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United States v. Edwards

United States District Court, D. New Mexico

August 22, 2017


          James D. Tierney Acting United States Attorney Nicholas J. Marshall Novaline D. Wilson Assistant United States Attorneys United States Attorneys for the Plaintiff

          Marshall J. Ray Nicole Moss Albuquerque, Attorneys for the Defendant


         THIS MATTER comes before the Court on the United States' Motion In Limine to Prohibit Discussion of Sentencing or Punishment at Trial, filed May 26, 2017 (Doc. 44)(“Motion in Limine”).[1] The Court held a hearing regarding this motion, and other similar motions, on June 22, 2017. See Transcript of Hearing (taken June 22, 2017)(“2017 Tr.”).[2] The primary issue is whether the Court should allow Defendant James Edwards to discuss sentence-related issues in front of the jury during trial, inviting the possibility of jury nullification. The Court will grant the Motion in Limine. The Supreme Court of the United States' recent decisions about the Sixth Amendment to the Constitution of the United States of America's right to a jury trial suggest that the Supreme Court is willing to reconsider precedent by addressing whether a particular practice is necessary to the jury trial right as it existed at the time that the States ratified the Sixth Amendment. Historical sources and precedent show that the common-law jury at the Founders' time knew the ramifications of a guilty verdict and used that knowledge in reaching a verdict, frequently choosing a verdict because it would mitigate a defendant's punishment. Moreover, although courts at the Founders' time instructed the jury that the court's role is to provide the jury the law and that the jury's role is to apply that law to the facts as the jury finds them, the courts also instructed the jury that its role included ultimately deciding both the facts and the law. Additionally, courts at the Founders' time allowed lawyers to argue openly to the jury that it should exercise its ability to decide the law in the case and nullify the law that the court gives. Accordingly, the common-law jury in the Framers' era knew about and exercised its power to acquit even when the government proved beyond a reasonable doubt that the defendant was guilty, or to mitigate the defendant's sentence, regardless whether application of the law given by the court to the facts which the jury found provided otherwise. The Court concludes that Supreme Court and Tenth Circuit precedent allowing the jury to know about sentencing ramifications only if its participation in sentencing is required, and precedent preventing the jury from learning about its nullification right, are inconsistent with trial practices at the Founders' time, and that these practices have eroded the Sixth Amendment jury trial right as the Framers understood that right. Nevertheless, because, as a district court, the Court must faithfully apply controlling Supreme Court and Tenth Circuit precedent, the Court will grant the United States' motion to prevent Edwards from discussing sentencing-related issues in front of the jury during trial.


         Edwards is a medicine man from the Acoma Pueblo, in Cibola County, in the District of New Mexico. See Indictment at ¶1 at 1 filed July 12, 2016 (Doc. 2). See also 2017 Tr. at 42:17-18 (Ray). The alleged victim went to Edwards for a traditional healing rub.[4] See 2017 Tr. at 27:25-28:3 (Marshall, Ray). The victim offered Edwards a traditional gift of corn meal, which he denied, because, according to Edwards, it was not needed for the procedure that was to occur on that day. See Transcript of Appeal of Detention Proceedings at 34:18-20 (taken December 8, 2016), filed March 21, 2017 (Doc. 41)(“2016 Tr.”)(Toersbijns). Edwards, during the rub, approached the victim's vaginal area, and his mouth contacted her genitalia. See 2016 Tr. at 35:10-13 (Toersbijns). The victim then ended the rub and left Edward's home. See 2017 Tr. at 28:15-17 (Marshall).

         The Indictment alleges, based on the events above, that on or about December 25, 2014, and continuing through January 31, 2015, Edwards unlawfully and knowingly engaged in and attempted to engage in a sexual act with Jane Doe by force. See Indictment ¶ 1, at 1. The alleged sexual act, specifically, was the contact between Edward's mouth and Jane Doe's vulva. See Indictment ¶ 1, at 1. The Indictment charged Edwards with violating 18 U.S.C. §§ 1153 and 2241(a), and 224(2)(B). See Indictment ¶ 1, at 1. The Indictment also established that both Edwards and Jane Doe are Indians. See Indictment ¶ 1, at 1.


