Jury Nullification

After Life Sentence, Juror Says, "Had I known…I would have had to have found not guilty."

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Jury
Beinecke Library

Bad laws are often the context for discussions about jury nullification. Drug prohibition, gun bans, gambling restrictions, and other legal intrusions into consensual activities provide great fodder for people who think such rules should meet resistance in the form of "not guilty" verdicts.

But excessive sentencing is another traditional area where jury nullification comes into play. Tough on crime policies have led to some perverse results—such as a life sentence with no chance of parole for a non-violent burglar. At least one of the jurors in a Louisiana case says he would have voted "not guilty" if he'd know the harshness of the potential sentence for a man who faced a penalty out of proportion to his crime.

Writes Mike Perlstein at WWLTV:

[Troy] Ellis, 50, grew up in a large, loving family in the Broadmoor neighborhood of New Orleans. He's also a heroin addict and career criminal, going back and forth to prison on drugs charges, as well as burglaries and thefts that helped him feed his habit.

As a non-violent offender, Ellis had always been given a chance to turn things around, a rocky road to redemption that has included church, drug rehabilitation and relapse.

Those chances came to a screeching halt after his most recent tumble into the dark dependency of heroin. Addicted and desperate, Ellis was booked in a simple burglary in 2010 with an unlikely co-defendant. His alleged partner in crime was Patrick Constantin, a then-25-year-old from a successful Uptown family.

The two men shared a heroin addiction and non-violent rap sheets, according to police reports and court records, but the similarities end there.

Ellis was sent to prison to die behind bars, hit with a life sentence without parole.

Constantin is a free man today after being sentencing to six years for the same crime, then being released on good time after serving less than three.

The disparity in the sentences shocked not only Ellis' attorney and family, but even some of the jurors who convicted him.

"Clearly this was a situation where the punishment does not fit the crime," said Randy Waller, one of the jurors who voted to convict Ellis by a 10-2 verdict. "No one got killed. There was no weapon involved.

Waller adds, "Had I known that this was a potential outcome, it was on the table for him and the sentence, I would have had to have found not guilty."

The victim in the burglary case was a prosecutor in the District Attorney's (DA) office, which raises concerns that the case might have received some special attention. And Constantin, who was the only witness to place Ellis at the crime scene and got a relatively light sentence in return, is friends with the lead detective on the case.

Prosecutors also used challenges to winnow a mostly black jury pool down to a mostly white jury. The defense attorney reportedly objected to the case's cronyism and the conduct of the prosecution step by step, but got nowhere until the matter hit the press. Now the DA says he'll review the case.

While one juror told WWLTV that Ellis got what he deserved, another agreed off the record with Waller that the sentence was unjust.

Ellis was convicted by a 10-2 majority of jurors—just one defection would have hung the case. The U.S. Supreme Court recently declined an opportunity to review Louisiana's majority verdicts, which Oregon also allows.

H/T: Kirsten Tynan and the Fully Informed Jury Association

NEXT: A. Barton Hinkle: One Man's Loophole Is Another Man's Liberty

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  1. Despite overwhelming evidence against Ellis and his complete refusal to accept responsibility for his actions, the District Attorney’s office offered to allow Mr. Ellis to plead guilty as a second offender in return for a 12 year sentence both prior to trial and even after he was convicted. While I believe that such a sentence would still be appropriate in this case, Mr. Ellis must first take responsibility for his actions.

    “How dare he exercise his constitutional rights? I’ll show him!”

    1. Will no one think of the poor, underpaid, overworked prosecutor?

      Overcharging people and demanding they plead out is tiring work.

    2. That used to be called “the Trial Tax”.

    3. He has right to demand a trial and the state in turn has a right to demand he get whatever the max is.

      The problem here is the law that allowed him to be sentenced to such a long sentence for this crime.

      I am not as outraged by this case as I usually am. This case at least involves an actual crime; breaking into someone’s house. If the person living there had been home and blown his head off, I wouldn’t be upset about it. So, I can’t be that upset they sent him to prison for life can I?

      That said, he didn’t deserve life without parole and no jury or judge shouldn’t done that and no DA should have asked for such. This needs to be fixed.

