Dealing with law enforcement: Top Ten Posts

Jefferson City Criminal Lawyer

Some issues come up over and over:


Federal judge nips jury nullification in the bud

The jury had begun deliberations in a federal criminal drug trial when the judge was sent this note:

One juror is asking: Where – if two-thirds of both houses of congress voted in 1919 that it was necessary to amend the constitution to give congress the power to ban mere possession of a substance (prohibition of alcohol in that case) – is the constitutional grant of authority to ban mere possession of cocaine today?”

The judge decided that he (and the US Attorney) had a problem. After some inquiries back and forth with the jury, the judge brought the jurors before him and interrogated them. He quickly identified the juror who had questioned the law.

He informed the attorneys that this juror “engaged in juror nullification and [the Court believed] it was within [its] power to dismiss him.” The judge kicked the juror off the jury and replaced him with an alternate juror. The defense objected. The reformed jury came back with the guilty verdict.

The judge handed down a 40 page memo explaining his order. (read it here)

Among other things, the judge seemed to connect such juror conduct with gradual elimination of the jury trial.

He lamented: “Without juries, judges become glorified hearing officers whose contributions to society could not possibly justify grand courthouses, courtrooms, or judicial staff.”

I look forward to reading the appellate decision on “jury nullification” that will follow this decision.

Here are some prior posts on jury nullification:

Here a comment on this case from
Juror Becomes Fly in the Ointment

“Go Raccoons!” The case of the illegal mascot.

Perhaps I complain too much about the criminalization of trivial offenses. Sometimes the law is questionable. Other times the police and prosecutor get over-zealous.

One of the kinds of cases I came to dislike as a prosecutor were those dealing with animals. This is one of those areas where people get very upset, often out of proportion to the actual harm done.

A man may forgive you for kicking him, but he will never forgive you for kicking his dog.

Cases involving animals are often brought by in conservation agents. And that brings me to another kind of case I learned to dislike.

Conservation agents are mostly nice guys who belong to what you might call a “niche area” of law enforcement. Real cops deal with everything from traffic tickets to murder and usually are able to put things in perspective. But niche cops–that is, conservation agents, meter maids, dogcatchers, liquor inspectors, and the like—sometimes lack the larger view that enables them to view small cases as . . . small.

When I was a new prosecutor I was given a case about a fellow who had been caught possessing an illegal raccoon. My boss said it would need to be tried and that it would be good practice for me. I read all of these reports and met with the conservation agent, who was very interested in the public chastening of this particular lawbreaker.

The defendant was apparently unrepentant and refused to accept that he was a criminal who deserved to be punished (in this case by up to one year in jail).

So I went into court and masterfully laid out my case for the judge. The conservation agent was serious and professional; the evidence was ironclad, proving beyond all doubt that this stubborn lawbreaker had defiantly possessed an illegal raccoon and had been caught red-handed.

Then the defendant took the stand. The fool admitted everything! He explained how he had discovered this weakened & starving baby raccoon alone in his garbage can on a cold winter night. He took it in. Fed it. Raised it.

His children turned it into a family pet.

All of this in blatent violation of the law, § 252.040, RSMO.

And if that is not shocking enough, when summer came, the animal was pressed into service as mascot for the defendant’s softball team. He claimed that the raccoon was a big hit in his little uniform and tiny cap.

I gave an eloquent closing argument, exposing the defendant’s contempt for the law and heartless exploitation of this motherless creature. I suggested that the court make an example of him.

The judge found him guilty and sentenced him to a $5.00 fine. The example, apparently, was for me.

New Legislation: Missouri pardons all sex offenders … just kidding.

It’s always stimulating to look over the summary of the bills passed by the legislature each year. It’s a mix of legal and financial tweaks, pet projects, appropriations, memorials . . . well, here it is (some bills still await the governor’s signature):

Click Here–> Bills passed – 2008 session

Some highlights include:

SB 991 – Establishes the ice cream cone as the official state dessert

HB 1784 – Requires any American or Missouri flag flown on state property to be manufactured in the United States.

Of course, what legislative session would be complete without a bill further ghetto-izing everybody’s favorite whipping boys (and girls). That’s right, registered sex offenders. Senate Bill 714 will keep them on their toes. For example:

Henceforth, sex offenders, on Halloween, are required to:

    1. avoid all Halloween-related contact with children,
    2. remain inside their residences between 5 and 10:30 p.m. unless there is just cause to leave,
    3. post a sign stating, “No candy or treats at this residence”, and
    4. leave all outside residential lighting off during the evening hours.
  1. That’s just a sample. There is LOTS more.


Jury Nullification – The power to do what is right. Part 3

Jefferson City Criminal lawyerWe have seen that juries can render a “not guilty” verdict even where the evidence clearly shows the defendant did what he is accused of doing. Missouri cases have seldom spoken of this issue. Thirty years ago, the Missouri Supreme Court acknowledged jury nullification: “While courts recognize that jury nullification may occur from time to time, the practice is not encouraged.” State v. Hunter (Mo. banc 1979).