         A federal grand jury indicted Edwards for unlawfully and intentionally engaging in and attempting to engage in a sexual act by force with Jane Doe on or about December 25, 2014, and continuing through January 31, 2015. See Indictment at ¶1, at 1. Both parties throughout the pre-trial process filed numerous “Motions in Limine.”[5] The United States begins the Motion in Limine by asking that the Court prohibit “defense counsel from mentioning to the jury, on direct or cross-examination or in argument, that Defendant James Edwards faces up to lifetime incarceration, or that if convicted Defendant will be required to register as a sex offender.” See Motion in Limine at 1. The United States next asserts that allowing the jury to consider punishment in deliberations would open the door for jury nullification. See Motion in Limine at 1. The United States claims the Tenth Circuit has held that there is no right to jury nullification. See Motion in Limine at 1 (citing Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir. 1999); United States v. Greer, 620 F.2d 1383, 1385 (10th Cir. 1980)). The United States goes so far as saying: “The Tenth Circuit has thus fashioned a bright line rule that ‘[u]nless a statute specifically requires jury participation in determining punishment, the jury shall not be informed of the possible penalties.'” Motion in Limine at 2 (quoting United States v. Parrish, 925 F.2d 1293, 1299 (10th Cir. 1991))(internal quotations omitted). The United States then compares the Tenth Circuit's position to other circuits' positions. See Motion in Limine at 2. The United States asserts that the United States Court of Appeals for the Sixth Circuit stated:

When a jury has no sentencing role, providing sentencing information invites jurors to ponder matters that are not within their province, distracts them from their fact-finding responsibilities, and creates a strong possibility of confusion. Indeed, the only possible purpose that would be served by informing jurors of the mandatory sentence would be to invite jury nullification of the law.

         Motion in Limine at 2 (quoting United States v. Johnson, 62 F.3d 849, 850-51 (6th Cir. 1995))(internal parenthetical omitted). The United States next provides a string citation to support its contention. See Motion in Limine at 2-3.[6] The United States concludes this section by stating: “The law on this issue is well-situated, and squarely forecloses defendant's discussion of any possible penalty at trial.” See Motion in Limine at 3. The United States then argues that allowing Edwards to discuss punishment would contradict jury instructions regularly given by the Court. See Motion in Limine at 3. The United States quotes two Tenth Circuit Pattern Jury Instructions:

Tenth Circuit Pattern Jury Instruction 1.04 states that it is the jury's duty “to base [its] verdict solely upon the evidence, without prejudice or sympathy.” Similarly, Instruction 1.20 instructs the jury that “[i]f [it] find[s] the defendant guilty, it will be [the Court's] duty to decide what the punishment will be. [It] should not discuss or consider the possible punishment in any way while deciding [its] verdict.”

         Motion in Limine at 3. The United States then uses these instructions to assert that the Court should prevent discussion of the United States Sentencing Guidelines. See Motion in Limine at 3. The United States claims: “Such comments have no place in a trial where the guilt or innocence of the Defendant is decided solely on the evidence at trial.” Motion in Limine at 3. The United States next offers a non-exhaustive list of statements and phrases that it feels should not be allowed in trial.[7] The United States claims these statements and phrases “serve only to put before the jury the matter of what sentence or consequences a defendant might receive and, if it occurs, can only be intended to arouse he jury's sympathy or prejudice.” Motion in Limine at 3-4. The United States then asserts that Edwards did not object to the motion. See Motion in Limine at 4. The United States concludes the Motion in Limine by reiterating that the Court prevent Edwards from “arguing sentencing-related issues to the jury” including, but not limited to “application of the United States Sentencing Guidelines, the potential for registration as a sex offender, and lifetime incarceration.” Motion in Limine at 4.

