pageok
pageok
pageok
Weinstein Tosses Child Porn Charge for Failure to Tell Jury of Mandatory Minimum Sentence:
When I was in law school, several of my professors expressed their admiration of District Judge (and former Columbia lawprof) Jack Weinstein for his notable "judicial creativity." In light of that, I was interested in this story:
In a decision that turns hundreds of years of legal precedent on its head, a judge ruled yesterday that juries should be made aware of "harsh mandatory minimum" sentencing rules in certain cases. Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided - chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.

The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long. It attempts to reverse the long-standing rule that jurors not be given sentencing information so they can decide guilt or innocence, without letting the potential punishment color their thinking.
Presumably this will be reversed readily in light of cases like Shannon v. United States, 512 U.S. 573 (1994) and United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir. 2004). But I haven't read the opinion yet. Hat tip: Doug Berman.

Related Posts (on one page):

  1. Polizzi, the Role of Judges, and the Role of Juries:
  2. Thoughts on United States v. Polizzi:
  3. Weinstein Tosses Child Porn Charge for Failure to Tell Jury of Mandatory Minimum Sentence:
Cornellian (mail):
As a policy matter I'm not sure it's a bad thing to make juries aware of sentencing rules. If you think a jury won't convict if they know the sentence is really harsh, that seems to me a problem with the law, not a problem calling for keeping the jury in ignorance.
4.4.2008 7:40pm
OrinKerr:
Cornellian,

I can certainly see both sides as a policy matter. But I would think there's that whole "rule of law" thing that seems to settle it as a legal matter.
4.4.2008 7:44pm
byomtov (mail):
I agree with Cornellian.

For one thing, jurors know that there is punishment associated with conviction, and may have some idea, quite possibly incorrect, as to what it is.

If they are going to be influenced by the sentence, let's at least have them be influenced by the real one, not the one they think they remember from a TV show they saw last month about a vaguely similar case.
4.4.2008 7:48pm
vassil petrov (mail):
If the jury are not told about that, how can they exercise their power of nullification?
4.4.2008 7:50pm
hattio1:
Vassil,
That's at least part of the point. Similarly, that they won't prosecute on a greater charge if they feel the lesser charge carries too lenient of a sentence. But, I won't get into the whole issue of whether they actually have a power of jury nullification.

Just to say, that as a policy matter, I agree with Cornellian. I'd be curious about a poll of prosecutors and criminal defense lawyers on here. Who thinks a "tell the jury" rule would help them, and why? Wh thinks its a wise policy and why or why not?
4.4.2008 7:54pm
David N:
Here's the opinion.
4.4.2008 7:56pm
Oren:
But I would think there's that whole "rule of law" thing that seems to settle it as a legal matter.
I don't understand. How would giving the jury more information be contrary to the "rule of law".

Quite to the contrary, IMO, the jury room should have full copies of all US Code, state legislation (if applicable) and case-law (maybe the Volokh.com archive too, for good measure). What reason do we have to enforce juror ignorance?
4.4.2008 8:16pm
tdsj:
one difficulty with a "tell the jury" rule... how would you take into account recidivist enhancements? Suppose you are charged with a crime that has a sentence of 5 years if you have a criminal history score of 0 but 20 years if you have a criminal history score of 4. Suppose you have a defendant in the latter category.

Do you tell the jury "if you find him guilty, he'll go to jail for 20 years"?

If so, then do you have to also tell them "but by the way, the reason the potential sentence is so stiff is that he has committed a dozen crimes in the past"?
4.4.2008 8:17pm
Roger Schlafly (www):
I don't think you have to tell the jury about previous convictions, but the jury ought to know that a third strike felony conviction might result in a sentence of 25 years to life.
4.4.2008 8:27pm
Caliban Darklock (www):
Assume that the sentence for charge X is a fine of exactly $50,000, and guilt is unclear. Half the jury believes the defendant is guilty; the other half believe the defendant is not guilty.

Given a rich defendant, there is a nonzero chance that the "not guilty" camp may be convinced to find him guilty because the sentence is no real hardship.

Given a poor defendant, there is a nonzero chance that the "guilty" camp may be convinced to find him not guilty because the sentence is a tremendous hardship.

In neither case does there appear to be any improvement in the jury's ability or motivation to find the truth. So I tend to think this is a Bad Idea.
4.4.2008 8:33pm
Just Saying:
Quite to the contrary, IMO, the jury room should have full copies of all US Code, state legislation (if applicable) and case-law (maybe the Volokh.com archive too, for good measure). What reason do we have to enforce juror ignorance?

Jurors are finders of fact and, in this context, have to determine guilt or innocence. The sentence that the defendant will receive has precisely nothing to do with how innocent or guilty he is. Including the sentencing guidelines is about as relevant as including quantum physics text.
4.4.2008 8:37pm
John (mail):
OK, so let's tell juries that the defendant has insurance! Let's tell them that without a punitive damages award, the plaintiff won't be made whole because his attorneys fees must come out of the award! Etc.!

We must be careful not to confuse concept A ("that's a good idea") with concept B (the law).
4.4.2008 8:37pm
Kovarsky (mail):
orin, was this thrown out because he didn't tell them about the mandatory minimum as part of the charge or when the venire was being questioned for the purposes of for cause challenges and peremptory strikes. i'm pretty sure the opinion wouldn't be THAT askew if it involved questioning the venire, but if it did not then it seems much more anomalous.
4.4.2008 8:39pm
gattsuru (mail) (www):
Another wondrous decision from Reversible Jack.

