So, if you say during jury selection that you believe you can be fair and impartial, would that be perjury?
In the Balko post:
The one problem with jury nullification is that judges and prosecutors often set perjury traps that pick would-be nullifiers off during the voir dire process. Worse, judges sometimes even wrongly instruct jurors that their only option is to consider the defendant's guilt or innocence, explicitly instructing that they aren't to judge the justness or morality of the law itself.
Ha! I may be paranoid, but that doesn't necessarily make me crazy.
The answer to #2 seems to vary by state.
Jury nullification is a very bad thing, only justifiable in those limited circumstances when a conviction would be even worse. Arrest/indictment/conviction/punishment are already sujective enough: we don't need to add to that by having juries acquit "nice" people while letting others go through.
only justifiable in those limited circumstances when a conviction would be even worse
I would argue that the Drug War reached that point some time ago.
I mean, I take your point inasmuch as jury nullification has an unsavory history as regards, say, lynchings. But really, this is qualitatively different.
It's messed up to have a criminal justice system where the only people w/ discretion are: (1) cops, (2) prosecutors, (3) lawmakers who want to appear tough on crime.
I certainly see why they don't instruct juries, "by the way, you can also acquit him if you think the result would be unjust," but systematically striking every single juror with moral objections to gov't policy seems like it defeats the purpose of the jury trial right.
Agree w/8. I don't like jury nullification in general, but the kind proposed here--categorical based on the offense, blind to whether or not a particular defendant is 'nice'--is a different story, and fairly defensible. It still has the whiff of the undemocratic, but then the war on drugs has a strong stench of majoritarianism running roughshod over segments of society least equipped to do much about it, and those are the kinds of circumstances where a little countermajoritarianism in the courts is useful and appropriate.
It's messed up to have a criminal justice system where the only people w/ discretion are: (1) cops, (2) prosecutors, (3) lawmakers who want to appear tough on crime.
I was kind of astounded, though I shouldn't have been, on the last Balko thread, about those autopsies, when it was pointed out that perjurers for the prosecution tend not to get prosecuted, since it's ... the prosecution's purview.
It's messed up to have a criminal justice system where the only people w/ discretion are: (1) cops, (2) prosecutors, (3) lawmakers who want to appear tough on crime.
You mean the executive branch and the legislative branch? Yeah, they suck.
We're talking about how things work in the judicial branch, which was separated from the others for a reason. Obviously it's legitimate & necessary for legislatures to draft the penal code & the executive to enforce the law, but neither of those things means that you ought to strip all discretion from judges. We all know that cops & prosecutors don't just neutrally, mechanically "execute the law" without regard to context or consequences. Why are they the only ones who get to exercise judgement?
(I may be misreading your tone here, in which case, sorry)
Be aware that state law varies on jury nullification, and whether a juror can be kicked off a jury for engaging in it.
To be safe, anybody who wants to practice jury nullification should NOT state their intention to do so, whether during deliberations or otherwise. In some states, a juror can be kicked off for refusing to deliberate, or for refusing to say why they're voting Not Guilty.
You should be sure to deliberate about the case. Your "Not Guilty" should be based on doubts about the prosecution's case. For example, you think the cop was lying when he took the stand. The snitch cut a deal, and had a motive to lie. You don't think the prosecution proved its case beyond a reasonable doubt.
And you don't have to be lying about it either. Reasonable doubt is a highly subjective standard, and it's the jury's job to apply it. In my opinion, if jurors really did apply the reasonable standard, prosecutors would not nearly win as many cases.
"Jury nullification is a very bad thing"
You should look into the history of it.
Historically, juries were thought of as having the power of another branch of govt that was providing a check on abuse of power by the other branches. Under this theory, there's nothing illegitimate about jury nullification.
Unfortunately, states legislatures and the courts have seen fit to cut back on it significantly; but there's a good argument that this is an unconstitutional power-grab.
Conflict of interest disclosure: I'm a criminal defense attorney.
I would argue that the Drug War reached that point some time ago.
When will Unfogged stop being so god damned depressing?
Hopes? What hopes? I thought I was as cynical as possible already. You just keep proving me wrong.
You see, there's still corruption to be burnt out.
A friend of mine served on a jury that involved a DUI conviction of an illegal immigrant who got in his car in a parking lot, started it, might have moved it a few feet, then turned off the car because he thought he'd sober up. "But, technically, the law prohibits operating a motor vehicle..." Not sure what he ended up doing, but what a horrible case.
