Re-empowering Juries
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Re-empowering Juries
Our founders prized liberty above all. They understood the threat government posed to liberty. Speaking for “We the People”, giving voice to the spirit of republican participatory democracy, they placed their hope and faith for the preservation of liberty in the jury. No citizen’s liberty could be taken by the state without the unanimous consent of a jury of peers. The jury was the ultimate judge of the justice of taking a citizen's liberty, judge of the whole case, law and fact. "Law" was natural law, residing in the conscience of the people.
“I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.” |
| — Thomas Jefferson[1] |
“Jurors have not only a right, but a duty … to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.” |
| — John Adams[1] |
“The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal of arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.” [1] |
| — Theophilus Parsons[1] |
Federalist 83 captures the degree of consensus among the framers on the importance of a trial by jury: |
| — Alexander Hamilton, James Madison, & John Jay, The Federalist Papers |
|-
“No idea was more central to our Bill of Rights — indeed, to America's distinctive regime of government of the people, by the people, and for the people — than the idea of the jury. Yet no idea today has suffered more abuse — from benign neglect to malignant hostility to cynical manipulation and strategic perversion — than the idea of the jury.” |
| — Akhil Amar[1] |
“[A jury] verdict, when general, is necessarily compounded of law and of fact; and includes both. In each [case] they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure. ... It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court.” |
| — United States v. Baptiste, 24 F. Cas. 1042 (D. Mass. 1835) (Note: Webster won.) |
Lemuel Shaw, Chief Judge of the Commonwealth of Massachusetts, carried the assertion of judicial primacy on law into action in Commonwealth v. Anthes (1855). In that crucial case, the issue was whether defense counsel could argue to a jury that the statute allegedly violated by his client was unconstitutional. Justice Shaw ruled that it is the province of the judge, not the jury, to say whether a statute is constitutional.
Shaw framed this holding, altogether reasonable if confined to matters of constitutionality and other matters of legality, in the dichotomy between “law and fact.” Having asserted judicial primacy over “law”, Shaw left the jury only primacy over “fact”. He limited the jury’s function to determining whether a statutory violation has been proved. He instituted judicial instructions to jurors that jurors are bound to follow and apply the law as given to them by the judge, and he authorized judges to use the powers of contempt to prevent defense counsel from arguing to the contrary. All subsequent cases in Massachusetts and elsewhere soon followed suit.[1]
But there was more than legalism to the natural law that the American jury was constitutionally designed to apply. There is justice, grounded in the hearts of the jurors as the collective conscience of the people, central to the criminal jury's function of judging the whole case. One hundred and fifty years of jury nullification doctrine generated by judges citing themselves fails to distinguish between civil and criminal or legalism and justice.
Lawyers for defendants in criminal cases should be re-entitled to argue to juries the justice of their client's case. Juries should be re-entitled to hear a defendant’s argument that he does not deserve criminal punishment. Court instruction to the jury that it must convict if it finds a violation of the state's statute should be recognized as unconstitutionally at odds the the original understanding of the jury's justice function and the unquestioned rule that a judge may not direct a verdict of guilty in a jury case.
A first step in re-empowering juries, and perhaps the only step that need be taken to re-establish the American jury as a bulwark of liberty, would be to re-establish the jury's justice function without undermining either judicial control of civil juries on allowing criminal jurors to regard themselves as the ultimate judge of the constitutionality of the state's law. To meet this challenge would require judges to instruct juries in a manner that harmonizes judicial oversight of legality with jury understanding and responsibility for liberty and justice.
Commonwealth v. Hebert
379 Mass. 752 (1980)
WILKINS. J.
In this case we conclude that a poll of the jury showed that the jurors did not agree unanimously on a verdict of the defendant's guilt and that, following a dialogue between the judge and an unconvinced juror, a mistrial should have been declared.
We summarize the evidence briefly. On April 1, 1975, the first day of the effectiveness of the mandatory one-year sentence for the carrying of a firearm without a firearm identification card, a policeman apprehended the defendant who was carrying an unloaded, but operational, rifle on a dirt road leading into woods in a rural area of the city of North Adams. The rifle belonged to the defendant's father. The defendant, who lived with his parents, was using the rifle with his father's permission. The defendant did not know what a firearms identification card was, and he did not have one. His father had the necessary permit, but he had not informed his son of the need to obtain a firearms identification card.
The case was tried before a judge and a jury of six in the District Court of Central Berkshire. After the jury had deliberated for approximately forty minutes, the jury sent a statement to the judge: "One juror out of their [sic] own conscience cannot give a verdict of guilty, knowing the defendant to be in possession of the firearm without an F.I.D. card based on the premise that the defendant might not have known the date to be April 1st."
The judge told the jury that the defendant's lack of knowledge that the effective date of the gun control law was April 1 was of no consequence. The defendant requested a mistrial and argued that the judge's further instructions were coercive. The judge denied the motion. The jurors resumed deliberation.
About twenty minutes later, the jury sent another message to the judge which read: "One juror wants to be disqualified because of the date involved. The boy should not be put in jail or have such on his record. It is a matter of conscience." The judge told the jury that the matter of sentencing was not the jury's responsibility. He gave a further charge derived from the modified Tuey 2 charge approved in Commonwealth v. Rodriquez, 364 Mass. 87, 98-101 (1973).
Ten minutes later the jury returned to announce a verdict of guilty. The judge authorized a polling of the jury. One juror answered that her verdict was qualified, because she felt in good conscience that if the defendant did not know he needed a firearms identification card on April 1, 1975, she could not find him guilty. The judge then engaged in a three minute dialogue with the juror. He explained that, in his opinion, the evidence was clear that the defendant had possession of a rifle on April 1, 1975, and did not have a firearms identification card. The juror said she was concerned about the fortuitous nature of the incident because on the preceding day the defendant's failure to have a firearms identification card would not have been a crime. In response to questioning by the judge, she admitted that she was satisfied beyond a reasonable doubt that the defendant had a rifle on April 1, 1975, and that he did not have an identification card. The judge commented that he could see no problem with the case. The juror again expressed her concern with the defendant's lack of knowledge of the effective date of the statute. The judge disregarded the juror's comments and excused the jury.
The defendant objected to the judge's dialogue and renewed his motion for a mistrial. He argued that it was improper to review the evidence in a conversation with a juror and that if a juror's verdict is qualified, the judge must either direct the jury to deliberate further or discharge the jury.
A guilty verdict was entered, and the defendant was sentenced to a mandatory one-year term in the Berkshire County house of correction. The trial judge stayed execution of the sentence pending this court's decision on the defendant's bill of exceptions.
It is beyond dispute that the jury verdict in a criminal trial in this Commonwealth must be unanimous. See Brunson v. Commonwealth, 369 Mass. 106, 120 (1975). Although the decision to poll a jury is discretionary with the trial judge ( Commonwealth v. Valliere, 366 Mass. 479, 497 [1974]; Commonwealth v. Caine, 366 Mass. 366, 375 [1974]), once the decision to poll is made, it must appear that the verdict is unanimous. A judge has no authority to direct a verdict when there are issues of fact to be resolved. See Commonwealth v. Moniz, 336 Mass. 178, 180 (1957). He may, however, question a juror in a limited way in order to understand whether a juror's answers show that the juror agrees with the verdict as announced. See Commonwealth v. Fleming, 360 Mass. 404, 408 (1971); Commonwealth v. Rego, 360 Mass. 385, 393 (1971). In general, however, our law does not permit inquiry into "the subjective mental processes of jurors, such as the reasons for their decisions." Commonwealth v. Fidler, 377 Mass. 192, 198 (1979). Moreover, any questioning of a juror must be neutral and not coercive or otherwise calculated to affect the juror's judgment. Amos v. United States, 496 F.2d 1269, 1272-1273 (8th Cir.), cert. denied, 419 U.S. 896 (1974). United States v. Sexton, 456 F.2d 961, 966-967 (5th Cir. 1972). United States v. Brooks, 420 F.2d 1350, 1354 (D.C. Cir. 1969).