I mean, I'm all about giving the most information to the jury possible. Last I checked, though, we're still performing under Sparf v. U.S. and U.S. v. Thomas, which held that there is no need to inform a jury about jury nullification and that jurors can be removed for speaking on the matter. I know that Jack's a fan of nullification (at least when he gets to decide which particular nullifications are fair and which aren't), but it's a little illogical to assume that people would respond differently to the question of Guilty or Not based on information that has nothing to do with guilt.
4.4.2008 8:45pm
TerrencePhilip:
Wow, you can just marvel at the arrogance: he won't give up his judicial perch, but because he is dissatisfied with the legislation he is there to follow, he makes up his own "rule of law" to follow. What color is the sky in his court?

While we're discarding rules, why don't we let the prosecutor tell juries when the defendant is a prior offender, so they will know the reason he might face so much time?
4.4.2008 8:48pm
Originalist (mail):
The ruling doesn't overturn that much precedent -- and it actually restores the "original understanding," arguably! In the 18th century, the penalty for felony was singular: death. Thus juries knew full well what sentence a defendant would get if convicted, and they nullified left and right as a result. Subsequent developments have of course changed this original understanding. But given the move toward originalism of late, perhaps Judge W should be applauded for making this conservative move.
4.4.2008 8:53pm
Mike& (mail):
While we're discarding rules, why don't we let the prosecutor tell juries when the defendant is a prior offender, so they will know the reason he might face so much time?


I'm all for that, actually. I also like Weinstein's proposed rule. It's totally consistent to say that jurors should be given more, not less, information.

I just love how we say, out of one end of our mouths, that we trust juries. They are just great. They are a bedrock of a Constitutional government. God and the Founding Fathers loved them. Peachy.

We then go out of our way to keep evidence away from them. "Oh, we can't let a jury hear that!"

Umm.... Why not? Let's get consistent here, why don't we?

Of course, judges see that same evidence when ruling in evidentiary objections that jurors are not allowed to see. But judges are somehow less human than jurors?

I say let it all in and let the chips fall where they may.
4.4.2008 8:58pm
Nathan_M (mail):

I don't understand. How would giving the jury more information be contrary to the "rule of law".

Quite to the contrary, IMO, the jury room should have full copies of all US Code, state legislation (if applicable) and case-law (maybe the Volokh.com archive too, for good measure). What reason do we have to enforce juror ignorance?

If the jury knows the sentence an accused will face, they might be inclined to tailor their verdict to what they think the defendant deserves, rather than what they think he did.

This is contrary to the rule of law because it means the defendant's punishment will depend on what a few individuals think, instead of on the law. If two similar people do similar things, they will face different punishments based on the random composition of their juries. Juries acquitting guilty defendants because they think the punishment is too harsh (or convicting defendants of greater charges that are not proven because they think the punishment is too light) might be just, but it is antithetical to the rule of law.

Now, having said all that, If I was sitting on, say, Morton Berger's jury I wouldn't care. I wouldn't hesitate in refusing to convict him of possessing child pornography if I knew it would mean a 200 year jail sentence without chance of parole, and the damage I had done to the rule of law wouldn't trouble me in the slightest.
4.4.2008 9:01pm
Mike& (mail):
I don't understand. How would giving the jury more information be contrary to the "rule of law".


Some of your comments are just weird, dude. The Supreme Court's decisions are part of the "rule of law." Weinstein knew this when he took his job.

Now, if you want to say that mandatory minimum sentences are different, I can see that argument. If the judge has discretion to sentence the defendant, sentencing is irrelevant to the jury; since they don't have the final say in sentencing. But when their verdict is the final say (because the sentence is mandatory) re: sentencing, then they have a right to know this.

That's not the greatest argument in the world, but I think it's a reasonable distinction.

Of course, I'm not a scholar on this issue, so that argument might be foreclosed by precedent - again, the whole "rule of law" thing.
4.4.2008 9:04pm
john w. (mail):
" ...Last I checked, though, we're still performing under Sparf v. U.S. and U.S. v. Thomas, which held that there is no need to inform a jury about jury nullification and ..."

Could some of you legal hotshots please enlighten us laymen as to exactly what those two decisions say. Do they just say that the trial judge does not have to inform the jury of their right to nullify, or do they say that he isn't allowed to tell them. In other words, does the trial judge have any discretion in the matter?
4.4.2008 9:10pm
Mike& (mail):
If the jury knows the sentence an accused will face, they might be inclined to tailor their verdict to what they think the defendant deserves, rather than what they think he did.



What is the problem with this?

This is contrary to the rule of law because it means the defendant's punishment will depend on what a few individuals think, instead of on the law.


Dude, two individuals, not the law, have the greatest impact on a sentence.

First, the prosecutors. A prosecutor chooses the crimes to charge a defendant with. The harsher the charges, the greater the sentence. There is even a whole body of case law about this.

Second, the judge. The judge, after all, has the final say about sentencing.

Here is what people like me have said about this issue (and nullification) over and over again: Why are judges and prosecutors more reasonable than jurors? Your position is that they are superior. Why? Because Mike Nifong has Platonic wisdom?

This ties into nullification because a prosecutor can nullify a criminal act by refusing to prosecution. This is called "prosecutorial discretion," but it's still nullification - since a crime was committed, a defendant committed it, and the defendant was not convicted for it. Same thing.

