Judge vs. Jury

January 1, 2000 • Commentary
This article appeared in California Lawyer on September 29, 2008

One of the most interesting legal issues percolating in the American legal system is jury nullification. A poll by Decision Quest and the National Law Journal in 1998 found that three out of four citizens believed jurors should do what they think is right regardless of what the judge says the law is. In February 1999 the Washington Post found “a significant pattern of juror defiance” that has resulted in a sharp increase in the number of hung juries. Alarmed by these developments, trial judges are aggressively attempting to thwart jury nullification. The question now before the courts is, How far can a trial judge go before overstepping his or her authority and coercing a verdict?

Over the past year a string of rulings have illustrated the problem. In April the Colorado Court of Appeals overturned a contempt of court conviction against a juror for her failure to reveal during voir dire that she did not intend to follow the trial judge’s instructions on the law. People v Kriho, No. 97CAD700, 1999 WL 249143 (unpublished decision). In May a U.S. district court judge dismissed a deliberating juror for her unwillingness to follow the law and allowed the remaining jurors to convict the defendants on trial. U. v Abbell (SD Fla) No. 93–0470-CR. In June the U.S. Court of Appeals for the Ninth Circuit reversed the convictions ofJohn Fife Symington III, the former governor of Arizona, because his Sixth Amendment right to an impartial jury was violated when the trial judge dismissed a holdout juror after eight days of deliberations. U.S. v Symington, 1999 Daily Journal DAR 6295, 1999 WL 415345-

The California Supreme Court will soon decide whether a trial court violated a defendant’s right to trial by jury by dismissing a deliberating juror because he did not intend to follow the law on a particular charge. People v Williams, No. S066106 (rev gr Feb. 18, 1998). With all of this appellate court activity, the issue seems destined to go to the U.S. Supreme Court for resolution

A surprising number of lawyers hold ill‐​considered opinions about jury nullification. The conventional wisdom holds that jury nullification is absolutely improper. Thus, a trial judge should dismiss any juror who refuses to follow the court’s legal instructions. On first blush, that line of reasoning appears sound, but a closer examination will show that it is mistaken

A leading case in this area of law, U. v Thomas (1997) 116 FM 606, embodies the conventional wisdom on jury nullification, so it is useful to scrutinize the rationale of its holding Judge Jose A. eabranes opined that because “no juror has a right to engage in nullification,” trial courts have a duty to thwart nullification by dismissing any juror who refuses to follow the letter of the law. Although the judge acknowledged that nullification sometimes occurs, he said that it happens because the specter of nullification does not come “to the attention of a presiding judge before the completion of [the] jury’s work” 116 F3d at 616. Thus, he concluded, a trial judge has a responsibility to thwart such “misconduct” whenever the opportunity arises.

There are several problems with Judge Cabranes’s analysis. First, his claim that jurors do not have the right to engage in jury nullification would have startled the framers of the Constitution. John Adams, who signed the Declaration of Independence and served as our second president, observed that “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.” It is important to note that Adams was not just speaking for himself. Similar statements by Hamilton, Jefferson, and others show that Judge Cabranes’s view of jury service is at odds with the original understanding of that duty.

Second, the judge’s claim that “trial courts have [a] duty to forestall” jury nullification is weak. If such a duty truly existed, the law would give trial judges the discretionary power to direct verdicts for the prosecution. The same principle that denies judges the discretion to direct guilty verdicts should also operate to deny judges the discretion to dismiss deliberating jurors.

Third, Judge Cabranes seems to think that nullification sometimes occurs because “jurors are not answerable for nullification after the verdict has been reached.” That claim may be true, but it does not lend much support to his argument. After‐​all, the law could empower trial judges to enter a judgment of conviction notwithstanding the verdict. As is the case in civil trials, a JNOV would “cure” a nullification verdict and leave the jurors themselves “unanswerable” regarding the votes they cast in the jury room‐ The same principle that denies judges the power to grant JNOVs in criminal cases should also operate to deny judges the power to dismiss jurors who refuse to condemn the defendant in the circumstances of the case before them.

Fourth, Judge Cabranes’s rule, which would permit trial judges to dismiss deliberating jurors, would yield highly unsatisfactory results. In the Thomas case, several jurors complained to the court that a verdict could not be reached because a lone holdout refined to follow the law. That juror was subsequently dismissed. The propriety of that dismissal became the central issue on appeal. Judge Cabranes’s opinion said that in such situations the trial judge has to proceed cautiously to determine if such complaints have merit. If the allegations are found to be true, the trial judge should dismiss the holdout juror for “misconduct.” ” Such an approach sounds reasonable to many lawyers, but consider the implications of such a procedure under some alternative fact patterns.

What if, after a full week of deliberations, a trial judge learns that two or three jurors have decided that they cannot in good conscience enforce the law against the defendant? Are we going to allow several alternates to take their places so that a conviction can be obtained? Take a defendant on trial for multiple charges. Wha~if two jurors believe that the defendant is indeed technically guilty on every count, but they disagree with the other jurors with respect to whether the defendant deserves to have the proverbial book thrown at hirn. If the “hard‐​line” jurors complain to the judge, should the trial court throw the “lenient” jurors off the case because they are unwilling to convict on every single count? According to Judge Cabranes’s reasoning the answer would be yes. Such meddling with the give‐​and‐​take of jury deliberations cannot possibly be reconciled with the defendant’s right to a trial by jury and to a unanimous verdict. Make no mistake, if trial courts begin to exercise power in this way, trial by jury will be so hamstrung as to be unrecognizable.

There is a better way to resolve such controversies. The key lies in the duty of jurors to deliberate. The duty to deliberate means that each juror must be willing to listen to the views of others with a disposition toward reexamining his or her own views.That is the duty that ought to concern the trial court. Should a judge receive a note that complains about a juror who refines to follow the letter of the law, the trial judge should resist the impulse to conduct an inquisition. Instead, the judge should calmly and respectfully ascertain whether the so‐​called holdout is willing to deliberate. Of course, a court’s instruction about the duty to deliberate should always be followed by the caveat that no juror should surrender a conscientious opinion solely because of the opinion of other jurors or for the mere purpose of returning a unanimous verdict.

Any juror who is unable or unwilling to deliberate should be excused and replaced with an alternate. But a deliberating juror’s conscientious refusal to cast a vote for conviction should not be considered misconduct and thus a sufficient basis for removal. When a jury is deadlocked because one or more jurors cannot in good conscience vote to convict, the trial judge has only two options: send the jury back to continue deliberating or declare a mistrial. Unlike the holding in the Thomas case, this approach is attentive to the twin imperatives. of safeguarding the province of the jury from incursions fi‐​om the bench and protecting the defendant’s right to a unanimous verdict.

Jury nullification seems to be one of those topics where strong passions overcome reasoned discussion. Some lawyers focus obsessively on instances in which a jury or juror abused the system. Clearly, some cases of abuse exist. To maintain perspective, however, lawyers ought to recall some words of wisdom from judge David L. Bazelon, concurring in US. v Dougherty (1972) 473 F2d 1113, 1142: “Trust in the jury is … one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must re‐​examine a great deal more than just the nullification doc‐ trine.” And since even conservatives rec‐ ognize that the Constitution placed its trust in juries, not judges, to determine criminal guilt, there’s a good chance that the hostile climate surrounding jury nullification may eventually subside.

About the Author
Tim Lynch
Adjunct Scholar and Former Director, Project on Criminal Justice