Reasonable doubt is a highly subjective standard, and it's the jury's job to apply it. In my opinion, if jurors really did apply the reasonable standard, prosecutors would not nearly win as many cases.
Interestingly, the one time I served on a Jury I, with no ulterior motive, helped convince the jury to acquit on the standards that, while it seemed likely that a crime was committed, it was too difficult to be sure.
In retrospect, I feel like that was probably the wrong decision.
It was close either way, but it was clear that the defendent had behaved badly and injured someone else, the only question was whether the could have reasonably believed they were acting in self-defense.
Just a messy set of circumstances.
Not sure what he ended up doing
If it was a conviction, he must have voted to convict, no? Congratulations, you're friends with a fascist.
My father recently served on as foreman of a jury that acquitted a man accused of arson. The cops (rural county good-ole-boys) were convinced that they had their man, the defendant was pretty unsympathetic, and the county prosecutor (as my dad tells the story) utterly failed to meet the burden of proof.
The cop who made the arrest wrote a letter to the local paper condemning the jurors and naming them by name (in a community where everybody knows everybody), saying that property owners should fear for their property because local jurors wouldn't convict an obviously guilty man.
I was dumbstruck when he told me this. I figure if there is ever a defendant in my hometown with enough money to hire a good lawyer (probably doesn't happen but once a decade or so), he should be able to get any conviction thrown out on appeal on the theory that the police make a practice of intimidating the jury pool.
22
"A friend of mine served on a jury that involved a DUI conviction of an illegal immigrant who got in his car in a parking lot, started it, might have moved it a few feet, then turned off the car because he thought he'd sober up. "But, technically, the law prohibits operating a motor vehicle..." Not sure what he ended up doing, but what a horrible case. "
What does the guy's immigration status have to do with anything?
Another confidence-inspiring story about the criminal justice system in my home town: my mother served on a jury where the defense counsel failed to strike her from the jury pool despite the fact that she was employed in the criminal justice system and had previously caught the defendant stealing gasoline from her.
Actually, the defender may have had the right idea, because my mother is as soft-hearted a wobbly liberal as you can find in those parts, and she actually held out for an acquittal on one of the counts.
26: conviction might lead to (1) deportation proceedings; (2) ineligibility for various forms of relief from deportation.
28
"26: conviction might lead to (1) deportation proceedings; (2) ineligibility for various forms of relief from deportation."
So how does the jury know this? The guy's defense was "Please don't convict me although I am obviously guity because I will be deported."?
The guy's defense was "Please don't convict me although I am obviously guity because I will be deported."?
Defense counsel makes arguments like this all the time. "Don't convict Mr. White Collar Crook, he's an upstanding citizen and his children will suffer so much if he goes to prison."
26, 28-30: also that maybe some juries might be more willing to convict an illegal alien where they would not convict a legal resident/citizen? Like, say, for starting a car while intoxicated?
Although I have no idea why a DUI jury would get to know the immigration status of the defendant in the first place.
The jury probably wouldn't know the immigration implications of conviction, considering the % of times even the defendant & his counsel don't know (and accept a plea deal for no jail time & no conviction on your record which can still count as an "aggravated felony" for immigration purposes). Don't know what S.O.P. is as far as knowing immigration status.
If it was a conviction, he must have voted to convict, no?
False. State jury criminal unanimity is not constitutionally required (according to SCOTUS) and states vary as to whether they require it.
Actually, it's not uncommon for an immigrant (illegal or otherwise) to consider the effect of the statute under which they're convicted on their residency. I say statute and not crime because it's the former that can get you into more trouble even if the crime itself draws a lenient punishment. (E.g., probably no one is going to want the guy's license for the DUI of sitting behind the wheel, but the DUI conviction could give him immigration trouble.)
"jury criminal". Scratch that. Reverse it.
34 not in opposition to 32. Most don't know. So you get a guy who gets convicted of carrying pot on a ferry 30 years ago, pays a fine and gets a slap on the wrist, and doesn't discover until years later that the statute makes him a drug trafficker and thus ineligible to become a permanent resident.
34: oh, sure, it's not uncommon; it's unfortunately not universal, though. Though some states overturn convictions if a plea was made in ignorance of it's immigration consequences.
What does the guy's immigration status have to do with anything?