A judge who thinks a defendant is innocent can de facto nullify by shaping his evidentiary rulings to allow or not allow evidence.

So, man, there ain't some thing called The Law making prosecutorial and sentencing decisions. It's a couple of human beings. Some (like me) say let's share the love: Let juries do what prosecutors and judges already do.
4.4.2008 9:11pm
Oren:
one difficulty with a "tell the jury" rule... how would you take into account recidivist enhancements?
Give the the sentencing code in its entirety. Problem solved.

Jurors are finders of fact and, in this context, have to determine guilt or innocence.
Simple cases aside, the question of guilt of innocence has a lot less fact (e.g., it's clear that Joe got shit-faced and ran over Peggy with his car) and a lot more law (vehicular manslaughter v. negligent homicide v. wanton endangerment) than you seem to admit. In this context, the legislation itself, the legislative history and the case-law history are all relevant for determining where the boundary between those three.
4.4.2008 9:14pm
lurker-999 (mail):
This is contrary to the rule of law because it means the defendant's punishment will depend on what a few individuals think, instead of on the law.

Yeah, we sure can't have that. Much better to stick with the present system where an individual's punishment depends on his race, and how good of a lawyer he can afford.
4.4.2008 9:16pm
Elliot123 (mail):
"Last I checked, though, we're still performing under Sparf v. U.S. and U.S. v. Thomas, which held that there is no need to inform a jury about jury nullification and that jurors can be removed for speaking on the matter."

If a judge is so inclined, can he tell the jury about mandatory minimums or nullification? Is he prohibited?

Can a prospective juror be eliminated because he happens to know the specific mandatory sentence for the offense in question? If he does, is he prohibited rom telling the other jurors?
4.4.2008 9:21pm
Alan Gunn (mail):

So, man, there ain't some thing called The Law making prosecutorial and sentencing decisions. It's a couple of human beings. Some (like me) say let's share the love: Let juries do what prosecutors and judges already do.

I agree, on second-best grounds. My first choice would be rule of law. But we've criminalized so much, and with such harsh sentences, that we have come pretty close to having a system in which, in many areas, prosecutors decide who goes to jail, and they make those decisions on the basis of "who is a bad guy." So, until that changes, we ought to at least let the jury have a shot at letting some non-bad-guy defendants off lightly. (The flip side of this is that I wasn't nearly as bothered by Spitzer's having to resign in disgrace over a victimless crime as I would have been if it had been anybody else. Serve him right.)
4.4.2008 9:23pm
Cornellian (mail):
I agree, on second-best grounds. My first choice would be rule of law. But we've criminalized so much, and with such harsh sentences, that we have come pretty close to having a system in which, in many areas, prosecutors decide who goes to jail, and they make those decisions on the basis of "who is a bad guy."

Totally agree - the more vague the criminal statutes (and the federal ones are especially vague) and the more draconian the sentences for violating them, the stronger the case for letting jurors in on just what is going on.
4.4.2008 9:29pm
tkelly1478 (mail):
I'm not even close to be lawyer like many here seem to be, but it seems to me that the precedent in this area was set at a time when judges primarily had latitude in sentencing.

Now that sentencing has been largely taken out of judge's hands, what the jury needs to know must change.
4.4.2008 9:47pm
Fub:
TerrencePhilip wrote at 4.4.2008 7:48pm:
While we're discarding rules, why don't we let the prosecutor tell juries when the defendant is a prior offender, so they will know the reason he might face so much time?
Fine with me. I'm for absolutely full disclosure.
4.4.2008 9:49pm
Nathan_M (mail):
Mike&:
So, man, there ain't some thing called The Law making prosecutorial and sentencing decisions. It's a couple of human beings. Some (like me) say let's share the love: Let juries do what prosecutors and judges already do.


Prosecutors and (to a lesser extent) judges do have a lot of discretion, and that does reduce the rule of law. But you're just saying the current system isn't the Platonic ideal of the rule of law. Of course it isn't. That doesn't mean we should merrily chip away at what remains of the rule of law without recognizing what we're doing.


lurker-999: Yeah, we sure can't have that. Much better to stick with the present system where an individual's punishment depends on his race, and how good of a lawyer he can afford.


I'm not saying I think the present system is better. For what it's worth, I think juries should know about mandatory minimums so they can nullify. But there is a trade off which should be acknowledged.
4.4.2008 9:54pm
Rock Chocklett:
On the list of judicial virtues, "creativity" should not rank very high.

Well, if we have to inform the jury of mandatory minimum sentences, we might as well, in any case where prison time is possible, make the jury hear testimony or watch videos about the hardships and dangers of prison life -- so they'll appreciate the gravity of their responsibility. They ought to hear from the defendant's family and friends. They ought to delve into the defendant's history, examine his family tree, and pore over his financials. They might realize he's just a product of a hard life, and ought not to be held responsible at all.

Of course, it would only be fair to have them also hear testimony from people who bear the scars of the victimization inherent in child pornography. And from people who are the victims of abuse at the hands of predators who fueled their sexual deviancy on child pornography.
4.4.2008 10:02pm
ras (mail):
IANAL, but if I were a juror and were told that the defendant faced a high minimum sentence, I might well presume, based on that, that he had priors, possibly lots of them, whether I were told so or not.

