None of the cases you list under "contra" overturn the holding in /Stettinius,/ which held there was a right to argue the law before the jury, up to the point at which the bench rules on the motion being argued, and that such ruling should be made only after all such legal argument is concluded. The cases all address what the jury is to do with whatever they hear, not legal argument to the jury.
There is also a hole in the logic of some of those opinions. A juror can, without committing perjury, refuse to convict according to what the bench claims is "law" because most such oaths only have him affirm that he will follow the /law/ as given by the bench, and anything that is not constitutional /is not law/, so he is not bound to follow unconstitutional official actions, including the instructions of the bench, which, if they contain any unconstitutional content, are not law and should be disregarded. Such as oath is inherently unconstitutional, if interpreted to mean that the law is whatever the bench says it is, since the only prescribed oath for judicial officers in the Constitution is "to support this Constitution" (Art. VI Cl 3) and jurors are judicial officers, being sworn to court duty. P. O. wrote: > I have come across the following but I have not > checked them myself. > > The later cites appear to point jury nullification > being incorrect and not permissible. > > Horning appended below. > > Sent On Behalf of > Dr. Amir H. Sanjari > > > Contra Cases: > > 1- In a recent Second Circuit case Judge Cabranes held > that jury "Nullification is, by > definition, a violation of a juror's oath to apply the > law as instructed by the court-in the > words of the standard oath administered to jurors in > the federal courts, to render a true > verdict according to the law and the evidence." U.S. > v. Thomas, 116 F.3d 606, 614 (2nd > Cir. 1997). > > 2- A central assumption of our jurisprudence is that > juries follow the instructions they receive. > U.S. v. Castillo, 140 F.3d 874, 884 (10th Cir. 1998), > U.S. v. Linwood, 142 F.3d 418, 426 > (7th Cir. 1998), U.S. v. Houlihan, 92 F.3d 1271, 1287 > (1st Cir. 1996). > > 3- We recently addressed the question of jury > nullification in > United States v. Avery, 717 F. 2d 1020 (6th Cir. > 1983), > cert. denied, 104 S.Ct. 1683 (1984), in the following > terms: > "Defendant's final contention is that the district > court committed reversible error when it > refused to instruct the jury that it had the > power to acquit the defendant even though > he was guilty of the charged offense. The > instruction itself reads that "a jury is entitled > to acquit the defendant because it has no > sympathy for the government's position." > This argument is completely without merit. > Although jurors may indeed have the power to > ignore the law, their duty is to apply the law > as interpreted by the court and they should be > so instructed." > > 4- "The right of a jury, as a buffer between the > accused and > the state, to reach a verdict despite what may seem > clear > law must be kept distinct from the court's duty to > uphold > the law and to apply it impartially. This has been > recognized by the Supreme Court in Horning v. District > of > Columbia, 41 S.Ct. 53, 54 (1920), where Justice Holmes > > stated, "[T]he jury has the power to bring in a > verdict in > the teeth of both law and facts. But the judge always > has > the right and duty to tell them what the law is upon > this > or that state of facts . . ." This directive has been > recognized by this court in United States v. Burkhart, > 501 > F. 2d 993, 996-97 (6th Cir. 1974), where we approved a > > district court's instruction that the jury consider > only the > facts and law before them. In light of Horning, Avery, > > and Burkhart, we are compelled to approve the district > > court's refusal to discuss jury nullification with the > jury. > To have given an instruction on nullification would > have > undermined the impartial determination of justice > based > on law." > > > Pro (? to varying degrees) cases: > > 1- Jury instructions are merely helpful suggestions. > U.S. v. Norton, 846 F.2d 5321, 525 (8th Cir. 1988). > > > 2- For to say, they are not at all to meddle with, or > have respect to Law in giving their > Verdicts, is not only a false position, and > contradicted by every days experience; but > also a very dangerous and pernicious one, tending to > defeat the principal end of the > Institution of Juries, and so subtilly to undermine > that which was too strong to be > batter'd down. > Sir John Hawles, The English-man's Right, pages 10-11 > (1680)(emphasis in > original)(Solicitor-General of England in the reign of > William III). > I.e., the common law directly contradicts the > bureaucrats' Benchbook. > > 3- Judges in some western and southern states are not > allowed to state the law (to overcome > judicial interference). 