In our view, the judge's comments and questions in this case exceeded proper limits. There is a distinction between judicial action taken to obtain clarity and judicial action that is likely to coerce. Williams v. United States, 419 F.2d 740, 746 (D.C. Cir. 1969). The judge's statements that, in his view, the evidence was clear and that he could see no problem with the case are themselves improper. See Commonwealth v. Sneed, 376 Mass. 867, 870 (1978). The inquiry whether the juror agreed that certain facts were proved beyond a reasonable doubt was likely to be coercive because it intruded into the jury's function. See United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969). Although it is improper for a juror to disregard the law as given by the judge, it remains within the power of a juror to vote his or her conscience. See Commonwealth v. Dickerson, 372 Mass. 783, 797 (1977), and id. at 811-812 (Quirico, J., concurring); Commonwealth v. Mutina, 366 Mass. 810, 819-820 (1975); Horning v. District of Columbia, 254 U.S. 135, 138 (1920) ("[T]he jury has the power to bring in a verdict in the teeth of both the law and facts") (Holmes, J.); United States v. Dougherty, 473 F.2d 1113, 1132-1133 (D.C. Cir. 1972). See generally, Note, Jury Nullification in Historical Perspective: Massachusetts as a Case Study, 12 Suffolk U. L. Rev. 968 (1978). In this case to the very end, the unconvinced juror felt in good conscience that she could not find the defendant guilty. In such a case, there was no unanimous verdict. The judge properly might have ordered further jury deliberations (prior to the dialogue with the juror) or he might have declared a mistrial. See Thames v. Commonwealth, 365 Mass. 477, 480 (1974). He did neither, and thus the defendant's motion for a mistrial made after the dialogue with the juror should have been allowed.
United States v. Dougherty
473 F.2d 1113 (1972)
LEVENTHAL, Circuit Judge: Seven of the so-called "D.C. Nine" bring this joint appeal from convictions arising out of their unconsented entry into the Washington offices of the Dow Chemical Company, and their destruction of certain property therein. Appellants, 1 along with two other defendants who subsequently entered pleas of nolo contendere, 2 were tried before District Judge John H. Pratt and a jury on a three count indictment alleging, as to each defendant, one count of second degree burglary, 22 D.C. Code § 1801(b), and two counts of malicious destruction of property valued in excess of $100, 22 D.C. Code § 403. On February 11, 1970, after a six-day trial, the seven were each convicted of two counts of malicious destruction. The jury acquitted on the burglary charges but convicted on the lesser-included offense of unlawful entry.
- …
The Issue of Jury Nullification
Our reference to the "intensity" factor underlying the pro se right should not be understood as embracing the principle of "nullification" proffered by appellants. They say that the jury has a well-recognized prerogative to disregard the instructions of the court even as to matters of law, and that they accordingly have the legal right that the jury be informed of its power. We turn to this matter in order to define the nature of the new trial permitted by our mandate.
There has evolved in the Anglo-American system an undoubted jury prerogative-in-fact, derived from its power to bring in a general verdict of not guilty in a criminal case, that is not reversible by the court. The power of the courts to punish jurors for corrupt or incorrect verdicts, which persisted after the medieval system of attaint by another jury became obsolete, was repudiated in 1670 when Bushell's Case, 124 Eng.Rep. 1006 (C.P. 1670) discharged the jurors who had acquitted William Penn of unlawful assembly. Juries in civil cases became subject to the control of ordering a new trial; no comparable control evolved for acquittals in criminal cases.
The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. Most often commended are the 18th century acquittal of Peter Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th century acquittals in prosecutions under the fugitive slave law. The values involved drop a notch when the liberty vindicated by the verdict relates to the defendant's shooting of his wife's paramour, or purchase during Prohibition of alcoholic beverages. [1]
Even the notable Dean Pound commented in 1910 on positive aspects of "such jury lawlessness." These observations of history and philosophy are underscored and illuminated, in terms of the current place of the jury in the American system of justice, by the empirical information and critical insights and analyses blended so felicitously in H. Kalven and H. Zeisel, The American Jury. [1]
Reflective opinions upholding the necessity for the jury as a protection against arbitrary action, such as prosecutorial abuse of power, stress fundamental features like the jury "common sense judgment" and assurance of "community participation in the determination of guilt or innocence." [1]
Human frailty being what it is, a prosecutor disposed by unworthy motives could likely establish some basis in fact for bringing charges against anyone he wants to book, but the jury system operates in fact, so that the jury will not convict when they empathize with the defendant, as when the offense is one they see themselves as likely to commit, or consider generally acceptable or condonable under the mores of the community.
The existence of an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge, has for many years coexisted with legal practice and precedent upholding instructions to the jury that they are required to follow the instructions of the court on all matters of law. There were different soundings in colonial days and the early days of our Republic. We are aware of the number and variety of expressions at that time from respected sources -- John Adams; Alexander Hamilton; prominent judges -- that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court. [1]
The rulings did not run all one way, but rather precipitated "a number of classic exchanges on the freedom and obligations of the criminal jury."[1]
This was, indeed, one of the points of clash between the contending forces staking out the direction of the government of the newly established Republic, a direction resolved in political terms by reforming but sustaining the status of the courts, without radical change. [1]
As the distrust of judges appointed and removable by the king receded, there came increasing acceptance that under a republic the protection of citizens lay not in recognizing the right of each jury to make its own law, but in following democratic processes for changing the law.
The crucial legal ruling came in United States v. Battiste, 2 Sum. 240, 24 F. Cas. 1042 (C.C.D.Mass. 1835). Justice Story's strong opinion supported the conception that the jury's function lay in accepting the law given to it by the court and applying that law to the facts. This considered ruling of an influential jurist won increasing acceptance in the nation. The youthful passion for independence accommodated itself to the reality that the former rebels were now in control of their own destiny, that the practical needs of stability and sound growth outweighed the abstraction of centrifugal philosophy, and that the judges in the courts, were not the colonial appointees projecting royalist patronage and influence but were themselves part and parcel of the nation's intellectual mainstream, subject to the checks of the common law tradition and professional opinion, and capable, in Roscoe Pound's words, of providing "true judicial justice" standing in contrast with the colonial experience.[1]
The tide was turned by Battiste, but there were cross-currents. At mid-century the country was still influenced by the precepts of Jacksonian democracy, which spurred demands for direct selection of judges by the people through elections, and distrust of the judge-made common law which enhanced the movement for codification reform. But by the end of the century, even the most prominent state landmarks had been toppled;[1] and the Supreme Court settled the matter for the Federal courts in Sparf v. United States, 156 U.S. 51, 102, 15 S. Ct. 273, 39 L. Ed. 343 (1895) after exhaustive review in both majority and dissenting opinions. The jury's role was respected as significant and wholesome, but it was not to be given instructions that articulated a right to do whatever it willed. The old rule survives today only as a singular relic.[1]
The breadth of the continuing prerogative of the jury, however, perseveres, as appears from the rulings permitting inconsistent verdicts. These reflect, in the words of Justice Holmes, an acknowledgment that "the jury has the power to bring in a verdict in the teeth of both law and facts,"[1] or as Judge Learned Hand said: "We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity."[1]
Since the jury's prerogative of lenity, again in Learned Hand's words introduces a "slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions," it is only just, say appellants, that the jurors be so told. It is unjust to withhold information on the jury power of "nullification," since conscientious jurors may come, ironically, to abide by their oath as jurors to render verdicts offensive to their individual conscience, to defer to an assumption of necessity that is contrary to reality. This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy. This is the concern voiced by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S. Ct. 908, 25 L. Ed. 2d 91 (1970):
- To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.