      Yes this guy is a victim of the system. It is just that a degenerate out breaking into people’s homes who refuses to plea and gets rightfully convicted but receives an unjust sentence is pretty far down the victim list these days.

      1. He was also a serial offender. He’s done this many times before.

        1. It seems pretty stupid for Reason or anyone to use this asshole’s case as a good case for jury nullification. Jury nullification is for when the defendant doesn’t deserve anything.

          Also, if society got rid of the drug war but also said the price of breaking into someone’s home was life without parole, it wouldn’t be perfect but would be more just than what we have now.

          1. John, this is the Orleans Parish District Attorney. The same office that doesn’t know or appreciate or even care about the disclosures required by Brady v. Maryland. The same office that conspired to have the State execute an innocent man and no one was punished for it.

            Hammering New Orleans and its corrupt apparatus can’t happen often enough.

            1. That is a pretty good counterpoint.

            2. Hammering them is great, provided it is for the right reasons. If this guy is innocent, then yeah this is a big deal. If he got hammered because he broke into a DA’s house, then yeah that is a big deal.

              But just because this DA’s office sucks doesn’t mean that every case they handle is an outrage or that they don’t often send deserving people to prison.

              1. Civil Liberties cases don’t always have the prettiest of defendants. But that doesn’t change the fact that they deserve their rights.

                Cameron Todd Willingham was, by all accounts, a detestable person. But he was still innocent of the crime for which he was killed by the state. If we only reserve our outrage for cases with “pretty” defendants, we’re not going to get very far in terms of civil liberties in the criminal justice system.

                1. It is not the defendant, it is that the crime is serious and thus the injustice while present down the list of injustices in this country.

              2. His innocence or guilt is not the problem. The problem is the sentence. His partner in crime received a six-year sentence but was out in three. Ellis was sentenced to life for being part of the same crime. What explains this disparity? Leave aside that Ellis is a career loser and frequent guest of the State. A person ought to be tried and sentenced for specifically the crimes he committed, not the ones he has committed or the ones he might commit. So I ask again, what was the difference between Ellis and Constantin?

                Because he had the temerity to demand that the State prove his guilt?

                1. AC,

                  If we wanted a trial, that was his right. He was only “punished” for that in the sense that the government didn’t offer to cap his sentence. Well, if you want a trial you can have one but if the government has to risk you being acquitted, why shouldn’t you have to risk getting the maximum the law allows?

                  Again, the problem here if there is one is the law that allowed this sentence. The fact that this guy decided to try his case and found out that yes he was the defendant who was loathsome enough that a judge would give the maximum is his bad luck.

                  Lastly, while his career has a criminal have no bearing on his guilt or innocence for this crime, it sure as hell has a bearing on his sentence. If the other guy was a first time offender and this guy a multiple offender who seems not to have learned his lesson by going to prison in the past, then yes he deserves a longer sentence this time even though it is for the same crime.

                  1. why shouldn’t you have to risk getting the maximum the law allows?

                    The max that the statute allows is 12 years. However, due to the multiple offender statute, the state may incarcerate a person for their natural life without parole after their fourth felony.

                    The fact that this guy decided to try his case and found out that yes he was the defendant who was loathsome enough that a judge would give the maximum is his bad luck.

                    The problem with his case is that he was convicted solely on the word of partner in crime, who had cut a deal on his own prior felonies. Another glaring problem is that the jury returned a verdict of guilty for “attempted burglary” (not a felony) and the judge ordered them to change it, so the jury was clearly confused or misled as to what the actual crime was.

                    . If the other guy was a first time offender and this guy a multiple offender who seems not to have learned his lesson by going to prison in the past, then yes he deserves a longer sentence this time even though it is for the same crime.

                    But that’s not the case. As stated before, Constantin ratted out Ellis. Constantin’s testimony was the only direct evidence placing Ellis at the residence. Furthermore, Constantin was the only one with the stolen property in his possession.

                    Reading the article, this case kind of stinks, despite Ellis’ priors.

                    1. Coward,

                      How many times do I have to say “the problem here is the law that allowed this sentence” before you bother to notice it?

