Author Topic: Unacceptable: Judge nullifies juror nullification  (Read 51566 times)

drewtam

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Unacceptable: Judge nullifies juror nullification
« on: August 16, 2008, 05:07:35 AM »
I saw this on Instapundit...
http://www.pajamasmedia.com/instapundit/archives2/022959.php

Which leads to this report on The Volokh Conspiracy...
http://volokh.com/posts/1218815216.shtml

Quote
Judge Nullifies Juror Nullification:
A very interesting post today by Tim Lynch on Cato @ Liberty on a recent jury trial in a drug case:

    It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.

    But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where is the constitutional grant of authority to ban mere possession of cocaine today?

    Thats a fair question. It is a point that has been made in Catos publications (go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasnt going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the problem juror. Once discovered, that juror was replaced with an alternateover the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

    It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations. So, to justify his removal of the problem juror, a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf). I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below.

To read his analysis go to Juror Becomes Fly in the Ointment.

For those with a serious interest in jury nullification, I highly recommend Jury Nullification: The Evolution of a Doctrine (paperback) by Clay Conrad, which is the best work on the subject since Lysander Spooner's Trial by Jury (1852).

There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed. Although juries retain the power to refuse to apply an unjust law, beginning in the Nineteenth Century, judges started prohibiting lawyers from advocating this to a jury upon pain of contempt. The Fully Informed Jury Association (FIJA) is a non-profit organization aiming to inform all Americans about their rights, powers and responsibilities when serving as trial juror. Click on the link to learn more about jury nullification.


This is extremely disturbing. Judges do not have the power to remove jurors they don't agree with politically. We might as well burn the constitution now. And no, that is not hyperbole nor sarcasm. This is a serious violation of rights and power of the citizen in the judicial system.
Next stop, if the jury hands down a verdict the judge finds extreme, he'll replace the jury with one that'll vote the way he thinks.

Why bother with juries altogether? If the judge can nullify the jury; might as well just let him decide the verdict directly.

This is crazy and frightening.

[edited to add the article that is linked]
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LAK

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Re: Unacceptable
« Reply #1 on: August 16, 2008, 06:00:04 AM »
Agreed; more startling is the Legislatures' failure to act at both state and federal levels whose responsibilities are to remove such renegade Judges.

There is a simple remedy for some of this. If you are a juror - and understanding what your rights and responsibilities are as a juror - do not over explain your decision. In fact, as a juror, you can simply say, "I do not believe this person is guilty" and stick to it. You do not have to explain "why" to anyone.

roo_ster

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Re: Unacceptable
« Reply #2 on: August 16, 2008, 06:37:43 AM »
The old joke is that politicians want to elect themselves a new public.

Judges, when it comes to JN, do the same with juries.
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thebaldguy

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Re: Unacceptable
« Reply #3 on: August 16, 2008, 09:18:32 AM »
I always thought that jurors could acquit if they felt a law was immoral or unconstitutional.

An example would be a state bans sex toys, and for a trial they have to decide if a person was guilty of using a sex toy. If a juror thinks the law is wrong, they can acquit.

BridgeRunner

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Re: Unacceptable
« Reply #4 on: August 16, 2008, 11:09:27 AM »
I always thought that jurors could acquit if they felt a law was immoral or unconstitutional.

Nope. 

Nor can they refuse to render a decision because they don't like the law.

My question is why the judge didn't get of this guy before the trial, and if he didn't because he didn't know about the guy's objections, did the guy lie in jury selection?

A (formerly) anti-gun friend was disqualified for being anti-gun in a homicide case involving a gun.  People who are insistent that all drug regulations are wrong are unusually disqualified from drug related cases.

HankB

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Re: Unacceptable
« Reply #5 on: August 16, 2008, 12:36:24 PM »
Sounds like excellent grounds for appeal (i.e., judicial misconduct) have been established . . . the judge simply "cherry-picked" a jury during deliberations, altering it's composition, simply in order to get the verdict he obviously wanted.

When judges pull cr@p like this, why should anyone respect any law?

Imagine what the reaction will be if, in some future case, a well-informed juror (or even a future defense attorney!) sends out a question to the effect of "Since you, as the trial judge, have a history of meddling with jury compostition in order to generate the verdict you want, what assurance do we have that you will not play game with THIS jury if things don't turn out the way you want?"
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Werewolf

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Re: Unacceptable
« Reply #6 on: August 16, 2008, 12:37:54 PM »
I always thought that jurors could acquit if they felt a law was immoral or unconstitutional.

Nope. 

Nor can they refuse to render a decision because they don't like the law.

You are wrong. Juries judge not only the facts of a case but the law itself. That's a dirty little secret that judges and DA's don't want Jurors to know. And judges do not have to tell jurors about it either which is IMO wrong but that's just the way it is. I think in the case cited by the OP that the judge's replacement of the juror is probably grounds for appeal.

