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

Jury Nullification – The power to do what is right. Part 1

Jefferson City criminal defense lawyerBefore every Missouri criminal trial begins, the judge asks the jury to stand and raise their right hand as the jurors take this oath:

Do you solemnly swear or affirm that you will well and truly try the issues in this case and render a true verdict according to the law and the evidence, so help you God?”

After all the evidence in the case is heard, the court instructs the jury as to the law, telling them that they must decide the facts in the case. Something like this:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about March 18, 2008, on US Hwy 54, in the County of Cole, State of Missouri, the defendant operated a motor vehicle, and

Second, that he did so while in an intoxicated condition,

then you will find the defendant guilty of driving while intoxicated.

It looks very mechanical. Very simply, if the defendant was

1. intoxicated; and

2. driving; then he is automatically guilty.

But that is not how it works.

In fact, the jury has unquestioned power to find the defendant “not guilty.” Without having to justify why.

Now most of the time, jurors do follow the court’s instructions and render a verdict based on whether the state has proved the facts in the case beyond a reasonable doubt. But there are times when the jury clearly DOES NOT CARE that the state has proven it’s case.

If they think the law is unjust in a particular case, they exercise their power and vote “not guilty” even though the defendant undoubtedly did what he was accused of doing.

Twice-when I was a prosecutor–I learned this lesson firsthand.

The first time was a felony DWI trial. The defendant had been drunk (very drunk) driving and his lawyer was the only person who could dispute it with a straight face. But the jury came back with a “not guilty” verdict. Several jurors went out of their way after the trial to find me and tell me not to feel bad, that I did a good job, but there was no way they were going to find that nice boy guilty of a felony.

Another fellow was acquitted after I proved his guilt-beyond all possible doubt-that he illegally possessed a concealed weapon (a knife he kept under the driver’s seat of his car). I spoke with some jurors afterward and they just disagreed with the law. There was no way they were going to convict a man for doing what everyone has a right to do; i.e. keep a weapon in his car for self-defense.

The fascinating thing about this is that the jury got away with ignoring the court’s instructions. No one could stop them. No one could reverse their decision. No one could punish them afterward.

This power of “jury nullification” of the law is intriguing. I’ll get into it more in later posts.

–> Read Part 2

Jury Nullification – The power to do what is right. Part 2

This thing they call “jury nullification” means that the jury can acquit a defendant if they think a strict application of the law–as given to them by the judge–would be unfair. It means that the jury is judging both the facts AND the law.

How exactly can a jury get away with giving a “not guilty” verdict when the facts clearly show that the defendant ACTUALLY DID what he was accused of doing?

The chief factor is the 5th amendment prohibition against double jeopardy. The defendant–once acquitted–cannot be tried a second time (this also means the state cannot appeal a “not guilty” verdict).

In addition to the fact that “not guilty” verdicts are binding and unappealable, the second factor is almost as important: no juror can be punished for rendering a “not guilty” verdict, even if they apparently failed to follow the court’s instructions. Unless they commit a crime like taking a bribe, they are untouchable.

When I was a prosecutor, the idea that a jury was free to acquit any defendant, was very distressing to me. Reasonably enough, prosecutors expect juries to render guilty verdicts when the prosecutor proves his case.

They can understand losing a case that turns out to be weaker than they expected. Things sometimes go badly at trial. But, on the other hand, nothing is more frustrating than seeing jurors acquit an obviously guilty person.

This is ironic because prosecutors typically exercise their own discretion in refusing to file 15% to 20% of all the cases the police send to them.

Just as prosecutors are annoyed by juries who disagree with them, the police are often rankled when the prosecutor won’t file every case submitted to them. Yet the police themselves will give a lawbreaker a second chance when they issue a warning or let a friend drive a troublemaker home, instead of arresting him.

It seems that nobody wants to convict a person who cannot or should not be prosecuted, but once THEY decide to punish the accused, THEY expect their decision to be the final word on the subject.

This raises the question: Who should have this power? Who should we trust with this sort of discretion? Who is more likely to bring the mind and values of the community to the decision-making process?

I’d welcome any comments on this. More in my next post.

–> Read part 3

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