The judge's proposed changes would ultimately require that all priors be disclosed beforehand to the jury in order for them to rationally take the harshness of the proposed sentence into consideration. Absent that, jurors would be left to infer the reasons on their own.
4.4.2008 10:15pm
stevesturm:
I'm curious how Weinstein decided all of a sudden that this needed to be done, (I'm assuming) his having presided over past cases where he didn't provide this information to the jury. did he wake up one morning, having come up with this in his sleep? was he struck by the proverbial lightning bolt?
4.4.2008 10:15pm
Visitor Again:
Totally agree - the more vague the criminal statutes (and the federal ones are especially vague) and the more draconian the sentences for violating them, the stronger the case for letting jurors in on just what is going on.

Yes, I was horrified when I first realized what constituted federal crimes. Many of those statutes proscribe little more than being a guy the prosecutors think is bad. The end result is they can get anyone if they want, at least anyone who does anything at all in the world. By all means, let the jury know what they're doing to the poor schmuck before them.
4.4.2008 10:15pm
Turk Turon (mail):
Isn't this the same judge who keeps those gun-marketing negligence suits going, year after year, decade after decade?
4.4.2008 10:17pm
Dave Hardy (mail) (www):
I see no problem with a law that provided: (1) any defendant is entitled to have the jury informed of the punishment provided by the law, and his attorney may give reasonable argument based upon it; (2) in order to invoke this, the defendant must consent to the jury's being informed of his past record (however you want to define that, presumably including felony convictions and anything relevant to the possible sentence.

I don't think the Framers protected jury trial on the theory that jurors were better fact-finders than judges. I believe they did so precisely because juries would vote to acquit in defiance of an unjust law. Which in turn would force its repeal or amendment.
4.4.2008 10:18pm
byomtov (mail):
This is contrary to the rule of law because it means the defendant's punishment will depend on what a few individuals think, instead of on the law. If two similar people do similar things, they will face different punishments based on the random composition of their juries.

And this differs from the current system how?

Do you think jurors don't know that involuntary manslaughter, for example, carries a less severe sentence than second-degree murder?
4.4.2008 10:19pm
Dave Hardy (mail) (www):
From the article:

"At trial, Polizzi argued an insanity defense, claiming he was sexually abused as a child...."

I think there was a Cheech and Chong routine that went:

"I plead not guilty by reason of insanity. Those girls drive me crazy!"
4.4.2008 10:24pm
Mike& (mail):
I agree, on second-best grounds. My first choice would be rule of law. But we've criminalized so much, and with such harsh sentences, that we have come pretty close to having a system in which, in many areas, prosecutors decide who goes to jail, and they make those decisions on the basis of "who is a bad guy."



Very well said.
4.4.2008 10:30pm
Mike& (mail):


Yeah, some of the "rule of law" comments can be pretty laughable. (Not speaking of Orin's, since his was in an entirely different context.)

So much is illegal and many statutes are almost all-encompassing. Man, I guarantee that with enough money and enough time, I could find something on anyone who has posted a comment in this thread.

In Los Angeles, prosecutors have charged a couple with fraud for creating a bogus MySpace account. You know what's funny about that: This isn't completely "frivolous" (in the legal sense of the word). There is an argument to be made that the couple committed fraud (as broadly as this term is understood these days), depending on how the User Agreement reads.

So I hope you all remember to update your MySpace profiles. It's not like that many people believed you were really a svelete 6'2", anyway. Just to be careful, though, be sure to update those profiles.
4.4.2008 10:38pm
DeezRightWingNutz:
First, ras, no it doesn't mean that priors have to be disclosed. Just the range of sentences for the range of priors.

Secondly, good job lib-ruhls (pro-disclosure is the liberal position here, right?) You've actually convinced me that juries should know mandatory minimums and other sentencing rules/guidelines. I read the post/article and though, stupid activist judge. Now, I still think he's an activist, but not stupid.
4.4.2008 10:51pm
DeezRightWingNutz:
Mike&,

Do you type as fast as you think? Because if not, I find it funny that you include the "dudes" and "mans." But it's OK man, The Dude abides.
4.4.2008 10:53pm
ras (mail):
DeezRightWingNutz,

If you use a range for a range approach, as you described, jurors will then infer the severity of the priors to similar effect.

But I doubt it goes that far. If a jury is to be told that the law mandates, say, 50 years for a conviction, the prosecutor will demand the right to tell them why. And he/she should have that right. If the jury is now to determine whether the punishment is just, they need all the same info as a judge would have when passing sentence.
4.4.2008 11:18pm
c.gray (mail):

Many of those statutes proscribe little more than being a guy the prosecutors think is bad.


Many, eh? Care to give us an example or two?

In any event, we don't have such a case here. Only someone who's been living under a rock for the last couple decades would be unaware that downloading pictures of naked children off the internet can lead to trouble with the law.
4.4.2008 11:45pm
congrats:
Big day for the Judge -- wasn't it his tobacco fraud case that just got reversed by the 2d Circuit?
4.4.2008 11:57pm
Kevin P. (mail):

Turk Turon:
Isn't this the same judge who keeps those gun-marketing negligence suits going, year after year, decade after decade?

Yes. Mr. Creative Judge Jack Weinstein is creative in only certain specific ways.
4.5.2008 12:45am
Elliot123 (mail):
"But you're just saying the current system isn't the Platonic ideal of the rule of law."