Here's one link that explains Jury Nullification: http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
Here's another that is longer and links to other sites: http://www.friesian.com/nullif.htm
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cassandra and sara's daddy

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Re: Unacceptable
« Reply #7 on: August 16, 2008, 12:40:21 PM »
seems like another wanna be lawyer/activist got on a jury, and got hiumself off of it too. ever wonder why juries don't get top question witnesses etc? good luck on thar appeal. don't hold your breath
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BridgeRunner

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Re: Unacceptable
« Reply #8 on: August 16, 2008, 12:59:44 PM »
Well, I'll accept that my comment was too sparse to convey the complexities, which I am not qualified to do anyway, since we're bolding stuff for the fun of it. 

Here's some additional information.  Obviously, this is not legal advice:

ALR § 681. Jury as judges of law; jury nullification

Sometimes, under express statutory or constitutional provisions, the jury in criminal trials or at least in trials for certain particular crimes has been given the right to determine questions of both law and fact.[FN1] Such provisions are not intended to give the jury the right to disregard the law.[FN2] While the jury, under such a provision, has the right to determine both the law and the facts, it is not strictly true that it is the sole judge of the law of the case. Such a provision means that the jury has the right to determine all questions of law applicable to such matters as they are required to consider in making up their verdict. It is their duty to apply the law to the facts of the case, and they have to be judge of both and to come to a conclusion as to both.[FN3]
The constitutionality of a statute under which a person is prosecuted is a matter for the court to determine, and it is the duty of the jury to accept the court's determination.[FN4] A jury may not determine or weigh the utility or validity of a law.[FN5]

Practice Tip: "Jury nullification" is a jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.[FN6] A court properly denies defense counsel the opportunity to present the concept of jury nullification to the jury. The so-called "mercy-dispensing power" is not a legally sanctioned function of the jury, and to permit defense counsel to encourage the jury to abdicate its primary function would directly contravene the trial court's authority to instruct the jury that they must follow and properly apply the law.[FN7] Jury nullification is inconsistent with a jury's duty to return a guilty verdict of the highest crime proved beyond a reasonable doubt.[FN8]

From your link:

Judicial acceptance of nullification began to wane, however, in the late 1800s.  In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power.

Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it.  In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not.  Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case.  Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.

K Frame

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Re: Unacceptable
« Reply #9 on: August 16, 2008, 01:49:42 PM »
Judicial process, not politics.

Yet.

Moving to Round Table.
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De Selby

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Re: Unacceptable
« Reply #10 on: August 16, 2008, 01:58:53 PM »
seems like another wanna be lawyer/activist got on a jury, and got hiumself off of it too. ever wonder why juries don't get top question witnesses etc? good luck on thar appeal. don't hold your breath

Nice one sentence summary-that is almost certainly what happened here. 

Jury deliberations are generally beyond review, so if most people on a jury don't want to convict, they can just acquit and refuse to justify their decision. 

If there's one guy holding up the process because he doesn't think income tax/drug law/federal policing are constitutional, this case here is exactly what will happen.
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Tallpine

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #11 on: August 16, 2008, 02:24:44 PM »
Well, of course the government doesn't want to allow the jury to judge the law  rolleyes

I will never vote to convict of a law I don't believe in - which means that I will likely never serve on a criminal jury.  I've already been "excused" from a federal jury over that (and they haven't called me back, either Wink ).
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BridgeRunner

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #12 on: August 16, 2008, 03:42:59 PM »
Well, of course the government doesn't want to allow the jury to judge the law  rolleyes

And strangely enough, the gov't thinks it gets to decide what is legal and what isn't.

It seems to me that jury nullification is fine and dandy, but when people confuse the jury box and soapbox, no one gets any justice.  It's not about the juries' agendas.  Demanding that the court allow you to nullify the law should get one thrown out.  Voting yer conscience and stfu-ing is always good, in my humble and inexpert opinion.

Hawkmoon

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #13 on: August 16, 2008, 05:12:08 PM »
BridgeWalker, you are citing a law school text book. I have no doubt that they are teaching you jury nullification isn't valid -- but they're lyin' to ya. Read that information the link to the Fully Informed Jury Association will take you to. The Constitution hasn't changed since an early Chief Justice (was it John Jay?) affirmed that the jury shall be the trier of the facts and of the law.

This judge over-stepped his authority in a HUGE way.

The juror should have kept his pie hole closed and just voted to acquit. Instead, he conscienciously tried to understand the law that he is (was) the trier of, and was punished for it. As the saying goes, "No good deed shall go unpunished."
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One of Many

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #14 on: August 16, 2008, 05:22:17 PM »
Does this juror have a case for his civil rights as a juror being violated? He was attempting to perform his civic duty as a juror, and was denied the right to act according to the Constitution and the law. If police officers can be found guilty of civil rights violations, why not judges?

BridgeRunner

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #15 on: August 16, 2008, 06:06:56 PM »
BridgeWalker, you are citing a law school text book. I have no doubt that they are teaching you jury nullification isn't valid -- but they're lyin' to ya.

No, I'm not.  ALR's are not text books, more general legal encylopedias.

