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Juries Can Acquit the Guilty, 9th Circuit Says, but 'There Is No Right to Nullification'

A medical marijuana provider unsuccessfully argues that improper jury instructions made his conviction invalid.

JZSJZSAdvocates 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.]

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  • Philadelphia Collins||

    Oh yes the fuck there is a right for jury nullification. Ask O.J.

  • sarcasmic||

    That's different because he's black and the system is rigged against black people. Principals, not principles.

  • Citizen X - #6||

    The main issue with the O.J. case is that the LAPD tried to frame a guilty man.

  • Tony||

    Your worldview is made up of such a small collection of cliches, you have to haul them out when they don't even remotely apply. Sad.

  • sarcasmic||

    The sad part is how many situations do indeed fit these cliches. If they didn't, then they wouldn't be cliche.

    Speaking of which, do you type that sentence or do you copy and paste it from a file?

  • Stormy Dragon||

    No, OJ jury reached the right verdict (even though I think he did it). Fuhrman was asked on the stand if he tampered with the evidence during the investigation and refused to answer on fifth amendment grounds. That seems pretty clear reasonable doubt to me.

  • albo||

    But the huge chunk of evidence pointing to his guilt shouldn't have been written off because of that. The OJ jury was plain dumb.

  • Stormy Dragon||

    Yes it should have. If the cops won't even stipulate that they didn't tamper with the evidence, it no longer has any evidentiary value.

  • x'); DROP USER Tony;||

    'Reasonable doubt'

    OJ is guilty as shit, and everyone knows it. The prosecution bungled the case though, and ABSOLUTELY left room for 'reasonable doubt'.

  • sarcasmic||

    So you're saying that you have no reasonable doubt that OJ is guilty, and that the jury had every reason to have reasonable doubt.

  • Stormy Dragon||

    So you're saying that you have no reasonable doubt that OJ is guilty, and that the jury had every reason to have reasonable doubt.

    To quote A Man for All Seasons, "The world must construe according to its wits; this court must construe according to the law."

  • sarcasmic||

    Oh, and I like the name.

  • loveconstitution1789||

    "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."
    Should have gotten himself a better appellate attorney. Always shotgun all issues into a brief.

    Many appellate attorney will not do this because of effort and they think that a succinct brief is the best. It also gives the appellate courts a way out to not address all the issues and then decide that any error was harmless.

  • Fist of Etiquette||

    I've been getting varied and conflicting information on jury nullification. Is it a duty or not? Is it punishable or not? Is it a guaranteed right or not?

  • Citizen X - #6||

    A right, yes. Guaranteed, no.

  • loveconstitution1789||

    You are better of not saying anything about it to other jurors or they will likely have you thrown off.

    It challenges the power of the state and that is NOT tolerated.

    The right to jury trial is not tolerated either because if you lose, the judge just sentences you to more time because you did not plea out and save everyone time and money.

    The right to effective assistance of counsel is not tolerated either since they overload public defenders with cases and give them a lot less of a budget for legal defense than prosecutors.

  • Bob K||

    You have the right to free speech
    As long as
    You're not dumb enough to actually try it

  • Brandybuck||

    A member of a jury can vote however they wish, for any reason. Once behind the jury doors, the jury vote however it wants. They do not need to provide a reason for their verdict. If an all Black jury wants to acquit a Black defendent because they don't want another Black man behind bars, they can do that. And many of them do.

    But this is not the same thing as what the FIJA people call jury nullification. The juries are not voting on the law itself, they are only voting on the specific case at hand. No precedence is being set.

  • TW||

    No, yes and no.

  • UnrepentantCurmudgeon||

    It is not a "right". The jury are charged to assess the evidence and follow the law as instructed.

    It is however a power. The jury weigh the whole case and, when appropriate (which is not all that often) may return a verdict that comports with their sense not of the law so much as of justice in the case.

