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The necessity of trying to convict not only in innocence but ignorance: judicial refusal to inform jury’s power to acquit even if facts mean conviction

On Behalf of | Mar 6, 2018 | Firm News

“The Constitution does not trust judges to make determinations of criminal guilt.”
Neder v. United States, 527 U.S. 1, 32 (1999) (Scalia, J., dissenting).

“The right to have a jury make the ultimate determination of guilt has an impressive pedigree . . . This right was designed to guard against a spirit of oppression and tyranny on the part of rulers, and was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties.”  United States v. Gaudin, 515 U.S. 506, 510-11(1995)

The law a jury in a criminal case has the power to acquit even when its findings as to the facts, if literally applied to the law as stated by the judge, would have resulted in a conviction.  This is known as jury nullification.  This jury power jury nullification, has solid historical credentials; the “pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge.”  United States v. Dougherty, 473 F.2d 1113, 1130 (D.C.Cir.1972).  For more than 300 years, jurors have had the power to nullify, that is, “to disregard the court’s instructions and the evidence presented and return a verdict of acquittal” where the law and the evidence dictate otherwise.  People v. Baca 48 Cal.App.4th 1703, 1707 (1996), citing Bushell’s Case, 124 Eng.Rep. 1006 (1670).  In Bushell’s Case the jurors refused to follow the judge’s instructions on the law, and it was thereafter ruled that these jurors could not be penalized for having followed their consciences in returning the verdict of acquittal.

The use of the general verdict and the bar against double jeopardy prevent any meaningful challenge to the exercise of this power.  United States v. Dougherty, 473 F.2d at 1130–1132;  U.S. v. Thomas,  116 F.3d 606, 615–616 (2d Cir.1997).  But courts since Sparf v. United States, 156 U.S. 51, 101 (1895), have refused to tell juries of that power.  Legally, there exists the “undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. If the jury feels that the law… is unjust…for any reason which appeals to their logic or passion, the jury has the power to acquit, and the court must abide by that decision.” U.S. v Moylan, 417 F.2d 1002, 1006 (1969).  But courts have decided to keep jury’s ignorant of that power.

I cannot help but hear Kafka’s words in The Trial: “It’s characteristic of this judicial system that a man is condemned not only when he’s innocent but also in ignorance.”

The right to a jury trial is a fundamental check on “arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions.”  THE FEDERALIST, No. 83 at 499 (A. Hamilton)(Mentor Books 1961).  Constitutionally speaking, a trial by jury represents the “very palladium of free government.”  Id.  The Federalist, said Thomas Jefferson, gives the “genuine meaning” of the Constitution.  THE FEDERALIST, supra. at vii.  In Duncan v. Louisiana, 391 U.S. 145, 155-56(1968) the United States Supreme Court emphasized that the primary purpose of a jury is to act as an “inestimable safeguard” against a “biased or eccentric judge.”  Tocqueville called the jury a “free school..,in which each juror learns his rights,” and he wrote that “juries teach men equity in practice.”  Alexis de Tocqueville, 1 Democracy in America 284-85 (Knopf, 1945).

The Framers’ enthusiastic support for the jury stemmed in large measure from the role that juries had played in resisting English authority before the Revolution.  The best example of this was the jury trial of John Peter Zenger, a New York printer whose trial on charges of seditious libel occurred forty-one years before the drafting of the Declaration of Independence.”  John Peter Zenger was a German American printer and who printed The New York Weekly Journal.  He was accused of libel in 1734 by William Cosby, the governor of New York, but ignoring the instructions of the Governor’s hand-picked judges and returned a verdict of “Not Guilty” on the charge of publishing “seditious libels.” A Brief Narrative of the Case and Trial of John Peter Zenger, Printer of the New York Weekly Journal and The Tryal of John Peter Zenger.  Zenger’s lawyers, Andrew Hamilton and William Smith, Sr., successfully argued that truth is a defense against charges of libel.

The problem with that defense was it was not supported by the law: The greater the truth, the greater the libel.  William Hawkins, 1 A Treatise of the Pleas of the Crown 194 (Garland, 1978)(reprint of the 1716 original) (“[I]t is far from being a Justification of a Libel, that the Contents thereof are true … since the greater Appearance there is of Truth in any malicious Invective, so much the more provoking it is.”).  Therefore, under the law, Zenger’s attorneys should not have been able to argue to the jury about the truth of what their client published.  As Chief Justice Delancey stated, “The law is clear that you cannot justify a libel ….The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.”

In response to Delancey’s ruling, Hamilton revealed the true nature of the defense strategy–jury nullification:
It is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow….

The loss of liberty, to a generous mind, is worse than death. And yet we know that there have been those in all ages who for the sake of preferment, or some imaginary honor, have freely lent a helping hand to oppress, nay to destroy, their country…. This is what every man who values freedom ought to consider. He should act by judgment and not by affection or self-interest; for where those prevail, no ties of either country or kindred are regarded; as upon the other hand, the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty life is a misery….

Power may justly be compared to a great river. While kept within its due bounds it is both beautiful and useful. But when it overflows its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If, then, this is the nature of power, let us at least do our duty, and like wise men who value freedom use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition the blood of the best men that ever lived….

