April 26, 2006

Jury Nullification a Fiction?

by Armen

The 9th Cir issued an opinion today reversing U.S. District Judge Charles Breyer (the underachieving brother of Justice Breyer) on an issue of jury misconduct in a medical marijuana case arising out of the Oakland Cannabis Buyers' Club (close to home). (Hattip: HoBash) The misconduct is summarized as follows:

Juror A’s declaration supporting Rosenthal’s motion for a new trial states that she felt “frustrated and confused” that there had not been evidence that Rosenthal was involved in growing medical marijuana, given the judge’s question concerning medical marijuana during voir dire. She was “troubled” that although she knew the case was about medical marijuana, the judge instructed the jurors to decide the case according to “federal law” and only on the “evidence that had been presented in court.” Despite that instruction, she expressed “confusion about whether we really had to only consider the federal law.”

Juror A believed that the district court’s instruction not to discuss the case with anyone would not rule out a conversation “about a point of law”; accordingly, she phoned up an attorney-friend to ask “if [she] had to follow the Judge’s instructions, or if [she] had any leeway at all for independent thought.” The attorney-friend responded that Juror A “definitely did have to following [sic] the Judge’s instructions, and that there was absolutely nothing else [she] could do.” When Juror A pressed the attorney, asking how there could ever be hung juries, she was told “that could only happen if the Judge gives the jury some leeway in his instructions.” The attorney “then said [Juror A] could get into trouble if [she] tried to do something outside those instructions.” Juror A discussed the matter with another juror, who shared her own confusion with Juror A “whether a jury really has to reach a verdict solely based on the law.” After the conversation with the attorney-friend, Juror A informed this second juror that they had to follow the judge’s instructions.

The Court also added this footnote: "Although we understand the district court’s concern that it not legitimate or contribute to any effort by a juror to engage in nullification, we do not think the court was ever in a position to do so since the evidentiary hearing involved juror misconduct, which is the focus of concern here."

Here is my general question: Why do we even bother with juries if all we expect them to do is to rotely apply the law? There's all the stuff I'm supposed to have learned in evidence such as witness credibility, but then if we use them to make those sorts of judgments why not allow them to judge the merits of a prosecution? Hell the judge in this case departed downward and sentenced the Defendant to a day in prison for each count. Obviously there is something misguided in this prosecution and those 12 people in that jury room should be free to vote their conscience. Otherwise I have an algorithm that any court can use in rendering verdicts (with beyond a reasonable doubt set at 85% certainty).

April 26, 2006 02:04 PM | TrackBack

When it is rare, jury nullification should be quashed by the justice system in the interests of fairness. If it occurs with sufficient frequency, nullification is a sign that something is wrong with the law, either in making something a crime or in the level of punishment imposed. This case seems to be a clear instance of the latter, considering that the judge gave such a nominal sentence.

However, I don't think that means the courts should "legitimate or contribute" to jury nullification, or let any random set of 12 people decide that today, a particular law won't apply to a particular defendant. This leads to the problem of inequal outcomes based on jury whims -- if you're lucky, you get 12 people who think marijuana should be legal across the board; if you're unlucky, you get 12 people who think pot pushers should be drawn and quartered. Instead, I think jurors who are unhappy about the law should become more active in trying to get it changed. In obedience to Congressional preference, the FDA just declared again that there is no medical use for marijuana. If other states follow California's lead and pass medical marijuana laws in defiance of federal law, there will be more prosecutions and sufficient public uproar to change the federal law. Or SCOTUS could revisit U.S. v. Oakland Cannabis Buyers' Cooperative with a case that presented individual users claiming a "medical necessity" defense instead of a club attempting to do so, which is what Stevens, Souter and Ginsburg wanted to leave a door open for. Breyer or (less likely) Roberts or Alito could make it four for cert.

Posted by: PG at April 27, 2006 02:31 PM
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