Jury Nullification

Divided Appeals Panel Slaps Federal Judge for Allowing Jury Nullification Defense

Jurors remain free to exercise judgment and mercy in a criminal justice system that often lacks both.

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It's not news that most judges balk at the prospect of jury nullification—the right and power of juries to bring "not guilty" verdicts when defendants violate laws that jurors consider unjust or wrongly applied. It is news when judges take a high-profile slap at a colleague who endorsed jury nullification in his own courtroom. And it's an even bigger deal when they barely assemble a majority to join in the public shaming.

That's exactly what happened last month when a divided three-judge panel of the U.S. Second Circuit Court of Appeals rebuked U.S. District Judge Stefan Underhill, who presided over what he called "a shocking case" in his court "that calls for jury nullification."

The prosecution that shocked Underhill was a dubious federal "child pornography" case growing out of a state statutory rape case. It was summarized by the feds themselves in a U.S. Attorney's Office press release, which alleges that defendant Yehudi Manzano "sexually assaulted a 15-year-old female victim in Connecticut, video recorded the assault with his cell phone, and uploaded the video to his Google account."

"The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me about the video.

How did the feds get jurisdiction in what would normally be a state criminal case?

The feds chose to pile on a questionable prosecution for acts already being addressed in the state courts. "Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the [child pornography] statute," as Judge Underhill marveled.

You would think a federal judge would have learned by now that the mere invocation of "interstate commerce" is the legal equivalent of muttering "Beetlejuice" three times, causing federal lawyers in ill-fitting suits to materialize amidst clouds of sulfurous smoke.

And materialize they did, with high stakes for the defendant.

"The charge of production of child pornography carries a mandatory minimum term of imprisonment of 15 years and a maximum term of imprisonment of 30 years, and the charge of transportation of child pornography carries a mandatory minimum term of imprisonment of five years and a maximum term of imprisonment of 20 years," the U.S. Attorney's press release notes.

Such a sentence would be in addition to the one to 20 years in prison faced by Manzano for sexual assault in the second degree, a class B felony in Connecticut, for sex with a 15-year-old who was legally incapable of consenting to the relationship.

Manzano's attorneys argued that the feds were overreaching and that their client should be allowed to inform the jury of the potential sentence and argue for jury nullification. Judge Underhill agreed.

"This is a shocking case," Underhill wrote. "This is a case that calls for jury nullification. …  I am absolutely stunned that this case, with a 15‐year mandatory minimum, has been brought by the government. …  I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct or the lack or seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."

Prosecutors promptly filed an emergency motion seeking a writ of mandamus—an order from a higher court that would bar Judge Underhill from permitting the defense to inform the jury of the potential sentence and to argue in favor of jury nullification.

Given the judicial system's strong aversion to loosening the puppet strings judges and prosecutors routinely fasten on jurors, it's no surprise that two of the three appeals court judges hearing the case sided with the prosecution.

"Our case law is clear: 'it is not the proper role of courts to encourage nullification,'" Judge Richard J. Sullivan wrote in a ruling joined by Judge Denny Chin "As a practical matter, there is no meaningful difference between a court's knowing failure to remove a juror intent on nullification, a court's instruction to the jury that encourages nullification, and a court's ruling that affirmatively permits counsel to argue nullification."

The appeals court did not agree to bar Underhill from allowing sentencing information to be presented to the jury, since there are potentially grounds other than nullification that could justify its introduction.

More surprising is that the decision was close, with Judge Barrington D. Parker opposing writs of mandamus regarding both sentencing and jury nullification.

"An especially unsettling aspect of this case is that the record the prosecution presented to the District Court and to this Court is barren of anything that would explain, much less justify, the prosecutors' decision to file the most serious child pornography charges available to them against a man who made a single video which no one else ever saw and which he then attempted to erase," Judge Parker argued in his dissent.

"Faced with the Government's charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted," Parker continued. "But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so. … I respectfully dissent from the majority's grant of a writ directing the District Court to allow no arguments for jury nullification."

Those are strong words. But, since they're on the losing side, Manzano won't be allowed to argue in his defense in favor of jury nullification. His trial will feature jurors informed that they must abide by the federal government's legal-contortionist interpretation of the law—though they may be told about the draconian potential sentences in the case.

