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Polizzi, the Role of Judges, and the Role of Juries:
In the comment thread to my post on Judge Weinstein's Polizzi opinion, former Weinstein clerk and now super-blogger Marty Lederman asks the following question:
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?
  My response is that if Judge Weinstein wants to 'start a conversation' about jury nullification, he has many legitimate ways of doing so other than ignoring the rule of law that he has sworn to uphold. Judge Weinstein can write a law review article; he can write a book; he can make speeches to law student groups and lawyer's associations. Judge Weinstein is an influential figure. Surely he does not lack for outlets to make his views known.

  On the other hand, Judge Weinstein should not intentionally rule incorrectly in order to pursue a personal campaign to get the law changed more to his personal liking. When the law requires the judge to rule one way, he must do it.

  What's the harm, Marty asks? The cost of the appellate process is one harm, but I agree that's not such a big deal in the grand scheme of things. What is a big deal is the corrosive effect on the rule of law when everyone strongly suspects that a federal judge is not following the law. It cheapens the law and presents it as a game to be pursued for other purposes, an attitude that other players in the system are happy to pick up on and use to further their own agendas (cough, John Yoo, cough). I think that's genuinely harmful.

  As for the merits of telling the jury about sentences, this is a very old debate and I don't have much to add. One point worth making is that if juries are going to get more information to help them "do justice," then this should occur across the board. The traditional view has been that criminal trials are highly stylized: The jury is told only certain things in order to focus them on the facts. If we replace that with a "do justice" model, then the jury should also hear a lot of things beyond the sentence. For example, the jury presumably should also hear about the defendant's past convictions and other bad things the defendant has done. Perhaps evidence rules designed to keep the jury from hearing prejudicial things should be relaxed, too. If we really trust the jury to "do the right thing" with all the evidence, we shouldn't hide these things from them.

  I think such a shift would hurt criminal defendants on the whole, and I don't support it. But if we want to give the jury more evidence and push them to do justice, I think they should get to hear both what the defendant wants them to hear and what he doesn't.
Anderson (mail):
Well, since I commented rather late on the 1st thread &specifically addressed Prof. Lederman's comment, I'll repeat myself:

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.

--Adding that Kierkegaard is said to have remarked of Hegel's Phenomenology that, if Hegel had only concluded the book by writing, "But all this is just a thought-experiment," then Hegel would've been the greatest philosopher who ever lived. Perhaps Judge Weinstein should've taken himself in a more Kierkegaardian, less Hegelian manner.
4.7.2008 7:12pm
drewsil (mail):

I think such a shift would hurt criminal defendants on the whole, and I don't support it.

I'm not sure I get the connection between the two halves of this sentence. Just because criminal defendants are hurt doesn't seem to indicate that the move would be bad. One can come up with many situations in which defendants would be hurt more on average, but justice would be better served.

I'm also curious as to why you believe this would hurt defendants? If I had to guess, with my limited knowledge, I would say more information would help defendants on the whole. I base this on the observation that the outcomes of bench trials tend to favor the defendant more than jury trials. Of course there are many other possible explanations for this effect.
4.7.2008 7:18pm
Glenn W. Bowen (mail):

other than ignoring the rule of law that he has sworn to uphold


Ain't the first time.
4.7.2008 7:24pm
Michael J.Z. Mannheimer (mail):
Orin,

I believe that the thrust of the pro-jury nullfication position is that the jury must (1) be convinced beyond a reasonable doubt of the defendant's factual guilt and (2) believe that criminal punishment to the extent provided by law is appropriate. That is, the argument is that proof of guilt beyond a reasonable doubt is necessary but not sufficient for a criminal conviction. The problem with allowing the jury to hear information regarding the defendant's prior convictions is that it may improperly affect their decision on question #1 and result in convictions in some unknown number of cases where there is no proof of guilt beyond a reasonable doubt.

But I fully agree with you that there is a "corrosive effect on the rule of law when everyone strongly suspects that a federal judge is not following the law." That is why I was so deeply disturbed after Bush v. Gore.
4.7.2008 7:26pm
wm13:
I agree with what Prof. Kerr said, and I would add: wouldn't law review articles, bar association special reports etc. be more effective in changing the law, if that is what Judge Weinstein desires? This is hardly my field, but, if this opinion is as contrary to established law as everyone seems to agree, won't the opinion, and thus the views it expresses, garner disrespect? Even if, somehow, the appellate court doesn't overrule a plainly wrong opinion--it happens, though some of the commentators here don't seem to believe it--such opinions are usually derelicts with little influence.
4.7.2008 7:30pm
DiverDan (mail):
Amen to those who have blasted Judge Weinstein for willfully ruling contrary to established law. If, as Marty Lederman contends, Judge Weinstein was simply trying to start a conversation about jury nullification, then he picked the wrong forum to do so, and in the process arrogantly presumed to himself the right to nullify the jury.

