J.A.I.L. News
Journal
____________________________________________________
Los
Angeles,
California
May 12, 2001
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reaction.
California High
Court
"Overthrows" Our Constitutional
Republic
HIGH COURT REJECTS
'JURY NULLIFICATION'
By Peter Blumberg
Daily Journal Staff
Writer
May 08, 2001
SAN FRANCISCO - For the first time, the
California Supreme Court on Monday affirmed the duty of trial judges to
replace jurors who refuse to apply the law in criminal cases.
In the case of a juror who told a trial
judge he could not in good conscience vote to convict an 18-year-old of
committing statutory rape with his 16-year-old girlfriend, the high court
unanimously ruled that the juror violated his oath to uphold the law and was
properly removed from deliberations. People v. Williams,
S066106
Although it has long been recognized that a
jury effectively has the ability to disregard, or nullify, the law, Monday's
opinion marked the first time the Supreme Court has directly confronted
whether trial judges may remove jurors who disclose during deliberations
that they will not apply the law as instructed by the
court.
"Jury nullification is contrary to our
notion of justice for all and permits both the prosecution's case and the
defendant's fate to depend upon the whims of a particular jury, rather than
upon the equal application of settled rules of law," Chief Justice
Ronald George wrote. "A nullifying jury is essentially a lawless
jury."
But in a companion case also decided
Monday, the justices warned trial judges not to be too quick to replace a
juror who disagrees with his peers on the evidence, even if the other jurors
complain that he's not participating in deliberations.
In People v. Cleveland, S078537,
the court unanimously agreed the trial judge in a robbery case should not
have removed a juror who was the lone holdout for acquittal without stronger
evidence of his refusal to deliberate. Monday's decision overturned the
defendant's conviction.
Taken together, the two rulings made clear
that jurors cannot be removed simply for disagreeing over the evidence but
that they must be removed when they are unwilling to follow the law. Lawyers
said they were not surprised by the outcome in Williams because judges have
long denounced jury nullification, which was imported into American
jurisprudence from English law as a means of protesting unjust
laws.
Today, debate over jury nullification
occasionally crops up in the context of jurors refusing to impose a life
sentence under the 1994 "three strikes" law on a defendant found
guilty of a minor third felony offense.
Prosecutors say Monday's opinion should end
any debate over the legality of nullification. "We view it as an
appropriate, unequivocal statement by the court
that the rule of law will
prevail, that jurors must take the law as given by the trial judge even if
they disagree with it," said Deputy Attorney General Karl
Mayer.
California law has consistently condemned
any instruction inviting jurors to reject a guilty verdict if applying the
law would lead to an unjust result. In 1998, the Judicial Council adopted a
jury instruction that requires jurors to notify a trial judge if any jury
member expresses an intention to disregard the law.
Mayer
acknowledged that Monday's opinion won't stop individual jurors from
reaching conclusions based on their own notion of right and wrong, but it
does put lawyers and judges on notice that open defiance of the law will not
be tolerated.
"The jurors take an oath before they
consider a case," he said. "If they engage in nullification, the
are effectively violating the oath." Emeryville jury consultant
Howard Varinsky, who specializes in high-profile criminal cases, said
he would never expect an appellate court to approve of jurors
disregarding the law. He said good defense attorneys know not even to
use the term "jury nullification."
"When we're trying to get a jury to nullify, we do it by
appealing to their sense of fairness and their sense of right and
wrong," he said. "We never address it
literally."
One academic expert lamented Monday's
ruling, saying that jury nullification is misunderstood as a threat to the
power of judges when really it should be embraced as "a mercy
plea" that comes into play in only a tiny fraction of cases that
involve moral judgments. "What point does the jury serve if the judge
tells them what to decide?" said Alan Scheflin, a professor at Santa
Clara University School of Law. "All the court did today is say that
people should lie to the court, because the fervent jury nullification
proponents are going to keep lying. I don't advocate this, but it's as true
as night turns to day, as long as they are instructed by the literature to
keep their thoughts to themselves."
In Williams, 18-year-old Arasheik
Williams was charged with violently raping and beating his 16-year-old
girlfriend. His trial lasted more than two weeks.
During closing
arguments, the defense attorney made a subtle pitch for nullification in
reference to the additional charge of unlawful sex with a minor, telling
jurors they may decide to "afford a higher justice by refusing to
enforce harsh laws."
