pageok
pageok
pageok
Thoughts on United States v. Polizzi:
I have now looked over Judge Jack Weinstein's opinion in United States v. Polizzi, the case I mentioned on Friday that granted a new trial on a child porn charge on the ground that the jury had not been informed of the mandatory minimum sentence the defendant would receive if convicted. I wanted to blog some thoughts about the case.

   Polizzi reads less like a judicial decision than a 266-page book of opinion essays. If I understand the reasoning of the opinion — not a small challenge with an opinion written in such a complex way over hundreds of pages — the basic argument is this: Recent Supreme Court decisions interpreting the Sixth Amendment like Blakely v. Washington suggest that the current Supreme Court greatly values the role of the jury, and as a result older precedents saying that the jury can't hear about sentences are inconsistent with the spirit of the Supreme Court's new cases and are no longer binding precedent.

  As Judge Weinstein sees it, these new Sixth Amendment precedents demand new rules for jury trials that are more in sync with the new spirit of the jury trial. Judge Weinstein concludes that in the new world of a reinvigorated Sixth Amendment, the jury should hear about mandatory minimum sentences such as Polizzi's:
  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." Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12, 18 (1910). And Learned Hand declared that nullification supplies the necessary "slack into the enforcement of law." United States ex rel McCann v. Adams, 126 F.2d 774, 776 (2d Cir. 1942). It allows the jury to temper the law's rigor "by the mollifying influence of current ethical conventions." Id.; 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); Appendix A, infra.
  In Harry Kalven, Jr. 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." Id. at 495. "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." Id. 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)). Above all, 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.
  Judge Weinstein concludes that his failure not to tell the jury about the mandatory minimum was prejudicial, as he thinks the jury would have engaged in jury nullification if he had told the jury of the sentence. Thus the defendant gets a new trial on this count.

  The most obvious difficulty with Judge Weinstein's decsion is that the perceived spirit of the Supreme Court's latest decisions doesn't trump otherwise binding precedents simply because older precedents may be in some conceptual tension with new cases. See, e.g., Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). And even if they did, I don't see the inconsistency between the new Sixth Amendment decisions and the traditional rules on what the jury is told about sentences. The new cases like Blakely and Booker concern whether the judge or jury finds the facts. By contrast, this case is about whether instructions should facilitate or encourage the jury to ignore the facts. That's a very different set of questions. The fact that one line of cases gives power to jurors and the other keeps it away from them does not make the two lines of cases inconsistent.

  Finally, given my own scholarly interests I should note that Judge Weinstein spends about 30 pages ruminating about how the Fourth Amendment applies to the Internet. I'm pleased that he is interested in the topic, but I fear that his free-ranging essay appears to be based on a misunderstanding about how the Fourth Amendment works. As best I can tell, Judge Weinstein appears to assume that an expectation of privacy online is "reasonable" when a lot of people have it — a view that leads him to think that there needs to be field of empirical research on what expectations people have online and to also think that the ECPA statute is an important indicator of Fourth Amendment protection online.

  This is incorrect as a matter of Fourth Amendment law, I think; in my view, both public opinion about their expectations online and the scope of the ECPA statute are totally irrelevant. To be clear, Judge Weinstein properly rules that there is no Fourth Amendment protection for basic subscriber information, which is the very limited and specific issue the defendant raised. But how he gets there and all the stuff he says along the way is pretty far off the reservation, I think. This is the classic problem when judges want to answer a lot more than the case before them raises; the risks of error are high, even if the judge is writing with the best of intentions and is trying to get it right.
That Lawyer Dude (mail) (www):
While I agree with you professor that seemingly all law about telling the jury about a sentence seems to fall in favor of them not knowing the truth, that is based on the idea that telling them the truth will cause them to render a sympathetic verdict. In the area of Internet Sex Crimes, that would be a welcome exception.

Handling case after case of men who have "sinned" on line and where the evidence was rarely more than their having signed on and receiving images on their computers, I doubt that any jury has ability to identify reasonable doubt much less feel sympathy toward one accused of this crime.