But Judge Parker's dissent, following Judge Underhill's willingness to entertain jury nullification arguments in his court, have provided dramatic fodder for headlines. A public pissing match between federal prosecutors and judges features in news stories exposing the public to judges' doubts about the wisdom and humanity of the criminal justice system.

An appeals court decision allowing Manzano to argue in favor of jury nullification would have been a better outcome in this case—short of the feds entirely leaving the matter to the state. But despite the loss, we're getting an eyeful of how the system works, and how responsible jurors can bring otherwise-lacking judgment and mercy to courtrooms.

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  1. Prosecutors promptly filed an emergency motion seeking a writ of mandamus

    “Harry Potter and The Writ of Mandamus”

  2. God forbid the jury should have ‘the whole truth’.
    No telling what they might do if they get all the facts – – – – – –

  3. we put them in the seats to decide.

  4. The moral is clear. If you want to act on jury nullification, don’t say so, ever: not during voir dire, not in the jury room, not afterwards. Just say the evidence is fishy, the witnesses sounded fake, something smells wrong, refuse to convict. Don’t get into details, just vote for acquittal, hang the jury.

    1. Yep.
      But not easy.

    2. Absolutely. Jury nullification isn’t about handing out pamphlets or making speeches or getting the rest of the jury to join your religion. It’s not a mystical incantation. It’s about simply voting “not guilty”. Period.

      Don’t believe the act the defendant is charged with is a valid crime? Vote not guilty. Done. It’s easy. Who cares if the other jurors disagree. Try to convince them to your side if you want (without the religious proselytization), but just vote not guilty.

      Too many nutters make jury nullification out to be far far more than it actually is. Just vote not guilty.

      1. I have done it, and no it is not easy. To sit in a room of tired, hungry, disgruntled people and say that you don’t believe what the prosecution brought proves beyond a reasonable doubt while they say you are stupid to believe a criminal is not easy. Peer pressure may be something you can shrug off in a comment section, but in real life, with real people wanting to convict a real person of (in their mind) a serious crime is difficult. I am not sure I would have kept my stance without the support of one other juror – and she told me she felt the same way. Final vote 10-2.

        The principle is easy to understand, but in practice it is a pretty big leap.

  5. Boy I hope this one finds it’s way to Volokh Conspiracy. 🙂

  6. I believe that most conscientious jurists would have done the same.

    Seems like a shot at the majority opinion.

  7. I remember when prosecutors were charged with seeing that justice is done.

    1. You mist be really old.

      1. May 29, 1736

    2. You “remember” a time that never was and never will be with coercive govt. Coercion is institutionalized injustice, sold as justice, e.g., people not known to be “honorable” must be addressed as “honorable”, appear dressed in sacred costumes, require a ceremonial act of respect (All Rise), and sit higher behind an imposing structure. They may impose fines for non-criminal acts as if they are entitled to make up law spontaneously on their whim. Is this show of force civil, rational, or wise?

  8. Nullification is well within the right of redress.

    The government has told it’s representatives in the various legislatures that they want something done about child porn, according to their delegated authority. Those representatives in the executive and judicial branches are then informed by a jury that they have exceeded the intended mandate delegated to them by the government, and the government is correcting those representatives.

  9. Per the article:

    “Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the [child pornography] statute,” as Judge Underhill marveled.”

    That is extremely misleading. From the dissenting opinion in the Court of Appeals case:

    “Because the cellular phone that recorded the video had traveled in interstate commerce, and Google cloud storage is hosted on servers in several states, the prosecutors charged Manzano with interstate production and transportation of child pornography.”

    Thus, the defendant would have transmitted the video across state lines (possibly unknowingly) so that it could be saved in his cloud storage. Interstate transmission of sexually exploitive video is a sound basis for federal jurisdiction. To the extent that there is an element of knowingly doing so as as an element of the offense, the question would be for the jury to decide per the court’s instructions.

    Also, one could easily argue the reverse of jury nullification. If the defense is able to ask the jury to do the equivalent of “ignore the law, or make up your own law” then one could easily argue that prosecutors could do the same and ask the jury to convict based on their gut feelings, not evidence. Juries can acquit someone for any reason they desire, and can just as easily convict based on gut instinct, but we are much better off with them basing their decisions on the law and applying the appropriate burden of proof.