The statement that avowal of the jury's prerogative runs the risk of anarchy, represents, in all likelihood, the habit of thought of philosophy and logic, rather than the prediction of the social scientist. But if the statement contains an element of hyperbole, the existence of risk and danger, of significant magnitude, cannot be gainsaid. In contrast, the advocates of jury "nullification" apparently assume that the articulation of the jury's power will not extend its use or extent, or will not do so significantly or obnoxiously. Can this assumption fairly be made? We know that a posted limit of 60 m.p.h. produces factual speeds 10 or even 15 miles greater, with an understanding all around that some "tolerance" is acceptable to the authorities, assuming conditions warrant. But can it be supposed that the speeds would stay substantially the same if the speed limit were put: Drive as fast as you think appropriate, without the posted limit as an anchor, a point of departure?
Our jury system is a resultant of many vectors, some explicit, and some rooted in tradition, continuity and general understanding without express formulation. A constitution may be meaningful though it is unwritten, as the British have proved for 900 years.
The jury system has worked out reasonably well overall, providing "play in the joints" that imparts flexibility and avoid undue rigidity. An equilibrium has evolved -- an often marvelous balance -- with the jury acting as a "safety valve" for exceptional cases, without being a wildcat or runaway institution. There is reason to believe that the simultaneous achievement of modest jury equity and avoidance of intolerable caprice depends on formal instructions that do not expressly delineate a jury charter to carve out its own rules of law. We have taken due and wry note that those whose writings acclaim and invoke Roscoe Pound's 1910 recognition of the value of the jury as safety valve, omit mention of the fact that in the same article he referred to "the extreme decentralization that allows a local jury or even a local prosecutor to hold up instead of uphold the law of the state" as one of the conditions that "too often result in a legal paralysis of legal administration. His writings of that period are expressly concerned with the evils of the "extravagant powers" of juries, ," [1] and that in 1931 he joined the other distinguished members of the Wickersham Commission in this comment: [1]
- In a number of jurisdictions juries are made judges of the law in criminal cases, thus inviting them to dispense with the rules of law instead of finding the facts. The juror is made judge of the law not to ascertain what it is, but to judge of its conformity to his personal ideals and ascertain its validity on that basis. . . . It is significant that there is most satisfaction with criminal juries in those jurisdictions which have interfered least with the conception of a trial of the facts unburdened with further responsibility and instructed as to the law and advised as to the facts by the judge.
The way the jury operates may be radically altered if there is alteration in the way it is told to operate. The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. The jury gets its understanding as to the arrangements in the legal system from more than one voice. There is the formal communication from the judge. There is the informal communication from the total culture -- literature (novel, drama, film, and television); current comment (newspapers, magazines and television); conversation; and, of course, history and tradition. The totality of input generally convey adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says. Even indicators that would on their face seem too weak to notice -- like the fact that the judge tells the jury it must acquit (in case of reasonable doubt) but never tells the jury in so many words that it must convict -- are a meaningful part of the jury's total input. Law is a system, and it is also a language, with secondary meanings that may be unrecorded yet are part of its life.
When the legal system relegates the information of the jury's prerogative to an essentially informal input, it is not being duplicitous, chargeable with chicane and intent [**61] to deceive. The limitation to informal input is, rather a governor to avoid excess: the prerogative is reserved for the exceptional case, and the judge's instruction is retained as a generally effective constraint. We "recognize a constraint as obligatory upon us when we require not merely reason to defend our rule departures, but damn good reason."[1] The practicalities of men, machinery and rules point up the danger of articulating discretion to depart from a rule, that the breach will be more often and casually invoked. We cannot gainsay that occasionally jurors uninstructed as to the prerogative may feel themselves compelled to the point of rigidity.[1] The danger of the excess rigidity that may now occasionally exist is not as great as the danger of removing the boundaries of constraint provided by the announced rules.
We should also note the interrelation of the unanimity requirement for petit juries, which was applicable to this trial, and is still the general rule though no longer constitutionally required for state courts. [1] This is an additional reason -- a material consideration, though neither a necessary nor sufficient condition -- to brake the wheels of those who would tell the petit jurors they are to determine the rules of law, either directly or by telling them they are free to disregard the judge's statement of the rules. The democratic principle would not be furthered, as proponents of jury nullification claim, it would be disserved by investing in a jury that must be unanimous the function not merely of determining facts, hard enough for like-minded resolution, but of determining the rules of law.
Rules of law or justice involve choice of values and ordering of objectives for which unanimity is unlikely in any society, or group representing the society, especially a society as diverse in cultures and interests as ours. To seek unity out of diversity, under the national motto, there must be a procedure for decision by vote of a majority or prescribed plurality -- in accordance with democratic philosophy. To assign the role of mini-legislature to the various petit juries, who must hang if not unanimous, exposes criminal law and administration to paralysis, and to a deadlock that betrays rather than furthers the assumptions of viable democracy.
Moreover, to compel a juror involuntarily assigned to jury duty to assume the burdens of mini-legislator or judge, as is implicit in the doctrine of nullification, is to put untoward strains on the jury system. It is one thing for a juror to know that the law condemns, but he has a factual power of lenity. To tell him expressly of a nullification prerogative, however, is to inform him, in effect, that it is he who fashions the rule that condemns. That is an overwhelming responsibility, an extreme burden for the jurors' psyche. And it is not inappropriate to add that a juror called upon for an involuntary public service is entitled to the protection, when he takes action that he knows is right, but also knows is unpopular, either in the community at large or in his own particular grouping, that he can fairly put it to friends and neighbors that he was merely following the instructions of the court.
In the last analysis, our rejection of the request for jury nullification doctrine is a recognition that there are times when logic is not the only or even best guide to sound conduct of government. For machines, one can indulge the person who likes to tinker in pursuit of fine tuning. When men and judicial machinery are involved, one must attend to the many and complex mechanisms and reasons that lead men to change their conduct -- when they know they are being studied; when they are told of the consequences of their conduct; and when conduct exercised with restraint as an unwritten exception is expressly presented as a legitimate option.
What makes for health as an occasional medicine would be disastrous as a daily diet. The fact that there is widespread existence of the jury's prerogative, and approval of its existence as a "necessary counter to case-hardened judges and arbitrary prosecutors," does not establish as an imperative that the jury must be informed by the judge of that power. On the contrary, it is pragmatically useful to structure instructions in such wise that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, [1] and must independently initiate and undertake an act in contravention of the established instructions. This requirement of independent jury conception confines the happening of the lawless jury to the occasional instance that does not violate, and viewed as an exception may even enhance, the over-all normative effect of the rule of law. An explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal structure requisite for true freedom, for an ordered liberty that protects against anarchy as well as tyranny.
Finally, we are aware that the denial of defendants' request for a nullification instruction will be considered by them to negative some, or perhaps most, of the value of the right of pro se representation which we have recognized. This point could be answered in terms of logic: The right of self-representation is given for reasons recognized by the law, and cannot be a springboard to establish the validity of other advantages or conditions that lie in its tactical wake. Thus, a defendant's ability to present his demeanor and often even a kind of testimony, without exposure to impeachment or cross-examination, may be a tactical consequence of pro se representation, and even a moving cause of its invocation, but this is not to say it is an objective of the law. But defendants' position merits a more spacious answer, that lies outside the domain of formal logic. It is this. The jury system provides flexibility for the consideration of interests of justice outside the formal rules of law. This embraces whatever extra the defendant conveys by personal representation, whether through demeanor or sincerity of justification. But it is subject to the overriding consideration that what is tolerable or even desirable as an informal, self-initiated exception, harbors grave dangers to the system if it is opened to expansion and intensification through incorporation in the judge's instruction.