5 The Law Reporter 1, 10 > (1842). > > 4- Judges are not required to inform the jury of the > power to nullify. Sparf v. U.S., 156 U.S. > 51 15 S.Ct. 273 (1895). That is, judges are allowed to > conceal law from the jury. [Implying jury > nullification as valid.?] > > 5- The jury has the power to bring in a verdict in the > teeth of both law and facts. Horning v. > District of Columbia, 41 S.Ct. 53, 54 (1920). > > 6- The procedures of a jury trial . . . are those > understood and applied at common law. See > Patton v. United States, 50 S.Ct. 253, 254 (1930). > > > > Horning > ------- > > U.S. Supreme Court > HORNING v. DISTRICT OF COLUMBIA , 254 U.S. 135 (1920) > > 254 U.S. 135 > > HORNING > v. > DISTRICT OF COLUMBIA. > No. 77. > > Argued Nov. 8 and 9, 1920. > Decided Nov. 22, 1920. > > Mr. Henry E. Davis, of Washington, D. C., for > petitioner. > > Messrs. Robert L. Williams, F. H. Stephens, and P. H. > Marshall, all of Washington, D. C., for the District > of Columbia. > > Page 254 U.S. 135, 136 > > Mr. Justice HOLMES delivered the opinion of the Court. > > This case comes here upon a writ of certiorari granted > to review a judgment of the Court of Appeals that > affirmed a conviction of the petitioner of doing > business as a pawnbroker and charging more than six > per cent. interest, without a license, which is > forbidden by the Act of Congress of February 4, 1913, > c. 26, 37 Stat. 657. 48 App. D. C. 380. > > The external facts are not disputed. The defendant had > been in business as a pawnbroker in Washington but > anticipating the enactment of the present law removed > his headquarters to a place in Virginia at the other > end of a bridge leading from the city. He continued to > use his former building as a storehouse for his > pledges but posted notices on his office there that no > applications for loans would be received or > examination of pledges made there. He did, however, > maintain a free automobile service from there to > Virginia and offered to intending borrowers the choice > of calling upon him in person or sending their > application and security by a dime messenger service > not belonging to him but established in his Washington > building. If the loan was made, in the latter case the > money and pawn ticket were brought back and handed to > the borrower in Washington. When a loan was paid off > the borrower received a redemption certificate, > presented it in Washington and got back his pledge. > The defendant estimated the number of persons applying > to the Washington office for loans or redemption at > fifty to seventy-five a day. His Washington clerk, a > witness in his behalf, put it at from seventy-five to > one hundred. We may take it that there was a fairly > steady stream of callers, as is implied by the > automobile service being maintained. It is said with > reference to the charge of the judge to which we shall > advert that there was a question > > Page 254 U.S. 135, 137 > > for the jury as to the defendant's intent. But we > perceive none. There is no question that the defendant > intentionally maintained his storehouse and managed > his business in the way described. It may be assumed > that he intended not to break the law but only to get > as near to the line as he could which he had a right > to do, but if the conduct described crossed the line, > the fact that he desired to keep within it will not > help him. It means only that he misconceived the law. > > As to whether the conduct described did contravene the > law, it is urged that a pledgee has a right to keep > the pledged property where he likes and as he likes > provided he returns it in proper condition when > redeemed. But that hardly helps the defendant. To keep > for return, whatever latitude there may be as to place > and mode, is part of the duty of a pledgee, and in the > case of one who makes a business of lending on pledges > is as much a part of his business as making the loan. > As we read the statute its prohibition is not confined > to cases where the whole business is done in > Washington. If