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 www.cato-at-liberty.org:
Juror Becomes Fly in the Ointment

3 thoughts on “Federal judge nips jury nullification in the bud

  1. jigmeister says:

    Everyone has a right to express their opinion and vote for a legislator of their choice, however, a juror does not have the right to decide what the law is.

    I happen to believe that the juror was right that possession laws are ineffective and I also think he has a point about the commerce clause being used inappropriately, but as a juror, is sworn obligation is to receive the law from the court and apply it to the facts.

    I would not be a good juror on this kind of case and would let the court know in voir dire. The opinion doesn’t make it clear whether the court voir dired on following the law during jury selection, if he did then obviously this guy was laying behind the log for the chance to exercise nullification. That’s misconduct.

  2. admin says:

    I do not have the language of the juror oath in that case, but the oath in Missouri says nothing of following the court’s instructions.

    If jury nullification is permitted in a criminal case then it is hard to understand how it can be unlawful (or “misconduct” as you say). The courts have said it is unlawful to speak of it in court, but they also acknowledge that a juror may well do it.

    An acquittal based juror disagreement with the law will stand and the courts cannot re-try the case. Of course, that is not the situation in this particular case.

  3. glengraham says:

    It is inherent in every jury decision, the power to determine if there are sufficient facts to warrant a conviction in the case. Juries have the inherent power to find the defendant not guilty. Normally, other jurors upon seeing their fellow jurors being treated so unfairly would be more inclined to find the defendant not guilty. Freedom of speech and the First Amendment right to disagree are fundamental rights in America. Too often, big powerful people think their opinions are more important than the everyday working person’s. They are wrong. In a jury trial, the little guy’s opinion is just as important as the big powerful bullies opinion. People should be told by the lawyers that their opinions are important and not to cave into to the bullies who think they are the most important people in the world. You bullies are real no-bodies. You just think you are important. Stand up to bullies!
    Yours in the Defense of Fellow Human Beings,
    Glen R. Graham, Tulsa Criminal Attorney – yeah I blog – watch out bullies! I’m gonna get you!

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