Judge boots juror who wouldn't convict druggie - Page 1

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Posted: 8/16/2008 5:11:48 AM EDT

what a shame....

Randy Barnett, August 15, 2008 at 11:46am] Trackbacks
Judge Nullifies Juror Nullification: A very interesting post today by Tim Lynch on Cato @ Liberty on a recent jury trial in a drug case:

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

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

That’s a fair question. It is a point that has been made in Cato’s publications (go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.” Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

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

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

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

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

Posted: 8/16/2008 5:14:59 AM EDT

[#1]

This will be good.

Posted: 8/16/2008 5:16:24 AM EDT

[#2]

Unpossible!

Das System ist vollkommen!

Posted: 8/16/2008 5:18:10 AM EDT

[#3]

wow that's some bullshit

sounds like the guy was a activist but jury nullification is perfectly acceptable
but apparently not for the powers that be

Posted: 8/16/2008 5:19:12 AM EDT

[#4]

"Well if you guys don't like the law then get it changed!"

Um, yeah....

Posted: 8/16/2008 5:22:32 AM EDT

[#5]

This is a rather sad development. Even if the guy is guilty as hell (and I have no love for those in the drug trade), this undermines how the legal system is supposed to work. Jurors are the last line in determining if a law is just. Heck, I wonder if this judge thinks that presidential pardons should be illegal.

P.S. - I had visions of the judge having a Judge Dredd moment "I AM the law!"

Posted: 8/16/2008 5:26:13 AM EDT

[#6]

Nah, won't go to much of anywhere, to much reading for most of GD. It is pretty fucked up though.

Posted: 8/16/2008 5:28:46 AM EDT

[#7]

The judge should be impeached for violating his oath of office.

Posted: 8/16/2008 6:13:25 AM EDT

[#8]

Quoted:
This is a rather sad development. Even if the guy is guilty as hell (and I have no love for those in the drug trade), this undermines how the legal system is supposed to work. Jurors are the last line in determining if a law is just. Heck, I wonder if this judge thinks that presidential pardons should be illegal.

P.S. - I had visions of the judge having a Judge Dredd moment "I AM the law!"

I wonder how many arfcom'ers believe this.

Posted: 8/16/2008 6:18:19 AM EDT

[#9]

Quoted:

Quoted:
This is a rather sad development. Even if the guy is guilty as hell (and I have no love for those in the drug trade), this undermines how the legal system is supposed to work. Jurors are the last line in determining if a law is just. Heck, I wonder if this judge thinks that presidential pardons should be illegal.

P.S. - I had visions of the judge having a Judge Dredd moment "I AM the law!"

I wonder how many arfcom'ers believe this.

I believe it.

Will this establish precedent that a judge can simply remove jurors he doesn't like until he gets the verdict he wants??? I can't see this surviving the appeal.

Posted: 8/16/2008 6:19:18 AM EDT

[#10]

Quoted:
wow that's some bullshit

sounds like the guy was a activist but jury nullification is perfectly acceptable
but apparently not for the powers that be

that is the first thing I thought Jury Nullification just went out the window for this case

Posted: 8/16/2008 6:20:27 AM EDT

[#11]

very interesting, I learned something today

Posted: 8/16/2008 6:20:57 AM EDT

[#12]

Something to think about next time one of us is picked for jury duty.

History Channel has a great show about how drugs became illegal, extremely interesting and they outright say that most of it was because of Mexicans and pushing em down to their side of the border.

Posted: 8/16/2008 6:21:30 AM EDT

[#13]

Judges can nullify a Jury if they want to. Meaning if they don't like a verdict they can rule the way they choose.

Posted: 8/16/2008 6:21:35 AM EDT

[#14]

Why didn't the judge simply instruct the jurors to hand over a guilty verdict without all the phony "deliberation" nonsense?

That would have saved time.

Posted: 8/16/2008 6:26:51 AM EDT

[#15]

Constitutionality of law is for the supreme court to decide.

Jurors don't have the ability, nor should they, of determining that at trial. It is an issue for pre-trial motions and/or appeals. Up to and including the supreme court.