Weinstein rallied against the US Sentencing Guidelines mandatory nature. It took almost 20 years, but he was right. He may be alone again, but infact jury nullification is being spoken about in the law schools and in the law reviews and most notably in our blogs. Patterico had a very interesting and indepth discussion about it not too long ago and it has been mentioned a number of times in Professor Berman's blog posts as well (Sentencing Law and Policy).

Moreover, in an age where there is often far more jury compromise than jury nullification, it seems more than fair that the bargainers compromise with some knowledge of what is on the table. I think they should at least be aware that if they find someone has not committed a crime, that convicting that person of any crime will subject him to sentencing on the crime on which they acquitted him.

In all, I doubt that Jack Weinstein thinks his decision will be the final statement on the issue. Instead he has given defense counsel a nail to hang their hats on in this district and in NY. Maybe if we work hard enough at it, we can use it to control the rampant "get the accused at any cost" additude that seems to pervade the criminal justice system right now.
4.7.2008 3:30am
LM (mail):
Orin,

Is "failure not" in your first sentence following the quoted passage a typo?
4.7.2008 4:02am
Vermando (mail) (www):
Professor Kerr,

I know you have probably also done it elsewhere, but would you mind laying out succinctly - as you did in summarizing his argument - what you propose as an alternative 4th Amendment test?

On the juries, you are probably right about current practices not being strictly inconsistent with the Court's recent 6th Amendment cases, and thus their not being such a strong legal leg for him to stand on in overruling precedent. However, there is something to his point about our current practices being against the spirit and conception of those cases, particularly if we look at the dicta in those cases on the jury's role in the trial process - the Court does not, I think, conceive of it solely as 'they're the only ones who can really find the facts', so to limit those cases to that topic is to read them correctly but narrowly. So, you can both be right. It would be very interesting to hear your take on his nullification argument more directly, but that's obviously a much broader topic than could have been covered in a single post.

Really great stuff. Many thanks.
4.7.2008 4:50am
alias:
Prof. Kerr, thanks for your thoughts on this. If you care to answer what might be a dumb question, here it is. I'm curious about this comment:

As best I can tell, Judge Weinstein appears to assume that an expectation of privacy online is "reasonable" when a lot of people have it — a view that leads him to think that there needs to be field of empirical research on what expectations people have online and to also think that the ECPA statute is an important indicator of Fourth Amendment protection online.

Fair enough, but when is an expectation of privacy reasonable for 4th amendment purposes?

Also, on a different tack (not so much a question for Prof. Kerr as a comment on the post generally), Judge Weinstein has some interesting ruminations about the role of jury nullification, but isn't the idea of jury nullification inconsistent with the Rules of Evidence? That is to say, if we want the jury to judge whether a law is a good law or whether a particular prosecution was a good idea (as opposed to just whether the prosecution proved that the defendant's acts match up with the elements of the offense), then it seems strange that we keep so much information from the jury that would be highly useful to them in deciding whether to "nullify," but almost completely useless to them in deciding whether the defendant committed the charged offense.

As I think someone said in the previous thread, if we're going to tell the jury what sentence the defendant is facing, why not also tell the jury about the defendant's criminal record, facts bearing on whether he'd be a danger to society if released, and also inundate them with horror stories designed to show why the law was passed in the first place (though I understand the latter sometimes happens during voir dire and closing argument).
4.7.2008 8:59am
alias:
Also, a lot of people with liberal sensibilities like the discussion of the role of juries in Blakely, but they seem to forget that Blakely wasn't a general ode to juries but a case that purported to recognize the role of juries in a particular way. That is to say that the holding of Blakely was a rule, not "we luv juries."
4.7.2008 9:01am
Fearless:
Orin,

I think that your statement that public opinion about expectations of privacy online is "totally irrelevant" is very much on the extreme side.

It seems to me that the Katz decision was definitely informed by public opinion. Most people expect that their conversations in a telephone booth will remain private.

Now, I realize that Katz can be distinguished (whether in a compelling way -- that is another question). But even if distinguished and a different result is reached, the idea that public opinion is "totally irrelevant" to reasonable expectations of privacy strikes me as absurd.

I would suggest a more moderate position.
4.7.2008 9:25am
M. Lederman (mail):
Orin: Full disclosure out of the way: I clerked for Judge Weinstein and consider him the greatest jurist of our age, largely because of opinions such as this one (which I have concedely read only in part). The 266-page opinion makes me nostalgic for my old job!