                      As far as the case, Constantin rated him out. Well it sucks to be him. Sometimes co-ofenders run to the cops in exchange for a lighters sentence. The fact that this happened doesn’t give me any sympathy for this guy.

                      The only thing about this case that stinks is the sentence. Even still, he is a multiple offending degenerate who broke into someone’s home, something that I wouldn’t blame the owner for shooting him for had he been there. He deserves a long sentence just not life without parole.

                    2. How many times do I have to say “the problem here is the law that allowed this sentence” before you bother to notice it?

                      I noticed it. It’s incorrect, but I noticed it. But of course, since you’ve got your big boy “tough on crime” pants on, you see no problem with the jury being unclear as to what crime they are considering, as was demonstrated by them returning a verdict for “attempted burglary”, right?

                      As far as the case, Constantin rated him out. Well it sucks to be him. Sometimes co-ofenders run to the cops in exchange for a lighters sentence. The fact that this happened doesn’t give me any sympathy for this guy.

                      Your sympathies, or lack thereof, are duly noted. Last I checked, trials are not conducted based on how sympathetic a defendant is. I was under the mistaken impression that trials in ‘Murica were supposed to be conducted based on procedure and the weight of evidence.

                      My bad.

                      He deserves a long sentence just not life without parole.

                      Wait a minute, Law & Order Guy, you’ve gone from “he deserves the maximum sentence allowed by law” to “he deserves a long sentence just not life w/o parole.” Which is it?

                    3. Wait a minute, Law & Order Guy, you’ve gone from “he deserves the maximum sentence allowed by law” to “he deserves a long sentence just not life w/o parole.” Which is it?

                      I never said he deserved it. You are clearly too fucking stupid to understand what I am saying.

                2. Leave aside that Ellis is a career loser and frequent guest of the State.

                  Why should we leave that aside? A repeat offender has proven that the punishments he received for his first few offenses did not correct his behavior. So it’s sensible that he be punished more severely to fix his behavior.

                  I don’t agree with life sentences for nonviolent offenses under any circumstances, though. That’s just crazy.

                3. He was a career criminal and repeat offender who had not been dissuaded by prior stints in jail. At some point, you say “fuck him.” It’s not about *this* crime, it’s about the pattern. The other guy does not yet have such a pattern and it is therefore reasonable to give him some opportunity to reclaim his life.

                  This article is a classic example of failing to see the forest for the trees.

          2. Reading comprehension is hard, I guess.

            The whole point of the story is that the *jurors themselves* said they didn’t think he deserved the punishment. Your opinion and backseat judgment based on a few tidbits of info in a commentary article, thankfully, doesn’t mean shit. The jurors who have sat through and heard the case, OTOH, most certainly should.

            1. The jurors weren’t asked to set correctional policy. They were asked to determine whether or not this guy committed a crime.

              Nullification makes sense when you disagree that something is (or should be) a crime.

              Letting off a serial criminal because he finally ran out of chances is beyond the scope of what I would consider appropriate.

              Sure, I get it if he’s a reformed gang banger that gets busted for smoking pot, but that’s not what happened here.

      2. the state in turn has a right

        No it doesn’t.

        1. Yes it does. If you don’t like that and htink that breaking into someone’s house should be punished by probation or a pat on the head for how hard it is to be a degenerate junkie, change the law. As long as the law is what it is, the DA can ask for the max sentence whatever that is.

          1. Governments don’t have rights.

            1. Not in the sense people do, but they have them in the sense that they are legally authorized to do things.

              1. That’s a significant distinction, which is why everything from the Constitution to the Penaltax decision uses the word “powers” and not “rights”. It is the very difference between libertarianism and collectivism.

      3. Keep in mind that the state couldn’t persuade just 12 people out of MILLIONS of his guilt, and in any other state besides Louisiana and Oregon he would not have been convicted.

        Furthermore, he was only convicted after the plea bargain beneficiary’s testimony magically evolved to be more damaging to the defendant during a break in the trial.

        And beyond that, the value of the goods taken was a couple of hundred bucks which is NOTHING in comparison to the thousands upon thousands of dollars stolen from the taxpayers to keep him in jail for life for an alleged offense of which he was never legitimately convicted.