BAZELON, Chief Judge, concurring in part and dissenting in part:
- …
My disagreement with the Court concerns the issue of jury nullification. As the Court's opinion clearly acknowledges, there can be no doubt that the jury has "an unreviewable and unreversible power * * * to acquit in disregard of the instructions on the law given by the trial judge * * *." More important, the Court apparently concedes -- although in somewhat grudging terms -- that the power of nullification is a "necessary counter to case-hardened judges and arbitrary prosecutors," and that exercise of the power may, in at least some instances, "enhance, the over-all normative effect of the rule of law." Id. at 1137. We could not withhold that concession without scoffing at the rationale that underlies the right to jury trial in criminal cases,[1] to disregard the strict requirements of law where it finds that those requirements cannot justly be applied in a particular case. Yet the impact of the judge's instruction, whatever his intention, was almost surely to discourage the jury from measuring the defendants' action against community concepts of blameworthiness.
Thus, we are left with a doctrine that may "enhance the over-all normative effect of the rule of law," but, at the same time, one that must not only be concealed from the jury, but also effectively condemned in the jury's presence. Plainly, the justification for this sleight-of-hand lies in a fear that an occasionally noble doctrine will, if acknowledged, often be put to ignoble and abusive purposes -- or, to borrow the Court's phrase, will "run the risk of anarchy." A breakdown of the legal order is not a result I would knowingly encourage or enjoy. But the question cannot be resolved, at least at this stage of the argument, by asking if we are for or against anarchy, or if we are willing to tolerate a little less law and order so that we can permit a little more jury nullification. No matter how horrible the effect feared by the Court, the validity of its reasoning depends on the existence of a demonstrable connection between the alleged cause (a jury nullification instruction or argument to the jury on that issue) and that effect. I am unable to see a connection.
To be sure, there are abusive purposes, discussed below, to which the doctrine might be put. The Court assumes that these abuses are most likely to occur if the doctrine is formally described to the jury by argument or instruction. That assumption, it should be clear, does not rest on any proposition of logic. It is nothing more or less than a prediction of how jurors will react to the judge's instruction or argument by counsel. And since we have no empirical data to measure the validity of the prediction, we must rely on our own rough judgments of its plausibility. The Court reasons that a jury uninformed of its power to nullify will invoke that power only where it "feels strongly about the values involved in the case, so strongly that it [will] itself identify the case as establishing a call of high conscience * * *." In other words, the spontaneous and unsolicited act of nullification is thought less likely, on the whole, to reflect bias and a perverse sense of values than the act of nullification carried out by a jury carefully instructed on its power and responsibility.
It seems substantially more plausible to me to assume that the very opposite is true. The juror motivated by prejudice seems to me more likely to make spontaneous use of the power to nullify, and more likely to disregard the judge's exposition of the normally controlling legal standards. The conscientious juror, who could make a careful effort to consider the blameworthiness of the defendant's action in light of prevailing community values, is the one most likely to obey the judge's admonition that the jury enforce strict principles of law.
Moreover, if it were true that nullification which arises out of ignorance is in some sense more worthy than nullification which arises out of knowledge, the Court would have to go much further. For under the Court's assumption, the harm does not arise because a jury is told of its power to disregard the law, but because it knows of its power. Logically construed, the Court's opinion would seem to require the disqualification at voir dire of any prospective juror who admitted to knowledge of the doctrine. By excluding jurors with knowledge of the doctrine the Court could insure that its invocation would be spontaneous. And yet, far from requiring the exclusion of jurors who are aware of the power, the Court takes comfort in the fact that informal communication to the jury "generally conveys adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says." One cannot, it seems to me, have the argument both ways. If, as the Court appears to concede, awareness is preferable to ignorance, then I simply do not understand the justification for relying on a haphazard process of informal communication whose effectiveness is likely to depend, to a large extent, on whether or not any of the jurors are so well-educated and astute that they are able to receive the message. If the jury should know of its power to disregard the law, then the power should be explicitly described by instruction of the court or argument of counsel.
My own view rests on the premise that nullification can and should serve an important function in the criminal process. I do not see it as a doctrine that exists only because we lack the power to punish jurors who refuse to enforce the law or to reprosecute a defendant whose acquittal cannot be justified in the strict terms of law. The doctrine permits the jury to bring to bear on the criminal process a sense of fairness and particulaized justice. The drafters of legal rules cannot anticipate and take account of every case where a defendant's conduct is "unlawful" but not blameworthy, any more than they can draw a bold line to mark the boundary between an accident and negligence. It is the jury -- as spokesman for the community's sense of values -- that must explore that subtle and elusive boundary. Admittedly, the concept of blameworthiness does not often receive explicit recognition in the criminal process. But it comes very close to breaking through the surface in cases where the responsibility defense is raised, see United States v. Brawner, 153 U.S. App. D.C. 1, at 62, 471 F.2d 969, at 1030 (1972) (en banc), (separate opinion); United States v. Bennett, 148 U.S. App. D.C. 364, 368-370, 460 F.2d 872, 876-878 (1972); United States v. Eichberg, 142 U.S. App. D.C. 110, 113, 439 F.2d 620, 623 (1971) (concurring opinion), and it is implicit in every case where criminal sanctions are imposed. More than twenty-five years ago this Court recognized that "our collective conscience does not allow punishment where it cannot impose blame." And the Supreme Court, in a well-known opinion by Justice Jackson, has pointed out that
- courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "wilfulness," "scienter," to denote guilty knowledge, or "mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes.
The very essence of the jury's function is its role as spokesman for the community conscience in determining whether or not blame can be imposed. I do not see any reason to assume that jurors will make rampantly abusive use of their power. Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must reexamine a great deal more than just the nullification doctrine. Nevertheless, some abuse can be anticipated. If a jury refuses to apply strictly the controlling principles of law, it may -- in conflict with values shared by the larger community -- convict a defendant because of prejudice against him, or acquit a defendant because of sympathy for him and prejudice against his victim. Our fear of unjust conviction is plainly understandable. But it is hard for me to see how a nullification instruction could enhance the likelihood of that result. The instruction would speak in terms of acquittal, not conviction, and it would provide no comfort to a juror determined to convict a defendant in defiance of the law or the facts of the case. Indeed, unless the jurors ignored the nullification instruction they could not convict on the grounds of prejudice alone. Does the judge's recitation of the instruction increase the likelihood that the jury will ignore the limitation that lies at its heart? I hardly think so.
As for the problem of unjust acquittal, it is important to recognize the strong internal check that constrains the jury's willingness to acquit. Where defendants seem dangerous, juries are unlikely to exercise their nullification power, whether or not an explicit instruction is offered. Of course, that check will not prevent the acquittal of a defendant who may be blameworthy and dangerous except in the jaundiced eyes of a jury motivated by a perverse and sectarian sense of values. But whether a nullification instruction would make such acquittals more common is problematical, if not entirely inconceivable. In any case, the real problem in this situation is not the nullification doctrine, but the values and prejudice that prompt the acquittal. And the solution is not to condemn the nullification power, but to spotlight the prejudice and parochial values that underlie the verdict in the hope that public outcry will force a re-examination of those values, and deter their implementation in subsequent cases. Surely nothing is gained by the pretense that the jurors lack the power to nullify, since that pretense deprives them of the opportunity to hear the very instruction that might compel them to confront their responsibility.