If you're right about application of Rodriguez de Quijas here, the decision will be reversed. Big deal (and it surely wouldn't come as a surprise to the Judge). More to the point: Let's say, for argument's sake ;-), that the principal purpose of the Judge's opinion here is not to withstand appellate reversal, but instead to get folks, and the SCOTUS in particular, to take much more seriously the idea, once prominent but now disfavored, that jury nullification, and juries' application of the community's moral judgment more broadly, is a critically important function of the jury and reason for the constitutional jury right.

Is the Judge correct? Should the SCOTUS follow his lead? Discuss from an originalist or any other constitutional perspective that tickles your fancy.
4.7.2008 10:03am
justme:
288 pages, eh? I think judges - like lawyers - write much when they have little to say.
4.7.2008 10:07am
justme:
Oh my, and the opinion has a "roadmap" like a law review... well, then I know it's nonsense!
4.7.2008 10:08am
justme:
Prof. Kerr:

"Whether a charge based on the
receipt and possession of the same picture is duplicative - - because upon receipt via computer,
possession necessarily begins - - need not be addressed"

But is it?
4.7.2008 10:10am
Happyshooter:
Judge Weinstein has issues with the law and our legal system. More seriously, instead of trying to change what he dislikes by advocating for change in the political and advisory system, he misuses his office and issues illegal decisions designed for the world he wishses existed, or sometimes to hurt those he dislikes.

It is past time to consider impeachment.
4.7.2008 10:17am
No-class action:
Another of J. Weinstein's recent "creative opinions," certifying a class of millions of smokers of "Light" cigarettes in a RICO action, was just reversed last week by the Second Circuit on interlocutory review. Weinstein's reasoning on each point was rejected, with the Court's overall tone being "Rule 23 is not a one-way ratchet, empowering a judge to conform the law to the proof." McLaughlin v. American Tobacco Co.

These "creative" opinions, rather than getting the Court to think more seriously about Weinstein's arguments for changing or expanding the law, instead tend to make appellate courts retrench.
4.7.2008 10:24am
Bob from Ohio (mail):

the greatest jurist of our age


Man, we are so screwed.
4.7.2008 10:39am
George Weiss (mail) (www):
M. Lederman-

I don't think it matters whether the Supreme Court might agree with him or not.

According to your own assumption, the judge really knows/agrees that the second circuit precedent applies and controls, and he has ruled against it anyway.

He's a federal judge, who has an oath to uphold federal law. that federal law includes precedents of higher courts that are still good law. Intentionally ruling against that precedent, simply because he disagrees and thinks that the supreme court-might- feel differently, is in direct violation of that oath.

If this were not a violation, than there would essentially be no binding precedental system. The Supreme Court might always disagree with what the current precedents are, or even its own precedents. The fact that you are interested in Orin's opinion on what the Supreme Court might do, show that in fact, the Supreme Court might not do what Judge Weinstein says they will do. In fact, nearly every case in which you disagree with established law-don't you hope that one day it will be overturned? There is no telling what the Supreme court might do in the future.

Furthermore, having to correct such errors on appeal is indeed a 'big deal.' The courts do not have unlimited resources to handle cases, and they rely on the lower courts to handle questions of law that have already been decided. If judges can rule against things that have been clearly decided, but they disagree with the reasoning of, then they then have a whole new class of appeals to listen to.

True, in this case, the appeals court would probably have heard this particular appeal anyway. So, it could be argued that, where a decision is obviously going to appeal, you might as well throw in some decided issues for them to rethink.

But thats a dangerous theory, since nobody knows what appeals will ultimately be heard, even when there is an appeal of right as there happens to be in this case. In civil law, the real settlement can occur between a trail court ruling and the appeal. If the trial court ruling is only contested on an issue for first impression, the parties might settle one way. If the trial court ruling is contested on that issue AND an already decided issue with was blatantly decided intentionally incorrectly by the judge, the parties may be forced to go to appeal. Judges could force issues to appeal by breaking their oaths.

