to find out why I voted “not guilty,” and unless I’m a damned fool, I’m not going to tell you.
Good luck with those windmills, Quixote.
February 2, 2010, 5:33 pmjnheath says:
This is the same judge who several years ago tried the NAACP’s lawsuit against a gun company all the way to verdict, then dismissed for lack of valid claim. But in dismissing he proferred that jury verdict as estoppel by record for a prospective future plaintiff against the same defendants. He’s working every angle.
February 2, 2010, 5:33 pmShelbyC says:
Don’t like the 6th amendment, amend it. Don’t get judges to read half of the jury’s power (or whatever you want to call it) away.
February 2, 2010, 5:33 pmMichelle Dulak Thomson says:
I was particularly struck by this bit:
The fact that a few juries may refuse to convict for racist or other disreputable reasons does not justify denying the jury its historic constitutional role in exercising clemency in appropriate cases. This slippery slope argument is not, in any event, persuasive in the Eastern District of New York where our heterogeneous juries discharge their duties without prejudice.
This is the Eastern District of New York, not Mississippi! We don’t have racist juries here.
February 2, 2010, 6:09 pmepluribus says:
Ben P:
How about:
February 2, 2010, 6:31 pmepluribus says:
What if a jury chooses to disregard an affirmative defense, e.g, self-defense, choosing to believe that there should be no such thing as self-defense? Does the fact that juries in the Easter District aren’t racist justify the jury in changing the law applicable to the case? Does the Constitution vest the “judicial power of the United States” in juries?
February 2, 2010, 6:37 pmepluribus says:
ShelbyC:
Don’t like Art. II, Sec. 1, amend it.
February 2, 2010, 6:40 pmShelbyC says:
Of course. Not sure what that has to do with anything, though.
February 2, 2010, 6:49 pmShelbyC says:
It vests it in courts, which can constist of a judge, or a judge and jury. It does not vest the judicial power soley in judges.
February 2, 2010, 6:51 pmNunzio says:
There was quite a bit of jury nullification in the South during the good ole’ days when whites were accused of crimes against blacks.
For some reason, Judge Jack doesn’t mention that when extolling the virtues of jury nullification.
February 2, 2010, 7:06 pmShelbyC says:
I gather there was quite a bit of procecutorial discretion used to avoid procecuting those same folks. And yet people defend procecutorial discretion. Go figger.
February 2, 2010, 7:09 pmBob from Ohio says:
Of course. I am talking about nullification as a formal, approved legal principle.
Most true believers in nullification, alas, advertise it so never get to serve.
February 2, 2010, 7:10 pmGaltish bus driver says:
Yeah Shannon. I suspect my own determination of “not guilty” in the trial I was a juror on in January was somewhat close to what you say here. I certainly never mentioned “jury nullification” to anyone, although it was much on my mind as I considered the evidence.
My question is as before: how does one categorize whether “jury nullification” occurred in that case, or whether it was merely one of not being proven beyond a reasonable doubt? I’m not sure I know. I’m sure the judge, attorneys, defendant, other jurors, et al have no knowledge from which they could make a determination, or probably even have any idea that jury nullification was in play.
February 2, 2010, 7:40 pmepluribus says:
Shelby, did you read my post above? Art. III, Sec. 1 says that the judicial power of the United States is vested in courts, not in juries. And Marshall said that the duty of the courts (i.e., the judicial power) is to say what the law is. This is not the duty of the juries. If you don’t like Art. III, Sec. 1, or if you don’t like Marbury, which explained Art. III, Sec. 1, amend the Constitution. Don’t tell juries they can make up the law as they go along.
February 2, 2010, 7:55 pmBenP says:
Well would you look at that?
We have a genuine bona fide ambiguity in the constitution.*
Guess all that interpretation might actually be necessary. And here I thought that the constitution was perfectly clear and locked in stone and it was just all those bad faith “Black Robed Masters” making stuff up to get the results they want. /sarcasm
* – Note – I am fully familiar with the idea of issues of law and issues of fact. But it was a well established common law prcedent predating the constitution (Bushell’s case) that a jury can’t be punished for not giving the result the court wants, and we have the express provision in the constitution that the court cannot reconsider issues of fact decided by a jury. So if the jury says “Not guilty” that’s that, regardless of what “facts” they used to determine it.
