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."

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  1. It’s one thing for a judge to support the idea of jury nullification but it is another for the judge the trial to tell others in the trial that nullification should be applied in any particulate case he/she is involved with

    1. This. Unless the judge starts with an explanation of Jury Nullification for all cases, it is inappropriate for them to suggest a course of action to the jury. Then again, I believe this true for all Judge suggestions to jurors. They should not be telling the jury which way to vote guilty, innocent, or nullification. Though it is my understanding that this is not how the world actually works.

      1. “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.”

        It’s probably better to use other terms and phrases to express your desire to find the defendant not guilty. On the other hand, I applaud people who advocate jury nullification openly and wont let courts silence them. They might remove your ass though, which really only hurts good candidates for jury nullification.

        I have to agree that a jury member who says they intend on jury nullification, is not a juror who will listen to the evidence and then decide. This is a basic juror instruction.

        Keep your wits about you when swimming with the sharks.

        1. There’s a distinction between knowing what jury nullification is, and being intent on jury nullification.

          That distinction seems to be lost on the State’s side of the judicial system.

        2. I have to agree that a jury member who says they intend on jury nullification, is not a juror who will listen to the evidence and then decide.

          If the juror believes “this particular law is an ass”, xe *has* considered “the evidence”. Whether xe must state this belief before going into the jury room is another discussion topic.

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        3. “I have to agree that a jury member who says they intend on jury nullification, is not a juror who will listen to the evidence and then decide. This is a basic juror instruction.”

          It’s a criminally unconstitutional basic juror instruction. It’s no different than if the juror instruction told you that the defendant was to be presumed guilty, and only acquitted if proven innocent beyond any reasonable doubt.

          Jury trials with the potential for nullification were the sort of trial by jury the Bill of Rights guaranteed. Take away the potential for jury nullification, and the right to trial by jury is being denied.

          Basically the judicial system is engaged in an open conspiracy to minimize the role of the jury in American trials.

          1. The jury trial is such a powerful right against government power that the state tries to prevent it all the time.

            Charge stacking
            Threats of perjury if the defendant testifies
            Jury trial sentencing penalty
            Allowing biased jurors to sit

      2. They should not be telling the jury which way to vote guilty, innocent, or nullification. Though it is my understanding that this is not how the world actually works.

        The term is “directed verdict”. The judge is free to instruct the jury that the outcome of the case, as a matter of law with which he is far more familiar with than they, is so clearly in one direction that no reasonable jury could conclude otherwise and therefore they must render a verdict in that direction. Unfortunately, the judge is only able to instruct the jury to render a “guilty” or a “not guilty” verdict and not that “no reasonable jury could conclude that this is the intent of the law and therefore must engage in jury nullification” – or even that jury nullification is even an option.

        There is however, such a thing as “judgment notwithstanding the verdict” whereby a judge can set aside a “guilty” verdict by the jury by simply declaring that no reasonable jury correctly applying the law could have reached that conclusion – basically judges retaining the right to engage in jury nullification for themselves.

    2. Why are judges allowed to direct the jury to a guilty finding, see PP vs Daedelin case in California, but not direct them to a nullification verdict?

      1. The judge is a representative of the king, and as such is not to question the king’s law.

      2. 1) You have the wrong name. It is Daleiden. Please get your name correct so that if someone wants to search for more information, they can.
        2) There was no directed verdict of “guilty”. The case where there was a directed verdict was the civil trial. The judge directed a finding of “liable”. There is a massive difference between civil liability vs. criminal guilt. No judge has the power to actually direct a verdict of guilt in a criminal case. Only liability. Only civil. On criminal cases, judges ONLY have the power to direct a verdict toward “Not Guilty”. On civil cases, judges can direct the verdict either to “liable” or to “not liable”.
        Note: I am not saying that it was appropriate to direct a verdict of liability against Mr. Daleiden. I merely denote the difference between civil liability vs criminal guilt and the power of judges on those two things.

