Posted by Randy Barnett:
Judge Nullifies Juror Nullification:
http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218815216
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 [1]here (pdf) and [2]here (pdf)) and a point that
has been made by [3]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 [4]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 [5]Juror Becomes Fly in the Ointment.
For those with a serious interest in jury nullification, I highly
recommend [6]Jury Nullification: The Evolution of a Doctrine
(paperback) by Clay Conrad, which is the best work on the subject
since Lysander Spooner's [7]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 [8]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.
References
1. http://www.cato.org/pubs/handbook/hb109/hb_109-24.pdf
2. http://www.cato.org/pubs/books/after-pro-chpt3.pdf
3. http://www.law.cornell.edu/supct/html/03-1454.ZD1.html
4.
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=young/pdf/luisi%20memorandum.pdf
5.
http://www.cato-at-liberty.org/2008/08/14/juror-becomes-fly-in-the-ointment/
6.
http://www.amazon.com/Jury-Nullification-Evolution-Clay-Conrad/dp/0890897026
7. http://www.lysanderspooner.org/TrialByJury.htm
8. http://www.fija.org/
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