A few hours into deliberations, the jury
foreman sent a note to the judge saying that one juror was refusing to
follow the judge's instructions. Questioned by Santa Clara County Superior
Court Judge Paul Teilh, juror David Kelly said, "I simply cannot see
staining a man, a young man, for the rest of his life for what I believe to
be the wrong reason." "So you're not willing then to follow your
oath?" Teilh asked. "That is correct," Kelly said.
The judge then replaced Kelly with an
alternate, and the jury convicted Williams.
In an unpublished opinion, the San
Jose-based 6th District Court of Appeal upheld the conviction. The
Supreme Court on Monday agreed the trial judge had good cause to
dismiss Kelly from the jury, rejecting the defendant's argument
that Kelly was exercising his right to engage in jury
nullification. George wrote that just because jurors have the raw
power to disregard the law doesn't mean that courts should in any way
condone it. "The circumstance that, as a practical matter, the
jury in a criminal case may have the ability to disregard the court's
instructions in the defendant's favor without recourse by the
prosecution does not diminish the trial court's authority to discharge
a juror who, the court learns, is unable or unwilling to follow the
court's instructions," he wrote.
In a concurring opinion, Justice Joyce L.
Kennard cautioned trial judges not to compromise the secrecy of jury
deliberations by asking overly intrusive questions in an effort to
determine whether a juror is refusing to follow the court's
instructions on the law.
In Cleveland, the other case
decided Monday, Los Angeles County Superior Court Judge Richard Romero
halted deliberations when he got a note from the jury saying that Juror
No. 1 "does not show a willingness to apply the law."
The judge questioned each of the 12 jurors
privately. The holdout juror insisted he had simply made up his mind to
acquit and didn't want to hear details of the case. Romero
concluded that Juror No. 1 was "not
functionally deliberating" because he would not respond to
questions from other jurors about specific facts and
details.
The Los Angeles-based 2nd District Court of
Appeal reversed, ruling that the trial judge prematurely dismissed the
holdout juror without showing beyond a doubt that he was failing to
deliberate. The Supreme Court agreed. "It is possible that
Juror No. 1 employed faulty logic and reached an 'incorrect' result,
but it cannot properly be said that he refused to deliberate,"
George wrote. "Juror No. 1 participated in deliberations,
attempting to explain, however inarticulately, the basis for his
conclusion that the evidence was insufficient to prove an attempted
robbery, and he listened, even if less than sympathetically,
to the
contrary views of his fellow jurors."
Cleveland's appellate attorney, James B.
Bostwick Jr. of Pomona, said the court has provided solid guidance on
how trial judges should handle holdout jurors.
"I've had four
or five of these cases in just the last two years," he said.
"One juror complains about another and then it gets in front of
the trial judge and as soon as there's a hint of a holdout,
the prosecutor says, 'We ought to get rid of this guy because he's
committing misconduct.' I think it's something that needs to be checked
and that's why the Supreme Court took this
case."
The deputy attorney general representing the
prosecution in Cleveland was not available for
comment.
We have on our
website an excellent article about J.A.I.L. dated August 13, 1999, written
by Peter Blumberg (author of the above
article).
(See comments of J.A.I.L. after the below
references)
Quotes of prominent
statesmen:
"I consider trial by jury as the only
anchor yet imagined by man by which government can be held to the principles
of its constitution." Thomas Jefferson
"The jury has a right to judge both the law as
well as the fact in controversy." First U.S. Supreme Court Chief
Justice, John Jay (1789).
"The jury has the right to determine both the
law and the facts." U.S. Supreme Court Justice Samuel Chase (1796), and
signer of the Declaration of Independence.
"The people are the masters of both
Congress and Courts, not to overthrow the Constitution, but to overthrow the
men who pervert it!" President Abraham Lincoln.
"The jury has the power to bring a verdict in
the teeth of both law and facts." U.S. Supreme Court Justice Oliver
Wendell Holmes, Horning v. District of Columbia, (1920) 254
U.S. 138.
"The law itself is on trial quite as much as
the cause which is to be decided." Twelfth U.S. Supreme Court
Chief Justice, Harlan F. Stone (1941).
Essay on Trial by Jury
(book):
"Government is established for the protection
of the weak against the strong. This is the principle, if not the sole
motive, for the establishment of an all legitimate government. It is only
the weaker party that lose their liberties, when a government becomes
oppressive. The stronger party, in all governments, are free by virtue of
their superior strength. They never oppress themselves. Legislation is the
work of this stronger party; and if, in addition to the sole power of
legislation, they have the sole power of determining what legislation shall
be enforced, they have all power in their hands, and the weaker party are
the subject of an absolute government. Unless the weaker party have a veto,
they have no power whatever in the government... ." Lysander
Spooner
United States v.