One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks. That repellent practice cannot be directly arrested without jeopardizing important constitutional protections -- the double jeopardy bar and the jury's power of nullification. But the revulsion and sense of shame fostered by that practice fueled the civil rights movement, which in turn made possible the enactment of major civil rights legislation. That same movement spurred on the revitalization of the equal protection clause and, in particular, the recognition of the right to be tried before a jury selected without bias. The lessons we learned from these abuses helped to create a climate in which such abuses could not so easily thrive. Moreover, it is not only the abuses of nullification that can inform our understanding of the community's values and standards of blameworthiness. The noble uses of the power -- the uses that "enhance the over-all normative effect of the rule of law" -- also provide an important input to our evaluation of the substantive standards of the criminal law. The reluctance of juries to hold defendants responsible for unmistakable violations of the prohibittion laws told us much about the morality of those laws and about the "criminality" of the conduct they proscribed. And the same can be said of the acquittals returned under the fugitive slave law as well as contemporary gaming and liquor laws. A doctrine that can provide us with such critical insights should not be driven underground.
On remand the trial judge should grant defendants' request for a nullification instruction. At the very least, I would require the trial court to permit defendants to argue the question before the jury. But it is not at all clear that defendants would prevail even with the aid of an instruction or argument. After all, this case is significantly different from the classic, exalted cases where juries historically invoked the power to nullify. Here, the defendants have no quarrel with the general validity of the law under which they have been charged. They did not simply refuse to obey a government edict that they considered illegal, and whose illegality they expected to demonstrate in a judicial proceeding. Rather, they attempted to protest government action by interfering with others -- specifically, the Dow Chemical Company. This is a distinction which could and should be explored in argument before the jury. If revulsion against the war in Southeast Asia has reached a point where a jury would be unwilling to convict a defendant for commission of the acts alleged here, we would be far better advised to ponder the implications of that result than to spend our time devising stratagems which let us pretend that the power of nullification does not even exist.
United States v. Luisi: Juror's challenge raises legal issue
By Jonathan Saltzman Globe Staff / August 10, 2008
Thomas R. Eddlem said he is proud of challenging the legitimacy of a criminal law.
It started with a note from the jury barely an hour into deliberations, an unusual question that went way beyond the scope of the federal drug-trafficking trial.
Given that it took the 18th Amendment of the US Constitution in 1919 to pave the way for Prohibition, a juror wanted to know from the judge, where "is the constitutional grant of authority to ban mere possession of cocaine today?"
To a casual observer, the question in the Boston courtroom might merely have been the musing of a juror with some knowledge of American history. But US District Court Judge William G. Young said the note and others that followed represented something he had never seen in 30 years as a judge: a rogue juror challenging the legitimacy of a criminal law used to prosecute a defendant.
Young was so alarmed by the actions of Thomas R. Eddlem, a 42-year-old technology coordinator at a Catholic high school and former John Birch Society official, that he recently wrote a 43-page memorandum plumbing the history of "jury nullification" and how it threatens democracy.
Nullification refers to a controversial concept that jurors have a duty to disregard a judge's instructions and acquit a criminal defendant - even one guilty under the letter of the law - if they disagree with the law.
Juries in the United States have sometimes exercised this power admirably, particularly in the 18th and 19th centuries, but it has been all but repudiated by the courts. Still, it attracts an eclectic group of advocates who encourage juries on the Internet and elsewhere to acquit defendants if jurors find laws unconscionable, including drug laws, tax laws, and motorcycle helmet laws.
Young, a 68-year-old Harvard-educated jurist whose stern bearing recalls his days as a US Army captain, said he questioned Eddlem in his office and the Taunton man insisted that the drug prosecution was unconstitutional. The judge then replaced him with an alternate juror. Shortly afterward, the reconstituted jury convicted Robert C. Luisi, a reputed Mafia lieutenant, of three cocaine-related charges.
Young wrote that Eddlem's actions in March, which went unreported, marked the first time he "has encountered a juror who has attempted to arrogate to himself the power that our Constitution places in the elected branches of government."
But Eddlem said last week that he opposes jury nullification and that it was the judge who subverted the legal system. Eddlem, a self-described right-winger and research director from 1987 to 2000 for the John Birch Society in Appleton, Wis., said Young distorted the plain language of the Constitution to justify a prosecution that had no basis in federal law.
"I was like Alice talking to Humpty Dumpty in 'Through the Looking Glass,' " he said, referring to his confrontation with the judge.
American history has shining examples of jury nullification, including the acquittals of the publisher John Peter Zenger of seditious libel in 1735 and of defendants who helped slaves escape to freedom in the 19th century. Nullification has also drawn support in recent years from activists on both ends of the political spectrum. In March, the writers of the TV show "The Wire" championed jury nullification in a Time article as a way to protest an ineffectual war on drugs.
But Young wrote in his July 25 memorandum that examples of "benevolent nullification" are bygone "exceptions to an otherwise abhorrent strain of lawlessness." In the civil rights era, he wrote, nullification led to notorious acquittals in the South of white defendants by all-white juries in cases such as the 1955 slaying of Emmett Till.
The trial that prompted Young's memorandum was far less memorable.
Federal prosecutors presented evidence that Luisi orchestrated drug sales in the Boston area. Luisi had been tried and convicted of the same charges in 2002 before another federal judge, but the US Court of Appeals for the First Circuit reversed the conviction and ordered a new trial.
In the retrial, the case went to the jury just before noon on March 11. About 1 p.m. the jury, which had taken an oath to consider only the evidence and to heed the judge's instructions, sent out its first note, Young wrote. Young brought the jurors into the courtroom, told them they could not consider constitutional questions and sent them back to deliberate.
Two hours later, Young wrote, the jury sent two more questions: If a juror denies the constitutionality of the prosecution, "preempting consideration of the facts," can he participate? And can the jury deliberate?
Young brought the jury in, assured them that the laws at issue were constitutional and sent them home for the day, he wrote.
The following day, the jury sent a note saying the problem had persisted. Young then interviewed each juror, one by one, in his office, in the presence of federal prosecutors and Luisi's lawyers. When the judge got to Eddlem, whom Young calls only Juror No. 2, Eddlem said he was the juror in question, Young wrote.
Eddlem told Young that he did not believe the Constitution contained language banning cocaine trafficking within a state, the judge wrote. Young told him that the US Supreme Court had interpreted the Commerce Clause as prohibiting it. But the juror said he saw nothing like that in the clause even though the Constitution is "written to the 11th grade vocabulary level," Young wrote.
After several minutes of wrangling with the juror, Young told the lawyers that Eddlem was "engaged in juror nullification" and threw him off the jury, over the objections of defense lawyer John H. LaChance of Framingham. LaChance said he does not intend to appeal.
Last week Eddlem said he would have voted to convict Luisi in a state court; he simply felt there were no grounds for a federal prosecution. He opposes nullification, he added in an e-mail, but judges who ignore the Constitution pose a far greater threat than a "handful of 'nullification' radicals."
In an interview, Young, who was a state Superior Court judge before his 1985 appointment to the federal bench, said he thinks virtually all judges oppose nullification even if it is well-intentioned.
But his colleague US District Judge Nancy Gertner of Boston said it depends on how one defines nullification. Gertner, who had no comment on the Luisi case, said a juror who informs a judge that he or she will not follow the law as instructed, is engaging in flagrant nullification and should not participate.
Judges recognize, however, that juries sometimes engage in a subtler form of nullification when they acquit in a criminal case, perhaps because of mitigating circumstances, even though the evidence and law support a conviction, Gertner said.
"We say jurors should not nullify, but we tell them to use their common sense, and we allow them in a criminal case to have a general verdict, which is to make a decision without giving a reason," said Gertner. "So we say they shouldn't do it, but we give them the space to do so."
Eddlem, for his part, was unapologetic for his actions. "I think when I look back at my life, it's going to be one of the things I'm most proud of," he said.