Quote
Read that information the link to the Fully Informed Jury Association will take you to. The Constitution hasn't changed since an early Chief Justice (was it John Jay?) affirmed that the jury shall be the trier of the facts and of the law.

Nor has it changed since Dred Scott.  And I'm sure there's an organization out there that insists that income taxes are illegal. 

Quote
This judge over-stepped his authority in a HUGE way.

Nope.

Quote
The juror should have kept his pie hole closed and just voted to acquit.

Yep.

Quote
Instead, he conscienciously tried to understand the law that he is (was) the trier of, and was punished for it.

How, exactly, was he punished?

Quote
As the saying goes, "No good deed shall go unpunished."

I don't think that turning a duty to deliberate in private about one case into an opportunity to grandstand about generalities is a good deed.
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RevDisk

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Re: Unacceptable
« Reply #16 on: August 16, 2008, 08:55:30 PM »
I always thought that jurors could acquit if they felt a law was immoral or unconstitutional.

Nope. 

Nor can they refuse to render a decision because they don't like the law.

My question is why the judge didn't get of this guy before the trial, and if he didn't because he didn't know about the guy's objections, did the guy lie in jury selection?

If a juror renders a verdict that violates the Constitution by following proper instructions given to him/her by the judge and/or prosecutor, he's doing the legal thing.  But the morally wrong thing.  Not saying you need to turn the jury box into a soap box, but I thought one was supposed to judge the law as well as the arguments.

Best thing to do is, as others point out, STFU, cast your verdict properly, and let the judge toss you out in order replace you with someone more pliable.   angel

(I wasn't aware it was kosher to toss out a jury because they issued a verdict that a judge didn't like.  But apparently it is.  No idea why.  Any more legally minded folks care to let me know the score on the judge's legal abilities to tamper with juries?)
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RaspberrySurprise

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #17 on: August 16, 2008, 11:59:33 PM »
Quote
If a juror renders a verdict that violates the Constitution by following proper instructions given to him/her by the judge and/or prosecutor, he's doing the legal thing.  But the morally wrong thing.

I don't see how violating the Constitution could ever be the "legal thing," but I think I know what you mean.
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cassandra and sara's daddy

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #18 on: August 17, 2008, 06:03:30 AM »
you fellers really won't like a "directed verdict " then
It is much more powerful to seek Truth for one's self.  Seeing and hearing that others seem to have found it can be a motivation.  With me, I was drawn because of much error and bad judgment on my part. Confronting one's own errors and bad judgment is a very life altering situation.  Confronting the errors and bad judgment of others is usually hypocrisy.


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ilbob

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #19 on: August 17, 2008, 06:24:16 AM »
you fellers really won't like a "directed verdict " then
In a criminal case, a directed verdict is a decision by the presiding judge that the prosecution did not present enough of a case to justify a guilty verdict. Its unlikely a jury would ignore such a directive. In fact, I am not even sure the jury gets to decide in such cases anymore.

A judge cannot issue a directed verdict of guilty, only not guilty.
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LAK

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #20 on: August 17, 2008, 09:46:16 AM »
RevDisk
Quote
but I thought one was supposed to judge the law as well as the arguments
This is correct; the jury has the right to judge the law and the facts.

Thus if a law is passed say; "all [race] folk must pay a special tax to gov", and the defendant in fact "did not pay it", a jury can still say "not guilty [of a crime]".

That is why we have jury nullification.

HankB

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #21 on: August 17, 2008, 12:12:01 PM »
The judge has decided that a verdict in his court no longer requires a unanimous verdict of 12 people, only a majority verdict - 12 of 13.
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RevDisk

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #22 on: August 17, 2008, 12:20:52 PM »
Quote
If a juror renders a verdict that violates the Constitution by following proper instructions given to him/her by the judge and/or prosecutor, he's doing the legal thing.  But the morally wrong thing.

I don't see how violating the Constitution could ever be the "legal thing," but I think I know what you mean.

If you ever want to entertain yourself, print out a copy of the bill of rights without the additional amentments (just to save on time), make sure there is plenty of space between amendments.  Under each amendment, list the violations you can think of off the top of your head. 

Then do yourself a favor and burn the list after you're done.
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BridgeRunner

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #23 on: August 17, 2008, 12:40:35 PM »
RevDisk
Quote
but I thought one was supposed to judge the law as well as the arguments
This is correct; the jury has the right to judge the law and the facts.

Thus if a law is passed say; "all [race] folk must pay a special tax to gov", and the defendant in fact "did not pay it", a jury can still say "not guilty [of a crime]".

That is why we have jury nullification.

Well, no, we don't. 

But hey, I think it's great that you all think that laws aren't nearly so important as your personal feelings. 

RevDisk

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Re: Unacceptable: Judge nullifies juror nullification
« Reply #24 on: August 17, 2008, 12:58:14 PM »
But hey, I think it's great that you all think that laws aren't nearly so important as your personal feelings. 

I'm sure your involvement in the law has imparted some latin, yes?

To quote Tacitus, Corruptissima re publica plurimae leges.

Your best guess, please.  How many laws do we have, total?
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