    1. “Thus, the defendant would have transmitted the video across state lines (possibly unknowingly) so that it could be saved in his cloud storage. Interstate transmission of sexually exploitative video is a sound basis for federal jurisdiction. To the extent that there is an element of knowingly doing so as as an element of the offense, the question would be for the jury to decide per the court’s instructions.”

      This part, where the defendant uploaded the video to the cloud, is what triggered federal jurisdiction. There’s no need to get at where the camera was manufactured, and I’m wondering why it became an issue. I guess because he deleted it, and deleting the video after he uploaded it is an argument that the nexus with interstate commerce was then eliminated?

      The guy needs to go away just for criminal stupidity: a 31 year old fucking a 15 year old might be a case of ‘let him who has not, cast the first Boone’s Strawberry Hill bottle,’ but then he recorded it on video, and uploading it to Google?

      Well played, Mr. Kelly. Why not piss on her too?

      I’m not seeing where this is a great case for jury nullification, but you do you, Reason. Kind of surprised ENB didn’t get the call for this story.

      1. It is the absurdity of the “interstate commerce” claims that we are now seeing that makes this worthy of ridicule as all such overreaches are.

        Almost every action requires something that was once involved in interstate commerce. For example, I’ll bet your phone was not made in your state and, even if it was, I’ll bet the petroleum used to make the plastic in it was not withdrawn from a well in your state or that the silicon used to make the silicon boule used in manufacture of the SOC was not mined in your state or the boule was not grown in your state. Hence, using your phone to get directions to a protest where you park your car illegally could, if Congress and Federal prosecutors so wished, subject you to Federal charges as that would (supposedly) then be within the power of Congress (of course, your car, like your phone, also is an instrument of interstate commerce, so perhaps you could get two charges – one for using the phone to plan the crime and one for using the car as a tool in the crime).

        Even in 1789, almost any action would have involved a item that contained at least one atom that crossed state lines in commerce. It is telling that this overbroad application of the Interstate Commerce Clause didn’t seem to take hold for over 100 years — long after those who conceived it were long since gone. This suggests that it was not the Founder’s intent that the clause be interpreted so broadly. I am very confident that every one of the Founders, if asked, would have thought such an interpretation was ridiculous — yet, on the slippery slope the courts have been on for about 100 years, we are one court decision away from such an interpretation.

        In this case, the defendant didn’t engage in interstate commerce — Google paid him nothing for uploading the video and, if we are to believe the defendant’s lawyer, no one else would have either since no one else saw it (and it’s unlikely that anyone would have paid for a video they never saw or accessed).

        1. I’m familiar with the arguments of the proper extent of the interstate commerce doctrine. At least things have been scaled back a bit from Wickard>.

          As for the defendant here, he uploaded a video to a server that was likely outside the state where he was located. How is this not an act of interstate commerce? He signed up for an account with Google, and used their commercial service to upload the video. Google doesn’t pay him in this paradigm, rather Google feels that data-mining the submissions of their users nets enough positive economic value that they do not need to charge any additional fee. It’s still commercial though, not charitable for Google.

          I mean, there are edge cases, as Wickard was. Or where none of the instruments or actors in the offense were engaged in interstate activities. But this doesn’t seem to be one of them.

          One thing I wish federal criminal proceedings would do, is have a removal procedure for related state criminal proceedings to federal court, and that both state and federal entities have to try any and all relevant offenses in that proceeding, so the defendant only has to be tried one time for a particular criminal episode.

          1. At least I closed one of the italics tags correctly. Oh well.

        2. Wait until you find out about Wickard v. Filburn. Interstate commerce doesn’t just require that some minuscule aspect of your activity was derived from something that crossed a state line. Oh no. “Interstate commerce” can be any act at all. Even not doing anything at all. You see, even when you do something all by yourself using only tools you made by hand you are abstaining from purchasing whatever good or service you desired, which would have necessarily been acquired via interstate commerce. Having robbed the salesman of his sale you have engaged in interstate commerce without spending a penny or lifting a finger. Let’s not forget that failing to buy health insurance is a form of interstate commerce, as a recent example. It sounds like this poor lad could have bought his child porn on the internet but instead decided to make his own. Thus, failing to have purchased something that can only be bought through interstate commerce he has affected the market for child pornography, in interstate market, and… presto chango… it’s a federal crime!