        1. So what? Had it ever occurred to you that yes some and in fact most defendants are guilty?

          Nothing you say makes me think he is innocent. Criminals rat each other out all of the time. Not every rat is lying. The guy is almost certainly guilty.

          1. You have no way of knowing that. The ONLY person to place him at the scene of the crime was a guy who was essentially paid with 50+ years of freedom to testify. There is a very significant possibility he simply lied to save himself.

            1. You have no way of knowing that he is innocent either. You just assume he is. Well, why can’t I assume he is innocent?

              Unless you can show me some reason to think the jury made the wrong decision here, I am believing them. They saw the evidence not you or me. Moreover, they clearly were not out to get him or they wouldn’t be bothered by the life sentence.

              I know there are innocent people wrongly convicted. That fact and the fact that it is a horrible injustice and tragedy when it happens doesn’t mean everyone who is convicted is innocent.

              1. Innocent until proven guilty blah blah blah

  2. OT: a new contestant strolls onto the Derp field… Oregon Man!

    http://www.oregonlive.com/port…..in_ro.html

    1. Please. That guy couldn’t hold Florida Man’s jock.

      1. I’m not sure. Portland’s weirdness would go well in Florida.

        1. They’re like Austin. Cute-weird, not “stabbing people with chairs over fried-chicken” weird. Eccentric.

          1. Exactly. Fred Armisen, not Anton Chigurh.

      2. Not anymore at least

      1. The ghost of Steve Jobs does not consent

      2. Huh. All of the ports on my laptop are female.

  3. 10 – 2? Seriously?

    1. They’re not even pretending that there are standards anymore.

    2. At least it’s not Florida, which can sentence a person to death by a majority (not unanimity) of the jury.

  4. How is it legal for courts to let juries render verdicts without knowing that life sentences are on the table?

    1. Fuck you, that’s how.

    2. If the jury doesn’t get to sentence, perfectly legal. What is not legal, in my opinion, is to say that someone has no right to demand the jury determine the sentence. In fact, I think that the “right to a jury trial” means the right to a jury to determine every fact and non legal controversy of the case. I don’t see how you have a “right to a jury trial” without having the jury also determine the punishment. The punishment is half the trial if you are found guilty. Moreover, I don’t think governments should be able to infringe on that right by legislating minimum sentences. Maximum sure. No way, however, should a legislature be able to decide that every burglary committed in the state is worthy of at least so many years in prison. Bullshit. Every crime is different and what punishment it warrants is up to the jury. To me mandating a sentence is no different than mandating a verdict.

    3. How is it legal for courts to let juries render verdicts without knowing that life sentences are on the table?

      For the same reason it’s legal for judges to instruct juries that they sit in judgement only of the facts at hand, and not of the law itself, and that if the evidence points toward guilt, then they must render a verdict of “guilty”: FYTW

    4. How is it legal for courts to let juries render verdicts without knowing that life sentences are on the table?

      Ignorance of the law is no defense.

  5. The sentence is harsh, but this guy was a repeat burglar no? I think serial offenders should be jailed for a long time although life is OTT. Constantin was not a repeat offender or at least not as much as Ellis.

  6. Ot: on npr they are really beating the drum on this campus sexual assault thing and I really don’t get it. One isn’t this a criminal issue and two like hasn’t this been happening for years why is this an issue all the sudden? If someone rapes someone else how is suspending them considered adequate punishment their whole argument is ludicrous.

    1. Because the proglodytes want to 1)Establish these inquisition-type “hearings” on campus, precluding anything that remotely resembles due process 2)Have the power to remove from campus anything with a penis, at any time, based on a mere accusation 3)Make the definition of rape as to be meaningless 4) To tar all men as evil thoughtcriminal rapists.

      War on Women? Pshaw. The War on Men is real and it’s happening in plain view.

      1. That’s what I’m getting. I would be concerned if I was sending my kid to one of these schools that’s pushing for this, for some reason I don’t trust a group of anonymous man-hating feminist harpies that will inevitably be at the helm of these committees whose benchmarks will be how many people they throw out over a jury of his peers to give him his due process. While I believe private institutions can do whatever they want in this case you know it will become standard policy everywhere.

