December 20, 2018 10:47AM

Defending a Court’s Discretion To Allow Arguments for Conscientious Acquittal

Throughout the entire Anglo‐​American legal tradition, the independence of citizen juries has been understood to be an indispensable structural check on executive and legislative power. This independence has traditionally implied that jurors would both understand the consequences of a conviction, and that they would possess the power of conscientious acquittal, or “jury nullification”—that is, the inherent prerogative to decline to convict a defendant, even if factual guilt is shown beyond a reasonable doubt, when convicting would work a manifest injustice. Nevertheless, modern courts generally do not protect a defendant’s right to make such arguments directly to a jury, nor even to inform a jury about the consequences of conviction. A fascinating case now pending before the Second Circuit illustrates the tensions in modern case law on the subject, and raises the crucial question of whether district courts may, at the very least, permit such arguments in appropriate cases.

Yehudi Manzano, a 31‐​year‐​old man, made the regrettable decision to get involved in a romantic relationship with a 15‐​year‐​old girl. While their sexual relationship was impermissible under Connecticut age‐​of‐​consent laws, there was no indication that any instance of sex was coerced. On one occasion, Mr. Manzano took a video on his cell phone of the two of them having sex, which he then deleted. But the video was uploaded to the cloud, federal prosecutors ultimately became aware of the recording, and they charged Mr. Manzano with both production and distribution of child pornography, which respectively carry mandatory minimum sentences of fifteen and five years.

Mr. Manzano exercised extraordinarily poor judgment, and he is independently facing state charges for second‐​degree sexual assault. But the federal charges against him — a threatened minimum of 15 years, all for taking and deleting a private video, in a non‐​coerced context, that no one but government investigators ever saw — are grossly disproportionate, and they exemplify the problems with mandatory minimum sentences in general. As such, Mr. Manzano’s attorney sought to introduce evidence of the mandatory minimum sentence and to argue for conscientious acquittal. The District Court judge did not conclusively resolve these motions, but it did indicate openness to letting Manzano’s counsel ask a government witness about the mandatory minimum, and said that if the evidence came in, he would allow argument on it. This is therefore the extraordinarily rare case where a district court showed even tentative willingness to permit arguments sounding in conscientious acquittal.

But even those conditional, preliminary rulings were too much for the prosecutor to accept. The government stayed the trial, and is now seeking the extraordinary remedy of a writ of mandamus from the Second Circuit, asking the appellate court to prohibit the District Court from permitting any evidence or argument about conscientious acquittal. In other words, according to the United States, keeping a jury in the dark about the actual consequences of conviction is so vital that it warrants stopping a trial and overriding the traditional discretion of district court judges to rule on evidentiary questions as they arise.

The Cato Institute, joined by FAMM and the NACDL, has therefore filed an amicus brief, urging the Second Circuit to deny the government’s petition. Not only is the District Court’s preliminary ruling well within its discretion, but the judge’s approach is also eminently reasonable, as it thoughtfully harmonizes many tensions in the modern case law of conscientious acquittal. Our brief argues that, throughout the Anglo‐​American legal tradition, pre‐​dating even Magna Carta, juries have always possessed the inherent authority to acquit defendants in the face of manifestly unjust prosecutions. This power was well‐​established in the Founding Era, in which juries were regularly aware of — and tailored their verdicts to — the consequences of conviction. And while modern cases (perhaps erroneously) do not generally afford defendants the right to argue for conscientious acquittal, no controlling cases preclude a district court from permitting such arguments.

Protecting the discretion of district court judges in this regard is all the more important today, in light of the vanishingly small role jury trials play in our criminal justice system. Today, jury trials have been all but replaced by plea bargaining as the baseline for criminal adjudication, and severe mandatory minimums, like the one at issue here, are a major driver of this trend. Preserving the possibility that juries may, in appropriate cases, be informed about the consequences of conviction is a small but vital safeguard against the wholesale erosion of the jury trial itself.