          1. And if that’s not bad enough, thanks to Roberts, Congress can now fine you if you refuse to engage in a particular act of interstate commerce, and by “interstate commerce” I mean any commerce at all, or things that aren’t commerce to begin with.

            Congress has not yet begun to explore the awful power Roberts handed it in order to uphold the ACA.

          2. No, the SC rejected the individual mandate constitutionality based on the interstate commerce clause.
            CJ Roberts went with the communist justices on agreeing it was Congress’s taxing authority that made the mandate constitutional.

    2. No, I think we’re better off with gut feelings. Law is too technical. It’s fine for games and sports, but real life is too serious for law.

  10. Awwwwwwwwwwww the poor persecuted Mexican kiddie fucker. Will his travails never cease?

    Please, please, please PLEASE keep using cases of immigrant kiddie fuckers to proselytize your position.

  11. “As a practical matter, there is no meaningful difference between a court’s knowing failure to remove a juror intent on nullification, a court’s instruction to the jury that encourages nullification, and a court’s ruling that affirmatively permits counsel to argue nullification.”

    Is it really the case that a juror can be eliminated for cause during voir dire or later (even during deliberations) because of them either professing a belief that jurors have the power of nullification or for exercising that power?

    I thought it was established that jurors have that power but they just need not/could not be told that during the course of the trial.

    1. “Is it really the case that a juror can be eliminated for cause during voir dire or later (even during deliberations) because of them either professing a belief that jurors have the power of nullification or for exercising that power?”

      They can be removed on the mere suspicion they might be aware of it. At any time short of the jury declaring its verdict.

      1. They can be removed on the mere suspicion they might be aware of it (nullification). At any time short of the jury declaring its verdict.
        As well they should.
        Jury nullification – one person deciding what the law should be, contrary to what the entire electorate, through their representatives, decided – is the height of anarchy.
        That libertarians are so gung-ho for this is one of the reasons why they will never be taken seriously by sane people.

        1. Actually, the power of ANY juror sitting in ANY criminal case in America to “decide what the law should be” is far from “anarchy”, it is “the law” of this nation. The JURORS, and ONLY the JURORS, NOT the trial Judge, NOT the legislators that passed the law in question, NOT some legal pundits, NOT you, NOT me, NOT any Congressman, Senator, President or Pope, and NOT any Appellate Court, can EVER overtime a JURY verdict of NOT GUILTY, ie. an ACQUITTAL! The Jury’s verdict of NOT GUILTY is FINAL. In effect, the JURY in any criminal case is the ultimate JUDGE of both the facts and the LAW. Of course the Jury should hear and try to follow the Judge’s instructions as to the LAW, but THEY, and NOT the Judge, are the ultimate judges of its fairness and applicability to the case at bar. They are bound by their oaths to make sure that the defendant is presumed innocent, that the prosecution has proven his guilt beyond a reasonable doubt, and that their verdict results in Justice being meted out.

        2. So the jurors deciding cases involving crimes against slavery should have just followed the wisdom of their elected representatives, right?

          You definitely shouldn’t be taken seriously.

  12. “When law and morality contradict each other the citizen has the cruel alternative of either losing his sense of morality or losing his respect of the law.” — Frederic Bastiat
    “Never do anything against conscience even if the state demands it.” ~ Albert Einstein

  13. If the judge really feels that a conviction would be a miscarriage of justice, can’t he wait to see if the jury convicts and then issue a Judgement Notwithstanding verdict?

  14. Directed verdicts and attacks on nullification are attacks on the 6th Amendment–throwbacks to federal alcohol prohibition. If attacks on voting work, the obvious next step is to expand the Nixon anti-libertarian law to force election panels to toss out all votes for libertarian candidates–as is done in U.S.-dominated bandana republics south of Brownsville. One of the excuses is that “taxpayers are already overburdened paying for 32 socialist and fascist parties, so subsidizing another party is out of the question.”

  15. There’s a reason so many civil cases are settled 1/2 hour before going to trial and plea deals work for criminal cases. Case law sucks.

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