There is no greater fan of jury nullification than me; it was a critically important purpose in the aristocracy's demand for a right to trial by jury in the Magna Carta,and, IMHO, it still serves a crucial role in reining in overzealous prosecutors and an overly oppressive government. I'm such a fan of jury nullification that I firmly believe that a Defendant has the absolute right under the First Amendment (the right to "petition the government", for in a jury trial, the jury IS an arm of the government) to tell the jury that they have the right to nullify the law if they agree that the application of the law to the case at hand is unjust, and if a Court prohibits such an argument, the Defendant ought to object that prohibition of the argument violates the First Amendment, and any instruction to the jury that they MUST follow the law violates the 6th Amendment.

That having been said, Due Process requires that a judge: (a) fairly and impartially determines the facts based upon the admissible evidence, when acting as a fact-finder; and (b) fairly and impartially applies the law as it exists, without regard to the judge's personal biases, dislikes of the law, or personal preferences as to outcome. Any judge who accepts a place on the bench must accept that solemn duty, and any judge who willfully ignores or defies the law in a judgment, whether for the sake of personal benefit or just to make a political statement, is morally unfit for the bench.
4.7.2008 7:31pm
Jacob Berlove:
Prof. Kerr,
I don't think the reason juries should be allowed to hear evidence is in order to "do justice". It is important to the rule of law that the state have to prove its case based on certain types of evidence. But the only realistic way to prevent government overreaching is to insist that the jury have the option to nullify if it feels that a sentence will be to harsh, which requires that the jury know what the sentnece is to be imposed (which of course the jury did know back in the day when every felony was punishable by death) But holding the same rule in the reverse, e.g. allowing the prosecution to tell the jury about an expired statute of limitations for a lesser included offense (e.g. manslaughter), creates too much of a risk that an outraged jury will vote to convict on the stricter (e.g. murder) charge when it feels that the evidence really only suffices for the lesser one. If we keep these principles, of requiring the state to prove its case based on certain kinds of evidence, and similtaneously allowing the jury to effectively check government abuse when the sentence could be too harsh, then this outcome makes sense.
4.7.2008 7:33pm
DiverDan (mail):
P.S., For my personal list of Judges morally unfit for the bench, please feel free to email me. I prefer not to publish it while I'm still practicing. The list is long, and, with Weinstein just added, getting longer.
4.7.2008 7:36pm
Vermando (mail) (www):
The moral indignation expressed in both the post and the comments above is staggering. A well reasoned defense of a legal position that, while contrary to current precedent, has a reasonable chance of being adopted sometime in the not that distant future and which is arguably more in line with recent Supreme Court jurisprudence than our current practices - that's what's corroding our respect for the rule of law in this country, really?

We're drawing a straight line from that to John Yoo? That's what makes him morally unfit for the bench?

Something tells me that Judge Weinstein has not been a strong intellectual influence on John Yoo, and that if the most immoral behavior that our officials behaved in was this, then we'd be in a lot better position as a country.
4.7.2008 7:53pm
alias:
Jacob Berlove writes:

But the only realistic way to prevent government overreaching is to insist that the jury have the option to nullify if it feels that a sentence will be to harsh, which requires that the jury know what the sentnece is to be imposed (which of course the jury did know back in the day when every felony was punishable by death) But holding the same rule in the reverse, e.g. allowing the prosecution to tell the jury about an expired statute of limitations for a lesser included offense (e.g. manslaughter), creates too much of a risk that an outraged jury will vote to convict on the stricter (e.g. murder) charge when it feels that the evidence really only suffices for the lesser one.


Well, the argument in favor of full disclosure across the board isn't a "sauce for the goose" argument--i.e. it's not that if we have jury nullification, it must be allowed to operate to convict technically innocent as well as to acquit the technically guilty.

Rather, it's that if jurors are going to be allowed to second-guess the wisdom of the law and the wisdom of the prosecution, they should be given enough information to allow them to do so competently. If the risk of convicting innocents is too great, then I submit that the system we currently have (jury nullification is actively discouraged) is much better than the one Weinstein and others are proposing. The only other way I can see doing it coherently is to give the jurors a nullification instruction that reminds them of all of the categories of evidence that are off-limits (i.e. "you don't know if this guy has a clean record or if he's a hardened violent criminal"; "you don't know if he's sweet and gentle or if he's going to go home and beat his children"; "you don't know whether or not he could get help for his drug addiction in prison because that's not relevant to whether he did the crime"---obviously phrased better, but you get the idea).
4.7.2008 7:59pm
ras (mail):
If a defendant chooses a non-jury trial, the judge is not shielded from evidence such info as prior convictions. The implication is that juries must have inherently inferior judgment, not just on the law, but in general, and require "protection" that a judge does not.

So it would seem that either:

1. defendants are often being convicted by those with inferior judgment, a situation that needs to be rectified; or

2. non-jury trials should have two judges: a presiding judge who knows all, and a deciding judge from whom excluded evidence can be kept hidden; or

3. juries should be told all and accorded the same degree of trust as is accorded to a judge.
4.7.2008 8:01pm
EKGlen (mail):
Setting aside the fact that nobody really pays attention to law review articles [ ;) ], wouldn't the counter argument be that advancing the cause of jury nullificaton via an opinion does not necessarily violate one's oath if one believes that the common law tradition is incorporated into the constitution?
4.7.2008 8:02pm
D.A.:
Do federal judges really swear to "uphold the rule of law" as Orin has supposed?
"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (name of position) under the Constitution and laws of the United States."