Here in criminal law as well, the government may have been content not to appeal the sentencing issues, so long as they got a few convictions. But because one conviction was stolen from them, the gov may have to appeal where it otherwise may not have.

Furthermore. if he would like to weigh in on whether the Supreme Court should overrule the precedent, he has many ways of doing so. Perhaps he could weigh in on that in the dicta of his opinion (while still acknowledging the precedent and explaining he must reluctantly, rule in accordance with it). Or he might write a law review on the subject. Or he might write an amicus when the issue does reach the supreme court. Or he might resign from the bench, go back to being a lawyer, and try to get the issue before the supreme court himself. Therefore, there is no reason he must violate his oath in order to get the supreme court to take an issue more seriously.
4.7.2008 11:18am
stanneus :
Fans of jury nullification, often euphemized as "community justice", ought to be a bit more cautious about their enthusiasm. Not all the outcomes it produces are heartening. Indeed, some come to resemble a subtle form of pitchfork-and-ax handle justice. The routine acquittals over decades of Klan members by state court juries in lynchings (most vividly dramatized by "Mississippi Burning") &the acquittals of the police in the Rodney King episode leap immediately to mind. As "Alias" noted in his earlier post, pro-nullifiers forget that the beneficiaries of nullification are not always the ones we want to see receive that benefit. Overall, it seems more than just a bit absurd for a trial judge to issue a detailed set of instructions to guide the jury on how to solemnly apply the law to the facts, only to simultaneously supply the jury with a potent motive for disregarding the law they've just heard the judge explain.
4.7.2008 11:18am
George Weiss (mail) (www):
come to think of it-isnt the the biggest symbol from the 90's of the failure of the criminal justice system, the OJ trial, essentially a jury nullification problem.
4.7.2008 11:28am
JonC:
Prof. Lederman says:


If you're right about application of Rodriguez de Quijas here, the decision will be reversed. Big deal (and it surely wouldn't come as a surprise to the Judge). More to the point: Let's say . . . that the principal purpose of the Judge's opinion here is not to withstand appellate reversal, but instead to get folks, and the SCOTUS in particular, to take much more seriously the idea . . .


Perhaps I am merely a naive third-year law student, but this strikes me as an awfully cavalier conception of the proper role of a judge. Maybe I just have a quaint view of the law, but it has always my opinion that the "principal purpose" of a judge is to correctly apply the law--as it is, not as one might wish it to be--to the facts of the case before him. I guess what Prof. Lederman might style an attempt to "withstand appellate reversal," I think should more appropriately be called "correctly applying binding precedent." To the extent this is not Judge Weinstein's "principal purpose," (i.e. if he is knowingly issuing decisions that are inconsistent with the law, in service of alternate goals), that raises serious questions about his jurisprudence. If his main goal is rather, as Prof. Lederman suggests, to "get folks" to "take much more seriously" certain ideas, then I would humbly suggest that he is currently serving in the wrong branch of government.
4.7.2008 11:42am
DangerMouse:
Perhaps I am merely a naive third-year law student, but this strikes me as an awfully cavalier conception of the proper role of a judge. Maybe I just have a quaint view of the law, but it has always my opinion that the "principal purpose" of a judge is to correctly apply the law--as it is, not as one might wish it to be--to the facts of the case before him.

You'll learn that half of America doesn't want judges correctly apply the law according to the facts. They reject the idea of judges being "umpires," as Roberts would call them. Half of the country wants judges with their thumb on the scale. Liberals do not believe in the fair application of the law. They believe that criminals should win over victims, that individuals should win over corporations, that government should win over everyone (except when it comes to the police), that women should win over men, minorities over whites, atheists over Christians, and etc.

They don't believe in equal justice. And nor does "Judge" Weinstein. This is the legal system of America today.

If you ever find yourself in a court before a judge who has been appointed or elected by Democrats, unless you're one of their pre-approved victim groups, you've AUTOMATICALLY LOST.

Yes, all your wits and training mean squat when it comes to them. Sorry.
4.7.2008 11:56am
markm (mail):
George: No, the OJ acquittal was a police incompetence problem. If you're going to make a case entirely on circumstantial evidence, there can't be any doubts about the chain of evidence or the officers collecting that evidence, and the LAPD had allowed itself to become sloppy.
4.7.2008 12:15pm
Carolina:
Judge Weinstein is an embarrassment to the bench. He apparently believes his own idiosyncratic views on guns, cigarettes, and the jury system ought to be imposed on everyone else.