Yes, how racist!!!! To imply that racism might have anything to do with an obviously frivolous dui prosecution, or to object to frivolous prosecutions that might very well be used to deport some poor bastard.
Wasn't jury nullification central to the point of having a jury in the first place? It was what those colonial-era juries who refused to convict for Stamp Act violations were doing.
Concealing and freezing out the jury nullification option seems like an authoritarian conspiracy by the legal profession.
Well, the legal profession does run this country.
Katherine, no idea if you know about this, but if I want to go to Pa. for a weekend to go door-to-door (or whatever else they need) for Obama, do you have any tips on how to coordinate this with the campaign. I signed up here, but then they want you to affiliate with a particular neighborhood, and that doesn't really make sense for coming up from NYC for a a weekend.
That's not quite right on the history of juries. Back in the day they explicitly had the power to find what the law was, not just what the facts were. It wasn't that they could ignore law. Now they explicitly don't have the power to find law in most cases.
And DO NOT provide links to the evil one. I clicked over there and within two minutes my blood pressure went through the roof as I read her usual smug, ignorant crap.
When I was on a jury, I kept pressing the point that we weren't there to decide if the defendant was more likely guilty than not, but whether the state had met its burden of proof. It was a distinction without a difference to most of the jurors. (Though we did acquit the guy on a couple of counts and hung on a couple of others. No, I wasn't the lone hold out.)
38
""What does the guy's immigration status have to do with anything?"
Yes, how racist!!!! To imply that racism might have anything to do with an obviously frivolous dui prosecution, or to object to frivolous prosecutions that might very well be used to deport some poor bastard."
First I don't see how jurors would know the guy's immigration status.
Second the prosecution is not obviously frivolous, even granting the guy's story he's guilty and of course it is quite likely he in fact passed out after driving a few feet and did not rationally decide to stop and sleep it off.
Third selectively prosecuting illegal immigrants is not racist. Btw your gal Clinton would have deported the guy without legal process.
I didn't say get I'd rid of nullification altogether. First, you can't. Second, there are going to be instances where it's appropriate. I really don't like the idea, though, that a small group of people, who are spoon-fed information, and from whom a great deal of information is kept, for one reason or another, would be making moral judgments of this kind.
And the Drug War is exactly the wrong place for vigilantism: it's not going to be applied uniformly at all.
And Mr. Defense Attorney, you really think it's OK for jurors to ignore instructions? Well, what if they decide that they'd rather apply a preponderance standard than a beyond a reasonable doubt standard? Either they get to apply their own moral standards -- rather than the law as given them by the judge (as they've sworn to do) -- or they don't.
WD, check your e-mail.
Jury nullification seems both occasionally valuable and generally problematic to me because it just expands the pool of (human, fallible, biased) people who can apply their discretionary judgment to a situation.
If the prosecutor is abusing his/her discretion (imagine!) and the system is barreling along with it, having a few jurors throw a monkey wrench into things isn't necessarily a bad thing. But as a solution to policy concerns about the drug war...argh. Not a path that seems productive to go down.
"Defense counsel makes arguments like this all the time. "Don't convict Mr. White Collar Crook, he's an upstanding citizen and his children will suffer so much if he goes to prison.""
Really? Can you name a single trial where the defense attorney made such an argument to a jury?
"And Mr. Defense Attorney, you really think it's OK for jurors to ignore instructions?"
When the instruction is unconstitutional? Absolutely.
Can you name a single trial where the defense attorney made such an argument to a jury?
The defense lawyers argued for leniency on the grounds that both defendants were fundamentally good people with close ties to family and community and histories of charitable contributions. Both men submitted to the court scores of letters by family, friends and colleagues attesting to their good character.
Or this?
Black's chief sentencing lawyer, Jeffrey Steinback, had earlier argued for leniency. He described Black as a devoted family man and a respected historian.
How about this?
The personal tragedy Nacchio's family faces with his sentence became clear when his lawyer argued that the judge should hear privately from the therapist of Nacchio's son, David. David Nacchio's attempted suicide came up during the trial. David Nacchio's dependence on his father for support formed the basis of a defense request to keep Joe Nacchio out of prison.
Probation, Nottingham said, was simply not an option. So the doctor didn't need to testify. And if he did, the judge said, the doctor would have to testify publicly, airing for everyone a family's most intimate, sad secrets. [...]