I'm seeing a defense of the Constitution there. So is the "rule of law" limited to the text of the Constitution, or does it encompass all interpretations of the Constitution? If it's the former, this judge is clearly in the right. If it's the latter, and if the judge feels that the Supreme Court's opinions are against the Constitution (i.e. they've nullified a provision of the Constitution to such an extent that they could be considered its "enemy"), isn't that judge obligated to rule contrary to Supreme Court precedent?

I can see the plainly obvious supposition that a judge should go write a law review article, or some equally useless endeavor, but isn't the better path to address the issue in the opinion? The Supreme Court, and all other courts, can easily ignore (and probably will) a law review or other editorial, so if the judge feels that some view of the Constitution is truly wrong isn't he or she obligated to raise those objections in a forum where they MUST be addressed?

I can't give deference to the stare decisis aspect, because that doesn't even seem to carry 9 votes in our highest Court. Consider Justice Thomas: "If it's a choice between precedent and what he considers a correct reading of the Constitution, though, he's more willing to go to the Constitution. That's not "radical," he says, but necessary. If the Court has deviated from the text of the Constitution, subsequent cases adhering to the precedent only magnify the error." http://volokh.com/posts/1191880808.shtml
4.7.2008 8:14pm
OrinKerr:
I believe that the thrust of the pro-jury nullfication position is that the jury must (1) be convinced beyond a reasonable doubt of the defendant's factual guilt and (2) believe that criminal punishment to the extent provided by law is appropriate. That is, the argument is that proof of guilt beyond a reasonable doubt is necessary but not sufficient for a criminal conviction. The problem with allowing the jury to hear information regarding the defendant's prior convictions is that it may improperly affect their decision on question #1 and result in convictions in some unknown number of cases where there is no proof of guilt beyond a reasonable doubt.
Sounds like this position wants the jury to ignore the law in the defendant's favor but not in the government's. I suppose it's consistent in the sense that it always favors the defendant. . .
4.7.2008 8:16pm
ras (mail):
Part of a jury's job is to size up the defendant and ask if this person might reasonably have committed the crime. Was the motivation sufficient? Is this the sort of person who would do such a thing?

And prior convictions are usually the best possible evidence (best in the sense of being the statistically most likely indicator) as to the character of the defendant in this regard, are they not?

IANAL, and it seems to me that Weinstein was simply trying to legislate and/or pontificate from the bench, but I agree with the idea that juries should be told everything.
4.7.2008 8:38pm
alias:
wm13 writes:

wouldn't law review articles, bar association special reports etc. be more effective in changing the law, if that is what Judge Weinstein desires?
I think the answer has to be no. No one is forced to read a law review article, and there are so many out there...

A wayward opinion, on the other hand, will force at least the judges on the appellate panel to read it and (most likely) to write an opinion explaining why it's wrong. And there's always a chance that the draw on the appellate court will include a judge sympathetic to Judge Weinstein who will either persuade the other judges to write the majority opinion a certain way or who will dissent. If Judge Weinstein draws a favorable dissent on the CA2, then the idea gets more traction and legitimacy and more people are forced to think about it.

Also, judges on other courts are more willing to rely on district court opinions than on law review articles. A district judge on another court might be inspired and write a similar opinion, and another court of appeals will be in the same position as the CA2, and they'll have Judge Weinstein's opinion, the CA2 dissent, and the new district judge's opinion to look at on one side, and the CA2 majority opinion and the rest of the law on the other.

Another thing that a wayward opinion does is that it connects an abstract debate to actual facts in a way that law review articles simply can't do as well.

A law review would be much more appropriate, but much less effective, I think.
4.7.2008 8:40pm
Anderson (mail):
Also, judges on other courts are more willing to rely on district court opinions than on law review articles.

Very true. And the advantage of Weinstein's approach, as opposed to what I suggested, is that he pretty much guarantees there WILL be an appellate decision. If not the one he desires.

Still, a district-court judge has to follow the law where the law is clear. Where no precedent guides, that's another story.
4.7.2008 8:53pm
titus32:
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.

At 266 pages, the convicted fellow would have to move for a significant page extension.
4.7.2008 9:01pm
Carolina:

What is a big deal is the corrosive effect on the rule of law when everyone strongly suspects that a federal judge is not following the law.



Sort of like when any outlandish tort case attempting to impose liability on firearm manufacturers for criminal misuse of their (legal) products is magically assigned to Judge Weinstein as a "related" case.
4.7.2008 9:06pm
alias:
Anderson writes

Very true. And the advantage of Weinstein's approach, as opposed to what I suggested, is that he pretty much guarantees there WILL be an appellate decision. If not the one he desires.

Still, a district-court judge has to follow the law where the law is clear. Where no precedent guides, that's another story.


Perhaps the newest member of the Conspiracy should weigh in. An excellent example of a judge who faithfully applied a law he didn't like, while documenting his misgivings about it, is Judge Paul Cassell in the Weldon Angelos case.