February 2, 2010, 8:05 pmCatCube says:
Two big questions, (and a bunch of little ones inside them) from someone who isn’t a lawyer:
(1) Who says that the “courts” are judges? In courts-martial (which I know are Article I, not Article III courts) the “jury” (panel) is explicitly referred to as “the court”. Was this ever the tradition on the civilian side, and if so, when did it change?
(2) If (big If) there’s a nullification power inherent in the guarantee of a jury trial in the Sixth Amendment, wouldn’t that *be* an amendment to the Article III, Section 1? I mean, in a conflict between an amendment and the original text, the amendment should control, shouldn’t it?
February 2, 2010, 8:10 pmAllan Walstad says:
Believers in limited government: heed Shannon’s words.
February 2, 2010, 8:21 pmhilzoy fangirl says:
Guilty verdicts can be challenged on appeal (although the standard of review is far from de novo).
February 2, 2010, 9:02 pmlicrimlawyer says:
Now, some of the folks who have posted to this blog, on this topic, have advanced theories regarding jury nullification. Others have advanced opinions that might best be categorized as political. All I can tell you is how jury nullification worked in practice, with real people, and a real defendant facing time in state prison.
Two weeks ago, for the first time in eight years, I found myself trying a case before a jury. [Came close several times, but always got offers I couldn't refuse, or that my clients chose not to refuse.] I had joked that I might have forgotten how to handle a trial. More ominous was the fact that I had NO DEFENSE. My client was charged with contempt for failing to heed a “stay away” order of protection. Against the advice of prior counsel, he had testified in the Grand Jury where he had admitted all the elements of the crime. So, the only tactic available was so called jury nullification.
During voir dire, I kept emphasizing to the prospective jurors that this, jury service, was their chance to have an impact on the government; pointing to the young Assistant DA every time I uttered the word “government.” Every now and then, I would point out that juries were a bulwark between the government and the individual. [At a sidebar, the judge made the supposedly helpful suggestion that I "develop a theme" in voir dire. Fortunately, he did not pick up on the theme I was trying to develop.]
I had planned a brilliant opening. I was going to talk about Andrew Hamilton’s defense of John Peter Zenger and segue into how his son, Alexander, had extolled the virtue of juries in Federalist 83. But, the ADA, and the judge, knew a little history too, and my brilliant opening was shut down pretty quickly.
The presentation of evidence was pretty quick. The court clerk who had given the order to my client, the two arresting officers, a stipulation detailing my client’s testimony in the Grand Jury, and the prosecution rested. The only defense witness was the girlfriend/protectee who testified that she had never wanted the order of protection to begin with. In my summation, I kept emphasizing the themes of the voir dire: an impact on the government; and, the fact that they were a bulwark between the government and the individual.
It should be noted that juries in New York are routinely instructed that, while they are the exclusive judges of the facts, once the elements of the charged offense are proven beyond a reasonable doubt, it is their duty to convict. They are not given an option. Among other things, they are told that they must accept the law as the judge charges it, and that issues of mercy or punishment are not in their bailiwick. For these reasons, I thought my guy had absolutely no shot whatsoever. Nevertheless, I attempted a jury nullification defense because, factually and legally, there was no other option.
During jury deliberations, I was feeling pretty good about myself. Not only did they stay out over lunch, they actually asked for a few readbacks of testimony and part of the judge’s charge. Then, the judge sent them home at the end of the day and they continued deliberations the next day. Finally, they acquitted in a case that had been viewed by everyone as a slam dunk winner for the DA.
When I spoke to them afterwards, several of the jurors told me that the idea that they could have an impact on the government resonated with them. They also liked the idea that they could be a bulwark between the individual and the government. However, I personally believe there would have been a different result if the jurors believed that the girlfriend [the one who was "protected" by this order] was a battered woman.
With different facts, or different jurors, perhaps with different lawyers, my former client might be headed for the more bucolic regions of upstate New York for the next couple of years. He is free, probably with the girlfriend, probably violating the same order of protection that led to his being charged in this case.