         The Court held a pre-trial conference and motion hearing on June 22, 2017, in which it heard argument on various motions, including the Motion in Limine. See 2017 Tr. The parties' discussion of the Motion in Limine was limited, but the Court indicated that it was inclined to grant the motion based on Supreme Court and Tenth Circuit precedent. See 2017 Tr. at 154:21-25, 155:10-11 (Court). The Court explained its belief that jury nullification and punishment were topics that were openly discussed in front of colonial juries, but that the Court had no discretion to depart from established precedent. See 2017 Tr. at 155:2-7 (Court). The Court, in describing its inclination to grant the motion, explained that it would prohibit the discussion of sentencing or punishment during the trial and anything that is related to sentencing or punishment. See 2017 Tr. at 155:10-13 (Court). The Court added that nothing be said that might call into the jury's mind that it is doing anything other than determining guilt. See 2017 Tr. at 155:13-16 (Court). Edwards commented that he did not oppose the United States' motion, but that he had some concerns. See 2017 Tr. at 155:17-20 (Ray). Edwards stated that there can be issues in sex offense trials, specifically during opening and closing statements. See 2017 Tr. at 155:20-23 (Ray). Edwards explained that he has experienced attorneys bring up labeling the defendant as a sex criminal or other things of that nature that do not discuss punishment or ask for jury nullification, but get the point across to the jury that the United States has the burden to prove the truth of the matter beyond a reasonable doubt. See 2017 Tr. at 155:24-156:6 (Ray). Edwards finished his statement by reiterating that he does not oppose the United States motion, but that there can be some ambiguity in conforming to the Court's ruling. See 2017 Tr. at 156:7-11 (Ray). The Court responded by stating the defense should be careful about mentioning things such as labeling Edwards as a sex offender because that could elicit thoughts of punishment in the jurors' minds. See 2017 Tr. at 156:12-19 (Court). The Court stated that it tends to give attorneys latitude when making arguments, but that Edwards needs to be careful to not say anything that may lead the jurors to ponder the ramifications of their verdict. See 2017 Tr. at 156:19-157:1 (Court). The Court finished by stating that it would grant the Motion in Limine. See 2017 Tr. at 157:2-3 (Court).


         The Sixth Amendment guarantees to a criminal defendant the right to “an impartial jury.” U.S. Const. amend. VI. “That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” Blakely v. Washington, 542 U.S. at 305-06. The jury trial right as preserved in the Bill of Rights was passed down from the right as enshrined in the Magna Carta. See United States v. Booker, 543 U.S. at 239 (“The Founders presumably carried this concern from England, in which the right to a jury trial had been enshrined since the Magna Carta.”).

         1. The Jury's Role at the Founders' Time.

         “The colonial jury played a vital and celebrated role in American resistance to British tyranny leading up to the revolution. American counsel regularly argued the validity of laws directly to juries, which often refused to enforce British laws they felt were unjust.” Andrew J. Parmeter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L.J. 379, 382-83 (2007)(internal footnotes omitted). Judge Weinstein noted that, in 1791, at the time of the Sixth Amendment's ratification, “[i]t was then understood that the jury had the power to refuse to convict even if the facts and law indicated guilt. In later years this fundamental power of the jury -- and the right of the accused -- has been termed the power to ‘nullify.'” United States v. Polizzi, 549 F.Supp.2d at 405.

         The Supreme Court has recognized that the jury trial right that the Sixth Amendment affords to defendants was understood at the Founders' time to provide essential protections against government tyranny and to safeguard liberty:

[T]he historical foundation for our recognition of these principles extends down centuries into the common law. “[T]o guard against a spirit of oppression and tyranny on the part of rulers, ” and “as the great bulwark of [our] civil and political liberties, ” 2 J. Story, Commentaries on the Constitution of the United States 540-541 (4th ed. 1873), trial by jury has been understood to require that “the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours . . . .” 4 [Sir William Blackstone, Commentaries on the Laws of England: In Four Books 343 (William D. Lewis ed., 2007)](1769) . . . .

Apprendi v. New Jersey, 530 U.S. 466, 477 (2000). As Alexander Hamilton first noted, this belief in the jury trial right as a safeguard to liberty was widely agreed upon during the constitution-framing era:

The friends and adversaries of the plan of the Convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury. Or if there is any difference between them, it consists in this; the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.

         The Federalist No. 83, at 456 (Scott ed. 1894)(Hamilton). The jury trial right was part and parcel of the Framers' belief that the common person should participate in government, and essential to this participation was ensuring that the judiciary was justly and correctly effectuating the laws, whether the laws were written or natural laws. See Clay S. Conrad, Jury Nullification 45 (1998)(citing Note, The Changing Role of the Jury in the Nineteenth Century, 74 Yale L. J. 170, 172 (1964)). See Diary of John Adams, Feb. 12, 1771, in 2 The Works of John Adams 253 (1850)(quoted in Blakely v. Washington, 542 U.S. at 306 (“[T]he common people, should have as complete a control . . . in every judgment of a court of judicature [as in the legislature.]”)); Letter from Jefferson to L'Abbe Arnold, July 19, 1789, in 3 Works of Thomas Jefferson, 81, 82 (1854)(quoted in Mark D. Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582, 582 (1939))(“Were I called upon to decide, whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of laws is more important than the making of them.”).