I am interested in how many posters here have been involved with cases that have been tested as such. I have, once from a search related challenge and once challenging the constitutionality of a law. Both decided at the state level.

The system works when allowed to do so.

I don't know enough about juror disqualification to know if that is the proper way to handle such a situation, however, the juror was wrong in his claim.

Joe

Posted: 8/16/2008 6:32:22 AM EDT

[#16]

Quoted:
Constitutionality of law is for the supreme court to decide.

Jurors don't have the ability, nor should they, of determining that at trial. It is an issue for pre-trial motions and/or appeals. Up to and including the supreme court.

I am interested in how many posters here have been involved with cases that have been tested as such. I have, once from a search related challenge and once challenging the constitutionality of a law. Both decided at the state level.

The system works when allowed to do so.

I don't know enough about juror disqualification to know if that is the proper way to handle such a situation, however, the juror was wrong in his claim.

Joe

This flies in the face of what our founders believed. Nullification is the reason we have trial by jury.

Posted: 8/16/2008 6:33:02 AM EDT

[#17]

Quoted:
Jurors don't have the ability, nor should they, of determining that at trial. It is an issue for pre-trial motions and/or appeals. Up to and including the supreme court.

Joe

IIRC, the jury (a long, long time ago) was supposed to judge both the offender and the law.

Kharn

Posted: 8/16/2008 6:34:13 AM EDT

[#18]

Might be worth reading the Court's decision and find out what the real status of jury nullification is.

Those who think beiing a juror gives them the right to not follow the law based on their own special interpretation of the Constitution will not be pleased to find out the truth.

Posted: 8/16/2008 6:35:00 AM EDT

[#19]

I wonder how firm the grounds for appeal will be.

Because, this WILL be appealed.

At the least, he should get a new trial, and the judge should be reprimanded.

"Respect ma authoriti!"

Posted: 8/16/2008 6:37:03 AM EDT

[#20]

Quoted:
Might be worth reading the Court's decision and find out what the real status of jury nullification is.

Those who think beiing a juror gives them the right to not follow the law based on their own special interpretation of the Constitution will not be pleased to find out the truth.

And what makes this judge's opinion, truth? I can provide other jurists' opinion, of a much higher stature, saying the opposite.

Posted: 8/16/2008 6:37:41 AM EDT

[#21]

Quoted:

Quoted:
wow that's some bullshit

sounds like the guy was a activist but jury nullification is perfectly acceptable
but apparently not for the powers that be

that is the first thing I thought Jury Nullification just went out the window for this case

This is a common misunderstanding among Afrcom posters.

"Jury Nullification" is not allowed if announced like this guy did. The Judge was simply following the law in removing him from the jury, as he plainly stated that he would not uphold the law in his decision.

If a person wants to practice Jury Nullification, he cannot make such a statement. He could simply refuse to vote "Guilty". If asked why he was voting like that, simply say, "Because I do not believe he has been proven guilty".

If the guy had done that, the case would have been finished and had a hung jury.

Jury nullification only works if you do not admit what you are doing. But if you bring up JN, you are out of the game.

Posted: 8/16/2008 6:38:53 AM EDT

[#22]

Quoted:
Might be worth reading the Court's decision and find out what the real status of jury nullification is.

Those who think beiing a juror gives them the right to not follow the law based on their own special interpretation of the Constitution will not be pleased to find out the truth.

Yep. The court instructs the jury on the law. The jury simply decides if the defendant broke that law. They dont get to decide if they like the law, agree with the law or if the law should be enforced.

Posted: 8/16/2008 6:40:54 AM EDT

[#23]

Quoted:
"Jury Nullification" is not allowed if announced like this guy did. The Judge was simply following the law in removing him from the jury, as he plainly stated that he would not uphold the law in his decision.

If a person wants to practice Jury Nullification, he cannot make such a statement. He could simply refuse to vote "Guilty". If asked why he was voting like that, simply say, "Because I do not believe he has been proven guilty".

If the guy had done that, the case would have been finished and had a hung jury.

Jury nullification only works if you do not admit what you are doing. But if you bring up JN, you are out of the game.

Exactly.

