A Fully Informed Jury: Two tales

We here in the United States are particularly proud of our jury system of dispensing justice, touting it as “the best in the world” at every given opportunity: and yet think we are all acutely aware of the significant flaws that show no sign of ameliorating. Take, for instance, the role of the jury itself. A jury is supposed to be a representative cross-section of the defendant’s peers, chosen from those in his community or neighborhood, so that they may be able to relate to and understand the defendant’s actions, thus giving greater legitimacy to their finding of guilt or not-guilt. When’s the last time that really happened in your practice?

Juries also have another important role, as we so love to remind them during jury selection: they are the weighers of evidence. It is their job to determine if the State has met its burden of proof. They are to decide if a prosecution is successful beyond a reasonable doubt and whether the State has firmly convinced them that the individual accused has indeed committed the crime.

But juries are often kept in the dark. They are directly told that they are not to bother themselves with consequences – in fact, barring a few outliers, juries aren’t even told of what the consequences might be. Their job is simply to decide the facts and then blindly apply the law. They’ve become accountants, adding up the numbers and deciding if you’ve got a surplus or deficit. That’s not how it always used to be, though. In 1794, Supreme Court Chief Justice John Jay informed a jury as follows:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.

John Adams said the following:

“It is not only [the juror’s] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

In other words, the power to nullify. The idea that the jury served not only as a judge of individual criminal acts but also as a check against unrestrained governmental powers is far older than the Constitution itself. Back in ye olde dayes, people were more concerned about tyranny and free speech (in fact, many explicit nullification powers still remain in State Constitutions with regards to libel), but the former is no longer a serious concern today. But that should in no way justify the decline of jury nullification and courts’ refusal to instruct juries on their inherent power to do so, much less affirmatively instruct them of the opposite. [This abrupt change in judicial policy seems to stem from Sparf v. US, a 5-4 opinion penned by Justice Harlan, holding that judges did not have to inform juries of their power of nullification. How that morphed into lawyers being unable to argue the same is unclear to me.]

Citizens of our states today face a different kind of tyranny: over-criminalization, the creeping police state and the severe intrusion into our civil liberties and individual rights and the pervasive “guilty until proven innocent” culture that justifies the erosion of our constitutional rights and protections, several fruitless wars on drugs and the absurd “tough on crime” sentencing laws that have decimated entire generations of minority populations.

Juries should have the power to decide whether public policy is served by the prosecution of a particular defendant and whether, as a community, they want to support the criminalization of certain acts. After all, the jury purports to represent that very community that is sought to be protected by these criminal laws.

Two recent examples highlight this very fact. First, from the State that actively encourages revolution, the jury has been empowered by legislative directive to nullify verdicts:

243:1 Findings and Intent of the General Court. Under the decisions of both the New Hampshire supreme court and the United States Supreme Court, the jury has the right to judge the facts and the application of the law in relationship to the facts in controversy. The jury system functions at its best when it is fully informed of the jury’s prerogatives. The general court wishes to perpetuate and reiterate the rights of the jury, as ordained under common law and recognized in the American jurisprudence, while preserving the rights of a criminal defendant, as enumerated in part 1, articles 15 and 20, New Hampshire Bill of Rights.

243:2 New Section; Right of Accused; Jury Instruction. Amend RSA 519 by inserting after section 23 the following new section:

519:23-a Right of Accused. In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

This not only directs judges to inform juries of this inherent power, but also allows lawyers to argue jury nullification despite a court’s refusal to give such an instruction. Though not going into effect until January 2013, we can already see the impact of this legislation. A few days ago, a New Hampshire jury acquitted a man who was clearly guilty of growing marijuana in his back yard.

[Defense attorney] Sisti acknowledged, though, that the judge’s decision to instruct the jury about nullification was crucial to the victory. Judge James O’Neill, following the state’s model jury instruction on nullification, told jurors that “even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.”

Jurors, led by liberty-minded activist Cathleen Converse of the Free State Project, decided Darrell should be set free. “Mr. Darrell is a peaceful man, he never deals with the darker elements of society and he grows for his own personal religious and medicinal use,” Converse said during an exclusive interview with Free Talk Live, a freedom-oriented talk-radio program. “I knew that my community would be poorer rather than better off had he been convicted.”