an essential part of it is done there > and a Washington office is used as a collecting > centre, it does not matter that care is taken to > complete every legal transaction on the other side of > the Potomac. We cannot suppose that it was intended to > allow benefits so similar to those coming from > business done wholly in the city to be derived from > acts done there and yet go free. We are of opinion > that upon the undisputed evidence the defendant was > guilty of a breach of the law and turn at once to the > question which seemed to warrant allowing the case to > be brought to this Court. > > The question relates to the charge of the judge. The > judge said to the jury that the only question for them > to determine was whether they believed the concurrent > testimony of the witnesses for the Government and the > defendant describing the course of business that we > have stated and as to which there was no dispute. > Those facts, > > Page 254 U.S. 135, 138 > > he correctly instructed them, constituted an engaging > in business in the District of Columbia. This was > excepted to and the jury retired. The next day they > were recalled to Court and were told that there really > was no issue of fact for them to decide; that they > were not warranted in capriciously saying that the > witnesses for the Government and the defendant were > not telling the truth; that the course of dealing > constituted a breach of the law; that it was their > duty to accept this exposition of the law; that in a > criminal case the Court could not peremptorily > instruct them to find the defendant guilty but that if > the law permitted he would. The Court added that a > failure to bring in a verdict could only arise from a > fiagrant disregard of the evidence, the law, and their > obligation as jurors. On an exception being taken the > judge repeated that he could not tell them in so many > words to find the defendant guilty but that what he > said amounted to that; that the facts proved were in > accord with the information and that the Court of > Appeals had said that that showed a violation of law. > > This was not a case of the judge's expressing an > opinion upon the evidence, as he would have had a > right to do, Graham v. United States, 231 U.S. 474, > 480, 34 S. Sup. Ct. 148. The facts were not in > dispute, and what he did was to say so and to lay down > the law applicable to them. In such a case obviously > the function of the jury if they do their duty is > little more than formal. The judge cannot direct a > verdict it is true, and the jury has the power to > bring in a verdict in the teeth of both law and facts. > But the judge always has the right and duty to tell > them what the law is upon this or that state of facts > that may be found, and he can do the same none the > less when the facts are agreed. If the facts are > agreed the judge may state that fact also, and when > there is no dispute he may say so although there has > been no formal agreement. Perhaps there was a > regrettable peremptoriness of tone- > > Page 254 U.S. 135, 139 > > butthe jury were allowed the technical right, if it > can be called so, to decide against the law and the > facts-and that is all there was left for them after > the defendant and his witnesses took the stand. If the > defendant suffered any wrong it was purely formal > since, as we have said, on the facts admitted there > was no doubt of his guilt. Act of February 26, 1919, > c. 48, 40 Stat. 1181, amending section 269 of the > Judicial Code; Act of March 3, 1911, c. 231, 36 Stat. > 1087 (Comp. St. Ann. Supp. 1919, 1246). > > Judgment affirmed. > > Mr. Justice McREYNOLDS dissents. > > Mr. Justice BRANDEIS, dissenting. > > It has long been the established practice of the > federal courts that, even in criminal cases, the > presiding judge may comment freely on the evidence and > express his opinion whether facts alleged have been > proved Since Sparf v. United States, 156 U.S. 51, 715, > 15 S. Sup. Ct. 273, it is settled that, even in > criminal cases, it is the duty of the jury to apply > the law given them by the presiding judge to the facts > which they find. But it is still the rule of the > federal courts that the jury in criminal cases renders > a general verdict on the law and the facts; and that > the judge is without power to direct a verdict of > guilty although no fact is in dispute. United States > v. Taylor (C. C.) 11 Fed. 470; Atchison, etc., Ry. v. > United