And I actually agree him on the jury issues. But unlike Judge Weinstein, I do not see myself as having a roving commission to remake the laws and customs of America as I see fit.
4.7.2008 12:22pm
alias:
If you ever find yourself in a court before a judge who has been appointed or elected by Democrats, unless you're one of their pre-approved victim groups, you've AUTOMATICALLY LOST.

This is more than a little overwrought. I clerked on a court of appeals, and most of the decisions there were unanimous affirmances of whatever the district court did, regardless of which party's presidents appointed the judges on the panel.

The differences come out in the difficult cases or in the cases controlled by vague standards. And even in those cases, the split opinions seemed to reflect genuine disagreement between 3 people trying to apply the law correctly.

That said, third-year law student and others raise some interesting points about the role of a judge. I don't think that district judges should aspire to bat 1.000 with their respective courts of appeals, but neither should they decide cases in a way that they know will result in a reversal. As some have suggested, this will waste lots of time and money just for the purpose of getting an opinion on the books that other judges will be forced to read. That seems like an abuse of the judicial office and a sign that someone needs to write more law review articles.
4.7.2008 12:26pm
GV:
Random aside: is there any reason why lower courts should be bound by a Supreme Court decision that has essentially been silently overruled by a later Supreme Court decision? I'm not saying that this is the case here, but it has always bothered me that the Supreme Court has said (again, and again, and again) that no matter how much it undercuts one of its former decisions, that prior decision remains The Law until the Supreme Court expressly says otherwise. Has anyone come across law review articles discussing this?
4.7.2008 12:50pm
BarrySanders20:
This is an excellent example of judicial hubris. The impact of the verdict is not evidence. Until an appellate court rules that the new 6th amendment cases now declare the impact of the verdict is relevant in the guilt-determination stage, the trial court should apply existing precedent. Let the appellate court declare that such information is evidence, and refusing to allow the jury to hear about the impact was prejudicial. Weinstein can write the opinion in a way that frames this issue perfectly to allow the appeal-- but uphold the verdict until the appellate court rules.

And does this work the other way as well? May a jury convict in a close case when it knows the sentence is shorter than whatever was in their minds during deliberation?

Weinstein's getting a bit too big for his britches, but he seems not to care anymore.
4.7.2008 12:57pm
John (mail):
Lower court judges who disagree with higher court precedent have a dilemma; they know they are bound by precedent, but the want to do the right thing. The better course, in my view, is to follow precedent with an opinion that states the reasons why it should be overturned, and invite the higher court to do so.

To do otherwise subverts the rule of law and turns adjudication into a free for all.
4.7.2008 12:58pm
Fat Man (mail):
My father, z"l, was born in 1921, and, if he were alive today, he would be 87 years old, but, alas, he has slept in the cold cold ground for these 15 years passed. Jack Weinstein was also born 1921, and, not that I begrudge his continuing to live, he should be retired. As should JP Stevens and the other superannuated deadwood that clogs the federal court system.
4.7.2008 1:03pm
jim47:
George Weiss:

The judge's oath to uphold federal law certainly includes the duty to uphold the constitution, and there is no reason to believe he should not attempt to discern the meaning of the constitution himself. If he sincerely believes that binding precedent and the constitution are in conflict, there is a question of what to do that does not bear on upholding the oath or not.

Now, personally, I think the importance of our judicial system as a whole mediates toward following precedent, but it is worth noting that once upon a time, the federal judiciary was fairly independent of the Supreme Court. Congress can decide the appellate jurisdiction of the SCOTUS precisely because the original constitutional order did not see the federal judiciary as a hierarchy of judges commanding their subordinates through binding precedents.