The mental health issue dominated the defense's request for a lighter sentence. [...] The bond between father and son was so "critical and emotional," Stern said, that it warranted a departure from sentencing guidelines.
I'm pretty much in agreement with Moisen's Reasonable doubt is a highly subjective standard, and it's the jury's job to apply it. In my opinion, if jurors really did apply the reasonable standard, prosecutors would not nearly win as many cases but on the above question he's just not acknowledging the reality I see in the daily paper.
49
Those arguments for leniency were made to the judge after conviction not to the jury to avoid conviction.
Fair point. Although I would be more than happy to bet that similar arguments are made during the trial phase all the time.
(Also, if I had more time to research it I bet that I could find a fair amount of evidence that financial criminals choose bench trials because they are afraid of juries. But that's a side argument.)
51
"Fair point. Although I would be more than happy to bet that similar arguments are made during the trial phase all the time. "
Typically the argument to a jury is a bit different. The defense tries to humanize the defendent by showing him as a father and husband hoping the jury will be reluctant to believe such a nice guy would do the bad things he is accused of.
It is after conviction that you argue that although the defendent did a bad thing this should be balanced against the good things he has also done and bring up reasons why the normal sentence would be unduly harsh (he will be deported, he is the sole support of a large family) in his case. Explicity making this sort of argument to a jury is likely to backfire as it is a concession of guilt.
49:
Those are from sentencing hearings, NOT trials. A sentencing hearing occurs after the defendant has already been found guilty, and the jury plays no role in it whatsoever.
(The exception is the death penalty trial, in which the jury gets to decide whether the defendant should be executed. But good luck finding a white collar criminal guilty of such...)
"Although I would be more than happy to bet that similar arguments are made during the trial phase all the time."
No, they don't because these kinds of arguments are blatantly inadmissible.
That's exactly why there are no examples of it happening.
41: I'm not sure. I think one weekend is still helpful. Do you have a friend you can crash with? Just do that neighborhood--otherwise, I bet they can accomodate you if you say "within a reasonable drive of NYC."
I'm in Pa. now. I suppose I should have tried to canvas my cabbie.
I certainly didn't think it would matter if I was registered to vote at my current address in April. I wonder if I am. I was planning to move in the summer of 2008 so I might not have bothered, I honestly don't remember.
A. C. Moisen is exactly right in 12, and I'm actually kind of pissed that the Wire folks came so close to being helpful yet ended up on the wrong side of the key issue. Refusing to convict does absolutely no good if it merely gets you kicked off in voir dire. When I was called up I saw a quarter to a third of the pool get themselves excused that way. Drug war jury duty is not about you demonstrating your moral superiority by giving a 2 minute speech that accomplishes nothing. It's not about you, period. It's about having an opportunity to keep a human being from being locked in a cage.
When the judge asks if you can convict, you say yes. Calling it perjury doesn't make it wrong. This is really not that complicated.
Maybe I'm wrong, but I thought that the vast majority of this sort of case was plead out. Possession is established (unless there's some sort of 4th amendment issue); the identity and quantity of the substance is established (unless there's a chain of custody issue); surely any responsible lawyer must advise, since his client will most likely be found guilty at trial, to take the deal.
There aren't enough courtrooms or juryrooms in the world to have given everyone in jail over the drug war a jury trial. The drug war doesn't depend on the cooperation of citizens.
A couple comments on this topic,
First, in Virginia, if your client is found guilty by a jury of drug distribution, the jury must give the defendant a sentence of at least 5 years. That is the lowest sentence.
A judge has presumptive sentencing guidelines. For a first offense, the likely sentence will be between 9 months to a year and four months.
Tell me who you would choose to try your case?
(FYI- drug distribution is to sell OR GIVE drugs to another.)
Wait, so Virginia law imposes a higher mandatory minimum if you exercise your right to a jury trial? How on earth can that pass constitutional muster?!
Juries only make "recomendations." Only judges have presumptive sentencing guidelines. Juries never hear about the sentencing guidelines. Plus, they don't know the possible sentence until after they convict. So the jury hears evidence. Thinks it is a close call, but guilty. Maybe lots of mitigating evidence. They think that they wont give them much time.
Then, boom. they hear about the mandatory minimum, AFTER they have convicted.
A judge still has to "approve" the jury's recommendation of the sentence. That is how is passes muster.
Of course, the judge almost always says "You decided to go with a jury, so we will stick with that sentence."