And that's a very important point to make when others are saying juries should be kept in the dark because we have rule of law. The context does matter.
4.5.2008 1:48am
David Schwartz (mail):
There's a major reason juries *must* be told of the potential punishments. It's so obvious that it's easily missed. Suppose I'm accused of eating a banana. Assume this is a crime. Now, you are asked to determine whether or not you believe I committed this offense.

If the penalty is a 25 cent fine, it's quite probable I ate the banana. I know that I can afford the fine, and evidence shows I like bananas, though not much more than grapes.

If the penalty is a decade in jail, it's very unlikely that I ate the banana. Since I like grapes quite a bit, it's quite likely that I would simply forgo eating bananas, considering the risk.

So it is very relevant to the issue the jury is specifically asked to decide -- did the defendant commit the crime -- what the penalty is. If you don't believe this, then you must not believe that larger penalties have any deterrence effect, which strikes me as obviously false.
4.5.2008 1:48am
Fub:
c.gray wrote at 4.4.2008 10:45pm:
[quoting Visitor Again at 4.4.2008 9:15pm]
Many of those statutes proscribe little more than being a guy the prosecutors think is bad.

Many, eh? Care to give us an example or two?
Not long ago some folks opined that 18 USC 1001, the Martha Stewart trap, was one such statute.
4.5.2008 1:56am
eyesay:
Another noteworthy case in which facts kept secret from the jury had a significant effect is that of Ed Rosenthal. Ed Rosenthal was deputized by the city of Oakland, Calif., to grow marijuana for medical use, pursuant to California Proposition 215, the Compassionate Use Act of 1996, a voter initiative that allows patients with a valid doctor's recommendation to possess and cultivate marijuana for personal medical use. He was arrested by federal agents, and charged with cultivation of cannabis. At his trial, the judge prohibited the defense from saying anything that would reveal to the jury that Rosenthal was deputized by the city of Oakland to do the exact thing he was charged with. After conviction, the jurors learned this fact and most of them said that if they had known, they would have said not guilty. Perhaps as a reaction to these jurors' views, the judge sentenced him to one day, time already served.

If jurors know that important exculpatory facts may be withheld from them, they may refuse to convict.
4.5.2008 2:30am
Kazinski:
This is an awful lot of hoohah for a slam dunk reversal. This is a textbook case of a Judge deciding that 'the law is what I think it should be, in this case'.
4.5.2008 2:33am
David Schwartz (mail):
Kazinski: I agree with you about that. This is a slam dunk reversal. However, the law is not as it should be.
4.5.2008 2:43am
That Lawyer Dude (mail) (www):
Look, In many cases jury's are told about the defendant's prior record. In fact a lot more defendant's would testify if not for the fact that the jury would be allowed to hear about their records.

As for giving Jury's the sentencing information, you sound like you would all be suprised to here how many times a jury will vote to convict some guy because they think that the guy will get help. There is a lot more to fear about jury compromise than jury nullification.

For the most part, I think people have a throw the book at him additude, so knowing the penalties won't change most verdicts. In the times when it might,(most often if the defendant has some type of mental disablility or when the witnesses they are using will get off and the defendant will get a stiff penalty if convicted) it is fair to be allowed to tell them about the Penalty.

If we want to keep outside forces from the jury, how about we start by ending the practice of allowing prosecutors to vouch for the word of their snitch witnesses by telling the jury that the only way they get a deal is if they are telling the truth on the stand and that the prosecutor determines what the truth is and that he won't give them the deal if they lie so they must be telling the truth when they lie that the defendant told them he did the crime while they were in jail with him...

TLD.
4.5.2008 3:00am
Thoughtful (mail):
I seem to recall at the Waco trials, when the jury found the defendants not guilty on all but what they thought were some technical possession charges, they were outraged to find those defendants being sentenced to long jail terms.

There is always an epistemological level of doubt as to defendants' guilt. Whether it rises to a "reasonable" level or not is often a function of what the consequence of making a mistake is. These consequences, in turn, are obviously a function of the level of punishment that can occur. I speak as a non-attorney, but I believe this is how most people understand the concept of "reasonable".
4.5.2008 4:17am
Redlands (mail):
It's past midnight PST and I must be really tired. I'm obviously missing something here. I thought a jury was the fact finder, and nothing more. I LOVE judges who have no problem unzipping &taking a leak on the law.
4.5.2008 4:42am
Litigator-London (mail):
Although reversal may be a racing certainty, the decision does highlight an issue of principle. The common law tradition has always been that guilt is a matter for the jury and sentencing a matter for the judge - hence the rule in both our countries that the jurors should not be addressed on the consequences of their decision as to guilt or innocence.

But of late, in both the USA and the UK, the legislature has started to interfere in the sentencing process - minimum terms, 3-strike rules (England extended sentences for public protection) - allowing prosecution appeals on sentence - all examples of removing or circumscribing the sentencing discretion.

Is seems to me that we ought to trust the Judges to exercise their function and arrive at an individualised sentence for the particular crime and for the particular offender.

A legislator is working in the abstract not knowing the particular circumstances of the crime and the offender. Allowing the Jury to determine sentence is introducing amateurs into the expert field.

We can all think of homicide cases where the appropriate sentence has been one of probation and others where the appropriate sentence has been one for for whole of life.