Jonathan Saltzman can be reached at jsaltzman@globe.com.
UNITED STATES v. LUISI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
2008 U.S. Dist. LEXIS 56145
July 25, 2008
YOUNG, D.J.
In September of 2002, a federal jury convicted Robert C. Luisi on three counts of possession with intent to distribute and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). . In this first trial, Luisi, "an admitted member of the La Cosa Nostra crime family," presented a complex entrapment defense. United States v. Luisi, 482 F.3d 43, 45 (1st Cir. 2007). He averred that Ron Previte, a fellow La Cosa Nostra member who was also a government informant, had worked in concert with an FBI agent, Michael McGowan, to "improperly induce him to commit drug crimes." Luisi maintained that when their initial inducements :failed, the informant and agent convinced Joe Merlino, Luisi's superior in La Cosa Nostra, to order Luisi to commit the charged offenses. Preveti and McGowan, Luisi posited, knew that this was an order he could not refuse.
The First Circuit vacated Luisi's conviction because the district court refused to give an entrapment instruction. Id. On remand, the case was assigned to this session of the Court. On March 12, 2008, a second jury convicted Luisi on the same three drug-related counts. Although Luisi's en-trapment defense at times lent the proceedings the air of The God-father, the trial was otherwise unremarkable.
Jury deliberations, however, presented the Court with two issues. First, after only an hour of deliberations, the jury sent a note indicating that one juror refused to accept the legitimacy of the drug laws at issue. After it became clear that deliberations could not move forward, the Court conducted individual juror voir dire. The Court dismissed Juror No. 2 because he was unwilling to set aside his belief that the Commerce Clause does not give Congress the authority to proscribe mere possession of narcotics. ...
I. BACKGROUND
Luisi's case went to the jury just before noon on March 11. At approximately 1:00, the Court received the following 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 Court instructed the jury that they were not free "to determine any constitutional questions about [the] law."
At 3:00, the jury sent two more questions. The first inquired, "If a juror denies on constitutional grounds the validity of the trial, charges, and jurisdiction thus preempting consideration of the facts in question, is he an ineligible juror?" The second asked, "Are we, given these objections, a legally constituted jury?"
After speaking with counsel, the Court convened and again instructed the jurors that the laws at issue were constitutional and that they were not free to substitute their own views. The Court then told the jury they were to take the rest of the day off and to reflect on the Court's instructions. The next day, after researching the issue and consulting the attorneys, the Court determined that if the problem persisted each juror should be brought into the lobby in the presence of counsel and the Court should inquire 1) whether he or she believed he or she could faithfully apply the law as instructed to the facts of the case; and 2) whether he or she could begin their deliberations afresh if a juror had to be removed and replaced by an alternate.
When the jury arrived, the Court instructed them to continue deliberations, but told them that they should send another note if the problem persisted. Within ten minutes, the foreperson passed a note indicating that one juror still refused to engage in deliberations. The Court instructed the jurors to suspend deliberations and began questioning each juror in the lobby. The Court first spoke with the foreperson, who answered both of the aforementioned questions in the affirmative. Juror No. 2 was the second juror questioned. He immediately informed the Court that he was the juror who had asked the first juror question and who was the subject of the second and third questions. He then explained:
- My question was where, if, . . . as every schoolboy knows, the highest law in the land is the United States Constitution, and if [C]ongress had to go to amend the [C]onstitution in, actually it was ratified in 1919, the 18th Amendment, in order to have the power to ban not interstate commerce but mere possession, where is [Congress' authority to ban mere possession of drugs] in the [C]onstitution(?)
- * *
- Congress is empowered by Article I, in a list of about 17 specific empowerments, I'm unaware, and it was never made clear to me, where [banning mere possession of drugs] is authorized in the Constitution.
The Court then informed Juror No. 2 that the Supreme Court had interpreted the Commerce Clause "to extend to enacting laws with respect to contraband, including contraband drugs." When asked if he could accept that interpretation and apply the law passed by Congress to Luisi's case, Juror No. 2 stated that he could "only accept the words that have been given to [him], and [he could] only accept the fact that [the Commerce Clause] is written as it is written." Juror No. 2 also took exception to the Court's reference to the Supreme Court interpreting the Constitution. In his words, "[I]nterpret is a word I associate with reading a foreign language. The [C]onstitution as . . . you know, is written in English." He pontificated:
- As an educator, I know that [the Constitution is] writ-ten to the eleventh grade vocabulary level. And "among the several states" is a reference to, is basically the plural between. It's more than two. And I know that if a plane crashes between North America and Europe it did not crash in Denver. I know that there's a specific meaning to those words.
At one point during the exchange, the Court asked Juror No. 2 whether he believed he had the authority to "decide whether the law is valid." He responded:
- No, I don't decide. . . . I am familiar with the philosophy known as a fully informed juror, but I disagree with it. What I'm saying is that the interstate commerce clause . . . those words have a specific meaning; that words have meaning.
The Court spent several minutes attempting to explain how Congress had the authority to ban drug possession but continued to receive evasive responses. The Court then asked Juror No. 2 to step out in the hallway in order to confer with counsel. The Court informed counsel of its opinion that Juror No. 2 was "engaged in juror nullification and [the Court believed] it was within [its] power to dismiss him." But before dismissing Juror No. 2, the Court wanted to hear argument. The government did not object to the dismissal. Luisi's counsel objected on the ground that Juror No. 2 had stated he did not agree with the Fully Informed Juror, which "is essentially a study of juror nullification."
Notwithstanding Juror No. 2's professed disagreement with the "philosophy known as a fully informed juror," it was clear he believed the Commerce Clause did not permit Congress to pass laws related to drugs that did not cross "more than two" state lines and that he did not accept the power of the judiciary to interpret the Clause to embrace any additional power. It was equally clear that he was unable to set aside his personal beliefs and apply the law as instructed. Notwithstanding defense counsel's argument, the Court was convinced that this was a form of juror misconduct that could be classified as nullification. See United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997) ("'[N]ullification' can cover a number of distinct, though related, phenomena, encompassing in one word conduct that takes place for a variety of different reasons; jurors may nullify, for example, because of . . . [a] general opposition to the applicable criminal law or laws."). At bottom, Juror No. 2's insistence on applying his own law was grounds for dismissal. The Court therefore dismissed Juror No. 2 and replaced him with the first alternate, who up until that point had been isolated from the deliberating jury.
After questioning each of the remaining jurors, the Court brought the newly constituted jury into the courtroom and explained that they were to begin their deliberations afresh. ...
II. ANALYSIS
No other country has placed so much faith in the ability of ordinary citizens directly to participate in the function of the justice system. William G. Young, Vanishing Trials, Vanishing Juries, Vanishing Constitution, 40 SUFFOLK U. L. REV. 67, 68 (2006) ("Nearly all civil jury trials and ninety percent of criminal jury trials on the planet take place in the United States."). The men and women that fill jury boxes in courthouses across the country inject our judicial system with the conscience of their communities, provide a check against tyranny, and legitimize our justice system. See United States v. Green, 346 F. Supp. 2d 259, 316 (D. Mass. 2004). Along with trial court constitutional interpretation, the jury is "one of two defining features of our legal system." Young, Vanishing Trials, supra, at 68.
The jury in this case confirmed this Court's faith in the jury system. They were unswayed by Juror No. 2's attempts to convince them that they need not follow the law as instructed. Yet, Juror No. 2's nullification effort strikes at the heart of the delicate division of labor between judge and jury that has been critical to their survival. Before explaining the specific reasons for dismissing Juror No. 2, the Court chronicles the evolution of these roles and discusses how the jury, operating within its sphere, has been critical to the maintenance of an empowered, independent judiciary. Nullification, as shall be explained, threatens to undermine the jury system, and with it the rule of law and judicial independence.