    It works because the prosecution cannot appeal the result. The defendant has been tried and acquitted, and the Fifth Amendment prohibition of being tried twice for the same offense leaves the prosecution without remedy when nullification does in fact occur.

    If you want to look at fiction to see nullification in action read or watch "A Time To Kill". It is why Carl Lee Haley was not convicted.

  • Rhywun||

    The jury's job is to determine the facts, not to judge the law.

    If that's the case then why not just plug the evidence into a computer and have it spit out the facts - why have jurors at all?

  • loveconstitution1789||

    Do not give these Nanny-Staters any ideas!

  • UnrepentantCurmudgeon||

    Because the evidence must be weighed. A simple example: someone testifies. Is that witness credible? The cold transcript tells us nothing, but the jury see everything: how the witness acted when given an uncomfortable question, the "truthfulness" of his manner and so forth. Everyone swears "to tell the truth, the whole truth and nothing but the truth" but the jury has to figure out who is and who is not doing so. That is a uniquely human challenge.

  • Citizen X - #6||

    The U.S. Court of Appeals for the 9th Circuit agreed but said the error was harmless because "there is no right to nullification."

    Sure there is, whether or not a court agrees. Freedom of conscience by definition doesn't require government approval.

  • p3orion||

    I think that the court meant that no particular defendant has a right to nullification (just as he has no automatic right to be found not guilty) rather than that juries have no right to exercise nullification.

  • albo||

    Jury nullification substitutes the barely considered judgment of 12 unelected people too dumb to get out of jury duty for the judgment of publicly elected representatives of the people. At least we know for sure if our congressmen and women are idiots or not.

  • FreeRadical||

    I'm excited to be called for jury duty and do my best to get on to a jury. I am tantalized by the idea of getting the right kind of case where I can deploy nullification. The chances are pretty low, but I won't preclude them by trying to "get out of jury duty".

    I fantasize about being able to say to the other 11: "Did this person commit aggression or fraud against another? No? Then my vote is acquittal, and it is non-negotiable. You have two choices: join me in my vote or have a hung jury. Let's get this over with."

  • Citizen X - #6||

    Same here, but it hasn't happened for me yet. My wife got jury duty a couple years ago and i was so jealous.

  • loveconstitution1789||

    Go to the government office where they process jury selection and ask if your name is properly in their database.

    I did that and was summoned within 6 months. I served on a jury for a week.

    I plan to do go to that office every year.

  • R. K. Phillips||

    I literally called the courthouse for that reason. I'm properly listed, but I have not been called, ever, and I've been registered to vote (it is from that database that jurors are selected) for 42 years.

  • albo||

    Never happen. Defense attorneys screen out anybody whose IQ exceeds their body temperature. You'll get thanked and have your parking validated as you leave.

  • FreeRadical||

    I've gotten on a couple juries. One of them was absolutely perfect for nullification (selling drugs to a cop), but I was not "fully informed" and my political philosophy was too immature at that point. Luckily we acquitted.

    The other time it was settled out of court.

  • Chuck in CR||

    was that in Tucson AZ in the early 90's?

  • ace_m82||

    Easy. When they ask you questions, answer truthfully with and volunteer no information. Odds are, they cannot ask a question that I can't answer truthfully in the manner they want to hear.

  • loveconstitution1789||

    This is good advice. Keep it simple and don't talk too much or your Libertarian ways will slip out.

    Attorneys only have so many preemptory challenges to excuse jurors for no reason, so they try and excuse jurors for cause. Don't give them cause.

    Most people don't want to be on juries, so act like its an inconvenience rather than a great experience.

  • Zeb||

    I don't think that is universal. I have never been on a jury, but people I've talked to who have weren't asked a lot of questions that would reveal how smart they are or whether they would be likely to nullify.

  • FreeRadical||

    They usually ask about your profession. I'm an engineer and I think that says something about my intelligence. [puffs out chest in annoying self-satisfied way]

  • Juice||

    You have two choices: join me in my vote or have a hung jury.

