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Jury Nullification

The concept of nullification has been of note recently, see here. Does it exist, should it exist, how may a practitioner argue for or seek it at trial.

The SCOTUS might soon give us an idea on the subject in Lee v. United States.

Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

The issue presented does not alert us on its face that jury nullification questions are at bottom involved. Ilya Shapiro, The Right to Hope for Jury Nullification, CATO Institute, 9 February 2017, however tells us the issue is before the SCOTUS.

Jae Lee [a non-]citizen. [P]led guilty to a drug crime after his lawyer assured him that he could not be deported as a result. The lawyer was wrong, because the conviction made Lee subject to mandatory removal.

The U.S. Court of Appeals for the Sixth Circuit agreed that a jury wasn’t needed to determine Lee’s guilt and that denying the “chance to throw a Hail Mary at trial is not prejudicial” and therefore doesn’t violate Lee’s Sixth Amendment right to a jury trial. The court reasoned that that the only chance Lee had was acquittal by “jury nullification” and thus such a gambit was so irrational—and the idea of nullification so antiquated—that it is not to be allowed.

The Sixth Circuit actually admits in this case that the power of juries to acquit, despite strong evidence for conviction, was central to the decision to enshrine the jury right in the Constitution. In spite of the incontrovertible evidence that the right to seek an acquittal by nullification was enshrined in the Sixth Amendment, Jae Lee had this right revoked simply because it was considered irrational or unwise.

The CATO Institute has filed an amicus brief in Lee. The amicus brief notes "the divide between the Sixth Circuit" and DeBartolo v. United States, 790 F.3d 775 (7th Cir. 2015). The brief summarizes the argument as:

This case presents important issues of individual liberty, the role of juries, and the original public meaning of the Sixth Amendment’s right to a jury trial. In its decision below, the Sixth Circuit held inter alia that when a criminal defendant is faced with very strong evidence, it is never rational for him to reject a guilty plea to pursue trial and seek a jury’s acquittal by “nullification.” This conclusion conflicts with the history and foundational understanding of the right to jury trial in the Sixth Amendment, and has no basis in this Court’s precedents.

Amicus urges the Court to hold that there are cases, such as this one, where it is rational under the circumstances for a defendant to seek a jury verdict of acquittal even against seemingly “overwhelming” evidence. . . . Defendants choosing to exercise their right to the verdict of an independent American jury may in some cases be unwise; nevertheless, theirs is an exercise of the Sixth Amendment “jury” right in the full sense in which it was originally understood.

[T]he decision below confuses modern judicial disapproval of “nullification” arguments with the rationality of pursuing a jury’s sua sponte nullification itself. It elides the fact that “under the circumstances” of Lee’s case are factors making a jury acquittal far more likely than in other potential “nullification” cases. Finally, it ignores the close parallelism between prosecutorial discretion and jury discretion, both of which introduce “a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.” United States ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir. 1942) (Hand, J.) (discussing the importance of jury trials), rev’d on other grounds, 317 U.S. 269 (1942). . .

To modern lawyers, to speak of the importance of the jury as a “slack” in the system, or even of its ability to “nullify,” may seem antiquated. Alexander Hamilton argued in 1804 that “the jury have an undoubted right to give a general verdict, which decides both law and fact . . . [and] it is also their duty to exercise their judgments upon the law, as well as the fact.” People v. Croswell, 3 Johns. Cas. 336, 345–46 (N.Y. Sup. Ct. 1804). Such an argument today, if made to a jury, might cause a modern trial judge to hold Hamilton in contempt. Yet despite the common prohibition today on speaking of “nullification” in court, the modern jury yet retains this fundamental power that Hamilton proclaimed to be its “duty.” Juries remain powerfully independent; they continue to render general verdicts that acquit or convict as to each count. Juries are not forced to explain the basis for their verdicts, and their verdicts to acquit are unreviewable as a matter of law. Essentially the same jury power and discretion extolled by the Framers— including Hamilton, John Adams, and James Wilson—remains alive and well.

To paraphrase Shapiro--The Supreme Court must now protect the right to pursue a risky trial strategy; it may not be wise to seek acquittal by nullification, but [the servicemember] should be able to decide that the risk is worth facing as against the certainty of [sex offender registration].

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