Where the legislature has sought to circumscribe the judicial sentencing discretion by mandating a minimum term or a 3 strike rule - why should the jury not be told - at least it would enable the jury to nullify a result which would be manifestly unjust in the particular circumstances of the crime and the offender.
4.5.2008 5:30am
vassil petrov (mail):
I'm not at all familiar with the american (federal) criminal procedure. From what I read it seems that the trial judge's order of retrial can be appealled by the prosecution? In Bulgarian criminal procedure this is not posssible - the appellate court's order of remand to retrial cannot be challanged neither by the public prosecution, nor by the private prosecution, nor by the civil party (the victim) seaking compensation. On the other hand, here the order of retrial was issued by the trial judge, not on appeal. This is also very alien idea to Bulgarian law - for it violates the lata sententia desinit esse judex priciple.
4.5.2008 6:45am
subpatre (mail):
It seems that the US COnstitution has been re-written to read:
Article 3. Section 2
"The Finding of Facts of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Finding of Facts shall be held in the State where the said Crimes shall have been committed; but when not committed within any State . . ."

Amendment 6
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public with fact finding by an impartial jury of the State and district wherein the crime shall have been committed . . ."

What part of trial does the legal establishment not understand?
4.5.2008 11:14am
Katherine (mail):
The other issue is that lacking this information can cause the jury to, e.g., refuse to find a defendant not guilty by reason of insanity because they falsely believe that he is dangerous &will be out on the street.

There's always discretion involved in sentencing. Giving it solely to prosecutors most certainly does not serve the rule of law.
4.5.2008 11:23am
Guest PD (mail):
Here in North Carolina where I practice, lawyers are allowed to tell juries the penalties the defendants face upon conviction. Seems to work fine.

One benefit not yet mentioned: preventing the "kill 'em with kindness" compromise verdict where the jury acquits on what it thinks are all the "serious" charges but convicts on some seemingly minor charge to throw the prosecution a bone not realizing that this innocuous sounding charge is actually the one carrying the massive mandatory minimum penalty.

I've had a number of jurors come up to me after such verdicts and say I must be thrilled with the result since they only convicted the defendant of one little charge. Sometimes I have the heart to tell them this "little charge" will send the defendant away for 10 or 15 years, sometimes I don't.
4.5.2008 11:53am
c.gray (mail):

Not long ago some folks opined that 18 USC 1001, the Martha Stewart trap, was one such statute


We are supposed to be surprised that lying to the cops can get you in trouble with the law? Seriously?

This may come as a complete shock to a subset of ideologues who have been to law school, but to the rest of us, it's not exactly big news. Nor does intentionally misleading law enforcement exactly qualify as an example of "little more than being a guy the prosecutors think is bad."

Here's a suggestion (one I've actually made to a LOT of people in legal practice). If feel yourself tempted to lie to a cop, insist that you need to talk to a lawyer instead. You'll get in a lot less trouble, whatever the situation.
4.5.2008 12:16pm
jim47:
As I recall, there is plenty of evidence from the founding that juries were expected to play a significant role in enforcing the constitution by judging both fact and law. The first Chief Justice told a jury sitting before the Supreme Court that judging the law was within their power; Jefferson and his compatriots tried to remove Justice Chase from office for not letting juries hear evidence of unconstitutionality in a Sedition Act case; et cetera.

Now, there is an amendment to the constitution that bars cruel and unusual punishment, so if we grant the founders' ideas about the role of the jury, then it seems like the jury would need to know what that punishment might be in order to judge its constitutionality.

Further, if you grant the proposition that a law may be neither cruel nor unusual on its face, but that an application of that law may be either cruel or, more likely, unusual, then the jury box would seem to be one of the best mechanisms for bringing the text of the amendment into effect.

To my knowledge no one seems to have produced some neat and tidy rule for which "cruel and unusual" was a term of art, so the next logical assumption is that the amendment means to bar punishments which are in fact cruel or unusual. I would rather have a jury, constituted of The People, decide cruelty as a question of fact than have an appointed judge be given the quite broad digression needed to make that judgement. A concurrence of twelve random people would seem to be less threatening to the rule of law than the whim of one very non-random person.
4.5.2008 12:42pm
NI:
It's always seemed to me that if a jury is only told half the story, that that is reasonable doubt almost by definition.
4.5.2008 2:40pm
ras (mail):
if you grant the proposition that a law may be neither cruel nor unusual

I believe the wording in the Constitution is "nor cruel and unusual punishments inflicted."

I presume then that an unconstitutional punishment must be both, since all punishments are cruel to a degree, such as locking a person up for 20 years. If we were to go instead with a "neither/nor" approach, what punishments would remain? The comfy chair?
4.5.2008 3:43pm
Nathan_M (mail):

To my knowledge no one seems to have produced some neat and tidy rule for which "cruel and unusual" was a term of art, so the next logical assumption is that the amendment means to bar punishments which are in fact cruel or unusual. I would rather have a jury, constituted of The People, decide cruelty as a question of fact than have an appointed judge be given the quite broad digression needed to make that judgement.

This actually isn't a problem, because judges don't have "broad discretion" in deciding if a prison sentence violates the eight amendment because it is too long. I'll just quote from the Arizona Supreme Court case of Arizona v. Berger, which upheld a 200 year (without chance of parole) sentence for a first time offender convicted of 20 counts of possessing child pornography, because I don't think it takes any editorial comment to show how harsh and unjust the law is.