        1. I would be concerned if I was sending my kid to one of these schools that’s pushing for this,

          You shouldn’t be “concerned”, you should get your kid the hell out of there. This is a symptom of a whole raft of bigger, deeper problems.

        2. It’s not schools pushing it, it’s the feds, based on Title IX, and thus there is virtually nowhere to run if you still want to go to college.

      2. Because the proglodytes want to 1)Establish these inquisition-type “hearings” on campus, precluding anything that remotely resembles due process 2)Have the power to remove from campus anything with a penis, at any time, based on a mere accusation 3)Make the definition of rape as to be meaningless 4) To tar all men as evil thoughtcriminal rapists.

        So basically, proglodytes have the same regard for the integrity of our criminal justice system that Harry Connick, Sr. has.

    2. These are not criminal cases. They are not criminal cases because there isn’t enough evidence to bring them. Progs hate that. What they really want is to make it so there are no due process protections for men accused by women of rape. The courts won’t let them have that so they are settling for making so any woman can get any man branded a rapist and kicked out of school any time she wishes.

      1. What could possibly go wrong?

        /progderp

        1. And don’t forget that my commitment to due process in all criminal cases including rape just means I hate women and want to blame the victims of rape for the crime.

          1. The patriarchy is the root of all evil. Now report immediately to your local re-education station.

          2. Your privilege, you need to check it. And stop the mansplaining.

      2. The courts won’t let them have that so they are settling for making so any woman can get any man branded a rapist and kicked out of school any time she wishes.

        Worst part is, it’s not just Colleges and not strictly the female ‘victims’;
        http://abclocal.go.com/wls/sto…..id=9523788

        I, foolishly, thought this case could end well. Stupid kids mess up whatever stupid activity they were doing, get school administrators and the law involved, get community services and some ‘sexting ed.’ time and everyone goes home a little embarrassed.

        Instead, the boys, and no one else, have committed heinous sex crimes. I was shocked when I read that this was the outcome, then I realized that the school is in Cook County and the world seemed to return to normal again.

    3. What they call sexual assault is what used to be called having a few drinks and getting laid.

      This morning on the drive in I saw some girl doing the walk of shame. She was all dolled up for a night out, but walking home shortly after sunup. According to npr she’s a victim of sexual assault. She just doesn’t know it.

      1. According to a lot of state laws she is too. But so is the other party to last nights encounter. Yet you never see women charged with rape for drunk sex, though.

        The whole thing seems rather insulting to women. Shouldn’t women be allowed to make the choice to go out and get drunk and hook up with some dude?

        1. It’s only rape if she feels shame.

          If he feels shame, then that’s his problem.

          If she feels shame, well now he’s got an even bigger problem.

    4. That’s always my question when I hear those stories. How is rape something that the Ed department and college disciplinary boards should deal with at all?

      1. It’s not. It’s an administrative end run by the DOE around the court system. Sooner or later, it will be challenged in a civil case after the fact.

      2. What they call rape is what other people call morning guilt after an evening romp.

      3. I got into it with my cousin about it she seemed to think that in a lot of these cases the women don’t want to go to the police and report them, so therefore its up to the school to do something. I didn’t want to point out the utter hypocrisy in that because she seemed pretty emotional about the issue.

        1. I didn’t want to point out the utter hypocrisy in that because she seemed pretty emotional about the issue.

          That is the defense system used to deflect your valid points. It’s the micro-version of the victim-hood as moral high ground argument. As I’ve grown older, my patience for it has diminished rapidly. If they want to cry about it, that’s their problem, but it doesn’t make them right.

      4. It’s technically Title IX. The university is required to maintain a non-hostile atmosphere. Allowing rapists to get off scot-free contributes to a hostile environment, thus denying women (but apparently not men) equal access to education.
        I’m not making this up. That is the actual rationale for the DOE requiring universities to follow federal guidelines on responses to rape claims. There was a long article about this (from a less-hostile point of view) in today’s Inside Higher Ed.

        1. Maybe. But many of their definitions of sexual assault are both in fact and in practice discriminatory against male students. Title IX, as written, requires equality of the sexes. It will be interesting litigation.

