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
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
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.