Posted: 8/16/2008 6:43:37 AM EDT

[#24]

Quoted:

Quoted:
Might be worth reading the Court's decision and find out what the real status of jury nullification is.

Those who think beiing a juror gives them the right to not follow the law based on their own special interpretation of the Constitution will not be pleased to find out the truth.

Yep. The court instructs the jury on the law. The jury simply decides if the defendant broke that law. They dont get to decide if they like the law, agree with the law or if the law should be enforced.

"You have a right to take upon yourselves to judge both the facts and law."

- Chief Justice John Jay instructing a jury.

Posted: 8/16/2008 6:51:57 AM EDT

[#25]

I'm fairly sure that the place for challenging the constitutionality of a law is the Supreme Court.

There isn't really much difference between activist juries and activist judges in that regard.

Posted: 8/16/2008 6:54:00 AM EDT

[#26]

Quoted:

Quoted:
wow that's some bullshit

sounds like the guy was a activist but jury nullification is perfectly acceptable
but apparently not for the powers that be

that is the first thing I thought Jury Nullification just went out the window for this case

This is a common misunderstanding among Afrcom posters.

"Jury Nullification" is not allowed if announced like this guy did. The Judge was simply following the law in removing him from the jury, as he plainly stated that he would not uphold the law in his decision.

If a person wants to practice Jury Nullification, he cannot make such a statement. He could simply refuse to vote "Guilty". If asked why he was voting like that, simply say, "Because I do not believe he has been proven guilty".

If the guy had done that, the case would have been finished and had a hung jury.

Jury nullification only works if you do not admit what you are doing. But if you bring up JN, you are out of the game.

I agree that this the pragmatic way to impliment "JN"... but from a legal POV, why is silence about JN necessary?

Posted: 8/16/2008 6:54:21 AM EDT

[#27]

Quoted:

Quoted:
"Jury Nullification" is not allowed if announced like this guy did. The Judge was simply following the law in removing him from the jury, as he plainly stated that he would not uphold the law in his decision.

If a person wants to practice Jury Nullification, he cannot make such a statement. He could simply refuse to vote "Guilty". If asked why he was voting like that, simply say, "Because I do not believe he has been proven guilty".

If the guy had done that, the case would have been finished and had a hung jury.

Jury nullification only works if you do not admit what you are doing. But if you bring up JN, you are out of the game.

Exactly.

Your title is "Individual Rights Absolutist" but you don't believe an individual has the right to question the law in front of those who are supposed to render judgment by it?

What if someone made a similar stance on a trial focused on a shitty state AWB by claiming "After reviewing the facts I cannot find a man guilty because nothing presented renders his right to bear arms invalid?"

The calling of free people is to question law - I think too many people here worship it.

Posted: 8/16/2008 6:54:37 AM EDT

[#28]

Quoted:

Quoted:
Might be worth reading the Court's decision and find out what the real status of jury nullification is.

Those who think beiing a juror gives them the right to not follow the law based on their own special interpretation of the Constitution will not be pleased to find out the truth.

Yep. The court instructs the jury on the law. The jury simply decides if the defendant broke that law. They dont get to decide if they like the law, agree with the law or if the law should be enforced.

I thought one reason Prohibition was reversed was due to juries not convicting individuals.

Seems then that those juries did not like the law, refused to convict, and the law was finally overturned. Hmmm, amendments to the constitution no less.

Overly simplistic view of me but don't want to go too deep here.

Posted: 8/16/2008 6:54:51 AM EDT

[#29]

Quoted:
I'm fairly sure that the place for challenging the constitutionality of a law is the Supreme Court.

There isn't really much difference between activist juries and activist judges in that regard.

so the quote in the post above yours, by the 1st Chief Justice of the Supreme Court, was wrong?

Posted: 8/16/2008 7:00:22 AM EDT

[#30]

Quoted:

Quoted:
I'm fairly sure that the place for challenging the constitutionality of a law is the Supreme Court.

There isn't really much difference between activist juries and activist judges in that regard.

so the quote in the post above yours, by the Chief Justice of the Supreme Court, was wrong?

Hell yea dude, what'd he know about law? I've NEVER seen him in GD.

In fact, I bet his post count was like 50.