'A. NULLIFICATION THREATENS TO FURTHER THE DECLINE OF THE JURY SYSTEM AND ERODE JUDICIAL INDEPENDENCE '
1. "The Constitutional Judges of Facts"
Judges and juries play familiar roles in modern courtrooms. Judges, assisted by lawyers, interpret the jargon and terms of art packed into the array of statutes and caselaw governing a given case. Within the legal framework the judge outlines, juries apply their collective experience to the facts of a case to determine the truth. Within its sphere, the jury is equal to any other constitutional officer. Their power, however, has a critical limitation: they must follow the law as the judge instructs. The discrete roles for judge and jury were not, however, settled until nearly two decades after the birth of the Republic as jurists embraced instrumentalism along with a need for legal certainty that would enable private actors, particularly commercial interests, to order their affairs according to the rule of law.
Given the common law tradition inherited from England, there was never any serious question that the jury would play a central role in the American legal system. See AKIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 233 (2005). Nevertheless, the power that ought be ascribed to juries was a matter of debate in the early Republic. Some advocated that the jury should have the power "to follow the Constitution as they understood it." Id. at 239. Others recognized that "[w]ithout limits, a sweeping right of jury review might well have given eccentric localities too much power to frustrate - essentially to nullify - federal laws strongly supported by the national citizenry." Id. at 241.
One reason the jury's powers were still a matter of debate was that in the late eighteenth century the legal profession was in its nascent stage. Because there were no law schools, judges and lawyers had little in the way of formal legal training that would enable them to interpret laws any more artfully than the ordinary citizens called to serve on a jury. Id. at 240. Thus, there appeared to be little justification for divesting juries of the ability to have their say about the law. Id. Perhaps more importantly, the undeveloped legal profession and the uncertainty about the function of juries reflected an ambivalence about the role courts would play in shaping relationships between private actors.
In the 1780s, instrumentalism had yet to emerge as the dominant conception of American law. See MORTON J HOROWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 1-2 (1977). That is, in 1787, judges and lawyers had yet to fully embrace a formal role in establishing the rule of law, and they had yet come to terms with the role that their rules would play in ordering society. See id. In the final decade of the eighteenth century, however, "lawyers and judges can be found with some regularity to reason about the social consequences of particular legal rules." Id. at 2.
These developments in legal thought were prodded by the rapid development of the American economy that transformed law into a profitable, even lucrative profession. Up until the twilight of the eighteenth century, most cases involved disputes over relatively small amounts of money. Id. By the late eighteenth and early nineteenth centuries, however, industrialization had brought about larger, more sophisticated commercial enterprises, and these commercial interests looked to courts to resolve disputes. Id. at 140. It soon became apparent that law would have a significant role in fashioning rules for the growing economy and that a lawyer's involvement in the process could translate into significant legal fees. Id. For example, Alexander Hamilton, who had left a fairly mundane law practice to become Secretary of the Treasury, returned to New York to find business booming. Id. at 141. "One of Hamilton's first cases terminated in an astronomical damage judgment of $ 120,000." Id.
At the same time the legal profession began to embrace instrumentalism, and as commercial interests turned to the law to resolve disputes, courts came under fire for their failure to fashion clear rules that would "enable[] individuals to plan their affairs more rationally." Id. at 26. While judges shouldered a good deal of the blame for the lack of legal certainty, id. at 4-6, allowing juries to follow their own law led to ad hoc decisions and undermined uniformity and predictability. Id. at 28. Influential legal thinkers of the day recognized that establishing a predictable rule of law was critical to the growth of America's fledgling economy. The future chief justice of Connecticut, Zephaniah Swift, observed the "relationship between 'uniformity of decision' in England and 'the immense wealth and commercial prosperity of that nation.'" Id. at 26.
The commercial interests, which in most cases were "not very fond of juries," id. at 141, along with lawyers and judges, saw that a greater degree of legal certainty could be achieved if judges assumed responsibility for determining the law in each case. Nevertheless, the use of juries, which was embedded in no fewer than three places in the Constitution, was not negotiable. Thus, lawyers and judges became the primary guardians of the law, and juries became, as the Constitutional Court of Appeals of South Carolina observed in 1798, "the constitutional judges of facts." Brown, 2 S.C.L. 126.
The permanent change in the relationship between judges and juries came about in three ways. First, looking to Lord Mansfield's example, American judges began accepting lawyer's motions to have certain matters determined as a "special case" or a "case reserved." HOROWITZ, supra, at 142. In these procedures, parties asked judges to resolve issues of law without submission to the jury. Id. Second, judges began granting new trials for verdicts "contrary to the clear weight of the evidence." Id. These procedural mechanisms curbed the juries' ability to generate outcomes that were contrary to the law the court had fashioned.
Third, and most importantly, "[d]uring the first decade of the nineteenth century . . . the Bar rapidly promoted the view that there existed a sharp distinction between law and fact and a correspondingly clear separation between judge and jury." Id. at 143. The idea quickly gained traction, and state supreme courts began requiring trial judges to instruct juries on the law. Id. In Massachusetts, for example,
- [b]y 1810, it was clear that the instructions of the court, originally advisory, had become mandatory and therefore juries no longer possessed the power to determine the law. Courts and litigants quickly perceived the transformation that had occurred and soon began to articulate a new principle -- that "point[s] of law . . . should . . . be . . . decided by the Court," while points of fact ought to be decided by the jury.
Id. (quoting W. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830 169 (1975)).
The division of labor between judge and jury that emerged in the beginning of the nineteenth century applied in civil as well as criminal cases. As one lawyer explained before the New York Supreme Court:
- The certainty of the criminal law is as important as that of the civil, and that can only be preserved by leaving it to be expounded by judges, to whom education and habit have rendered it familiar, and who join knowledge of its theory to the aptitude which practice gives.
People v. Melvin, 1 Yates Sel. Cas. 112 (N.Y. Sup. Ct. 1809).
It was equally clear that juries could not apply their own understanding of the Constitution. In United States v. Callender, 25 F. Cas. 239, F. Cas. No. 14709 (Circuit Court, D. Va. 1800), James Thompson Callender was indicted for "maliciously designing and intending to defame the president[, John Adams,]" in violation of the Sedition Act, 1 Stat. 597. In rejecting Callender's counsel's plea to put the question of the statute's constitutionality to the jury, Justice Samuel Chase, an associate justice of the Supreme Court of the United States who was riding circuit, stated unequivocally:
- I cannot conceive that a right is given to the petit jury to determine whether the statute . . . is constitutional or not. To determine the validity of the statute, the constitution of the United States must necessarily be resorted to and considered, and its provisions inquired into. It must be determined whether the statute alleged to be void, because contrary to the constitution, is prohibited by it expressly, or by necessary implication. Was it ever intended, by the framers of the constitution, or by the people of America, that it should ever be submitted to the examination of a jury, to decide what restrictions are expressly or impliedly imposed by it on the national legislature?
Callender, 25 F. Cas. at 255 (Chase, J.).
The Chief Justice of the United States may as well have been answering the Callender court's rhetorical question when he declared, "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L. Ed. 60 (1803). At no time since Marbury has the fundamental principle in Justice Chase's declaration been seriously questioned.
...
