When Judges Overreach

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Fearful that more and more citizens are becoming aware of the doctrine of jury nullification, judges have started policing jury trials with greater assertiveness than in years past. This year, the California Supreme Court will decide whether a trial court violated a defendant's right to trial by jury by dismissing a deliberating juror because that juror did not intend to follow the law on a particular charge. The case, People v. Williams, raises the question of how far a trial judge can go before a jury verdict is deemed to be coerced by the bench.

Eighteen-year-old Arashiek Wesly Williams was charged with committingnumerous crimes, including rape, against his former girlfriend. At trial,the young woman testified that she was compelled to engage in sexualintercourse because of Williams's use of force and threats. Williams tookthe stand and testified that the two had engaged in consensual intercourse.Because Williams admitted to having had sexual relations, the trial judgedecided to instruct the jury on the offense of statutory rape -- since thewoman was only 15 years old at the time.

Shortly after the jury retired to deliberate on guilt or innocence, theforeperson sent a note to the trial court complaining that one of the jurorsbelieved the statutory rape count was unjust. The trial judge brought thenamed juror into the courtroom and asked him if he was having difficultywith the court's legal instructions. The juror told the judge that he waswilling to follow the court's instructions pertaining to the various chargesbut that he had some qualms about the statutory rape offense. The jurorsaid that he could not condemn "a young man for the rest of his life forwhat I believe to be a wrong reason."

Finding that belief to be unsatisfactory, the trial judge discharged the"holdout" juror and replaced him with an alternate juror. No one wassurprised when the jury later announced its "guilty" verdict on thestatutory rape count. The issue that is now pending before the statesupreme court is whether the trial judge's interference with the jury'sdeliberations violated Williams's constitutional rights.

A proper legal analysis of a trial judge's authority in such circumstancesshould begin with first principles. The Sixth Amendment provides, "In allcriminal prosecutions, the accused shall enjoy the right to a speedy andpublic trial, by an impartial jury. . . ." The very existence of thatamendment tells us something important. As Justice Antonin Scalia haspointedly observed, "The Constitution does not trust judges to makedeterminations of criminal guilt." That truth is so humbling for the menand women in robes that it is difficult for many of them to fully accept.And it is precisely because of that bias that we must jealously protect theconstitutional right to trial by jury from possible usurpation by judges.

The first principles that undergird the jury trial proceeding in criminalcases are so long-standing that many people have lost sight of theiroriginal function and significance. For example, a judge cannot stop acriminal trial and direct a verdict for the state even where there isoverwhelming evidence of guilt. In America, such a move would be seen ashigh-handed and improper. Even if the person on trial confesses on thewitness stand, the judge does not have the authority to pull the plug. Thejury must still retire, deliberate (however briefly) and return with itsverdict. By strictly limiting the power of the judge, the jury'sprerogative to bring in a general verdict of "not guilty" is preserved.

Similarly, a trial judge does not have the authority to override a juryverdict of acquittal -- again, no matter how conclusive the evidence ofguilt. The principle that a trial judge may not interfere with a jury'sverdict of acquittal is universally acknowledged and accepted.

What's important to note here is that these mutually reinforcing firstprinciples are not the result of mere happenstance. The limitations on thepower of the trial judge were purposely designed to give the jury aprerogative of lenity. That prerogative was to be unreviewable andunreversible by state functionaries. As Justice Oliver Wendell Holmes oncenoted, "The jury has the power to bring in a verdict in the teeth of bothlaw and facts."

Here, then, is the crux: If a body of 12 jurors can decline to follow theinstructions of the trial judge and render a verdict according to itscollective conscience, then a lesser number of jurors (whether 9, 3 or even1) should be able to cast a vote according to their conscience, withoutinterference from the trial judge.

Now it is true that jury service does entail a duty to deliberate. Anyjuror who is unable or unwilling to deliberate should be discharged. But nojuror should be dismissed because of a conscientious refusal to cast a votefor conviction.