Unfortunately, the Tenth Circuit gave it the back of the hand, if I recall correctly, but Judge Cassell's Angelos opinion has been a big part of the mandatory minimum sentencing debate, has had far more impact than a law review article would have (I think), and it also didn't deform the law in the process.

Then there's the opposite approach, discussed on orinkerr.com almost exactly 2 years ago.
4.7.2008 9:13pm
Mr. Macphisto:
What happens if a juror in deliberations tells the other jurors about mandatory minimums or other arguably disproportionate punishments that apply? Is this considered grounds for dismissal the way talking about any news reports on the case could be?
4.7.2008 9:24pm
Fub:
Orin Kerr wrote in the original post:
... The traditional view has been that criminal trials are highly stylized: The jury is told only certain things in order to focus them on the facts. If we replace that with a "do justice" model, then the jury should also hear a lot of things beyond the sentence. For example, the jury presumably should also hear about the defendant's past convictions and other bad things the defendant has done. ...
I favor fully informed juries. I do not disagree with informing a jury of a defendant's conviction record, so long as:

-- the jury is actually and unequivocally instructed that past convictions are not evidence that defendant committed the acts for which he is currently on trial; and

-- prosecution is actually and unequivocally prohibited from making such an argument to the jury.

Prosecutors currently try by any legally possible means to get evidence of prior and even subsequent bad acts before juries, using exceptions for motive, opportunity, intent, preparation, absence of mistake, etc.

So I would think putting prior convictions squarely on the table without necessitating briefs for exceptions would make prosecutors happy. Yet, I've heard prosecutors suddenly develop previously unvoiced concern for defendants' rights when that aspect of fully informing juries arises. That makes me wonder whether they are actually concerned about defendant's rights, or actually concerned that a jury's knowledge of prior convictions and sentencing enhancements would cause the jury to nullify the law and acquit.
4.7.2008 9:44pm
Steve2:

My response is that if Judge Weinstein wants to 'start a conversation' about jury nullification, he has many legitimate ways of doing so other than ignoring the rule of law that he has sworn to uphold. Judge Weinstein can write a law review article; he can write a book; he can make speeches to law student groups and lawyer's associations. Judge Weinstein is an influential figure. Surely he does not lack for outlets to make his views known.


Professor Kerr, doesn't that path still ultimately require a trial judge to rule as Weinstein did so that the higher courts have a case in which to overturn their precedents?
4.7.2008 9:58pm
alias:
Professor Kerr, doesn't that path still ultimately require a trial judge to rule as Weinstein did so that the higher courts have a case in which to overturn their precedents?

No. Defendants can the same arguments Weinstein does in their briefs when they appeal their sentences.

In my limited experience, defendants aren't uniformly so stodgy or rigid that they're above arguing for changes in the law or extremely ridiculous creative extensions of existing law. Of course, a plea by a defendant to change the law often has a bit more force when it's accompanied by an opinion from a trial judge saying "I just did," but that doesn't mean that's the only way for it to happen.
4.7.2008 10:23pm
Fearless:

What's the harm, Marty asks? The cost of the appellate process is one harm, but I agree that's not such a big deal in the grand scheme of things. What is a big deal is the corrosive effect on the rule of law when everyone strongly suspects that a federal judge is not following the law.


To the extent that people are disturbed by the fact that the law is not certain, too bad.

That is our system.
4.7.2008 10:26pm
Michael J.Z. Mannheimer (mail):

Sounds like this position wants the jury to ignore the law in the defendant's favor but not in the government's. I suppose it's consistent in the sense that it always favors the defendant.



Orin,

It seems to me that this is precisely why the anti-federalists insisted that a robust jury-trial right be part of the Constitution. It's not that juries are more reliable fact-finders than judges, especially given that art. III already requires that federal judges be appointed for tenure during "good behavior." It is that the anti-federalists wanted guilty defendants to be acquitted when the members of the local community saw something amiss about the prosecution. I agree with George Thomas's view that the criminal procedure protections of the Bill of Rights were designed largely to prevent the federal government from becoming too involved in criminal prosecutions, traditionally the prerogative of the States. It's not so much that this view always favors the defendant as it always disfavors the federal government.

Of course, this rationale supports a constitutional basis for jury nullification only in federal, not state, prosecutions.
4.7.2008 10:28pm
M. Lederman (mail):
Gosh, Orin, talk about missing the forest (all 200+ pages worth) for a single tree!

On the "process" question that most concerns you, a few words: At the outset (p.6) and throughout most of the first half of the opinion, Judge Weinstein concludes that several of the grounds Polizzi raised were (in the Judge's view) meritorious but foreclosed by binding Supreme Court precedent -- and therefore the Judge rejected those arguments (while urging Congress and/or the Court to change the law).

As for the defendant's argument that the Judge did accept: You write that the Judge "intentionally rule[d] incorrectly in order to pursue a personal campaign to get the law changed more to his personal liking." No, he ruled in the manner that he thought was constitutionally correct, not in order to "change" the law (his is an avowedly originalist opinion), but in order to honor it, and to have it more widely recognized. You also write that there is a "corrosive effect on the rule of law when everyone strongly suspects that a federal judge is not following the law. It cheapens the law and presents it as a game to be pursued for other purposes." Frankly, I don't think it's possible to read this opinion and conclude that Judge Weinstein thinks this is a "game" of any sort, or an endeavor undertaken for any reason distinct from scrupuously honoring the Constitution and taking it much more seriously and solemnly than have most courts addressing similar questions.