The defense of our current system and the role of precedent is all very correct IMO, but I would suggest that it is the moral power of those arguments that matters, not the judge's oath.
4.7.2008 1:06pm
Fub:
stanneus wrote at 4.7.2008 10:18am:
Fans of jury nullification, often euphemized as "community justice", ought to be a bit more cautious about their enthusiasm. Not all the outcomes it produces are heartening. Indeed, some come to resemble a subtle form of pitchfork-and-ax handle justice. The routine acquittals over decades of Klan members by state court juries in lynchings (most vividly dramatized by "Mississippi Burning") &the acquittals of the police in the Rodney King episode leap immediately to mind.
George Weiss wrote at 4.7.2008 10:28am:
come to think of it-isnt the the biggest symbol from the 90's of the failure of the criminal justice system, the OJ trial, essentially a jury nullification problem.
I may be wrong, but I don't recall that the defense even attempted to argue "jury nullification" to the juries in any of those cases. What I recall is that the prosecutions were anemic or otherwise flawed, whether intentionally so or not. They seemed more like examples of "prosecutorial nullification", or in some cases "judicial nullification", than "jury nullification".
4.7.2008 1:09pm
Don Miller (mail) (www):
I agree with Jim,

I have always felt that a Judge's Oath to defend the Constitution is above and beyond any Federal Law or Common Law Precedent.

I know that the legal profession treats precedent as equal to Federal Law, but it isn't. It is basically a gentleman's agreement between judges to interpret laws a certain way or to handle procedures the same way. Because of the structure of our Court system, precedent carries more weight than an agreement between equals. In many cases it is dictatorial. You do it this way because I said to.

Precedent has value because it makes the legal system predictable. If Case A is decided in New York, 4 years later a similar case, Case B, will have similar results in California. The predictability of precedent makes people comfortable.

But what happens when the legal profession wants to make a change? What if society changes and the former precedents don't make sense? The way our legal system works, a Judge has to take a stand in a case and say "this is wrong and we need a new way". Then arguments are made in higher courts, other judges at higher levels make a decision to agree or disagree, and eventually, it may make it to the Supreme Court.

In fact, that is how cases make it to the SCOTUS. Either there is no agreement because it is something completely new, or different courts disagree on precedent or that the old precedents were wrong (Circuit Court split).

To suggest, as George Weiss did, that a Judge making a decision in conflict with precedent is equal to a violation of Federal Law and should be impeachable is flat out wrong and misguided.

If my history of legal history is correct, IANAL, most of the current precedents about not giving the jury information about sentencing is a 20th century invention to reduce cases of jury nullification. It makes Judges and Politicians nervous when Juries are unpredictable and refuse to enforce laws that they passed for our own good.
4.7.2008 1:34pm
c.gray (mail):

and the LAPD had allowed itself to become sloppy.


This phrase implies that there exists some historical period of time when the LAPD was _not_ sloppy. Not so. That particular outfit has tolerated, and often encouraged, sloppy police work since its inception.

Cutting corners has been an inevitable result of a policy of understaffing the force that has endured in LA since the 30s.
4.7.2008 1:36pm
M. Simon (mail) (www):
I think introducing some common law standards back into our judicial system through jury nullification is a good thing.

Will the results always be good? Well no. But neither is our current system where only the facts are judged - not the law as well.

Remember Peter Zenger. Guilty as charged. Jury nullified. Free speech upheld.

The jury is supposed to protect us from bad people and bad law. It helped repeal alcohol prohibition.
4.7.2008 1:45pm
George Weiss (mail) (www):
to markm and Fub:

yes, there were other things in the OJ trial that led to his acquittal besides a sympathetic jury. (evidence suppressed and incompetent prosecution) but the overwhelming evidence in that case that the jury heard can still only be explained by a jury that just didn't want to believe at least as one of the factors.

Jim47 and Don Miller:

First, to respond to Jim47's argument about the independace of the lower courts, I don't think that the fact that Congress can decide the appellate court jurisdiction has any bearing on their independence from precedent. The fact that the congress can decide their jurisdiction is based on the fact that Article III gives congress the ability to establish lower courts. Since it doesn't mandate they be created, it follows that, once created, their jurisdiction is entirely within the realm of the Congress. The only court that is not a "lower court" is the Supreme Court. The very language of "lower" and the appeals system implies a hierarchical system.

b)Calling the 2nd circuit precedent "common law" and stating that it is somehow secondary to the 'constituion' is where I suppose we disagree.

to me, common law, is a body of law that fills in where no politically made law (constitutional, statues regulations, court rules etc.) apply. Not all case law does that. Some case law simply interprets the statute or constitutional law.