Hopefully, I have given the folks here some insight regarding jury nullification in the real–perhaps unreal–world of the trial courts.
February 2, 2010, 9:27 pmMark Field says:
Alexander Hamilton was not the son of Andrew.
February 2, 2010, 9:42 pmShelbyC says:
I responded to your post about Art. II, Sec. I. If that was a typo, that would clear up some of my confusion. But as I and others have said, courts are not judges, just as they are not juries. Both judges and juries exercise the judical power. This would have been clearer at the time of the founding, when lawyer routinely asked juries to nullify, and juries were instructed about their ability to nullify. I think there are constitutional problems with the fact that judges have slowly usurped a power that juries were assumed to have when the 6th amendment was written.
February 2, 2010, 9:55 pmAllan Walstad says:
.
Perhaps if those ideas weren’t so novel, they’d have thought more about the facts of the case?
February 2, 2010, 10:05 pmOrin Kerr says:
One word: Mandamus.
February 2, 2010, 10:38 pmlicrimlawyer says:
I stand corrected. Of course, in the context of this case, it didn’t matter.
February 2, 2010, 10:54 pmlicrimlawyer says:
Those ideas are far from novel. Besides, the whole point of jury nullification is that jurors have the power to override the government. That’s why they put the 6th amendment into the constitution.
February 2, 2010, 10:57 pmMark Field says:
No, it was just a little historical nitpicking by me.
February 2, 2010, 11:10 pmMichael Alexander says:
I like Kenvee’s point the most.
licrimlawyer – Did your guy have any prior criminal history?
February 2, 2010, 11:15 pmJay says:
Orin,
February 2, 2010, 11:35 pmYeah, I was waiting for someone to bring up the practical impact of what Judge Weinstein did. Isn’t he pretty much directly ignoring the 2nd Circuit’s opinion? Also, after two years, he should figure out how to spell the defendant’s name.
Whitehall says:
I gag when I read lawyers arguing about jury nullification!
The proper model of political power is:
1) the people are the the source of all power and legitimacy
2) the voters elect legislators to write the laws
3) the voters elect the president/governor/other officers to execute the laws
4) the judges are appointed and paid to administer the process
5) the people serve on juries to both determine the specifics of the case and, more importantly, to serve as a quality control check on items 2 through 4 above.
The people we elect sometimes go off on tangents in writing stupid laws. The executive sometimes misapplies those laws (Nifong?) and the prosecutors and judges sometimes get too entangled in their own interests to conduct a fair trial.
Jury nullification is a power that I, as a citizen, will never give up.
February 2, 2010, 11:56 pmeyesay says:
I gather that if the jury informs the court “We have exercised our free citizen right of jury nullification and find the defendant not guilty,” the court will declare a mistrial. So my question is, how much time has to elapse before it is safe for the jurors to publicly admit to having used jury nullification, without putting the defendant at risk of a re-trial?
February 3, 2010, 1:27 amhattio says:
sk says;
Damn, That was a bad bit of cutting and pasting, but the sentence sk was talking about was the bit about how judges should use their power to overturn convictions which are the result of racism. As such, I disagree with sk. What the sentence demonstrates is that nullification is okay because at worst it frees the guilty whereas a conviction of the innocent due to racism, it, well, convicts the innocent. Folks may disagree with that and think a guilty person going free is just as bad as an innocent person being convicted, but let’s not pretend the distinction isn’t there.
February 3, 2010, 2:18 amhattio says:
Here’s the sentence sk was talking about;
February 3, 2010, 2:26 amNickM says:
An unjustified conviction due to racism takes 12 racist jurors (as well as a prosecutor bringing a case that should not be brought). An unjustified refusal to convict due to racism takes 1 racist juror.
The practical impact is that unjustified refusals to convict will far outnumber unjustified convictions. Better to let a guilty man go free than to let an innocent man be convicted, but how about 10, or 100, or 1000 guilty men?
[paging Sasha]
Nick
February 3, 2010, 5:00 amreadery says:
Of course jurors are supposed to follow judges’ instructions. But are judges’ instructions to be considered something with a fixed meaning that reflects some sort of original intent, or are they to be interpreted in light of contemporary contexts and values? In short, are they dead or living?
