Thursday, August 27, 2020

Jury Nullification

Disclaimer: I'm not your attorney and this is not legal advice.

    This is just a quick post, but something that I wanted to address because I'm seeing some discussion of it on the Internet. In many jurisdictions, people are faced with a situation where laws are being applied unequally: mobs are allowed to riot and loot with impunity but anyone that would stand against them is being prosecuted. Moreover, self-defense law is somewhat murky when it comes to riots and mixed crowds of rioters and protesters. What to do?

    One possible response is jury nullification. Simply put, "[j]ury nullification occurs when a jury acquits a defendant, even though the government proved guilt beyond a reasonable doubt." United States v. Kleinman, 880 F.3d 1020, 1031 (9th Cir. 2017). However, as the 9th Circuit went on to explain, while "[i]t is well established that jurors have the power to nullify, and this power is protected by 'freedom from recrimination or sanction' after an acquittal", "juries do not have a right to nullify, and courts have no corresponding duty to ensure that juries are able to exercise this power, such as by giving jury instructions on the power to nullify." Id. (italics in original). If you want a longer explanation, rather than reinvent the wheel, I will include farther below a longer discussion of jury nullification from a judge in the Eastern District of New York in the case of United States v. Polizzi, 549 F. Supp. 2d 308 (E.D.N.Y. 2008), vacated and remanded sub nom. United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009).

    While most Americans detest the idea of being "stuck" on a jury--many people even joke about jury pools being filled with people "too stupid" to avoid jury duty--there are very good reasons why it was included as a fundamental right in the Bill of Rights. As Alan Chwick and Joanne D Eisen so eloquently explain, "[t]he fact remains that each one of us, in the jury room, has the right to decide what the outcome of the trial is to be, no matter what the judge, the prosecution, or the written law says. Every juror who goes into the jury room has the Constitutional right and power to nullify a law in question. The juror can decide if the law has been applied properly, and even if the law is just. Each and every juror can help change the path of an individual life, and the path that society follows." It is as important a power to preserve our freedom against a tyrant as our ultimate fail-safe implicitly protected by the Second Amendment. 

    I can't encourage nullification and won't since it would be dependent on the individual facts of the case. What I can say, however, is if you happen to have the opportunity to serve on a jury overseeing the trial of someone being tried for attempting to protect themselves and their livelihood from a rampaging, leftist mob, don't try to shirk your duty and avoid serving on the jury. You are in a position to restore justice if the situation warrants it. 

* * *

    And now, on to United States v. Polizzi, 549 F. Supp. 2d 308 (E.D.N.Y. 2008). As an initial explanation, the district court in this case ultimately granted a new trial in the case, but was reversed on appeal. The district court was not faulted on its analysis of a jury's power of nullification; rather, the reversal seems aimed at the district court's decision that the jury had a right to instructions telling it of its power to nullify. United States v. Polouizzi, 564 F.3d 142, 162–63 (2d Cir. 2009). Well, that and the district judge was trying to overturn the conviction of a defendant whose crime is of a type particularly despised by the vast majority of judges.

    The Polizzi decision is long and I won't try to reproduce it all here; and, frankly, most of it is irrelevant to our discussion. But the district court discusses the jury's broad power to refuse conviction:

The American petit jury is not a mere factfinder. From the time the right to trial by jury was embedded in the Constitution as a guarantee to criminal defendants through the Sixth Amendment in 1791, it has been expected to bring to court much of the wisdom and consensus of the local community. ... It has, when jurors deemed it necessary, stood as a guardian of the individual against the sometime cruel overreaching of government and its menials. ...

United States v. Polizzi, supra, 549 F. Supp. 2d at 322. 

    That juries do have the power to refuse to convict or to convict of a lesser offense has been fully established. ... see, e.g., Neder v. United States, 527 U.S. 1, 33, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (Scalia, J., concurring in part and dissenting in part) (“A court cannot, no matter how clear the defendant's culpability, direct a guilty verdict.”); United States v. Pabon–Cruz, 391 F.3d 86, 95 (2d Cir.2004) ( “The power of juries to ‘nullify’ or exercise a power of lenity is just that—a power” (quoting United States v. Thomas, 116 F.3d 606, 615 (2d Cir.1997))); Thomas, 116 F.3d at 615 (characterizing right of juries to deliver unreviewable, general verdicts—thereby allowing jury nullification to occur, albeit infrequently—as a form of “jury lenity”). Where nullification is suspected, courts may not “intrude upon ‘the sanctity of the jury's deliberations' because of their ‘strong policy against probing into [a jury verdict's] logic or reasoning.’ ” United States v. Mahaffy, 499 F.Supp.2d 291, 296 (E.D.N.Y.2007) (quoting United States v. Zane, 495 F.2d 683, 690 (2d Cir.1974)).

    Pre-Booker, the Court of Appeals for the Second Circuit had “categorically reject[ed] the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.” Thomas, 116 F.3d at 614. Both before and after Booker, courts are, we assume for the purposes of the instant case, under no obligation to tell the jury that it can nullify. See United States v. Carr, 424 F.3d 213, 219–20 (2d Cir.2005) (“Our case law makes clear, as Carr concedes, that a trial court is not required to inform a jury of its power to nullify.”); see also Thomas, 116 F.3d at 616 n. 9 (“[C]riminal defendants have no right to a jury instruction alerting jurors to this power to act in contravention of their duty.” (citing United States v. Edwards, 101 F.3d 17, 19 (2d Cir.1996))); Edwards, 101 F.3d at 19 (“While juries have the power to ignore the law in their verdicts, courts have no obligation to tell them they may do so. It appears that every circuit that has considered this issue agrees.”); cf. Essay, Considering Jury “Nullification”: When May and Should a Jury Reject the Law to Do Justice, 30 Am.Crim. L.Rev. 239, 250 (1993) (noting that nullification instructions should probably not be given routinely because such an “instruction is like telling children not to put beans in their noses. Most of them would not have thought of it had it not been suggested.”). Courts may still affirmatively tell the jury “it has a duty to follow the law, even though it may in fact have the power not to.” Carr, 424 F.3d at 219–20 (disagreeing, post-Booker, with appellant that the district court's suggestion to the jury that nullification was not an option was prohibited).

Id., 549 F. Supp. 2d at 444.

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