Some good news for jury independence. Three terrific rulings in three weeks. I don’t know if this is an indication of anything significant, but I’ll take it.
First, some background. The Sixth Amendment to the Constitution says that in all criminal prosecutions, the accused shall enjoy trial by jury. The government has undermined that right in several ways. First, it uses plea bargaining tactics [.pdf] to deter the accused from exercising the right to trial. Second, the government tries to stack juries with people who will not question the law. A prosecutor, for example, might ask a pool of potential jurors, “Anyone here have a problem with the war on drugs?” After a show of hands, the prosecutor judge will then say something like, “Thank you for your candor. Everyone who raised their hand is excused from jury service today.” Third, after a jury is finally selected, the jurors will be told that they may not vote their conscience. They must instead “follow the law” as it is explained by the trial judge. Jurors are told that their job is to determine “the facts” – did the defendant initiate the attack or was she acting in self-defense, as she claims? Sometimes that neat separation between the facts and the law breaks down, such as when a prosecutor wants to enforce a ban on handguns. There is no factual dispute for the jury to decide when the defendant openly admits “Yes, I brandished a handgun. But it was only to stop that guy from raping me.” We rarely see such cases because prosecutors are clever enough to dispose of the case with a plea bargain. “Ma’am, we understand you might have been raped, but what you did was against the law. We don’t want you to go to prison for two years in these circumstances. If you waive your right to a trial and plead guilty, we’re prepared to offer you five hours of community service, okay?”
The government uses these tactics every day and the courts have ruled that they are perfectly legal and constitutional. This was not always the case. Our second president, John Adams, said “it is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” American law has drifted so far from that idea, that if I put John Adams’s statement on a sign and walked outside a criminal courthouse, I might get arrested if I were to try and hold my ground against overzealous ”security personnel” from the courthouse. Still, Cato publishes articles and books that make the case that the modern legal trend is wrongheaded. Prominent academics, most notably, Amar, Green, and Reynolds, seem to agree, but the opposing view remains fairly dominant.
That’s the bad news. Now to the good news. Under modern law, it is still verboten for a trial judge to issue a direct order to the jury, such as “We will take a short recess now and I want the jury to retire and then return with a guilty verdict in twenty minutes.” Similarly, it is also illegal for a judge accomplish the same end, but after-the-fact by overturning an acquittal and declaring the defendant “guilty.” Those legal propositions are not disputed, but from time to time courts must decide cases where there is an allegation that the jury was “coerced” in some way. The good news is that over the past few weeks there have been three such rulings and in each instance, the court came to the defense of jury independence.
Here’s a quick and dirty summary.
In a Maryland case, a note was sent to the judge after the jury started deliberating in a criminal matter. The note complained that one of the jurors “did not trust the police no matter the circumstance.” The judge responded by instructing the jury that such a skeptical point of view should have been disclosed by the juror before the case began. The judge went so far as to say that this juror “might be violating the oath” that the jurors took earlier. Shortly thereafter, the jury returned a guilty verdict. On appeal, the defendant argued that the judge had coerced the verdict. The Maryland Court of Appeals found coercion and overturned the conviction. The appeals court said the trial judge’s admonishment may have caused the juror in question to “rethink her legal obligation,” go against her conscience, and vote with the majority. In other words, it is improper to interfere with the jury’s independence. Butler v. State. (Md Ct App) [.pdf] .
The second case involved a man on trial for first-degree assault. The jurors were told that if they found the man not guilty of first degree assault–or if they simply could not unanimously agree on the first-degree charge, they should consider whether he was guilty of second-degree assault. The jury returned a guilty verdict on the second-degree charge. When the verdict was announced, the prosecutor asked the judge to clarify whether the jury was deadlocked on the first-degree charge or whether they had unanimously agreed that the defendant was not guilty of first-degree assault. The judge proceeded to inquire of jury foreperson what had happened. The jury foreperson explained that the jury was deadlocked and could not reach an agreement as to first-degree assault. The trial judge then announced that, with respect to the first-degree charge, there was a mistrial, not an acquittal. That finding is significant because the double jeopardy safeguard is triggered after an aquittal verdict, but not for mistrials because of hung juries. The prosecution promptly announced its intention to retry the defendant and the defense objected. The Supreme Court of Washington agreed with the defense that the court had acted improperly: “The trial judge erred by inquiring into the jury’s thinking about the first degree assault charge. … The jury’s resolution on first degree assault is beyond the realm of inquiry.” In other words, state functionaries, including trial judges, should not interfere with the jury’s independence–most especially in a manner that might prejudice the defendant.
The third case involved the high-profile federal prosecution of Ed Rosenthal on marijuana charges in 2002. This was one of the major skirmishes between Californians and the federal government over medical marijuana. In 1996, California voters approved an initiative to allow marijuana use in certain medical situations. The feds took the hard line: We don’t care what state law says, there is no “medical exception” to the federal ban on marijuana possession. On the eve of Rosenthal’s trial, federal prosecutors asked the trial judge to lay down some ground rules for the trial. No medical marijuana defense. And Rosenthal should not be allowed to make any argument aimed at jury nullification. The judge readily agreed to those requests. Weeks later, as the jury was deliberating Rosenthal’s fate, one juror decided to contact her attorney-friend to ask a question about a legal point. The juror was frustrated because she had surmised from questions asked during the early jury selection phase of the case that there was a medical marijuana angle–and yet there was no evidence introduced in the case about medical marijuana. This troubled the juror–so she phoned her attorney-friend to ask ”if [she] had to follow the Judge’s instructions, or if [she] had any leeway at all for an independent thought.” The attorney responded by saying that jurors definitely had to follow the judge’s instructions and went so far as to say that a juror “could get into trouble” for acting outside of those instructions. Rosenthal was subsequently convicted by the jury, but on appeal, he raised this episode as one reason that he should be given a new trial.
[Digression: After the trial, the jurors were shocked at the information that had been kept from them and many approached Rosenthal and his legal team to explain why they voted the way they did. Several wanted to help in his appeal in any way they could].
The federal appeals court agreed with Rosenthal’s argument and overturned his conviction:
Jurors cannot fairly determine the outcome of a case if they believe they will face “trouble” for a conclusion they reach as jurors. The threat of punishment works a coercive influence on the jury’s independence, and a juror who genuinely fears retribution might change his or her determination of the issue for fear of being punished. United States v. Rosenthal (9th Cir). [.pdf].