         The criminal jury's role at the Founders' time was primarily that of a factfinder, but also included as a secondary role acting as the community's conscience to determine whether the law, or the application of law to the facts, was conscionable. See United States v. Courtney, 960 F.Supp.2d 1152, 1164 (D.N.M. 2013)(Browning, J.). Professor Irwin A. Horowitz notes: “While the fact-finder role of the jury is the judicially preferred model of jury functioning, a second, less accepted, but nevertheless viable role of the jury is a purveyor of ‘commonsense justice, ' the application of a rough and ready sense of what is just and what is not.” Irwin A. Horowitz, Jury Nullification: An Empirical Perspective, 28 N. Ill. U. L. Rev. 425, 427 (2007-2008). Similarly, Clay S. Conrad asserts that the Sixth Amendment jury trial right implicitly recognizes criminal juries' right to determine the law -- and thus jury nullification if they believe the law wrong -- because, at the Framers' time, the concept of a jury included the idea that the jury not only decided the facts of a case, but also the law:

The Sixth Amendment itself implicitly recognizes the right of criminal trial jurors to judge the law. Although it does not mention that power explicitly, it can logically be assumed that the definition of a jury used in that document would be consonant with the prevailing definition in the legal dictionaries of the period. The most common legal dictionary in Colonial Virginia was the British Jacob's Law Dictionary [(1782)]; and within the encyclopedic definition given in Jacob's, the word ‘jury' is defined as:
Jury . . . Signifies a certain number of men sworn to inquire and try the matter of fact, and declare the truth upon such evidence as shall be delivered them in a cause: and they are sworn judges upon evidence in matter of fact . . . . Juries are . . . not finable [sic] for giving their verdict contrary to the evidence, or against the direction of the court; for the law supposes the jury may have some other evidence than what is given in court, and they may not only find things of their own knowledge, but they go according to their consciences. . . .
The right of jurors to judge “according to conscience, ” then, was implicit within the word “jury” as the drafters of the Bill of Rights understood it. This was the trial by jury the founders knew, and this was the trial by jury they intended to pass on to their progeny.

Clay S. Conrad, supra, at 46-47 (internal footnotes omitted). The assertion that criminal juries embraced decisions of law as well as fact finds support in precedent case law from the Founders' era.

         In Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794)[8], a civil case, the Supreme Court noted that the role of the jury is to be the ultimate finder both of the facts and of the law. See 3 U.S. at 4. A jury decided the case even though the Supreme Court had original jurisdiction, because the State of Georgia was a party to the case. Chief Justice John Day charged the jury:

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, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.

Georgia v. Brailsford, 3 U.S. at 4. A case from the Founders' era in which the jury's role was limited to the factfinder, or as embracing the role of determining the law, is front and center in People v. Croswell, 3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804), in which Hamilton was counsel for the defendant, indicted for libel against then-President Thomas Jefferson. The trial court in the case instructed the jury that they were to enter a special, as opposed to general, verdict limited to finding only two issues: (i) whether the article was published; and (ii) whether the article's innuendos were true or false. See 3 Johns. Cas. at 342. The jury was instructed that the defendant's intent -- the element requiring that the defendant intended the statements to libelous -- was a matter of law exclusively for the court. See 3 Johns. Cas. at 341-42. Hamilton argued:

The Chief Justice misdirected the jury, in saying they had no right to judge of the intent and of the law. In criminal cases, the defendant does not spread upon the record the merits of the defence, but consolidates the whole in the plea of not guilty. This plea embraces the whole matter of law and fact involved in the charge, and the jury have an undoubted right to give a general verdict, which decides both the law and the fact. . . . All the cases agree that the jury have the power to decide the law as well as the fact; and if the law gives them the power, it gives them the right also. Power and right are convertible terms, when the law authorizes the doing of an act which shall be final, and for the doing of which the agent is not responsible.
The intent constitutes crime. To deny, then, to the jury the right to judge of the intent, and yet to require them to find a general verdict of guilty, is requiring them to commit perjury. The particular intent constitutes the crime, in cases of libel, beca[us]e the act is not, of itself, unlawful; and where the particular intent alone constitutes the guilt, the court cannot judge of that intent, and the jury must find it. . . .
It is admitted to be the duty of the court to direct the jury as to the law, and it is advisable for the jury in most cases, to receive the law from the court; and in all cases, they ought to pay respectful attention to the opinion of the court. But, it is also their duty to exercise their judgments upon the law, as well as the fact; and if they have a clear conviction that the law is different from what it is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions. It is essential to the security of personal rights and public liberty, that the jury should have and exercise the power to judge both of the law and of the criminal intent.

People v. Croswell, 2 Johns. Cas. at 345-46 (emphasis omitted). The prosecution countered that the sound administration of court business requires that juries be permitted to determine the facts only:

The jury have, undoubtedly, the power, in criminal cases, to decide the law as well as the fact, if they will take upon themselves the exercise of it; but we must distinguish, in this case, between power and right. It is the right of the jury to decide the fact, and only the fact; and it is the exclusive province of the court to decide the law in all cases, criminal as well as civil. A jury is wholly incompetent, and necessarily must be, from the nature of their institution, to decide questions of law; and if they were invested with this right, it would be attended with mischievous and fatal effects. The law, instead of being a fixed rule, would become uncertain and capricious, and there would not remain any stability or uniformity of decision, or certainty of principle, in the administration of justice. . . .
If the jury were to judge of the law in the case of libels, why not of the effect of writings in civil cases, and of the law in all cases where the plea is the general issue? Surely the counsel on the other side are not prepared to carry their doctrine to this extent.

         3 Johns. Cas. 350-51. Hamilton replied:

But it is not only the province of the jury, in all criminal cases, to judge of the intent with which the act was done, as being parcel of the fact; they are also authorized to judge of the law as connected with the fact. In civil cases, the court are the exclusive judges of the law, and this arose from the nature of pleadings in civil suits; for, anciently, matters of law arising in the defence, were required to be spread upon the record, by a special plea, and the jury were liable to an attaint for finding a verdict contrary to law. But in criminal cases, the law and fact are necessarily blended by the general issue, and a general verdict was always final and conclusive, both upon the law and the fact. Nor were the jury ever exposed to an attaint for a verdict in a criminal case; and this is decisive to prove that they had a concurrent jurisdiction with the court on questions of law; for where the law allows an act to be valid and definitive, it presupposes a legal and rightful authority to do it. This is a sure and infallible test of a legal power.
In England, trial by jury has always been cherished, as the great security of the subject against the oppression of government; but it never could have been a solid refuge and security, unless the jury had the right to judge of the intent and the law.
The jury ought, undoubtedly, to pay every respectful regard to the opinion of the court; but suppose a trial in a capital case, and the jury are satisfied from the arguments of counsel, the law authorities that are read, and their own judgment, upon the application of the law to the facts, (for the criminal law consists in general of plain principles, ) that the law arising in the case is different from that which the court advances, are they not bound by their oaths, by their duty to their creator and themselves, to pronounce according to their own convictions? To oblige them, in such a case, to follow implicitly the direction of the court, is to make them commit perjury, and homicide, under the forms of law. Their error is fatal and cannot be corrected. The victim is sacrificed; he is executed; he perishes without redress. Was he a juror, in such a case, he would endure the rack rather than surrender his own convictions on the altar of power, rather than obey the judicial mandate.

People v. Croswell, 3 Johns. Cas. at 355-56 (internal citations omitted).

         The Supreme Court of New York was equally split, with two justices agreeing with Hamilton and two justices siding with the prosecution. Justice James Kent wrote in agreement with Hamilton, that “[t]here is nothing peculiar in the law of libels, to withdraw it from the jurisdiction of the jury” by requiring a special verdict. 3 Johns. Cas. at 365-66. He reasoned that, in all other areas of criminal law, the jury is charged with finding intent:

The jury are called to try, in the case of a traitor, not only whether he committed the act charged, but whether he did it traitorously; and in the case of a felon, not only whether he killed such a one, or took such a person's property, but whether he killed with malice prepense, or took the property feloniously. So in the case of a public libeller, the jury are to try, not only whether he published such a writing, but whether he published it seditiously. In all these cases, from the nature of the issue, the jury are to try not only the fact, but the crime, and in doing so, they must judge of the intent, in order to determine whether the charge be true, as set forth in the indictment. The law and fact are so involved, that the jury are under an indispensable necessity to decide both, unless they separate them by a special verdict.