Posted: 8/16/2008 7:03:35 AM EDT

[#31]

Quoted:
wow that's some xxxxxx

sounds like the guy was a activist but jury nullification is perfectly acceptable
but apparently not for the powers that be

Quoted:
The judge should be impeached for violating his oath of office.

Judges can overturn guilty verdicts but cannot for not-guilty verdicts.

There should be no fear on the part of Jurors to exercise JN openly.

Quoted:
Might be worth reading the Court's decision and find out what the real status of jury nullification is.

Those who think beiing a juror gives them the right to not follow the law based on their own special interpretation of the Constitution will not be pleased to find out the truth.

You are an attorney. I'd like to hear you expand on this please.

Posted: 8/16/2008 7:05:21 AM EDT

[#32]

Quoted:

Quoted:
This is a rather sad development. Even if the guy is guilty as hell (and I have no love for those in the drug trade), this undermines how the legal system is supposed to work. Jurors are the last line in determining if a law is just. Heck, I wonder if this judge thinks that presidential pardons should be illegal.

P.S. - I had visions of the judge having a Judge Dredd moment "I AM the law!"

I wonder how many arfcom'ers believe this.

I would hope they all do if they follow the mantra "better judged by 12 than carried by 6" - because the heart of that issue in many places is a sympathetic jury. Jury nullification is just another part of that.

Posted: 8/16/2008 7:19:31 AM EDT

[#33]

Quoted:
If a person wants to practice Jury Nullification, he cannot make such a statement. He could simply refuse to vote "Guilty". If asked why he was voting like that, simply say, "Because I do not believe he has been proven guilty".

If the guy had done that, the case would have been finished and had a hung jury.

+1

Debate the "it should be" all you want but in practical terms this is the situation.

Posted: 8/16/2008 8:16:12 AM EDT

[#34]

Quoted:

Quoted:
wow that's some bullshit

sounds like the guy was a activist but jury nullification is perfectly acceptable
but apparently not for the powers that be

that is the first thing I thought Jury Nullification just went out the window for this case

This is a common misunderstanding among Afrcom posters.

"Jury Nullification" is not allowed if announced like this guy did. The Judge was simply following the law in removing him from the jury, as he plainly stated that he would not uphold the law in his decision.

If a person wants to practice Jury Nullification, he cannot make such a statement. He could simply refuse to vote "Guilty". If asked why he was voting like that, simply say, "Because I do not believe he has been proven guilty".

If the guy had done that, the case would have been finished and had a hung jury.

Jury nullification only works if you do not admit what you are doing. But if you bring up JN, you are out of the game.

I did not know that.

Posted: 8/16/2008 8:18:16 AM EDT

[#35]

Quoted:
"Well if you guys don't like the law then get it changed!"

Um, yeah....

Hey I hear Cheech and Chong are making a new movie. You should enjoy that.

Posted: 8/16/2008 8:26:10 AM EDT

[#36]

Seems to me a stone-cold idiot made it thru jury selection and the judge corrected the problem.

Posted: 8/16/2008 8:30:56 AM EDT

[#37]

Quoted:
Yep. The court instructs the jury on the law. The jury simply decides if the defendant broke that law. They dont get to decide if they like the law, agree with the law or if the law should be enforced.

I had jury duty a month or so ago and that was my understanding of the jury instructions from the bench.

Posted: 8/16/2008 8:35:19 AM EDT

[#38]

Quoted:

Quoted:
Yep. The court instructs the jury on the law. The jury simply decides if the defendant broke that law. They dont get to decide if they like the law, agree with the law or if the law should be enforced.

I had jury duty a month or so ago and that was my understanding of the jury instructions from the bench.

Because the judge is the ultimate authority on all law, is your friend, and is going to tell you exactly what you can and cannot do, right?

Posted: 8/16/2008 8:38:50 AM EDT

[#39]

Quoted:

Quoted:
Yep. The court instructs the jury on the law. The jury simply decides if the defendant broke that law. They dont get to decide if they like the law, agree with the law or if the law should be enforced.

I had jury duty a month or so ago and that was my understanding of the jury instructions from the bench.

Those are the same instructions that I received when I was on jury duty.