Surely we ought to interpret judges’ instructions to us in exactly the way they interpret our instructions to them. Terms they give us should be interepreted the same way terms we give them.
Judges have uniformly rejected originalist meanings to key terms of our instructions such as “commerce among the several States”, “gold and silver coin”, and so forth. Originalism is simply not the lens by which legal instructions are interpreted in this country.
For this reason, we would simply nnot be following judges’ intent, as reflected by their behavior, if we gave originalist interpretations to every term in judges’ instructions to us.
If judges think we don’t literally mean what we say, we should it occur to anyone that we should think they literally mean what they say?
February 3, 2010, 5:46 amDusty says:
Which makes it all the more annoying for them to suggest what was granted was responsibility, not authority, for if it was responsibility, we’d see them sent packing at least once in a while.
February 3, 2010, 7:14 amShelbyC says:
Heh. I’ve often wondered what would happen if a potential juror mentioned to a judge that originalism was one method among many that they were considering of interpreting his instructions, including, of course, the living jury instruction.
February 3, 2010, 8:46 amShelbyC says:
None. Once the verdict is in, it’s final. I’d imagine that in your first example, the judge may get pissed off and try to declare a mistrial. It would be an interesting case.
February 3, 2010, 8:58 amKen Arromdee says:
No, the obvious answer is that a substantial chunk of the public reacts in ridiculous ways whenever there’s a hint of racism involved and is willing to override all protections in the law in order to catch racists. (The end result of which, of course, would be having no protections in the law at all.)
So he has to make an exception for racism because if he doesn’t, the possibility of letting racists go would lead to massive opposition, even if it ultimately helps minorities by freeing them more than it hurts them by also freeing racists.
February 3, 2010, 10:24 amMartinned says:
Or, as prof. Kerr wrote two years ago:
February 3, 2010, 10:40 amSuperSkeptic says:
Interesting angle, readery.
February 3, 2010, 12:02 pmegd says:
If jury nullification is seen as disruptive and is outright dismissed by most judges as an aberration, what value does it actually serve as a check on government?
Part of living in a representative democracy is that you agree to abide by the decisions of the rest of society. If I were a juror, would it be appropriate to nullify a verdict because I voted against the prosecutor? If enough people did it (each case only requires 1 juror), such actions would certainly cause the prosecutor to choose not to run in the next election.
But does this tyranny of a relative minority (which may be as few as 20% of eligible jurors) positively impact government, or does it create an incentive for the government to seek to avoid jury trials?
February 3, 2010, 1:06 pmGaltish bus driver says:
Whitehall says it best.
February 3, 2010, 1:07 pmMartinned says:
This is the critical step. Do “the people” serve on juries, or do “people” serve on juries? Given the relatively small size of the jury relative to “the people”, I’d say it is the latter. Which means that it makes more sense to see the jury as part of the judicial power, which, in turn, means that we’d like the jury to obey the law as much as possible, just like the rest of the judiciary.
If, on the other hand, through the miracle of sampling one were to conclude that the “people” who sit on a jury speak for “the people”, then their sovereignty implies the power to nullify. However, given that it only takes a single juror to do so, I highly doubt that the miracle of sampling works that miraculously.
February 3, 2010, 1:28 pmhattio says:
readery says;
Uniformly? Somehow I doubt it’s every single judge in this country…
February 3, 2010, 1:31 pmMaryanna says:
As a public defender, I’ve had lots of trials where the facts were overwhelmingly against me. In those cases, I give nullification my best shot. Last year it worked for me for what I believe is the first time ever.
A statutory rape case where the defendant and the “victim” were separated in age by 2 years and 6 days. They had been dating for a little more than two years and had been sexually active for more than one year. Her father (who hated my client with a passion that bordered on the unholy) managed to catch them in the act during that very brief time after he turned 18 and she was still 15.
Conviction means probable jail time and the sex offender registry. The facts are absolutely not at issue – he is beyond question, factually guilty.
My opening statement was not much more than this: “I’m not going to say much in this case. I just want you to listen to the evidence and do what’s right.”
My only cross exam was of the girl, to get the exact age difference into evidence and to tell the jury how long they had been together.