Dougherty:
"There has evolved in the Anglo-American
system an undoubted jury prerogative-in-fact, derived from its power to
bring in a general verdict of not guilty in a criminal case, that is not
reversible by the court. The power of the courts to punish jurors for
corrupt or incorrect verdicts, which persisted after the medieval system of
attaint by another jury became obsolete, was repudiated in 1670 when
Bushell's Case, 124 Eng. Rep. 1006 (C.P. 1670) discharged the jurors who had
acquitted William Penn of unlawful assembly.... The pages of history
shine on instances of the jury's exercise of its prerogative to disregard
uncontradicted evidence and instructions of the judge. Most often commended
are the 18th century acquittal of Peter Zenger of seditious libel, on the
plea of Andrew Hamilton, and the 19th century acquittals in the prosecutions
under the fugitive slave law.... Even the notable Dean Pound commented in
1910 on positive aspects of 'such jury lawlessness' [n.32 C.R. Pound, Law in
Books and Law in Action, 44 Am.L.Rev. 12, 18 (1910): 'Jury lawlessness is
the greatest corrective of law in its actual administration. The will of the
state at large imposed on a reluctant community, the will of the majority
imposed on a vigorous and determined minority, find the same obstacle in the
local jury that formerly confronted kings and ministers.'].... We are aware
of a number and variety of expressions at that time from respected sources--
John Adams; Alexander Hamilton; prominent judges-- that jurors had a duty to
find a verdict according to their own conscience though in opposition to the
direction of the court.... The jury knows well enough that its prerogative
is not limited to the choices articulated in the formal instructions of the
court. [n.48 See Judge Rifkind's comments in Follow-Up/The Jury, Center
Magazine, 64-65 (July 1970).].... The totality of input generally convey
adequately enough the idea of prerogative, of freedom in an occasional case
to depart from what the judge says." United States v. Dougherty (D.C. Cir.1972)
473 F.2d 1113, 1130, 1132, 1135. (The court uses such terms as
"jury revolt" and "the historic role of the jury as a bulwark
against official tyranny." See id.1131)
United States v.
Moylan:
"We recognize, as appellants urge, the
undisputed power of the jury to acquit, even if its verdict is contrary to
the law as given by the judge and contrary to the evidence. This is a power
that must exist as long as we adhere to the general verdict in criminal
cases, for the courts cannot search the minds of the jurors to find the
basis upon which they judge. If the jury feels that the law under which the
defendant is accused is unjust, or that exigent circumstances justify the
actions of the accused, or for any reason which appeals to their logic or
passion, the jury has the power to acquit, and the court must abide by that
decision." United States v. Moylan (4th Cir.1969) 417
F2d 1002, 1006.
Declaration of Independence
(excerpts):
"...governments are instituted among
men, deriving their just powers from the consent of the governed ....
But when a long train of abuses and
usurpations, pursuing invariably the same object evinces a design to reduce
them under absolute despotism, it is their right, it is their duty, to throw
off such government, and to provide new guards for their future
security."
* * *
We highly recommend the pamphlet
"True or False" by the Fully Informed Jury
Association (FIJA) P.O. Box 59, Helmville MT 59843, 1-800-Tel-Jury, or (406)
793-5550. In California, contact JAILer Peymon
Mottahedeh, Freedom Law School (714) 838-2896.
Here is a good reason for the immediate passage of
J.A.I.L. and an uprising public revolt and a call for the removal from the
bench of all seven justices of the California Supreme Court.
This decision in the Williams case above is null and void, and any
affirmance of a void decision is equally void, and may be ignored.
An obvious Constitutional concern that this case pretends to shatter is the
First Amendment right of any juror to protest any law placed on the books.
Such right is fundamental to the founding precepts of our country. It
also assails the "consent of the governed," clause, and the
principle of a "government of the People. Let's start that revolt
with J.A.I.L. -Ron Branson.
J.A.I.L. is an acronym for Judicial Accountability Initiative
Law
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"..it does not require a majority to
prevail, but rather an irate, tireless minority keen to set brush fires in
people's minds.." - Samuel Adams
"There are a thousand hacking at the
branches of evil to one who is
striking at the
root."
-- Henry David Thoreau
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