I take it that what you mean by referring to the Judge :not following the law" is not that the Judge was departing from the Constitution -- which he has taken an oath to uphold -- but that he was disregarding a binding holding of the Supreme Court. To be sure, the Sixth Amendment argument that the Judge adopts here is strongly in tension with some of the rationale of an 1895 case, Sparf -- something the Judge does not ignore (a la John Yoo), but instead takes head on, with admirable thoroughness. Nevertheless, the ruling does not conflict with any actual Supreme Court holdings about whether juries must in some situations be apprised of mandatory minimums, and so the Rodriguez de Quijas "rule" does not apply here. Moreover, Weinstein's argument is that the Sparf rationale that cuts against the Judge's holding has been significantly undercut (perhaps even "overruled") by the mode of originalist reasoning, and the rationale, of the "sea change" in much more recent Sixth Circuit precedents of the Court (mostly in the Apprendi/Booker line of cases); and the Judge explains that if the current Justices abide by what they have written in those cases, they should affirm what he has done here -- that it is hard to come away from those recent opinions "with anything other than a conclusion that the Court accepts the view that jury exercise of its power to ameliorate sentencing laws too harsh in limited circumstances such as the instant case is one of the consequences of the Sixth Amendment." (One might of course disagree with this reading of the recent cases, but I think it's plain that Judge Weinstein offers it sincerely here.)

So what's the problem?

Of course, I (unlike Judge Weinstein) suggested in my earlier comment that even if Sparf were a holding directly on point, there would be nothing especially troubling about Judge Weinstein's opinion and holding here, any more than it was wrong for Judge Parker in the Barnette flag-salute case to ignore the then-governing Gobitis opinion and to (correctly) "anticipate" the Court's reversal.

Why? Well, assuming this were such a case, compare Judge Weinstein's opinion here with one that was virtually identical through all 200+ pages but that ended with a cite to Rodriguez and a (reluctant) denial of the defendant's motion. I assume you'd approve of the latter opinion. But would there be any functional difference between the two opinions at all -- other than determining which party gets to file a reply brief in the Second Circuit? I don't think so.

Ah, but what about respect for the rule of law?! Well, in my view, both opinions would equally honor the "rule of law" with respect to the Sixth Amendment question and the Supreme Court's likely resolution of that Sixth Amendment question. The only difference is that the latter opinion -- but not the former -- would also honor the "rule" of the Rodriguez dictum in which the Court lectured lower courts that they should not "anticipate" the Court's own overrulings. Frankly, that (fairly arbitrary) judge-made "rule" is not one that I think deserves a great deal of respect (except possibly as a matter of comity) in a case such as this, where the lower court's adherence to the Rodriguez rule would make absolutely no functional difference in the posture or fate of the parties (or on the actions of future courts, because this district court decision has no stare decisis effect -- the Rodriguez rule makes more sense, in this respect, for courts of appeals, because of the effect of their decisions on lower courts).

But as I said, there is no SCOTUS decision directly on point, and so no Rodriguez problem to contend with here. (And, as I noted at the outset, Judge Weinstein in this very opinion regretfully follows several Supreme Court precedents directly on point with respect to certain of defendant's arguments, even while expressly urging the Court to reconsider.)

As for the merits, which are much the more important topic: I'm surprised that you "don't have much to add," Orin. Do you have reason to think Judge Weinstein's originalist account is wrong? That it should be irrelevant? Whether it is consistent with the Booker line of cases?

The one thing you do say is odd -- that "if juries are going to get more information to help them 'do justice,' then this should occur across the board," e.g., that the jury "should also hear about the defendant's past convictions and other bad things the defendant has done." But this simply ignores the Judge's account of the function of the Sixth Amendment, which is to empower a representative body of the public to temper injustice in the law established by the legislature, that is, to dispense mercy. There is, on this view, a jury power to refuse to convict even where such a decision is "against the law," but obviously no corresponding jury power to convict against the law. See pages 188-189. That is to say, like most of the Bill of Rights, it is a liberty-enhancing Amendment, designed to temper governmental overreaching. One might disagree with this understanding of the Sixth Amendment, or think that its original function should be ignored in light of other considerations; but it simply misses the point to compare the jury's knowledge (or lack thereof) of the legislature's prescribed sentence with the jury's knowledge or lack thereof) of the defendant's past wrongdoing.
4.7.2008 10:58pm
MarkField (mail):
Hmm. All this discussion about jury nullification and no one has mentioned that the greatest application of the doctrine in US history was to free KKK members and their ilk. Is that really worth Judge Weinstein's effort?
4.7.2008 11:16pm
TDPerkins (mail):

Hmm. All this discussion about jury nullification and no one has mentioned that the greatest application of the doctrine in US history was to free KKK members and their ilk.



It's scarcely jury nullification when the state doesn't really want a conviction and the jury is not as a first order consideration randomly selected from the populace, is it?