States, 172 Fed. 194, 96 C. C. A. 646, 27 L. R. > A. (N. S.) 756. What the judge is forbidden to do > directly, he may not do by indirection. Peterson v. > United States, 213 Fed. 920, 130 C. C. A. 398. The > judge may enlighten the understanding of the jury and > thereby influence their judgment; but he may not use > undue influence. He may advise; he may persuade; but > he may not command or coerce. He does coerce when > without convincing the judgment he overcomes the will > by the weight of his authority. Compare Hall v. Hall, > L. R. 1, P. & D. 481, 482. > > Page 254 U.S. 135, 140 > > The character of the charge in this case is > illustrated by the following paragraph: > > 'In conclusion I will say that a failure to > bring in a verdict in this case can arise only from a > willful and flagrant disregard of the evidence and the > law as I have given it to you and a violation of your > obligation as jurors. Of course, gentlemen. I cannot > tell you in so many words to find defendant guilty, > but what I say amounts to that.' > > In my opinion, such a charge is a moral command, and, > being yielded to, substitutes the will of the judge > for the conviction of the jury. The law, which in a > criminal case forbids a verdict directed 'in so many > words,' forbids such a statement as the above. > [Footnote 1] > > It is said that if the defendant suffered any wrong it > was purely formal; and that the error is of such a > character as not to afford, since the Act of February > 26, 1919, c. 48, 40 Stat. 1181, a basis for reversing > the judgment of the lower court. Whether a defendant > is found guilty by a jury or is declared to be so by a > judge is not, under the federal Constitution, a mere > formality. Blair v. United States, 241 Fed. 217, 230, > 154 C. C. A. 139. The offense here in question is > punishable by imprisonment. Congress would have been > powerless to provide for imposing the punishment > except upon the verdict of the jury. Callan v. Wilson, > 127 U.S. 540, 8 Sup. Ct. 1301; Thompson v. Utah, 170 > U.S. 343, 18 Sup. Ct. 620. I find nothing in the act > to indicate that it sought to do so. > > Because the presiding judge usurped the province of > the jury, I am unable to concur in the judgment of the > court. > > The CHIEF JUSTICE and Mr. Justice DAY concur in this > dissent. > Footnotes > > Footnote 1 Compare People v. Sheldon, 156 N. Y. 268, > 50 N. E. 840, 41 L. R. A. 644, 66 Am. St. Rep. 564; > State v. Bybee, 17 Kan. 462; Meadows v. State, 182 > Ala. 51, 62 South. 737, Ann. Cas. 1915D, 663; Randolph > v. Lampkin, 90 Ky. 551, 14 S. W. 538, 10 L. R. A. 87; > McPeak v. Ry., 128 Mo. 617, 30 S. W. 170; State v. > Tulip, 9 Kan. App. 454, 60 Pac. 659; Lively v. Sexton, > 35 Ill. App. 417. See Starr v. United States, 153 U.S. > 614, 626, 14 S. Sup. Ct. 919. > > > > > > --- Jon Roland <[EMAIL PROTECTED]> wrote: > > > --------------------------------- > If that applies to Fenwick then it should presumably > also applyto Stettinius. I think P. O. is asking for > the dissentingopinions, and the opinion in Norton, but > I don't recognize inwhich cases Riley and Keller might > have been judges. > > Royce wrote: US v. Fenwick wasShepardized. > Still valid case law to this day. Not superceded > bystatute or case law. > > I don't understandthe rest of your request. > -----Original Message ----- > From: Jon Roland > To: New > Cc: P. O. > Sent:Tuesday, September 18, 2007 5:47 AM > Subject:Re: Stettinius v. United States shows > original meaning of "criminaljury trial" > > > I have put up U.S. v. Fenwick at > http://www.constitution.org/usfc/fc/25/US_v_Fenwick.htm. > Royce, could you get us those opinions and U.S. v. > Norton?"P. O." claims to have later conflicting cases > but hasn't come up withcites yet. Can you Shepardize? > Also looking for any law review articlesthat might > discuss these cases. > > > > ------Begin forwarded message------If you have the > files of opinions of Riley & Keller I'd appreciate > copies of them. Maybeyou could add these two plus US > v. Fenwick and US v.Norton [Jury instructions are > merely helpfulsuggestions. U.S. v. Norton, 846 F.2d > 5321, 525 (8thCir. 1988)] to your web site. > > -- Jon ---------------------------------------------------------------- Constitution Society 7793 Burnet Road #37, Austin, TX 78757 512/299-5001 www.constitution.org [EMAIL PROTECTED] ---------------------------------------------------------------- [Non-text portions of this message have been removed]