3. Nullification threatens further to undermine the jury system and to contribute to the collapse of the separation of powers
Despite the clearly defined roles for judges and juries, there are those who believe that jurors possess an "unalienable right" to set aside the court's instructions and to apply the law as they see fit. See History of the Fully Informed Jury Association, About FIJA - The History of FIJA, available at http://www.fija.org/index.php?page=staticpage&id=1 (last visited June 2, 2008). In a recent Time Magazine article, writers for The Wire, a popular fictional television show about cops and criminals in Baltimore, advocated nullification as a way to bring an end to "the drug war," a term that refers to the enforcement of drug laws in low-income communities. See Ed Burns, et al., "The Wire's War on the Drug War," TIME (March 5, 2008), available at http://www.time.com/time/nation/article/ 0,8599,1719872,00.html. This call for nullification was by no means a cry in the wilder-ness. Paul Butler, a professor at The George Washington University Law School, published an famous article in the Yale Law Journal advocating jury nullification in drug cases with black defendants. See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995). Websites such as the "Fully Informed Juror," which Juror No. 2 referenced during voir dire, advocate jury nullification for a variety of reasons. See Fully Informed Jury Association, available at http://www.fija.org/ (last visited June 3, 2008); see also Clay Conrad, Medical Marijuana: Is Jury Nullification the Next Step? COUNTERPUNCH (June 17, 2005), available at http://www.counterpunch.org/conrad06172005.html.
Over the course of thirty years on the bench, this is the first time that the Court has encountered a juror who has attempted to arrogate to himself the power that our Constitution places in the elected branches of government. Thankfully, the citizens who occupy jury boxes across the country do not share such views. Nullification has no basis in law, but if citizens felt free to nullify, it would undermine not only the rule of law, but also the values at the core of our democracy. Moreover, nullification would fan the flames of anti-jury sentiment and contribute to the demise of the jury trial along with the independent judiciary.
i. Juries Do Not Have a Right to Disregard the Judge's Instructions on the Law Courts have long recognized that defendants have no right to an instruction on jury nullification. See United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969). A court may "block defense attorneys' attempts to serenade a jury with the siren song of nulli-fication . . . and . . . may instruct the jury on the dimensions of their duty to the exclusion of jury nullification." United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993).
Just as defendants have no right to an instruction on nullification, jurors have no right to nullify. As a D.C. Circuit panel comprised of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg explained:
- A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant "guilty," and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.
United States v. Washington, 227 U.S. App. D.C. 184, 705 F.2d 489, 494 (D.C. Cir.1983) (per curiam).
ii. If Taken Seriously, Jury Nullification Threatens to Undermine the Democratic Process and the Rule of Law
If it were taken seriously by mainstream Americans, jury nullification would threaten to unravel the fabric of our democracy. The impropriety of nullification emanates from the notion that ours is "a government of laws and not of men." See Mass. Const. Part I. This means simply that no citizen is above the law, and none is free to make his own law. As Thomas Paine stated in Common Sense, "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other." Thomas Paine, Common Sense (1776), available at http://www.mtholyoke.edu/acad/intrel/paine.htm.
It is a testament to the liberties afforded our citizens that Juror No. 2 is free to express his beliefs about the meaning of the Constitution. He is not, however, free to implement his views at his pleasure. Those who would change the law must work through democratic channels. Juror No. 2 and others who feel Congress does not have the authority to ban possession of narcotics may attempt to win the hearts and minds of the American people. Should the people tire of drug laws, they may elect representatives who will repeal them; they may elect a president who will not enforce them; they may amend the Constitution to abolish them. They may work to change the law, but they are not free to disregard it.
The notion that nullification will change the law is drivel. Those who would characterize it as a noble form of civil disobedience are deeply delusional. Under the theory of civil disobedience followed by Gandhi and Dr. Martin Luther King, Jr., it is only appropriate to disobey the law if one does so publicly, in an effort to change the law, and then accepts the punishment. As Dr. King explained in his Letter from Birmingham Jail, "In no sense do I advocate evading or defying the law . . . . That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty." An Open Letter from Dr. Martin Luther King, Jr. to Alabama Clergymen (April 16, 1963), available at http://www.stanford.edu/group/King/popular_requests/frequentdocs/ birmingham.pdf (last visited June 18, 2008). Nullifiers do not openly disobey the law in order to change it. They conspire behind closed doors and cast the law aside at their caprice. This is not civil disobedience; it is anarchy. One who engages in such a practice cannot hope to change the law, but only displace laws altogether.
History has not vindicated nullification. To be sure, there have been isolated instances of "benevolent" nullification that "some may regard as tolerable." United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997). Proponents of nullification often cite the acquittal of William Penn in 1670, "John Peter Zenger, the publisher of the New York Weekly Journal [who was] acquitted of criminal libel in 1735, and the nineteenth-century acquittals in prosecutions under the fugitive slave laws." Id. at 614. But these examples, culled from bygone centuries, are exceptions to an otherwise abhorrent strain of lawlessness.
By and large, when juries have felt free to apply their own law the result was what Professor Randall Kennedy has described as a "sabotage of justice." Id. at 616. "Consider, for example, the two hung juries in the 1964 trials of Byron De La Beckwith in Mississippi for the murder of NAACP field secretary Medgar Evers, or the 1955 acquittal of J.W. Millam and Roy Bryant for the murder of fourteen-year-old Emmett Till." Id. History is replete with such "shameful examples of how nullification has been used to sanction murder and lynching." Id. 9
Far from achieving the desired change in law, nullification may even create a political backlash that will undermine the nullifier's efforts. In Race, Crime, and the Law, Professor Randall Kennedy highlights two instances where the threat of nullification led policymakers to intervene. First, in the wake of the Civil War, when Southern whites indicated they would nullify the prosecutions of redeemers who resorted to violence to resist Reconstruction, "the ascendant political party in the national government responded with an unprece-dented intervention of federal power in support of actions -- the elevation of blacks to formal equality with whites -- that the nullifiers abhorred." RANDALL KENNEDY, RACE, CRIME, AND THE LAW 301 (1997); but see NICHOLAS LEMANN, REDEMPTION: THE LAST BATTLE OF THE CIVIL WAR (2006) (describing the federal government's failure to intervene on behalf of African Ameri-cans when southern "redeemers" resorted to violence to intimi-date Republican voters in Louisiana and Mississippi). In the other instance, "large and powerful blocks of society again intervened in unprecedented ways" to prevent Southern "segre-gationist diehards" from nullifying criminal prosecutions of white criminals who attempted to use violence to impede the Civil Rights Movement. KENNEDY, supra, at 301.
iii. By contributing to anti-jury sentiment, nullification poses a threat to the jury system and judicial independence
Nullification frustrates the sole purpose of the jury. As this Court has instructed juries for some thirty years now, the word verdict comes from two Latin words meaning roughly "to speak the truth." Black's Law Dictionary 1593 (8th ed. 2004) (defining a verdict as "a declaration of the truth of the matter . . ."). Nullifiers, however, would render verdicts without regard to the truth. Once juries begin to deviate from this core function, our justice system has no more legitimacy than a Kangaroo court. If juries were to persist in making their own law, they would confirm the stereotype that the business interests and skeptics within the profession promulgate. There are undoubtedly well-intentioned would-be nullifiers who believe that they are aiding the cause of justice. In fact, they are undermining the jury's core function. By adding fuel to the flames of anti-jury sentiment, nullification threatens to erode the jury system and along with it the rule of law and the independent judiciary.
III. CONCLUSION
Based on the foregoing, the Court concluded that Juror No. 2's express representation that he would not follow the law as instructed constituted good cause for removal....
Eddlem's Blogs of the event
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Jury References
- Breyer, Active Liberty pp. 15-34
- Scalia, A Matter of Interpretation pp. 3-48
- "jury" - a noun derived from juris - law
- Protection of Liberty Built into Process and Privilege
- the problem of pockets of resistance to the common good
- peers of the viscinage, peers of the district
- trial by jury in the Massachusetts Declaration of Rights
- trial by jury in the Constitution of the United States of America
- trial by jury in the early courts of the Massachusetts and the Nation
- the problem of pockets of resistance to the common good
