Advocates of jury nullification argue that jurors have both the power and the right to acquit a guilty defendant if they believe the law or its application is unjust. According to a recent ruling by a federal appeals court, they are half right.
USA v. Kleinman involves an operator of medical marijuana dispensaries in California who was convicted of federal drug charges and sentenced to nearly 18 years in prison. Among other things, the defendant, Noah Kleinman, argued that the judge had improperly instructed the jury regarding nullification. The U.S. Court of Appeals for the 9th Circuit agreed but said the error was harmless because "there is no right to nullification."
Here is what the judge told the jury:
You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case.
The 9th Circuit had no problem with the first three sentences, which (not surprisingly) reflect the view of most judges and prosecutors: The jury's job is to determine the facts, not to judge the law. If a juror concludes beyond a reasonable doubt that a defendant's actions meet the statutory definition of the crime with which is charged, the juror's duty is to vote for conviction, even if he thinks the statute is unjust or that applying it to the defendant would be grossly unfair.
"If Kleinman's jury had exercised its power to nullify, it presumably would have disregarded the court's instructions on federal drug law and the court's antinullification instructions," the appeals court said. "The court had no duty to make the jury aware of its power to nullify, and properly instructed the jury that it could not (1) substitute its sense of justice for its duty to follow the law, or (2) decide whether a law is just or unjust."
But the 9th Circuit said the last two sentences of the jury instruction went too far by implying that a not-guilty verdict in such a case would be legally invalid and that jurors might be punished for it. "The court's statement that the jury 'would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case,' may imply punishment for nullification, because 'violate your oath and the law,' coming from the court in a criminal trial, could be understood as warning of a possible violation with associated sanctions. Additionally, the statement that '[t]here is no such thing as valid jury nullification' could reasonably be understood as telling jurors that they do not have the power to nullify, and so it would be a useless exercise. While jurors undoubtedly should be told to follow the law, the statement that there is no valid jury nullification misstates the role of nullification because an acquittal is valid, even if it resulted from nullification."
The appeals court nevertheless rejected Kleinman's argument that the erroneous jury instruction required reversal of his conviction. "It is not fundamentally unfair for a defendant to be tried by a jury that is not fully informed of the power to nullify," the court said, "or even that is stripped of the power to nullify, because there is no right to nullification. Although a jury should not be led to believe that jury nullification will result in punishment or an invalid acquittal, the court's misstatement by implication does not rise to the level of denial of Kleinman's due process rights."
The decision, which was issued last Friday, also dealt with the proper application of the Rohrabacher/Farr amendment, a spending rider that bars the Justice Department from interfering with the implementation of state medical marijuana laws. Last year the 9th Circuit ruled that the amendment covers prosecution of medical marijuana suppliers who comply with state law as well as legal challenges to state licensing and regulation of them. Because Kleinman was sentenced eight days before the the spending rider was first enacted, the court said, it did not apply to his prosecution, but it might prevent the Justice Department from defending his convictions insofar as they were based on actions permitted by state law.
Unfortunately for Kleinman, some of the actions to which he admitted, such as shipping marijuana to other states, clearly did not comply with state law. And since his appeal did not distinguish among the different charges, the 9th Circuit said, he is not entitled to a hearing on the question of whether some counts involved activities covered by the Rohrbacher/Farr amendment.
[Thanks to Charles Nichols for the tip.]