    Nah. All they have to do is complain to the judge that you're trying to nullify or that you're trying to hijack the jury or something like that and they'll replace you with an alternate.

  • Malvolio||

    Don't believe everything you think.

    When the jury begins deliberations, alternates are excused. After that, if the jurors cannot reach a verdict, for whatever reason, including juror misconduct, it's a mistrial.

  • retiredfire||

    Don't believe what Malvolio says, they bring back alternates all the time if a juror can't finish, and the worst part is that the entire deliberation process must begin, again.

  • Malvolio||

    Don't believe everything you think.

    When the jury begins deliberations, alternates are excused. After that, if the jurors cannot reach a verdict, for whatever reason, including juror misconduct, it's a mistrial.

  • Necron 99||

    I've been on a couple, don't want to do it again.

  • sarcasmic||

    I've always wanted the opportunity to respond to one of those "The law is the law is the law" types with "So what the Nazis did was OK? After all, it was legal under their laws."

  • loveconstitution1789||

    Or you can tell them that the law also say that the Defendant is presumed innocent and the state must prove guilt beyond a reasonable doubt and I have reasonable doubt. For criminal trials anyway.

  • retiredfire||

    But they will always ask, especially the prosecution side, if you can vote someone guilty if all the facts are proven.
    You would have to lie, especially if your intent is to substitute your concept of what is a crime, for what those society has empowered to make that decision, have legislated.
    Anyone who believes in jury nullification doesn't deserve to be a part of a civil society.
    If you think jurors can substitute their opinions for those of legislators, then you must be willing to accept being found guilty of a crime, even if the facts show you to be innocent, just because a jury wants there to be a conviction.

  • Chuck in CR||

    if all the facts are proven.

    Can one of those facts be Natural Rights?

  • ||

    I'd love to be called for jury duty. I've been waiting for it and I'm in my 40's now. I finally got called last month, but for a county I moved out of. So still waiting.

  • Longtobefree||

    Your new name will be 'jailed radical'

  • UnrepentantCurmudgeon||

    I'm a practicing attorney and was on a panel. I actually wanted to be on the jury to see what it was like on that side of the courtroom. Almost made it too, but the DA thought I would be too sympathetic to the defendant because my son had been through his own brushes with the law (actually I thought he got off too easy, but we didn't get that far).

    Yes, you can get out of jury duty in various completely legal ways. But consider this: when on a jury you are one of twelve who have a living, breathing person's future in your hands. And from talking to jurors post-trial I can say one thing for sure: their judgments were not "barely considered". In fact, the breadth of what they considered and factored into their decisions was always surprising.

    Never underestimate the intelligence of the ordinary person.

  • FreeRadical||

    This verdict seems pretty good to me given my low expectations. The fact that the court ruled the last two sentences invalid seems pretty huge to me.

    I think anybody convicted of "jury tampering", or somesuch other bullshit, can point to this decision as preventing such a conviction. At least in the area of the 9th's jurisdiction. Does that seem right?

  • Arcxjo||

    What happened here to make this an issue? It seems like it want that long ago I was a schoolkid (humor me on that one) where in history and civics class we were taught that John Zenger (and his jury) was a Real American Hero.

  • Juice||

    You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not.

    That's a lie. 100% lie.

  • BYODB||

    You know who else said that the law superseded your individual sense of justice?

  • Marcus Aurelius||

    Judge Dredd?

  • Marcus Aurelius||

    Galileo?

  • Marcus Aurelius||

    Dan Rather?

  • CE||

    Murphy?

  • loveconstitution1789||

    King George III?

  • Stormy Dragon||

    You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case.

    I wonder what would happen if a juror refused to give any verdict on fifth amendment grounds then?

  • Dillinger||

    >>>You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not.

    said the North Korean?

  • Brandybuck||

    This is what the jury nullification people just don't understand. They have an inaccurate narrative of history. A jury can vote to acquit, can vote not guilt, for any reason. They don't have to tell the judge why they voted as they voted.