Yours, TDP, ml, msl, &pfpp
4.7.2008 11:28pm
alias:
Prof. Lederman writes:

There is, on this view, a jury power to refuse to convict even where such a decision is "against the law," but obviously no corresponding jury power to convict against the law. See pages 188-189. That is to say, like most of the Bill of Rights, it is a liberty-enhancing Amendment, designed to temper governmental overreaching.
I certainly don't expect Prof. Lederman to read all of the comments on this thread, but I think that something I said earlier is responsive to this, so I'll repeat it briefly:

[T]he argument in favor of full disclosure across the board isn't a "sauce for the goose" argument--i.e. it's not that if we have jury nullification, it must be allowed to operate to convict technically innocent as well as to acquit the technically guilty.

Rather, it's that if jurors are going to be allowed to second-guess the wisdom of the law and the wisdom of the prosecution, they should be given enough information to allow them to do so competently.
In other words, to use Prof. Lederman's terminology, if the jury is going to be empowered to dispense mercy, it should be told just how deserving the defendant is of mercy, and much of this information (weighing both in favor of and against mercy) is generally kept away from the jury by the way the rules of evidence operate.

I suppose it doesn't necessarily follow that Judge Weinstein is wrong, only that if he's right, we need to make a lot more changes than just the one he proposes.
4.7.2008 11:42pm
JohnO (mail):
Where the government has met its buden of proving guilt, I can think of ALL SORTS of facts about a particular defendant that a jury would want to know in order to decide whether this defendant is of the type who should be the beneficiary of a verdict that ignores the fact that the evidence is sufficient to convict. As others have said, most of these facts probably would not be favorable to the defendant, but that's where the analysis takes us if the constitution requires a jury sufficiently informed to decide whether nullification is approrpiate.
4.7.2008 11:42pm
Vermando (mail):
Yeah, what M. Lederman said. That's what I meant to say. Wow. What a lesson in criminal procedure, federal courts, and constitutional interpretation this is. Can't wait to see the good Professor's response.
4.8.2008 1:06am
Kelvin McCabe:
Since when in a criminal trial is everything supposed to be fair? The State has the burden of proof as to every single element of every crime or sentence enhancing fact charged. Each to be proved beyond a reasonable doubt.

The defendant (theoretically at least) has the protections of the 4th, 5th, 6th, &when those aren't enough, the 8th amendments to shield him from governmental power.

Looking at the picture in its entirety; I see no reason to conclude criminal prosecutions are supposed to be "fair" to both sides. The balance is tipped in favor of the accused before the crime is even committed and remains so thereafter until execution of the sentence and beyond to appeal (6th amendment ineffective assistance claims for example). The defendant need not present one iota of evidence nor even testify on his/her own behalf.

The reason the balance is tipped in favor of the accused is because of the awesome resources the government can bring to bear on any given individual citizen. Thats why the right of jury nullification is important - its another check on the power of government. And it doesn't have to be made"fair" to both sides at all.

Once we open that can of worms, why not get rid of the 5th amnd, because its not fair that prosecutors can't use the criminals own confession in the trial against him. Boo-hoooo. OR the 4th, because its just not fair that the State can't introduce those 5 kilos found in defendant's closet. Of course its not fair. It was never supposed to be fair. If it ever becomes fair, then the principles in the constitution, in the bill of rights no less, have become completely useless.

"The Constitution is not neutral..."
4.8.2008 1:54am
OrinKerr:
Marty,

You are acting as if the only problem with Judge Weinstein's opinion is the Rodriguez issue. Not so, by a mile!! For example, Pabon-Cruz is binding on Weinstein, too. The basic problem is that Judge Weinstein isn't free to come up with fun theories and derive first principles accounts of what the law should be; he's stuck following the law as handed to him by the Second Circuit and the Supreme Court. So whether his originalist account is persuasive is utterly irrelevant; it's a little late in the day for district judges to play these sorts of games. I realize that you are writing as a former Weinstein clerk, but I want you to hold Judge Weinstein to the same standard that you hold the Bush Administration. The rule of law is good for the judiciary, too.
4.8.2008 1:58am
OrinKerr:
Michael J.Z. Mannheimer,

That's an awfully abstract proposition used to defend a pretty concrete position.
4.8.2008 2:01am
M. Lederman (mail):
OK, although there is no binding Supreme Court precedent directly on point, Orin now emphasizes that the Court of Appeals' decision in Pabon-Cruz "is binding on Weinstein, too. . . . [He] is stuck following the law as handed to him by the Second Circuit and the Supreme Court."

As the Judge points out, Pabon-Cruz does not foreclose the trial judge from informing a jury of mandatory minimums. But it does hold that the defendant has no constitutional right to have the judge so inform the jury . . . and Polizzi's post-trial motion depends on there being a constitutional right to such a jury charge.

So why, then, isn't Pabon-Cruz binding here on Judge Weinsteain?