    3. Sounds like he was allowing the defense to assert it.

    4. Why? Judges provide “hints” and directions to juries all the time. Why should judges be allowed to steer a jury toward a guilty verdict but not an innocent verdict? And perhaps more to the point, how do you plan to stop them without crippling their ability to do their jobs?

      Once you concede that judges have to be allowed some discretion to steer juries, what is the legal basis for forbidding them to inform juries of one of their constitutional options when he/she thinks that is potentially appropriate?

      (Note that I’m looking for a stronger legal basis than “because we said so”.)

    5. I could agree with this.

      No matter what, the judge can direct a verdict of ‘not-guilty’. So even if the jury votes to convict, the *judge himself* can still overrule that.

      The judge shouldn’t be giving anything that looks like orders to the jury when it comes to the verdict.

    6. Yes, and Judges should be informing Juries via both methods.

      But that would mean we have a justice system. We don’t, We have a court system.

  2. unreason always picks the worse cases to die on the hill for.

    This guy created the child pornography in question. He is who these types of laws want to prevent from doing this.

    This was NOT a Victimless crime.

    While I think jury nullification is applicable in every criminal case since juries are the trier of fact and finders of guilt, this judge seems to not know the law. There is no element of the crime that OTHER people actually view the CP in question.

    §§ 2251(e) and 2260(c)(1) (minimum 15-yearterm for production of child pornography and enhanced minimum terms if such a defendant has a prior felony conviction for an enumerated sex offense)

    1. The four primary types of offenses (distribution, transportation, receipt, and possession) are set forth in Chapter 110 of Title 18 of the United States Code at 18 U.S.C. §§ 2251, 2252, 2252A, and 2260. The statutes prohibit distribution, shipping, and transportation of child pornography regardless of whether such activities have a commercial or non-commercial purpose (e.g., exchanging child pornography through “peer-to-peer” Internet file-sharing programs).16The offense of receipt requires a defendant’s knowledge that he is coming into possession of child pornography at the time that the image is received.17 That a defendant knowingly possesses child pornography—a lesser-included offense of receipt—does not necessarily mean that the defendant previously knowingly received it.18 An additional statute, 18 U.S.C. § 1466A, prohibits possession, receipt, distribution, and production of “obscene visual representations of the sexual abuse of children;” its violation is considered a child pornography offense.

      1. The cops should have just executed right on the spot. And you would be fine with that?

        See, this is exactly why you’re only ever going to get bad cases for “hills to die on” – nobody gives a shit about people doing unobjectionable things being let off the hook notwithstanding the law, it’s only bad people doing bad things where your sense of justice demands the law be ignored in the pursuit of meting out punishment.

        It’s also why the Mothers For Baking Apple Pies are free to hold parades celebrating America, Nazis marching in Skokie not so much. It’s easy to support free speech for speech nobody finds objectionable, because nobody objects to unobjectionable speech, it’s sort of how unobjectionable speech works.

        1. Nice to meet you, Mr. Overreaction.

          This guy deserves Due Prcess and all the rights afforded a criminal defendant.

          This defendant created child porn. You will never get any sympathy from the public.

          There was a public kneejerk overreaction to sex between minors in recent decades. The public is relaxing on kids having sex and taking nude pictures which should not be child porn or some other crime.

          1. re: “Nice to meet you, Mr. Overreaction. ”

            Mr Pot, meet Mr Kettle.

            Your post is the embodiment of overreaction. This video is very much not what the child pornography laws were intended to stop. Yes, he had sex with someone too young to legally consent in his state. He is not, to my knowledge, contesting his conviction on that count. The feds, however, are stretching the definition of a law written at a time when creating an image required specialized equipment, deliberate effort and usually a multi-person team (all of which could be used by the legislature to infer intent) and applying it to circumstances which those original legislators could not have foreseen and that multiple people, including at least two senior judges, think it should not be allowed to apply to.

            In my opinion, the prosecution is doing so to create precedents for jurisdiction and to gratuitously increase the sentence. If you don’t want those stretched precedents and patterns applied to the innocent, then the time to stop them is when they are wrongly applied to bad people. If you wait for the ‘perfect case’, you’ll lose because of those precedents regardless of the righteousness of your cause.