    That's what jury nullification really is. It's what it has always been. But these guys want more. They want an official imprimatur from the judge. That's never going to happen.

    Juries do NOT judge the law. They judge the case. Always. They can vote to acquit but no one knows why they voted as they voted. It's not part of the record. No precedence is set. The most that can happen is that there's enough acquittals that the prosecutors stop pursuing these cases. That's it. Nothing magical about it.

  • sarcasmic||

    I think you're beating up a straw man here. I don't see anyone claiming that jury nullification sets precedent or anything like that. Only that a jury can find someone who is without-a-doubt guilty because they consider the legislation to be unjust.

  • sarcasmic||

    Only that a jury can find someone who is without-a-doubt guilty as not guilty because they consider the legislation to be unjust.

    argle bargle proofread fail

  • TW||

    Well put.

  • CE||

    They don't want the judge to tell the jurors they have the right to nullify an unjust law, they want the judge to not tell the jurors they don't have that right.

  • Chili Dogg||

    Article 1, Section 1: Rights of Persons, Paragraph XI, of the Georgia State constitution states:

    "Paragraph XI. Right to trial by jury; number of jurors; selection and compensation of jurors. (a) The right to trial by jury shall remain inviolate...In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts." (shortened b/c of character limits)

    Note the last phrase: "...the jury shall be the judges of the law and the facts."

    Your claim that juries don't judge the law might be correct in some places, but not everywhere. Do other states list this right in their constitution?

    Neil Boortz used to talk about this statement and say that talking about the right of the jury to judge the law during jury selection was a good way to NOT be selected for the jury. It sounded like judges didn't want the jurors to know about this constitutional right, either. Those with power generally don't like to share their power, even with citizens who have rights. (As usual, government, designed to protect our rights, is the greatest danger to our rights.)

    The jury system is a limitation on governmental power and can be a bulwark against overreaching government power and bad behavior by government officials. Can it be abused? Sure, but all of government has always been subject to abuses and always will be. Such an argument to oppose jury nullification would apply to the government as a whole.

  • CE||

    You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case.

    Really? So they are going to start prosecuting the show trial jurors if they don't reach the desired verdict?

    Somehow I doubt it.

  • NoAuthority||

    Yes, indeed they will. In the regrettably near future. Verdicts against the State - if the judge deems them unsupportable by the evidence will be retried or the problematic juror will be replaced by an alternate and they will deliberate again. Just as a verdict may be set aside now if the judge feels it is a obviously wrongful decision.

    One more tiny step would be polling the jurors to identify those sticking a tire iron in Justice's gears. Once identified they will be held in contempt until they receive training in right-think.

  • aajax||

    18 years for selling medical marijuana? I know who I consider the criminals in this case. And I'm not so sure about the judges, either.

  • Argyle Pajamas||

    Kneel down and kiss the boot of your capitalist masters, because it's DUH LAW!

  • p3orion||

    "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."

    Then why the hell have juries in the first place? The whole point of having juries of peers, rather than letting judges decide every case, is that if all else fails, from the legislators who write the law to the executive who enforce it to the judiciary who apply it, it that you have twelve of your peers there to look all three branches in the eye and say "fuck you, this isn't right."

  • IMissLiberty||

    Disgusting ruling. It's a good thing they're all our servants, and have to do what we say. That's the thing about legal advice from an employee: we don't have to take it.

  • Longtobefree||

    Never been on a jury that actually got to hear a case.
    But the process of selection and assignment to a panel convinced me the legal system is full of it.
    I have to take comfort in the fact that ol' Billy Jeff made perjury pretty much an acceptable practice, because some of the questions on the silly ass form are never gonna get answered truthfully. The really great part is that the oath I took when I got a security clearance prohibits me from answering some of those questions truthfully anyway. Maybe we should do away with juries, and just have the prosecutor and defendant flip a coin, best three out of five. Probably get about the same accuracy.

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