The decision he ignored was, at least in part based on the constitution.

The 2nd circuit precedent ruled that the constitution is not violated by not telling the jury about a mandatory minimum. We know that it held this, because it even held that it is inappropriate to do so. (Now the ladder holding, that it is inappropriate to do so, may not be based on the constituion at all, but some other procedural rule)

This first holding, is directly ignored by the Judge. He didn't just inform the jury of the mandatory minimum. He granted a mistrial because he held that he forgot them, and thus violated the constitution. He didn't distinguish the case, he simply refused to acknowledge the president as controlling based on a "future" Supreme Court decision.

Therefore, he didn't ignore president, invented by the court "dictatorially" he ignored an established principal of constitutional law. It is the constitution, not just some "common law" or "federal law" that has been offended.

If I, as a lawyer, were to file a lawsuit in federal court against my divorced wife who had an abortion in her first month of pregnancy, while the fetus was not viable, I would be sanctioned for a frivolous argument. The reasoning here is that by filing a lawsuit directly against a established legal principle, I have wasted the court's time and violated my ethical duty as a lawyer.

So if I were a judge, and ruled in acordance with this theory, why should that not be equally or even more ethically abominable? Have i not also wasted the appellate courts time and violated my duty as a judge.

Finally, Don Miller, I, personally do not think that the judge should be impeached for this. I did, however, mention in a different thread that I think this is an example of why there should be a mandatory retirement age for federal judges. As Orin noted in his post, the decision is rambling-it goes into areas not even relevant to the case. Impeachment is not the only remedy for such things.
4.7.2008 2:29pm
Displaced Midwesterner (mail):
No opinion should be 266 pages long. If I was an appellate judge looking over such a piece of self-important rambling I would vote to summarily vacant and remand with an order to write an opinion consistent with "speedy and inexpensive" administration of justice. Justice is much better served by short, thoughtful, well-written opinions. I really wish more judges would get this. Especially Supreme Court justices (I'm looking at you Kennedy, Souter, Scalia...oh yeah, and Breyer, Alito, Stevens, Roberts, Ginsburg, and Thomas too)!

While I have occasionally found Weinstein's creativity intriguing, in general all his opinions seem to be the most appallingly lengthy exercises in bloviation. Seeing one of them pop up in a law school assignment was the bane of my existence.
4.7.2008 2:38pm
kiniyakki (mail):
All the fans of jury nullification - why not take the fight to the legislators? This seems like an area for a grass roots movement. If a defendant is found guilty, invite the jurors to come back for the sentencing, and hear the prior conviction(s) (if any) and possibly hear other aspects of the case they could not hear during trial. Then ask the jurors whether it is too harsh. If it is, spur them to action. If not, then what is the problem?

On this note, I'd be curious to hear if any defense attorneys have done anything like this, and what was the result. As a prosecutor (albeit a young prosecutor), if I see a juror around town and we talk about the case , they never seem to have a problem with it. The jurors seem more upset when they hear about excluded evidence they think they should have been able to hear about. But, that is just my experience, and is nothing better than an anecdote.
4.7.2008 3:49pm
ChangePlease? (mail):
>>They [liberals] believe that criminals should win over victims, that individuals should win over corporations, that government should win over everyone (except when it comes to the police), that women should win over men, minorities over whites, atheists over Christians, and etc. -DangerMouse

One can probably safely infer that you're a well-off white male.

I submit that most liberals believe (i) justice is one of the last thing our current judicial system is capable of accomplishing, and (ii) rich, white, racist men should stop wasting money by perpetrating gross injustices.

It's hard to disagree with (i) and (ii) if you're informed.

Federal judges swear to uphold unjust laws. This is obvious. Incoherent ramblings about the "equal" application of manifestly unjust and racist law renders your position so absurd it doesn't merit further remark.
4.7.2008 4:14pm
BruceM (mail) (www):
While I agree in principal that juries should be told about mandatory minimums and the effects of their decisions, the analysis in Judge Weinstein's opinion is simply erroneous and irrelevant. That's unfortunate because it makes it easy for the court of appeals to reverse without any substantive discussion on the merits of giving the jury certain information.
4.7.2008 4:15pm
Elliot123 (mail):
"Incoherent ramblings about the "equal" application of manifestly unjust and racist law renders your position so absurd it doesn't merit further remark."