          2. Oh God, not this clown again.

            I remember when he tried advocating that states have plenary powers.

    2. As a matter of law, you are correct. However, I have to disagree with you on a few points. In this case, the man is already in prison for 20 years, longer than most murderers.

      The purpose of child porn laws is to prevent abuse of children. However, that abuse has already been properly prosecuted and meted out with a harsh punishment. Was there any additional harm to the girl because he videoed their actions? So, why are we going through all the rigamarole to double his sentence?

      This seems to be a pointless prosecution for no other purpose other than that to get an easy win for the feds’ statistics.

      So, while it is clear that the law is being violated. I do not see justice being served in this case.

      1. And in what bizarro world is taking pictures of a statutory rape a more serious crime than actually committing a statutory rape? It seems like we may have lost our minds….

        1. Bonus tidbit from “Tiger King”…. breeding and transporting tigers is a more serious crime in the US than murder for hire.

          1. +1000 I saw that.

            Animal rights people are wacked in the head.

            I don’t go around clubbing seals on the head for fun but if I need to eat and didnt want to waste a bullet, I would absolutely have no problem clubbing a seal on the head.

            1. A baby seal walks into a club. BAM!

          2. I did a little checking on that case.

            1. It was two counts of attempted murder for hire. No actual murder. No attempt at murder by either of the people he tried to hire.

            2. On the animal side, the charges weren’t just for breeding and transporting tigers.

            There were 17 wildlife related charges, not all of them about tigers. 5 counts of animal cruelty for 5 tigers he put down. He claims they were sick, but the government had testimony from an expert who did necropsies that they were healthy.

            3. My understanding is the the bulk of the time he go was for the two attempts at murder for hire.

            1. Wow, thanks for the research.

              On the necropy… .the way it was presented in the documentary, it would be almost impossible to claim “they were not ill” from a necropsy. They would have been buried in a dirt grave, no protection or embalming. How in the world you’d determine “healthy and definitely not sick” from “decaying corpse in the clay soil” is beyond me. (not that I doubt why he put them down – the number they gave for feeding an adult tiger was astronomical and he had lost most of his revenue)

      2. While I think stacking charges is bullshit, prosecutors have been the discretionary power to charge people with crimes.

        One solution is to have 75%+ less crimes. Then you take some of that discretionary power from prosecutors who can abuse it.

    3. “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”

      — H.L. Mencken

    4. It was exactly a victimless crime: The only people who saw it were the two people in the video, (Who were both consenting, it was statutory rape, not rape rape.) and the federal peeping Tom. If anything, the only guy who did something with a victim was the federal agent.

  3. 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.
    If that is the claimed interstate nexus, I could see the jury rejecting that the law applies.

    1. EVERYTHING is interstate commerce if the feds say so.
      There was a case where firearms manufactured in Idaho (maybe Montana?) were stamped in the metal as “only for sale in Idaho” in an attempt to get around certain federal ‘infringements’. The courts ruled that those firearms might cause an out of state firearm to NOT be bought, so they were involved in interstate commerce.

      1. Wickard v Filburn just keeps on giving….

        1. Whether you decide to engage in interstate commerce or decide not to engage in interstate commerce, you’re engaged in interstate commerce. And if you choose not to decide, you still have made a choice.

          1. I’m sure you made the choice via the internet, telephone, or virtual brainwaves that certainly make it interstate commerce.

          2. Written 20 years before Raich. Prescient. Or obvious progression. Pick one and then bow down, plebe.

    2. Yeah, claiming that any equipment used in the commission of a crime that comes across state lines makes it into a federal case pretty much makes every crime into a federal case. Did you wear clothes? Shoes? Drive a car to get there? Ride in a train to get there? Use US currency?

      That’s way too tenuous. If this precedent is allowed to stand, it gives them a way to prosecute any crime they wish as a federal crime.