[Para. 31] In fact, only once in the past quarter-century has the Supreme Court sustained an Eighth Amendment challenge to the length of a prison sentence. In that case, Solem v. Helm, a judge sentenced a non-violent repeat offender to life imprisonment without parole for the crime of writing a "no account" check for $100. In concluding that this life sentence, "the most severe punishment that the State could have imposed," was grossly disproportionate, the Court noted that Solem's crime was quite minor. Indeed, the Court stated that the crime of uttering a no account check was "one of the most passive felonies a person could commit." [citations ommited]


So what sort of sentence isn't "cruel and unusual"?

[para. 30] ...[T]wo consecutive twenty-year prison terms for possession of nine ounces of marijuana with intent to distribute.


[para. 30] ...[T]wenty-five years without parole for a twenty-one-year-old defendant convicted of selling a $1 marijuana cigarette to a fourteen-year-old, even though this sentence was consecutive to a twenty-one-year sentence for the defendant's trafficking in stolen property with the same juvenile.
4.5.2008 4:03pm
cubanbob (mail):
Most judges and prosecutors are too stupid or venal to be trusted. All the evidence and all the sentencing information in addition to all priors should be presented to the jury.
Let the chips fall where they may and let the jury be the trier of fact including the most basic one of all, whether or not a crime has been committed in the first place. The Rosenthal case being an example of where withholding information induced a jury to convict a man who was acting within the the local law. Martha Stewart was sentenced to prison for lying to the FBI about something that in of itself was not illegal. The prosecutor could not try her for insider trading, so she was tried for it under this nonsense rubric.
Yet I don't see the prosecutor tried for lying to jury.
The real crime is the criminalization of so many behaviors with so many vague laws and granting judges and prosecutors so much discretion in what a jury can be shown and in the instructions to the jury.
4.5.2008 4:13pm
gattsuru (mail) (www):
Do they just say that the trial judge does not have to inform the jury of their right to nullify, or do they say that he isn't allowed to tell them. In other words, does the trial judge have any discretion in the matter?


Sparf v U.S. held that the judge has no requirement to inform the jury of the right to jury nullification. U.S. v Thomas held that jurors could be removed for showing signs of support jury nullification, a holding within the Second Circuit.

The judge can do whatever he wants within that framework. They're rather powerful in the whole judicial branch, for some reason.

But there was nothing preventing the judge from informing the jury of the punishment involved, or precedent for silencing jurors who bothered to know the law, or precedent for silencing lawyers who state the law.
4.5.2008 4:42pm
pete (mail) (www):

Most judges and prosecutors are too stupid or venal to be trusted. All the evidence and all the sentencing information in addition to all priors should be presented to the jury.
Let the chips fall where they may and let the jury be the trier of fact including the most basic one of all, whether or not a crime has been committed in the first place.


So do you think that the juries should be allowed to see evidence that the defendents lawyer tries to exclude as well? Or is only evidence that the venal prosecuters and judges want to exclude worth seeing?
4.5.2008 4:54pm
jim47:


if you grant the proposition that a law may be neither cruel nor unusual


I believe the wording in the Constitution is "nor cruel and unusual punishments inflicted."


The imprecision of english sentence structure aside, my point was simply that, depending on one's conception of the prohibition, a punishment may be acceptable on its face, but unacceptable as applied to a particular set of facts. If you accept that, a strong argument can be made that a jury familiar with the facts of the case is the best check against unacceptable punishment.

Incidentally, I said !C&&!U, because !(C&&U) and !C&&U sound the same in a normal sentence.
4.5.2008 5:17pm
Jay:
"It seems that the US COnstitution has been re-written to read:
Article 3. Section 2
"The Finding of Facts of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Finding of Facts shall be held in the State where the said Crimes shall have been committed; but when not committed within any State . . ."

Amendment 6
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public with fact finding by an impartial jury of the State and district wherein the crime shall have been committed . . ."

What part of trial does the legal establishment not understand?"

If you're going to make this sort of textual argument, you might look into what the word trial meant in the context of the constitution--i.e., part of a common law tradition in which judge and jury had specific roles.
4.5.2008 6:14pm
ras (mail):
jim47,

my point was simply that, depending on one's conception of the prohibition, a punishment may be acceptable on its face, but unacceptable as applied to a particular set of facts.


I agree with your point.
4.5.2008 6:28pm
Fub:
Jay wrote at 4.5.2008 5:14pm:
If you're going to make this sort of textual argument, you might look into what the word trial meant in the context of the constitution--i.e., part of a common law tradition in which judge and jury had specific roles.
Which common law tradition no doubt inspired John Jay, CJ, to charge the jury in State of Georgia v. Brailsford, et al., 3 U.S. 1 (Dall.) (1794) thus:
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.
4.5.2008 6:35pm
Ryan Waxx (mail):
It would seem that the opinions here on weather to inform juries of sentences has remarkable overlap with weather the person feels there's a place for jury nullification in the system.

In other words if the jury's not going to be a check on the law, there is far less point in giving them complete information on what the law is...
4.5.2008 6:51pm
Turk Turon (mail):
Correct me if my memory serves me poorly:

In the O.J. Simpson trial, the defense was given samples of every item of forensic evidence that the prosecution possessed. Of primary interest were DNA tests on the blood drops found at the scene, at the defendant's house and in his car.

The defense never introduced any evidence to counter the prosecution's DNA tests, and the assumption was that the defense's tests must have agreed with the prosecution's, so there was nothing to be gained there.

