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.