I put up no witnesses.
My closing was a repeat of my opening and took less than 2 minutes.
The jury came back in about 10 minutes with not guilty.
February 3, 2010, 2:34 pmjnheath says:
Nice catch, Martinned. I checked the link, interesting stuff. Thanks.
February 3, 2010, 2:42 pmMartinned says:
Not so much. The link was in the first line of the original post.
February 3, 2010, 3:05 pmjnheath says:
Maryanna, where did you pick up this wisdom? Because my guess is you pulled it off by your character, inspired by maybe your parents and older lawyers. And that you didn’t get it in law school. My criminal law class was given a hypothetical statutory rape case where the minor had an especially credible fake ID. I suggested arguing that the ID was authentic, simply to give the jury a factual question they could use as a pretext for nullification. The prof. basically told me I was being ridiculous — the lesson being to give up and let the client hang.
February 3, 2010, 3:07 pmtroll_dc2 says:
You should not think of a single jury in your analysis. Of course, a single jury is too small to reach a statistically useful result. But the Supreme Court has addressed the issue of who should be in the jury pool, and it has consistently sought to have the widest possible representation among the citizenry so as to achieve a representative cross-section of society. So I think that the Court sees the jury in terms of “the people.”
A jury exists not only to determine whether someone violated the law but also whether he should be punished for having done so. A judge cannot direct a verdict of guilty. Even in the most outlandish situations, the decision is made by the jury. If a guilty verdict were simply a matter of finding that the defendant engaged in all of the elements of a crime, it could be declared by a computer. Judges may hate jury nullification, but it is built into the system. If it did not, there would be no need to ensure that the jury is drawn from a representative cross-section of society.
I recall an interesting jury nullification case that occurred in the Northern District of Alabama. The defendants were both black and white; the jury convicted the blacks and acquitted the whites (who had engaged in the very same conduct). After giving the jury a tongue lashing (which was all he could do), the judge (Johnson) sentenced the blacks, if I recall, to two hours or something like that.
February 3, 2010, 3:36 pmBABH says:
In Connecticut, the right of jury nullification is enshrined in the State Constitution. Article I, § 6: “the jury shall have the right to determine the law and the facts” on any question submitted to them.
February 3, 2010, 4:29 pmlicrimlawyer says:
He had quite a criminal history. In fact, because of his record the minimum sentence would have been 1 and 1/2 to 3 years. Since the maximum was 2 to 4 [this was a class E felony under NY law] there was really no downside to a trial. In any event, the client did not want to plead to anything.
No pressure in a case like that. :-)
February 3, 2010, 4:33 pmJoseph Somsel says:
The content and mechanisms of the law are NOT “decisions of the rest of society.” They are the work of a specific and limited set of individuals. As individuals, they are fallible and can be corrupt or misguided – or just vague. Yes, we respect the law but we must neither deify it nor its agents.
Legislators, lawyers, prosecutors, and judges are human hirelings. They put their pants on one leg at a time, just like Joe the Plumber. Like a hired plumber, I trust but verify.
I will grant that a seated jury of 12 is hardly a statistically significant sample of the empowered citizens. It is a practical number and the jury selection processes seem fair and workable.Selection has both an element of randomness and equal opportunity for checks by both sides.
February 3, 2010, 4:51 pmShelbyC says:
And yet, the connectitut model jury instructions instruct the jury that they must accept the law as the judge gives it to them. Go figure.
February 3, 2010, 4:51 pmJardinero1 says:
The USA is not supposed to be representative democracy, but a federal republic, i.e. a republic made of little republics. The key word is republic.
February 3, 2010, 7:00 pmegd says:
So the jury decided that plaintiffs A and B deserved to be punished for their crimes, and plaintiffs C and D didn’t deserve to be punished. The judge’s ‘punishment’ then was 2 hours to plaintiffs A and B.
That seems to be a poor case for arguing the benefits of jury nullification. The argument amounts to “jury nullification is good, except when it’s bad, then a judge can step in and fix things.”
Not that I’m saying the judge in that case was wrong, racism in juries is an ongoing risk, and jury nullification makes it easier for hate crime perpetrators to be acquitted.
February 4, 2010, 11:28 am