          1. Completely agree. Since I work in university policy development, I just thought I’d clarify why this is a big deal.
            What irks me is the claim that rape is skyrocketing on college campuses. I certainly haven’t heard any buzz from my colleagues or students–only what I read in the national papers.

        2. The feds themselves do not practice this in three of the service academies. In those academies, rape allegations are handled by authorities outside the academies, and any hearing is done through the court-martial system.

    5. Its a stalking horse. Once they condition people to accepting rampant Due Process violations for one class of crime, the ground is prepared for far more mundane crimes to be dealt with while completely bypassing silly things like rights of the accused. I wish it was possible for these people to live in the world they want to create without me. I’d love to watch safely from my weak-state-strong-rights location.

      1. Exactly. It’s allowing federal administrative law to trump criminal law (which is reserved to the States).

    6. One isn’t this a criminal issue and two like hasn’t this been happening for years why is this an issue all the sudden?

      Election year. The GOP is going to amend Title IX to require rape as a condition of graduation.

  7. Wait, I thought that jury nullification has been rendered illegal, or something like that, in the Murika of today?

    1. As long as the jurors don’t comment on why the vote they way they do, it’s impossible to make nullification illegal.

      1. I just remember some mentions around here of how much trouble you will get into for even thinking about it. I don’t really know much about that, since I’ve never served on a jury.

        1. Jurors can never be punished for a verdict. Of course, the prosecution doesn’t want you to know this.

          1. They can be punished for lying during jury selection, though.

        2. I just remember some mentions around here of how much trouble you will get into for even thinking about it. I don’t really know much about that, since I’ve never served on a jury.

          If you bring up nullification to your fellow jurors and one of them in turn tells the judge, you can be booted from the jury.

          And while jurors can’t be punished for voting “not guilty,” there was a woman a few years back who voted to acquit during a drug trial, and after the trial was very vocal about having nullified. They charged her with perjury, as she had stated on her questionnaire (or maybe during voir dire) that she wasn’t familiar with jury nullification.

          1. So, if you just tell them up front ‘Hey, I won’t convict for some bullshit drug charge’, then you don’t get on the jury?

            1. That worked for me. I flat out told the judge I didn’t think “possession” should be illegal at all, and in good conscience I wouldn’t vote to convict the guy. The judge, surprisingly, asked me to clarify even though I’m sure he knew what I was getting at. So I told him a “jury of your peers” was created so the government couldn’t railroad its citizens, was the last defense against tyranny, and that I felt morally obligated to nullify unjust laws. The prosecutor had me dismissed soon afterwards.

            2. So, if you just tell them up front ‘Hey, I won’t convict for some bullshit drug charge’, then you don’t get on the jury?

              Exactly. They’ll usually ask you if you can follow the law as given to you by the judge, regardless of what your conscience tells you. If you say no, you’ll be sent home.

              Of course, there are many, myself included, who would advocate concealing your awareness of your true rights and powers as a juror. This way, you might be seated and thus have an opportunity to hang a jury that might otherwise convict a person who’s innocent of any actual crime.

            3. I told them I was against the drug laws during selection and they still put me on the jury for a drug case. A true WTF moment.

        3. Unless they have developed some way to read minds that’s going to be hard.

          Some states explicitly protect the right of juries to nullify. In states where they can’t, as someone else points out, the worst that can happen is you get kicked off the jury.

          1. Some states explicitly protect the right of juries to nullify.

            New Hampshire passed a law in 2012 allowing defense attorneys, during a trial, to inform juries or their right to nullify. Now, New Hampshire is considering a second law that would require juries to be informed of this power. I would love to see this catch on in other states.

      2. As long as the jurors don’t comment on why the vote they way they do, it’s impossible to make nullification illegal.

        Perjury is illegal, and they distribute questionnaires before jury selection that you have to answer under penalty of perjury. One of the questions asks whether you will follow the judge’s instructions.

  8. You know who else was a fan of jury nullification?

  9. But excessive sentencing is another traditional area where jury nullification comes into play.

    Jury nullification is racist!

    1. To be fair, sometimes it is.

  10. So I guess he won’t be burglerizing peoples homes anymore. Pity.

  11. Jury should have never been formed in the first place. Still this stresses the importance to push for nullification, even when you’re told it’s not allowed.

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