         3 Johns. Cas. at 366-67 (emphasis omitted). He thus concluded:

[U]pon every indictment or information for a libel, where the defendant puts himself upon the country, by a plea of not guilty, the jury have a right to judge, not only of the fact of the publication, and the truth of the innuendoes, but of the intent and tendency of the paper, and whether it be a libel or not; and, in short, of “the whole matter put in issue upon such indictment or information.” That in this, as in other criminal cases, it is the duty of the court, “according to their discretion, to give their opinion and direction to the jury on the matter in issue;” and it is the duty of the jury to receive the same with respectful deference and attention, and, unless they choose to find a special verdict, they are then to exercise their own judgments on the matter in issue, with discretion and integrity.

         3 Johns. Cas. at 376-77 (internal citation omitted).

         Chief Justice Morgan Lewis disagreed with Hamilton and Justice Kent, and concluded that the policies behind not constricting a jury to deciding matters of law are not present in the United States as they were in England:

It has been urged, that to deny a jury the right of deciding on the law and the fact, in all cases of criminal prosecution, is contrary to the spirit and genius of our government. But how, has not been attempted to be shown. In England, where the judges are appointed by the crown, and juries form a substantial barrier between the prerogatives of that crown and the liberties of the people, the reasons for extending the powers of the latter are certainly much stronger than with us, where the judges are, in effect, appointed by the people themselves, and amenable to them for any misconduct.

People v. Croswell, 3 Johns. Cas. at 409.

         2. Sparf v. United States, 156 U.S. 51 (1895).

         In the nineteenth century, Justice Joseph Story, riding circuit in Massachusetts, is credited with issuing the first American opinion explicitly limiting the role of jurors in United States v. Battiste, 24 F. Cas. 1042 (C.C.D. Mass. 1835). See C. Conrad, supra, at 65 (noting that 160 years had passed since the introduction of jury nullification, or jurors as deciders of the law, “before Supreme Court Justice Joseph Story, riding circuit in Massachusetts, rendered the first major American court opinion limiting the role of juries . . .”); United States v. Polouizzi, 687 F.Supp.2d 133, 190 (E.D.N.Y. 2010), vacated, 393 F. App'x 784 (2d Cir. 2010)(unpublished)(noting that the first of “[t]wo major Supreme Court Justices' opinions in the nineteenth century . . . restricting the Sixth Amendment's jury” right to decide the law is “Justice Story's in . . . United States v. Battiste . . .”). In United States v. Battiste, the defendant was on trial for violation of a newly enacted law punishing human trafficking in slaves, and Justice Story was concerned that, because Massachusetts was the first state to abolish slavery and was home to much of the abolitionist movement, the jury would convict him based on their beliefs about slavery rather than on the facts. See C. Conrad, supra, at 66; United States v. Polouizzi, 687 F.Supp.2d at 190-91 (“Justice Story's statement was made in the context of preventing a conviction unfounded under the statute as he construed it, not to prevent the jury from refusing to convict a person technically guilty.”)(emphasis in original)). Justice Story instructed the jury as to his opinion that the jury determining guilt based on the jurors' own beliefs, rather than on the law as the court told them -- jury nullification -- is inconsistent with the notion of a fair trial:

