Judge reverses conviction after polling jurors

Update: The decision is a must read. It comes in at a whopping 236 pages. (Yes, you read that correctly. 236 pages.) Not only is there an extensive discussion of the history of 6th Amendment jurisprudence, but there is also an extremely fascinating discussion of the Constitutionality of the federal child porn statute and whether its requirement that possession be “knowing” rather than “willful” is sufficient and whether its lack of scienter permits it to survive Constitutional scrutiny. One of the most interesting decisions I have read in a very, very long time.

Original: From SL & P, via Volokh comes this story of a federal judge in New York who reversed [pdf] a conviction after polling the jurors.

After Polizzi was convicted, Weinstein polled the jurors, asking if they would have issued the same verdict had they known the mandatory minimum sentence. Many said no, stating they felt Polizzi needed treatment, not prison time.

This led Judge Weinstein to declare a mistrial.

Weinstein wrote that he “committed a constitutional error” by not telling the jury about the sentence.

That knowledge “might well have led to a hung jury or a verdict of not guilty or not guilty by reason of insanity,” the judge wrote.

In most states, like in CT, juries aren’t told of the consequences of guilty verdicts: what the mandatory-minimum sentence is, what the maximum sentence is, whether the defendant will be sentence to probation, etc.

This ruling has sparked a very interesting discussion at SL & P. S.cotus writes:

I think that Judge Jack sets the issue up in a different way. Rather than say, “Should the jury be told” I think he is asking “Should the judge set aside the verdict based on a clear statement from the jurors, on the record that they would not have convicted if they had known the consequences.” Depending on how you look at it, this is a slightly (or very) different issue.

This isn’t the first time I’ve thought about this issue and it won’t be the last. I can’t decide. My reluctance to embrace juries knowing about sentences stems from tradition, I guess. It’s just what I’ve become used to. Resistance to change or something like that.

But the benefits are obvious. With harsh sentencing and almost anything being a crime, this would be a way for the community – through the jury – to make a statement about what is and isn’t worthy of jail time and whether the sentences set out by the legislature are just and sufficient.

Sure, it reeks of jury nullification, but I don’t think nullification is illegal. It serves a purpose.

Someone at Volokh posted the following rationale:

But we’ve criminalized so much, and with such harsh sentences, that we have come pretty close to having a system in which, in many areas, prosecutors decide who goes to jail, and they make those decisions on the basis of “who is a bad guy.” So, until that changes, we ought to at least let the jury have a shot at letting some non-bad-guy defendants off lightly.

A tangent that bothers me is that a bunch of commenters are all for “full disclosure”. According to them, this would include permitting the jury to know whether the defendant has prior convictions. Seems like they’re seeking a trade-off. Something that might help a defendant for something that definitely hurt a defendant.

It’s an interesting discussion, for which I have no ready response. Thoughts from you guys?

PS: Look at the NY Post headline. Talk about tabloid…

9 thoughts on “Judge reverses conviction after polling jurors

  1. Windypundit

    One of the mysteries facing every juror is the meaning of “reasonable doubt.” As far as I know, the legal system has resisted most attempts to clarify the meaning of “reasonable” or make it easier to apply. Jurors aren’t told how careful they should be.

    In most other fields where quality matters, the amount of care given to establishing quality depends on the consequences of an error. This is why airplanes are inspected more carefully than cars, and pacemakers more carefully than flashlights.

    I think letting jurors know the consequences of a guilty verdict will give them a clearer idea of how much doubt is reasonable. A nagging doubt for six months suspended might seem more reasonable for a five year minimum.

  2. Stephen Gustitis

    In Texas State courts the accused has the option of selecting either the judge, or the jury, to assess punishment if convicted. If the accused elects the jury, then the jurors are questioned during voir dire about their willingness to “consider” the full range of possible punishment upon a conviction. If the lawyers think that lesser included offenses are a possible result, they are permitted to ask the potential jurors about those punishment ranges, as well. If the accused is an alleged habitual offender, the jury is permitted to know about the enhanced punishment range for an habitual offender, too.

    Over the years I have made strategic decisions whether to elect the judge or jury for punishment based on what the range of punishment was. For instance, in cases were my client was an habitual offender, I usually don’t want the jury hearing about “enhanced” ranges of punishment since they naturally assume my client has a criminal record and they use that against them during the guilt/innocence phase of trial. On the other hand, if I have a probation eligible client, I would often elect the jury since I could intimate during voir dire the lack of serious criminal record. So, full disclosure is good, only if it can’t hurt us.

    I don’t know if I answered any questions, or added to the discussion here. But Windy’s comment about airplanes vs. cars was brilliant.

  3. Stephen Gustitis

    If I may add one more thought? In Texas where juries can assess punishment, I’ve had juries obviously compromise on punishment when guilt may have been in question. The best example were murder cases when self-defense was a credible issue but the strong jurors pushed for a conviction. At the punishment phase, the jurors who supported a self-defense acquittal now get their way with a probation verdict. (however, in the Texas legislature’s infinite wisdom they have eliminated probation in murder cases)


      1. Stephen Gustitis

        Juries have their advantages and disadvantages, of course. I’d say the Texas system gives the defense flexibility. I guess I can firmly say I like having the option of having the jury assess punishment. Whether I chose to go that way depends on my facts and what I hope to accomplish.

  4. jigmeister

    As a retired prosecutor, I am for full disclosure. Give the jury the full sentencing information on all possible verdicts, including NG by reason of insanity, enhancements, lessors. I have more faith in juries than judges to adhere to community values.

  5. utopian007

    I had one set of jurors become really upset when they saw the judge max out my guy to 15 years on a possession of a firearm by a convicted felon. One was heard leaving the courtroom saying, “If I had known she would do that, I would have voted not guilty to that charge too.” (He had just been acquitted of a second degree murder charge on a self defense argument)

    The case pretty much makes the decision whether I want the jury to know. On all cases where it is strictly the minimum mandatory sentence, I am in favor. If it has habitual offender consequences, I am not as much as my jury might get some preconceived ideas about my client that I don’t want them to have.

  6. SPO

    The sentence is logically irrelevant to guilt/innocence–therefore, the idea that the Constitution requires that juries be told of, or polled afterwards for their reactions to, sentencing issues is about a dumb idea as is possible. Nothing in the Constitution requires that juries be told of irrelevant information, and while jury nullification is an important check on the power of the government (i.e., a jury of citizens has to, if you demand, sign off on longer than 6 months incarceration), there is nothing in the Constitution that requires giving the jury more ammunition.

    Maybe we should tell juries about the sentence–but federal judges have no business flouting the law in such a manner. Weinstein ought to resign. He is an embarassment.


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