Well, per Judge Weinstein's characterization, what we have here is (i) a Court of Appeals precedent that (ii) has been undermined by subsequent Supreme Court decisions in such a way that the court of appeals should overrule Pabon-Cruz when it gets the opportunity to do so. If that's the case, what is it, exactly, that requires the district court to follow the obsolete court of appeals decision rather than the more recent (but not quite as directly on point) rationales of the SCOTUS decisions? To be sure, if it appeared inevitable that the Second Circuit would reaffirm its prior decision, then it would make little sense for a district judge to fly in the teeth of that certainty. But where, as here, that is not the case, and it appears to the trial judge that there is more recent governing SCOTUS precedent, why should the district judge follow the old, compromised precedent of the court of appeals? Is there a Rodriguez de Quijas analogue that applies to the relationships between district courts and courts of appeals? Why should there be?
4.8.2008 3:30am
OrinKerr:
Marty,

The claim that Pabon-Cruz has been "undermined" is baloney. Let's put it this way: if the Supreme Court's Sixth Amendment cases have undermined Pabon-Cruz, then the AUMF definitely authorized the TSP.
4.8.2008 3:58am
Fub:
MarkField wrote at 4.7.2008 10:16pm:
Hmm. All this discussion about jury nullification and no one has mentioned that the greatest application of the doctrine in US history was to free KKK members and their ilk. Is that really worth Judge Weinstein's effort?
Please cite some cases (even trials reported in the popular press) in which KKK members (or ilk) were found not guilty following nullification arguments by defense to the jury at trial.
4.8.2008 7:36am
Kevin P. (mail):

On the other hand, Judge Weinstein should not intentionally rule incorrectly in order to pursue a personal campaign to get the law changed more to his personal liking. When the law requires the judge to rule one way, he must do it.

Weinstein does this routinely. He is the favorite judge of the anti-gun scam lawyers for a reason.

More info on their judge shopping is here.
4.8.2008 10:14am
Anderson (mail):
Please cite some cases (even trials reported in the popular press) in which KKK members (or ilk) were found not guilty following nullification arguments by defense to the jury at trial.

Were those arguments even necessary? Have you ever heard of "Mississippi"? It's where I live, and it's common knowledge that a white jury would not convict white murderers of black men in the 1950s and 1960s.
4.8.2008 10:17am
David M. Nieporent (www):
Were those arguments even necessary? Have you ever heard of "Mississippi"? It's where I live, and it's common knowledge that a white jury would not convict white murderers of black men in the 1950s and 1960s.
But that makes the situation inapplicable to the discussion, which is about whether to tell jurors about nullification.

Besides, as TDPerkins writes, "It's scarcely jury nullification when the state doesn't really want a conviction and the jury is not as a first order consideration randomly selected from the populace, is it?"
4.8.2008 11:04am
M. Lederman (mail):
"The claim that Pabon-Cruz has been 'undermined' is baloney." Fair enough, Orin. You know more about the Booker line of cases, and their potential relationship (or lack thereof) to the nullification question, than I do. And if the accusation is simply that Judge Weinstein has egregiously misread the recent SCOTUS pronouncements, well, I'll leave it to folks better-versed than I to debate that question.

But that's a very different charge from the accusation that Judge Weinstein cavalierly and openly refuses to be bound by governing precedent. Indeed, as I noted, he regretfully accedes to several such precedents with which he does not agree in this very opinion.

Moreover, I would once again emphasize that not much turns on this little academic dispute we've been enjoying. If Judge Weinstein had written the exact same opinion, but added a concluding sentence stating that "Alas, Pabon-Cruz compels me to regretfully deny the motion, even though I think Pabon-Cruz is dead wrong and inconsistent with the sea change in recent SCOTUS understandings of the Sixth Amendment," we would be in exactly the same posture we are now. There would be an appeal. That appeal (and any SCOTUS review) would benefit from the arguments set forth by Judge Weinstein. The defendant would be incarcerated during appeal. And even the standard of review on appeal would, I suspect, in effect be identical (basically, de novo). So we're arguing about a trifle, the literal bottom line, and ignoring the hugely important question on the merits that Judge Weinstein so forcefully and thoroughly examines.

I'd love to hear more about that.
4.8.2008 11:35am
alias:
Prof. Lederman writes:

So we're arguing about a trifle, the literal bottom line, and ignoring the hugely important question on the merits that Judge Weinstein so forcefully and thoroughly examines.

Not every district judge's decision gets appealed. Whether the guy's conviction gets thrown out or not is probably more than a trifle, and this is probably the first time I've heard the argument that district court judges are more free to ignore precedent than higher-ups because the appellate courts will correct them.

I wonder if Prof. Lederman would say the same thing if, instead of a district judge, we were talking about a panel opinion by a court of appeals, or if he'd distinguish that on the ground that cert review is discretionary.
4.8.2008 12:05pm
GV:
Orin, aren't you reading Pabon-Cruz really broadly? Footnote 11 of that opinion holds out the possibility that there may be situations in which a trial judge "may inform the jury of the relationship between punishment and offense."
4.8.2008 1:31pm
MarkField (mail):

But that makes the situation inapplicable to the discussion, which is about whether to tell jurors about nullification.


The fact that Southern juries nullified the law without being told pretty much makes an a fortiori argument against telling them.

I only wish their behavior had been limited to the 1950s and 60s.