However one purpose of the jury is to do exactly what people say "they don't get to to decide".

en.wikipedia.org/wiki/Jury_nullification

I read about a case one time of someone who changed/blocked/whatever some stream that would ALWAYS overflow in a rainstorm. It was ruining his farmland/crops.

Local, State and Fed laws broken as there were some type of save-the-salmon regulations associated with this 'waterway'. I believe it was ~200 (yes, two HUNDRED) different charges brought upon this person.

This person even admitted, point blank, to doing what was charged ('altering', etc).

The jury was instructed as above.

Their verdict? Not guilty, all counts.

Why? Because this "law" was causing them problems as well and they were in full agreement with the defendants actions.
eta:

If some of you don't think "the powers that be" are concerned about jury nullification -

from the wiki:

The first major decision that departed from this line was Games v. Stiles ex dem Dunn, 39 U.S. 322 (1840),[20] which held that the bench could override the verdict of the jury on a point of law. The 1895 decision in Sparf v. U.S. written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.[21]

Recent court rulings have contributed to the prevention of jury nullification. A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.[22] In 1972, in United States v. Dougherty, 473 F.2d 1113, the United States Court of Appeals for the District of Columbia Circuit issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense's chance to instruct the jury about the power to nullify.[23] In 1988, the Sixth Circuit upheld a jury instruction that "There is no such thing as valid jury nullification."[24] In 1997, the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).[25] The Supreme Court has not recently confronted the issue of jury nullification.

Aimless: Still looking forward to you clarifying your initial post.

Posted: 8/16/2008 8:38:53 AM EDT

[#40]

Quoted:

Quoted:
Might be worth reading the Court's decision and find out what the real status of jury nullification is.

Those who think beiing a juror gives them the right to not follow the law based on their own special interpretation of the Constitution will not be pleased to find out the truth.

Yep. The court instructs the jury on the law. The jury simply decides if the defendant broke that law. They dont get to decide if they like the law, agree with the law or if the law should be enforced.

The jury represents the conscience of the community and can refuse to vote guilty even when they know the elements of the crime to have all been committed.

It is why we have juries.

Posted: 8/16/2008 8:41:19 AM EDT

[#41]

.

Posted: 8/16/2008 8:50:32 AM EDT

[#42]

Quoted:
I wonder how firm the grounds for appeal will be.

Because, this WILL be appealed.

At the least, he should get a new trial, and the judge should be reprimanded.

"Respect ma authoriti!"

No win on appeal... no grounds.

The judge was well within his right to act as a judge and well within the law.

Jurors do not decide constitutionality of a law, Courts do (Judges) and contrary to what that juror was saying the matter is a settled point of law.

Posted: 8/16/2008 8:54:11 AM EDT

[#43]

Here is the debate on the case by the pro's; rather long - 278 posts. Enjoy!

Link

Posted: 8/16/2008 9:03:11 AM EDT

[#44]

Quoted:

Jurors do not decide constitutionality of a law, Courts do (Judges) and contrary to what that juror was saying the matter is a settled point of law.

Wrong, jurors can and do. It is a inherent right of trial by jury system.

Posted: 8/16/2008 9:03:52 AM EDT

[#45]

Quoted:
Here is the debate on the case by the pro's; rather long - 278 posts. Enjoy!

Link

my bad, i thought I included the original link.

Posted: 8/16/2008 9:04:54 AM EDT

[#46]

Quoted:
Here is the debate on the case by the pro's; rather long - 278 posts. Enjoy!

Link

Going thru it now. Good stuff.

Posted: 8/16/2008 9:06:29 AM EDT

[#47]

Quoted:
I'm fairly sure that the place for challenging the constitutionality of a law is the Supreme Court.

There isn't really much difference between activist juries and activist judges in that regard.

So why even have jurors if they can be ordered how to vote?

Posted: 8/16/2008 9:08:17 AM EDT

[#48]

Quoted:

Quoted:

Jurors do not decide constitutionality of a law, Courts do (Judges) and contrary to what that juror was saying the matter is a settled point of law.

Wrong, jurors can and do. It is a inherent right of trial by jury system.

Sorry they cannot and people have be removed for trying.