I hope to be pardoned, Sir, for my zeal upon this occasion….While we pay all due obedience to men in authority we ought at the same time to be upon our guard against power wherever we apprehend that it may affect ourselves or our fellow subjects….

You see that I labor under the weight of many years, and am bowed down with great infirmities of body. Yet, old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land where my services could be of any use in assisting to quench the flame of prosecutions upon informations, set on foot by the government to deprive a people of the right of remonstrating and complaining, too, of the arbitrary attempts of men in power….

But to conclude: The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.

Chief Justice Delancey seemed unsure how to react to Hamilton’s eloquence. He instructed the jury that its duty under the law was clear. There were no facts for it to decide, and it was not to judge the law. Delancey all but ordered the jury to return a verdict of “Guilty”:

The great pains Mr. Hamilton has taken to show how little regard juries are to pay to the opinion of judges, and his insisting so much upon the conduct of some judges in trials of this kind, is done no doubt with a design that you should take but very little notice of what I might say upon this occasion. I shall therefore only observe to you that as the facts or words in the information are confessed, the only thing that can come in question before you is whether the words as set forth in the information make a libel. And that is a matter of law, no doubt, and which you may leave to the Court.

The jury withdrew to deliberate. A short time later, it returned. The clerk of the court asked the jury foreman, Thomas Hunt, to state the verdict of the jury. “Not guilty,” Hunt answered. There followed “three huzzas” and “shouts of joy” from the crowd of spectators in the courtroom. Chief Justice Delancey demanded order, but no one listened forcing the judge to leave his courtroom.

Zenger’s trial was not unusual.  England responded to these decisions by American juries by allowing Americans to be transported to England for trial.  Edmund Burke protested this conduct by England since it would effectively deprive American defendants of their right to jury trial.  Edmund Burke, Letter to the Sheriffs of Bristol, in 2 The Works of The Right Honorable Edmund Burke.  In 1776, the Declaration of Independence listed as a grievance against George III his “depriving us… of the benefits of trial by jury.” Fifteen years later, the Sixth Amendment promised the people of the United States what they already had been promised by the Constitution of 1787 and by their states-that in all criminal prosecutions they would enjoy the right to jury trial.  A half-century after the Zenger trial, as members of the First Congress debated the proposed Bill of Rights, one of the Constitution’s principal drafters and great-grandson of Lewis Morris, Gouvernor Morris, would write of the Zenger case: “The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.”

This history was suggested by Supreme Court Justice Byron White in Duncan v. Louisiana when he wrote:
A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to them voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.  391 U.S. 145, 156 (1968).

Given that an important jury function is to bar arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, that one of the reason’s America was founded was because of governmental interference with the power of a jury, one would think courts would empower juries with all the powers to protect against “the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”

However, you would be wrong.  Recall the jury in Zenger’s trial for seditious libel refused to return a guilty verdict despite indisputable evidence that Zenger violated the law as it was written. The jury did this because it felt Zenger had a right to publish a newspaper and, as a jury, it would not hold him criminally responsible for doing so.

As Justice White wrote in Duncan v. Louisianathe jury in a criminal trial serves as the conscience of the community. Rather than the government having the final say regarding whether a person has violated a criminal law, it is the jury, made up of typical citizens, that has the job of finding a defendant guilty of a criminal act. “If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it”. The use of ordinary people, who rather than strictly applying the law as provided may allow sympathy and common sense to enter into their deliberations and verdict, is a foundation of the jury system. It has also caused problems for the courts in the form of jury nullification.  It means the power of a jury to not follow the law.  American courts refuse to tell juries that they have this power despite it being a part of our American heritage.

The legendary Jack Weinstein contends that relevance should be loosely construed to permit development of a jury nullification defense:

The judge may, and sometimes should, exercise some leniency in defining relevance which might allow a jury to consider nullification sensibly. Jurors will then have the information and freedom necessary to ignore the judge’s instructions to follow the law if the jurors think the law as applicable to the case before them is unjust… . Addressing the jury or judge is the best chance a defendant may have to obtain publicity for his or her views. Arguably, the opportunity verges on a First Amendment right. A less stringent relevancy definition than the rigid and logical one in Rules 401, 402, and 403 of the Federal Rules of Evidence is justified in such cases.  Jack B. Weinstein, Considering Jury “Nullification”: When May and Should a Jury Reject the Law to Do Justice, 30 Am. Crim. L. Rev. 251 (1993).  Emphasis added.

Weinstein practices what he preaches: see, e.g., U.S. v. Sanusi, 813 F. Supp. 149, 160, (E.D. N.Y. 1992) where he explains a jury’s nullification power by:

The criminal may go free, not because the constable has blundered, but because [law enforcement has] abused criminal process in a way the average citizen may find unacceptable. This practical aspect of trial by jury cannot be ignored.
The court is reluctant in a criminal case to substitute its judgment for a defendant’s on the question of whether such evidence is “necessary or critical” to a defense. It is sufficient that a compelling argument of cogency can be made.  Id.

Only one or two states recognize that trial judges have the discretion to inform a jury of the power to nullify. See, e.g., State v. Mayo, 125 N.H. 200, 480 A.2d 85, 87 (1984). In all other states, however, judges determine the law in the jury instructions and the jury is bound by the instructions to follow the law.