So, to prevent that, she helped convince other jurors to do as the defense suggested: vote their conscience and declare Darrell a free man. “Many of us wondered what kind of precedent this would set,” Converse continued. “But after chewing on all of the possibilities and re-reading the definition of nullification, we all decided that the only fair thing to do was to vote with our consciences and acquit the defendant of all charges.”

Through the simple act of letting jurors decide what is best for their community, an otherwise law-abiding citizen was spared a felony conviction, incarceration and the general upending of his normal life.

Not so for Robert King Via, of Hampton County, Virginia. While the case of Mr. Via isn’t a tragic example of the justice system gone too far (for he certainly was guilty of the crimes he committed and was found to be so), it is a shining example of doing things entirely wrong.

Virginia, you see, is one of those states that lets juries decide punishment as well as guilt. In most states, the trials are “bifurcated” in a sense: the jury decides guilt, the judge determines sentencing. But sometime in 1995, the legislators of that state decided that it would be a good idea to keep both halves with the same arbiter: either you get a bench trial where the judge decides the facts and imposes sentence, or if you want to exercise your right to a jury trial, you get stuck with the jury deciding punishment. You can’t pick and choose one of each.

To further complicate matters (or to stack the deck, depending on how cynical you are), the jurors aren’t given all the information they need to settle on an appropriate sentence. Virginia has sentencing guidelines, which are available to judges, but not to juries. They are thus unable to make any sort of rational decision about what is appropriate in a particular case and what a proportional sentence would be.

King Via, who opted for a jury determination, was sentenced to 128 years for a home invasion by a jury which thought it had no other alternative:

The jurors sentenced him to the mandatory minimum on all counts. Jurors are told the mandatory minimum a charge carries — which is different from sentencing guidelines — as part of the instructions given by the judge.  In the letter, which Via forwarded to the Daily Press, the juror asks Hutton to run the multiple sentences concurrently, leaving Via 28 years to serve. Hutton is scheduled to formally sentence Via on Thursday.

“I, for, one was taken aback that even at meeting the minimum sentence allowed on each guilty count, we had no choice but to sentence Mr. Via to the minimum 128 years,” the juror writes Hutton. “You would be correct to infer that the jury granted what leniency was within our authority when we agreed on a sentence of 1 day for the single count of conspiracy.”

A 2011 Virginia Sentencing Commission report reveals some startling figures: that only 1.5% of all cases are determined by a jury. Roughly 89% resolve via guilty plea and about 10% via a bench trial. In those cases where juries meted out punishment, they were more likely to sentence above the guideline range:

While the compliance rate for cases adjudicated by a judge or resolved by a guilty plea was at 80% during the fiscal year, sentences handed down by juries concurred with the guidelines only  39% of the time (Figure 16). In fact, jury sentences were more likely to fall above the guidelines than within the recommended range (51%). This pattern of jury sentencing vis-à-vis the guidelines has been consistent since the truth-in-sentencing guidelines became effective in 1995.  By law, however, juries are not allowed to receive any  information regarding the sentencing guidelines.

In jury cases in which the final sentence fell short of the guidelines, it did so by a median value of 38 months (Figure 17).  In cases where the ultimate sentence resulted in a sanction more severe than the guidelines recommendation, the sentence exceeded the guidelines maximum recommendation by a median value of 42 months.

Pages 25-27 of that report.

If we are to give juries this awesome power over the lives of other individuals, we should at the very least be honest with them. Juries should be told of the consequences of their actions, especially where mandatory-minimum sentences are involved. Juries should be permitted to make these “value judgments” where it affects the community that they live in.

Too often, juries are detached from the cases they sit on. The pervasive “those people” culture is further bolstered by absolving juries of all responsibility of judging the operation of law and “merely” being a passive observer by deciding the facts of a case. If juries were called upon to judge the fairness of the law itself, we might get a more educated populace, able to make better decisions about who we elect and how best we should protect and shape our communities.



4 thoughts on “A Fully Informed Jury: Two tales

  1. jdgalt

    Am I right in thinking that even in NH, an attorney can still be disbarred for advocating nullification? (Which would mean that effectively only unrepresented defendants effectively have the right to mention it.)

    1. Gideon Post author

      I’m not sure that’s accurate. If the legislature has permitted it and expressly allowed lawyers to argue it, why would they be disbarred? It’s not unethical to argue that.

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