TDPerkins point is well-taken, though there were at least a few occasions when courageous prosecutors and judges did try to convict.
4.8.2008 1:44pm
Crust (mail):
OrinKerr: "[I]f [a conclusion thought unlikely holds], then the AUMF definitely authorized the TSP."

I like that turn of phrase. The AUMF authorizing the TSP serves as a sort of modern analog of "it's harder for a camel to go through the eye of a needle".
4.8.2008 2:38pm
D.A.:
"Let's put it this way: if the Supreme Court's Sixth Amendment cases have undermined Pabon-Cruz, then the AUMF definitely authorized the TSP."

Let's see... fuzzy caselaw:fuzzy precedent :: fuzzy Act of Congress:statute

apples:apples?
4.8.2008 4:49pm
TDPerkins (mail):

The fact that Southern juries nullified the law without being told pretty much makes an a fortiori argument against telling them.


Telling them I think would have been in the commonplace superfluous, but if it had emboldened one black juror--they must have occasionally been let on a jury by happenstance, even in those years--to vote guilty or not guilty in defiance of expectations, it might have done a bit of good...

..And the Klan would have to admit the juror was upholding a fine old Anglo-Saxon tradition in doing it, albeit through gritted teeth.

And frankly I don't find false convictions of African-Americans by white juries or false acquitals of whites by whites to be the exemplar of jury nullification in this nation, either by definition or in relative terms respectively.

I think instead of juries refusing to uphold prohibition and of refusing to uphold the fugitive slave laws. Unalloyed good things in each category, I think.

If the law is being enough of an ass, then the rule of law be damned. It's a means, one of many, and not always the best.

The end is liberty.

Yours, TDP, ml, msl, &pfpp
4.8.2008 9:56pm
MarkField (mail):
TDP, I mostly agree with your post. I remain pessimistic, though, that nullification would continue to take place for reasons like that rather than on the grounds we would like.

There were, sadly, very few blacks on Southern juries in those days and most of those were in federal court, not in the state courts where basic crimes were prosecuted.
4.8.2008 10:57pm
TDPerkins (mail):

I remain pessimistic, though, that nullification would continue to take place for reasons like that rather than on the grounds we would like.


I am content in being convinced nullification would occur for reasons of which I do approve of more often than not--so it's vigorous re-introduction will be an improvement.

Thank you, TDP, ml, msl, &pfpp
4.9.2008 7:08am
Fub:
MarkField wrote at 4.8.2008 9:57pm:
TDP, I mostly agree with your post. I remain pessimistic, though, that nullification would continue to take place for reasons like that rather than on the grounds we would like.
There are at least two existing government checks on jury nullification, regardless of whether the nullifying jurors were advised of their right to nullify.

In the case of state juries nullifying by convicting, the judge can direct a verdict of acquittal, or simply declare the evidence is insufficient and dismiss without giving the case to the jury. Since presumably there should have been no charges laid in the first place, the prosecutor also prevent false convictions by not charging the innocent.

In the case of state acquittals, dual sovereignty doctrine permits federal charges under any statute that can be wrenched to fit the defendant's acts -- and there is always some federal statute that fits most any acts. Only the federal prosecutor's political will would prevent charges for the same act in federal court.

So any perceived unjust nullification in state criminal courts can be overcome by state or federal prosecutors or judges if they have the political will to do so. If they don't have the will to exercise their powers in some cases, then the greater problem is with the law and its enforcers, not with the nullifying juries.
4.9.2008 10:36am
byomtov (mail):
But if we want to give the jury more evidence and push them to do justice, I think they should get to hear both what the defendant wants them to hear and what he doesn't.

I don't see why the jury knowing the sentences involved is necessarily helpful to the defendant. Suppose a jury thinks the guy is probably guilty, but that the case hasn't quite eliminated reasonable doubt. Might they not compromise on a guilty verdict carrying a small penalty rather than acquit?

Also, as I've mentioned, the jury knows there is some penalty associated with conviction. Is it better to have them act on misinformation? This is notthe same as excluded evidence, about which they know nothing.

Finally, I don't see why giving the jury some additional infromation means you have to give them every bit of information. Is the choice really between the exact rules in use today and "no holds barred?" That can't be right.
4.9.2008 11:19am
MarkField (mail):
Fub, your suggestions make perfectly good sense in an ideal world. In the actual world of the South until quite recently (that's me being optimistic), they are pollyannish. There were no federal statutes to apply. Many federal district court judges, especially those appointed by Democratic presidents, were racist defenders of segregation. And while federal juries were slightly more integrated than state ones (a low standard indeed), it takes 12 jurors to hang the perp and only one to hang the jury.
4.9.2008 12:30pm
byomtov (mail):
MarkField,

Many federal district court judges, especially those appointed by Democratic presidents, were racist defenders of segregation.

This should not pass unremarked. "Many" is not "all." A substantial number of southern federal judges, at both district and appellate level, performed heroically in the civil rights era.
4.9.2008 2:07pm
MarkField (mail):

This should not pass unremarked. "Many" is not "all." A substantial number of southern federal judges, at both district and appellate level, performed heroically in the civil rights era.


Agreed. I certainly don't want to cast aspersions on them. I was just noting the sad reality.
4.9.2008 2:44pm