The defense was under no obligation to produce the results of their DNA tests, under the Fifth Amendment, I guess (IANAL).

But the judge ruled that the jury could not even be told that the defense had received the blood samples, lest the jury draw the obvious inference that the defense's tests agreed with the prosecution's tests.
4.5.2008 8:22pm
George Weiss (mail) (www):
three words:

mandatory retirement age
4.5.2008 9:57pm
Bob from Ohio (mail):
Well, the opinion is 288 pages but I think Part IV at 227 or so is the relevant portion.

Weinstein cites along a stream of cases that say he can't do this but becauese of the Supremes reasoning lately, those precedents are no longer valid.

Good luck with that. Can the government bill Weinstein for the costs of the appeal?


Judge W should be applauded for making this conservative move


Funny sentence.
4.5.2008 10:44pm
Crunchy Frog:

One benefit not yet mentioned: preventing the "kill 'em with kindness" compromise verdict where the jury acquits on what it thinks are all the "serious" charges but convicts on some seemingly minor charge to throw the prosecution a bone not realizing that this innocuous sounding charge is actually the one carrying the massive mandatory minimum penalty.

The Heidi Fleiss ("Hollywood Madam") trial was one such instance of this. The jury acquitted her on the drug charges, but found her guilty of pandering, which they mistakenly believed was the less serious of the two.
4.6.2008 2:07am
DCP:
Just curious but in a situation where extremely harsh sentencing requirements might override a close call on guilt couldn't the defense attorney convey this information to the jury? Example - my client would never have shoplifted because he knew that he would be facing life under a three strikes and you're out provision. Or my client would have never planted this marijuana plant in his backyard because he knew it carried a mandatory 10 year sentence for trafficking.
4.6.2008 2:04pm
George Weiss (mail) (www):
DCP:

i see what you mean by trying to surreptitiously get it in there..i don't know if he could get away with it or not...

but the particular way you suggest makes me wonder if the guy looks more guilty... admitting hes up on the exact sentencing structures for certain crimes he just happens to be on trial for?
4.6.2008 3:06pm
EIDE_Interface (mail):
Judges like this are pure evil.
4.6.2008 6:37pm
Steve2:

Here in North Carolina where I practice, lawyers are allowed to tell juries the penalties the defendants face upon conviction. Seems to work fine.

One benefit not yet mentioned: preventing the "kill 'em with kindness" compromise verdict where the jury acquits on what it thinks are all the "serious" charges but convicts on some seemingly minor charge to throw the prosecution a bone not realizing that this innocuous sounding charge is actually the one carrying the massive mandatory minimum penalty.

I've had a number of jurors come up to me after such verdicts and say I must be thrilled with the result since they only convicted the defendant of one little charge. Sometimes I have the heart to tell them this "little charge" will send the defendant away for 10 or 15 years, sometimes I don't.


Aren't jurors allowed to ask about Lesser Included Offenses? I'd assumed they were allowed to do so in order to address such things.
4.7.2008 12:24am
Prufrock765 (mail):
Having been both a prosecutors and a PD in my time, I am of the opinion that nullification is bad. I understand, I suppose, the due process need to let the jury know that in theory they are the judges of the facts as well as the law.
But to the extent that we wish to be truly governed by the rule of law, we can not allow either nullification tout court, or this Weinsteinian sort of baby nullification to occur.
The jury's job is to decide if the prosecution met its burden of proving each material element beyond a reasonable doubt. That job is important enough--the jury should not be engaging in free-lance, on-the-fly philosophizing.
Allowing anything further creates an environment wherein defendants who are popular or pretty or wealthy or otherwise especially sympathetic get special treatment.

Just as an example: imagine three defendants all of whom are High School teachers and all of whom are accused of having sex with a 15 year old student. Assume all are in fact guilty.
Now assume that Defendant A is a man with a female victim; Defendant B is a woman with a male victim; and Defendant C is a man with a male victim. In Weinstein's world, the there would be gross disparities in how these defendants get treated. These outcomes are not, obviously, Weinstein's goal. But Weinstein does not live where most of us live.

You can go on all you want about "bulwarks of liberty" and all that---but in real courtrooms it will come down to things much less noble than the words of some 18th century worthy.
4.7.2008 11:25am
Thales (mail) (www):
"But, I won't get into the whole issue of whether they actually have a power of jury nullification." It's quite clear that Anglo-American juries have had this *power* since Bushell's case following the trial of William Penn. Whether they also have a *right* is perhaps a separate question, as is the question whether in the arena of nullification there is a meaningful distinction between the power and the authority to use it.

In any case, nullification is both a potential defense against tyranny (e.g. the Penn case) and a way for juries to prevent justice from being done (e.g. OJ Simpson criminal trial, though perhaps that was considered the former by that particular jury).
4.7.2008 3:10pm
Elliot123 (mail):
"But to the extent that we wish to be truly governed by the rule of law, we can not allow either nullification tout court, or this Weinsteinian sort of baby nullification to occur."

I'd suggest jury nullification defines the limit of the extent to which we want to be governed by rule of law.
4.8.2008 4:06pm
TDPerkins (mail):

I'd suggest jury nullification defines the limit of the extent to which we want to be governed by rule of law.


I'd suggest the strenuous efforts made to extinguish it from the courts is a measure of our adoption of crass majoritarianism as opposed adhering to constitutional government.

Yours, TDP, ml, msl, &pfpp
4.8.2008 8:30pm