      1. I was born in another state, so everything I do is a federal matter.

        1. Dang! You should be a federal prosecutor….

        2. Sometimes, all I need is the air that I breathe.

          1. We are all stardust.

          2. I’m betting that air you breathe crossed a state line at some point.

            1. Holy shit, I once rode in an elevator that Hitler had used in the 1940s. I guess that transformed me into a Nazi?

              1. Well, you’re bragging about it, so NAZI!

            2. The interstate commerce angle would only apply if there is a statistically reasonable chance that at least one atom in one lungful of air you’ve ever breathed was once involved in commerce in another state.

              For example, such an atom having once been in exhaust gases from a power plant which sold electricity in another state, a jet engine on a commercial passenger or cargo flight while in another state, or from any device consuming fossil fuel which was sold in or transported through another state. Or, of course, went through an air compressor used by a painter or carpenter “for hire” in another state. Or was a component of gasses released while drying or curing of any commercial coating, paint, or substance. Or was once in water vapor evaporated in another state from commercial agriculture, car washes, coin-op laundries, swimming pools (including those offered as amenities in rental complexes).

              I can’t quite remember exactly where now and don’t have time to look it up, but I’m pretty sure I recall one of the Federalist papers clearly explaining that this was the intent of the founders.

              Now, if a prosecutor made the absurd claim that the fact that such an atom had ever been in air that had ever wafted through a commercial building/structure in another state but had never been involved in the product built/provided in such a building/structure, I suspect the founders might have looked a bit askance at that assertion. Although, if there was a reasonable chance that a customer or employee in such a building or structure had breathed in that atom, the prosecutor would have an ironclad case.

              1. I once read an article by a physicist in which he calculated the odds that at least one atom in your body was once part of the body of Jesus Christ. He concluded the odds were virtually 100%.

          3. Then don’t sell loosies in NYC.

  4. Prosecutors are dicks.

    1. Not always. For instance I’m a fan of progressive prosecutor Kamala Harris.

      1. “I’m a fan of progressive prosecutor Kamala Harris.”

        And presumably Andrey Vyshinsky, too.

  5. “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.”

    Correct. All three instances of obeying the law rather than violating it are similar.

  6. “”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.”

    This raises issues which go beyond “nullification.”

    What if the jury decides that, disgusting as the defendant’s behavior was, he didn’t act in interstate commerce and his conduct wasn’t, legally, the federal government’s business?

    Under current definitions, it would be “nullification” merely for the jury to have a different view of the law than the trial judge, even if (hypothetically) an appeals court later says the trial judge’s legal interpretation was wrong.

    The assumption is that juries must follow “the law” as given to them by the presiding judge, regardless of whether the presiding judge is, in the strict technical sense, correct.

    Ironically enough, in many states the establishment has to ignore specific state constitutional guarantees to take from the jury their power to interpret the law.

    I’m not saying this situation is going to change any time soon – I’m just saying that the term “jury nullification” has come to embrace to logically separate concepts –

    -a jury acquitting someone even though they believe the person to be guilty

    -a jury acquitting someone because they didn’t think the defendant’s behavior violated the law, if the trial judge said that the behavior (if proven) *did* violate the law.

    The idea here is that there needs to be a consistent body of judicial interpretation which juries must follow, with the only remedy being appeal to higher-level judges in case of error. That’s a respsectable argument, but it’s different from the argument against *actual* nullification.

  7. Jury nullification is a check against unjust legislation that goes against the laws of society. So it’s no wonder that people with power are against it.

  8. Not bad – 1 out of 3 federal appellate judges think that a federal trial judge should be able to place limits on the injustice perpetrated by federal prosecutors in their court! It is pretty stunning that a sitting federal district court judge, and a 2nd Circuit judge, both thought that justice should be an issue on which the jury is allowed to weigh in. That is a somewhat hopeful sign even if the defendant in this case does have his life destroyed by prosecutors and by judges who find themselves “bound by circuit precedent.”

    1. Has anyone reported who it was that appointed those judges?

  9. At The Law Offices of Raoul Severo, our Criminal attorney defense lawyers are committed to ensuring that our clients’ constitutional rights are protected.

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