Judges Fight Over Jury Nullification 

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. Some of them get extremely mad when a fellow judge endorses the practice in his own courtroom.

That's exactly what happened in December 2019, when a divided three-judge panel of the U.S. 2nd Circuit Court of Appeals rebuked U.S. District Judge Stefan Underhill for telling prosecutors and defense attorneys that before them was a "shocking case" that "calls for jury nullification."

The prosecution that shocked Underhill was a dubious federal "child pornography" charge growing out of a state statutory rape case. A U.S. Attorney's Office press release alleged that defendant Yehudi Manzano, 31, "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." Yet "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, says.

How did the feds get jurisdiction in what would normally be a state criminal case? "Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the [federal child pornography] statute," Judge Underhill marveled.

Charging Manzano in federal court is no small thing. According to the same press release, "the charge of production of child pornography carries a mandatory minimum term of imprisonment of 15 years…and the charge of transportation of child pornography carries a mandatory minimum term of imprisonment of five years." Such a sentence would be in addition to the one to 20 years in state prison faced by Manzano for having sex with a 15-year-old who was incapable, under Connecticut law, of consenting to the relationship.

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

"I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government," Underhill said in court in response to the defense's motion to be allowed to argue for nullification. "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."

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

Judge Barrington D. Parker opposed the writ 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," 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."