This, however, misses the point. No one suggests that juries should be encouraged to render verdicts inconsistent with the law. The question is whether they should be informed of this power and instructed in its use. Such independent juries have been the leading edge of political change.

Before the American civil war, it was the refusal of northern juries to enforce the Fugitive Slave Act of 1850 that moved the nation toward war and the abolition of slavery. Later, refusal of juries to enforce Prohibition led to the 21st Amendment. Whenever the government gets out of step with the people, the citizens have the power to fight back from the safety of the jury box.

Still, the courts are uncomfortable with the idea. Some will acknowledge that acquittal by jury nullification can be beneficial in certain situations, but they pretend to be terrified by the prospect of the jury going the other way. What if the jury doesn’t like the defendant and convicts him when he didn’t actually break the law? There are a couple reasons why this would not be a problem in actual practice:

  1. The courts would only instruct the jury about their right to judge the law (as well as facts) if the defendant requested that instruction. That way it would not be used by the state to falsely convict a defendant; and
  2. Unlike an acquittal (which can neither be reversed, nor the case re-tried) an illegal conviction could be set aside by the trial judge, and if not by the judge, then by the court of appeals.

With such protections in place, jury nullification is not the double-edged sword as some would suggest. It could only be used to acquit when a jury believed that the law–as given by the court–would cause an unjust, unfair result.

Another problem with the current system is that it sometimes creates an intolerable dilemma for jurors who must decide between following orders and following their conscience. Some argue that a juror—in taking his oath—commits perjury when he later delivers a “not guilty” verdict in spite of proof beyond a reasonable doubt. This is untrue for two reasons:

  • First of all, the jurors’ oath says nothing about following the court’s instructions. The oath states that the juror will “truly try the issues in this case and render a true verdict according to the law and the evidence.” The juror would probably believe this to be the equivalent of promising: “I’ll do the best I can.”
  • Second, even if the oath clearly demanded that the jurors follow the court’s instructions to the letter, any reasonable juror would assume that the law (as given by the court) will be fair, and would be applied in a fair way.

No juror imagines that his government would put him in a position where his oath cannot be fulfilled in good conscience. If the juror intended to follow the law at the time he took his oath—and later discovered that he could not—there can be no perjury.

The idea of an independent jury goes back before the Magna Carta. When government crosses the line, it is a great thing that twelve fellow citizens can step in and tell the state it has gone too far. If it happens just once, it saves just one person. If it happens over and over, even bigger things happen.

For more information on the importance of informed, independent juries:

Verdicts Of Conscience: Nullification And The Modern Jury Trial

Fully Informed Jury Association

Your honor. She’s badgering the witness!

Yesterday, I watched a criminal jury trial: a lady accused of passing a counterfeit bill. The trial was unusual from the start–A veritable feast of femininity: Female defendant, female judge, female court reporter, female prosecutors, female public defender; and (as usual) most of the jury were women.

The give and take was . . . let us say . . . spirited. Meow.

But that wasn’t the best part. I was allowed to observe one of those rare phenomena, like witnessing a plane crash or the birth of a volcano, which many will never encounter except on television.

The defense attorney was taking the state’s witness to task for his perceived shortcomings and those of the state’s evidence. She bullied. She ridiculed. Rhetorical questions riddled the poor cop like machine gun bullets, as her remorseless cross-examination morphed into a closing argument. And it went on and on, until the prosecutor finally broke in:

  • Objection. She’s badgering the witness.” [Did I hear that right? Tell me she said “Badgering the witness!” I was in heaven. I had never witnessed the use that colorful arrow from the prosecutor’s arsenal, at least not in front of a jury]
  • Overruled.”

And with that official encouragement, the able public defender ratcheted up the abuse. We were all suffering now. I was afraid the witness might turn his gun on himself if it didn’t stop soon. I suspect that even a two-second ride on the taser would have done him in at that point. Again, the prosecutor:

  • “Objection. She’s badgering the witness again.”

Gutsy, I thought. The court takes an extra moment to consider. Reasonable persons would agree–I think–that “badgering” is an umbrella term covering more specific objections such as:

  • “Objection: argumentative,”
  • “Objection: asked and answered,” and even:
  • “Judge, if she’s going to testify, why don’t we just swear her in!”

And so the court ruled, this time the other way:

  • “Sustained.”

But it did not matter to me which way it went, for I had experienced a real, live “badgering the witness,” objection not once, but twice. I couldn’t be more delighted if I’d discovered the last living dodo.

The homeless guy in San Diego

blocksThere’s this homeless guy in San Diego who wrote an autobiographical story about himself and his legal troubles. The story is not long, but I found myself disliking him, then laughing, then liking the guy, then shaking my head; and finally smiling at the end. The guy seems dumb, smart, foolish, wise, selfish, lazy, sensitive and surprisingly well read (a list of qualities probably–on the whole–more positive than my own).
Here’s the link:

Trespassing Against Us or, Don’t Water The Homeless