Before I proceed to the merits of this case, I wish to say a few words upon a point, suggested by the argument of the learned counsel for the prisoner upon which I have had a decided opinion during my whole professional life. It is, that in criminal cases, and especially in capital cases, the jury are the judges of the law, as well as of the fact. My opinion is, that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case, tried upon the general issue. In each of these cases, their verdict, when general, is necessarily compounded of law and of fact; and includes both. In each they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court. This is the right of every citizen; and it is his only protection. If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views, which different juries might take of it; but in case of error, there would be no remedy or redress by the injured party; for the court would not have any right to review the law as it had been settled by the jury. Indeed, it would be almost impracticable to ascertain, what the law, as settled by the jury, actually was. On the contrary, if the court should err, in laying down the law to the jury, there is an adequate remedy for the injured party, by a motion for a new trial, or a writ of error, as the nature of the jurisdiction of the particular court may require. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not by the law as a jury may understand it, or choose, from wantonness, or ignorance, or accidental mistake, to interpret it. If I thought, that the jury were the proper judges of the law in criminal cases, I should hold it my duty to abstain from the responsibility of stating the law to them upon any such trial. But believing, as I do, that every citizen has a right to be tried by the law, and according to the law; that it is his privilege and truest shield against oppression and wrong; I feel it my duty to state my views fully and openly on the present occasion. It is not, indeed, an occasion, on which there is any reason to doubt, that an intelligent jury can understand the principles of law applicable to the subject, as well as the court; for they are the principles of common sense. And as little reason is there, in my view, to suppose, that they can operate injuriously to the real merits of the case of the prisoner.

24 F. Cas. at 1043.

         In Pierce v. State, 13 N.H. 536 (1843), the Supreme Court of New Hampshire cited to United States v. Battiste in holding that the right to return a verdict based on a finding that the law is otherwise than the court gives it to the jury is inconsistent with the proposition that the Constitution is the supreme law of the land:

[T]he result at which we have arrived is that the juries have not the right to decide the law in any case; that this accords with the best authorities in the common law, and with other legal rights which must be surrendered if they may decide the law; and that they are bound by the law, as laid down to them by the court. . . .
The constitution of the United States, and the acts of Congress made in pursuance thereof, are the supreme law of the land, and the judges in every state are bound thereby. If juries are not bound also, the question can never be settled whether a law be in pursuance of the constitution, and the courts must suspend their judgments until a sufficient number of verdicts has been returned, one way or the other, to render it probable that juries generally in future will return their verdicts the same way, -- for no nearer approach to certainty could be made.
We cannot believe that impartial and reflecting men, of whatever profession they may be, can advocate doctrines which may lead to such results as the right of the jury to decide the law may end in. We cannot think that the people or their representatives would be content with an exposition of the constitution which would cause the constitutionality of the license law to remain an open question, until it could be settled by the verdict of a jury; of a body admirably adapted to the decision of questions of fact, but irresponsible, giving no reasons for their decisions, not subject to impeachment or attaint, without access to the sources of the law, and therefore unfitted for the investigation of legal rights. No reflecting man in the jury box would be willing to take upon himself this responsibility. He would feel that the question could not be examined with the deliberation it required; that the law could not be expounded with quite so much facility as it could be made, -- and that there was no such inspiration in the jury box as would enable twelve men to determine, per saltum, grave questions which, elsewhere, require care, and thought, and patient study, and time for undisturbed reflection. And it is the opinion of the court, that it is inconsistent with the spirit of the constitution that questions of law, and still less, questions of constitutional law, should be decided by the verdict of the jury, contrary to the instructions of the court.

13 N.H. at 551-54 (internal citations omitted). Courts around the country began to follow suit and adhere to the proposition that allowing juries to decide the law in a case, and to decide against the law as the court gave it to them, is inconsistent with the constitutional right for a fair trial. See, e.g., Commonwealth v. Porter, 51 Mass. 263, 263 (Mass. Supr. Ct. 1845)(“[I]t is the duty of the court to give instructions to the jury on all questions of law which arise in a cause tried by them; and it is the duty of the jury to receive the law from the court, and to conform their . . . decision to such instructions . . . .”); State v. Burpee, 65 Vt. 1, 25 A. 964, 973 (1892)(“The doctrine that jurors are judges of the law in criminal cases is repugnant to . . . the constitution of Vermont, which guaranty to every person within this state ‘a certain remedy' for all wrongs, conformably to the laws . . . .”).

         Sixty years after United States v. Battiste, Justice John Marshall Harlan, writing for the majority in Sparf v. United States, was tasked with deciding whether the district court could find that manslaughter did not apply as a matter of law, and the jury had to follow that instruction, or whether it was wholly the jury's determination. See United States v. Courtney, 960 F.Supp.2d at 1170. The defendants in Sparf v. United States, tried jointly for murder, asserted on appeal that the court invaded the jury's province ...

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