Can you provide us with an example of a specific and current racist law?
4.7.2008 5:54pm
Anderson (mail):
I know nothing about Judge Weinstein, and I take seriously Prof. Lederman's endorsement ...

... but if Weinstein was protesting the existing state of the law, then the last line of his 266-page op should've been this:

"Nevertheless, the state of the law being contrary to the foregoing, the motion is denied."

That lets him write the appellate brief for the convicted fellow, while still adhering to the rule of law and his duty as a district-court judge.
4.7.2008 5:56pm
hattio1:
kinniyaki says;

On this note, I'd be curious to hear if any defense attorneys have done anything like this, and what was the result. As a prosecutor (albeit a young prosecutor), if I see a juror around town and we talk about the case , they never seem to have a problem with it. The jurors seem more upset when they hear about excluded evidence they think they should have been able to hear about. But, that is just my experience, and is nothing better than an anecdote.


Defense attorney here. Always try to talk to jurors, win or lose. Usually if I win, they want to talk, if I lose, they don't. So, if something similar happens to you, you're starting out with self-selection bias. But, and probably more importantly, the egregious cases of extreme sentences are probably not what you are spending your time on. You are spending time on where the evidentiary or other rulings screw the state, defense attorneys spend their time on when evidentiary or other rulings screw the defendant. Both of you are talking, for the most part, to the people most inclined to agree with you. The fact that they are mostly upset about what you are is no big surprise.
4.7.2008 6:52pm
Roscoe B. Means:
The problem is that Judge Weinstein is just wrong. What the punishment will be is totally irrelevant to the role of the jury. The role of the jury is to apply evidence to find the facts, not to decide whether the acts shown by the facts warrant punishment.

Inevitably, the jury does end up nullifying the law in most cases that cry out for nullification, even without formalizing it. But once you start telling the jury the punishment, and thus legitimizing their consideration of whether punishment is deserved, you've convened a mini-legislature every time you swear in a jury. Defendant A gets tried under Jury A's law on appropriate punishment, and Defendant B gets tried under Jury B's version. I can't see how either side in the criminal courtroom really thinks that's a great idea.
4.7.2008 8:49pm
TDPerkins (mail):
<blockquote>If my history of legal history is correct, IANAL, most of the current precedents about not giving the jury information about sentencing is a 20th century invention to reduce cases of jury nullification.</blockquote>

In the same way the "standard model" of the 2nd amendment is that it supports an individual right to military power which they possess in keeping with their own recognizance, the standard model of the jury, the Founder's jury, is one which is reminded by the judge--and when the judiciary is derelict--by the defense at it's sole discretion, that their job is to determine the law in that specific case, the application of the law to the facts, and to determine the facts--their simply is no evidence the Founders contemplated the jury as it exists today.
4.7.2008 9:42pm
TDPerkins (mail):
Indeed, some come to resemble a subtle form of pitchfork-and-ax handle justice. The routine acquittals over decades of Klan members by state court juries in lynchings (most vividly dramatized by "Mississippi Burning") &the acquittals of the police in the Rodney King episode leap immediately to mind.


What comes instead to my mind is the practical impossibility of African-Americans serving on juries in numbers proportional to their percentage of the population--something which would have evened the score considerably.

PS. It is not within the scope of "jury nullification" for the prosecution/bench to be in on it. It is solely when in defiance of the executive, the facts, and the law, that the jury fails to convict, with their purpose being the launching of the message that such prosecutions are not what society wants.

And do recall that singleton malcontents desiring either conviction or freedom for the defendant can only produce hung juries, not nullification.

Yours, TDP, ml, msl, &pfpp
4.7.2008 9:49pm
Happyshooter:
Can you provide us with an example of a specific and current racist law?

Government bidding and contracting laws.

Government support of racial caucuses for state and fedeal congresses.

Government funding of single race non-profits.

The 12-6-6 officer commissioning requirements.
4.8.2008 9:32am