United States District Court, D. New Mexico
D. Tierney Acting United States Attorney Letitia Carroll
Simms Assistant United States Attorney Attorneys for the
Plaintiff United States of America
M. Linnenburger Rothstein Donatelli L.L.P. Attorney for the
Defendant Leotha Williams
A. Baiz Federal Public Defender's Office  Carey
Corlew Bhalla Law Office of Carey C. Bhalla LLC Attorney for
the Defendant Adonis Baker
Sirignano Law Office of Amy Sirignano, PC Attorney for the
Defendant Inkosi Grandberry
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendants Adonis
Baker's and Leotha Williams' Motion to Preserve Right
to Jury Trial, filed December 1, 2017 (Doc.
33)(“Motion”). The Court held a hearing on March
19, 2018. See Transcript of Hearing at 1 (taken
March 19, 2018), filed April 17, 2018 (Doc.
61)(“Tr.”). The primary issues are: (i) whether
the Court should instruct the jury about its power to
nullify; and (ii) whether the Court should allow Defendants
Adonis Baker and Leotha Williams to inform the jury of the
United States Sentencing Guidelines' advisory sentencing
provisions in their case. The Court will deny the Motion. 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
some Justices on the Supreme Court may be willing to
reconsider precedent by addressing whether a 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.
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 United
States Court of Appeals for the Tenth Circuit precedent
allowing the jury to know about sentencing ramifications only
if its participation in sentencing is required, and
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 deny the
Defendants' Motion, and prohibit them from instructing,
arguing, or introducing evidence related to the jury's
power to nullify or related to potential penalties resulting
from a guilty verdict.
September 21, 2017, a federal grand jury issued an
Indictment, filed September 19, 2017 (Doc.
1)(“Indictment”), charging Baker and Williams
with human trafficking and related crimes. The twelve-count
Indictment charges Baker with sex trafficking by means of
force, threats, fraud, and coercion; coercion and enticement
to engage in prostitution; transportation for prostitution;
sex trafficking of a child; and transportation of a minor
with intent to engage in criminal sexual activity.
See Indictment at 1-6. The Indictment charges Williams
with one count of sex trafficking by means of force, threats,
fraud, and coercion, aiding and abetting, and one count of
coercion and enticement to engage in prostitution, aiding and
Indictment alleges that, beginning in 2012 and continuing
through 2017, Baker and Williams played major roles in a
multi-state sex trafficking operation involving multiple
alleged victims. See Indictment at 1-6; Superseding
Indictment, filed June 13, 2018 (Doc. 63)(“Superseding
Indictment”) at 1-9. If convicted, Williams faces a minimum
sentence of fifteen years' imprisonment for violation of
18 U.S.C. § 1591(a)(1)(2): Sex Trafficking by Means of
Force, Threats, Fraud, and Coercion, and up to ten years'
imprisonment for violation of 18 U.S.C. § 2422(a):
Coercion and Enticement to Engage in Prostitution.
See United States' Response to Defendants'
Motion to Preserve Right to Jury Trial at 1, filed December
5, 2017 (Doc. 37)(“Response”). If convicted,
Baker faces fifteen-year minimum sentences for each of his
three counts of violation of 18 U.S.C. § 1591(a)(1)(2):
Sex Trafficking by Means of Force, Threats, Fraud, and
Coercion. See Response at 1.
December 1, 2017, the Defendants Baker and Williams filed the
Motion and Exhibit A: Defendants' Proposed Jury
Instructions Relating to Motion to Preserve Right to Jury
Trial, filed December 1, 2017 (Doc. 33-1)(“Proposed
Instructions”). The United States filed the Response on
December 5, 2017. Williams filed a Reply in Support of Motion
to Preserve Right to Jury Trial, filed December 20, 2017
(Doc. 44)(“Williams Reply”). Baker did not file a
reply. The Court held a hearing on the Motion and on related
matters on March 19, 2018. See Tr.
Motion, the Defendants Baker and Williams begin by arguing
that the common-law jury knew the sentencing ramifications of
their verdicts and that, at common law, lawyers could argue
for nullification. See Motion at 1-2. The Defendants
cite to the Court's opinion in United States v.
Courtney, 960 F.Supp.2d 1152 (D.N.M. May 21,
2013)(Browning, J.), for its assertion that the Twentieth
Century sovereign has usurped the jury powers which the
Framers stated. The Defendants cite to several Supreme Court
cases in support of their assertion that the Supreme Court
intends the modern jury to emulate the Founders' jury.
See Motion at 2-3.
Defendants ask the Court to modify the Tenth Circuit Pattern
Jury Instructions, to include language informing the jury of
its right to nullify and of the potential sentencing
ramifications of a guilty verdict. See Motion at
3-4. The Defendants include Proposed Instructions.
See Proposed Instructions at 1. Regarding
nullification, the Defendants ask the Court to modify Tenth
Circuit Pattern Instructions §§ 1.03, 1.04, 1.05,
1.06, 1.08, and 1.19. See Proposed Instructions at 2-8.
Regarding sentencing, the Defendants ask the Court to allow
them to inform the jury that the charges in Counts 1, 3, 5,
and 10 of the Indictment carry a fifteen-year statutory
mandatory minimum sentence and the charges in Counts 11 and
12 carry a ten-year statutory mandatory minimum sentence.
See Motion at 4; Proposed Instructions at 9-10. The
Defendants also ask the Court to allow the Defendants to
inform the jury of the likely recommended federal sentencing
guidelines range arising from the charges in total, as far as
they can determine from the Presentence Investigation Report,
pursuant to D.N.M. L.R. Cr. 32.F. See Motion at 4;
Proposed Instructions at 11.
Defendants argue that Sixth Amendment jurisprudence requires
a return to the historical jury, to prevent future tyranny
and to adequately protect the Sixth Amendment right that the
Framers intended to provide -- the right to a jury, the
Defendants argue, that had the “knowledge and
ability” to nullify. Motion at 4-5. The Defendants
argue that juries must be instructed about their authority to
determine law, and that the Framers envisioned juries with
the ability to determine law when they conceived of the jury
trial right at the time of independence from the English
Crown. See Motion at 6-8. To perform the function
that the Framers intended, the Defendants contend, modern
juries must have sentencing information, as historical juries
did. See Motion at 11-13. Finally, the Defendants
argue that justice requires trust in juries, and that juries
are trustworthy when they are equipped with knowledge of
their right to nullify unjust verdicts and information
regarding the potential sentencing ramifications of their
verdicts. See Motion at 14.
Response, the United States begins by asserting that the
Defendants' Motion acknowledges that the Defendants'
requested instructions are “an abrogation of federal
law.” Response at 2 (citing Motion at 2). The United
States argues that the Defendants can cite to no current
authority that permits the inclusion of their requested
instructions. See Response at 2. The United States
argues that determining equity of law is not a jury function.
See Response at 2. The United States avers that the
Tenth Circuit disallows jury instructions on nullification
and on sentencing. See Response at 2 (citing
United States v. Rith, 164 F.3d 1323 (10th Cir.
1999)(concluding that a defendant is not entitled to a
nullification instruction); Chapman v. United
States, 443 F.2d 917, 920 (10th Cir.
1971)(concluding that a jury should not receive information
about a potential sentence unless they are statutorily
obligated to consider such information)).
to the issue whether the Court should provide a jury
instruction on nullification, the United States first argues
that the Defendants have no right to nullification.
See Response at 3. The United States argues that the
Sixth Amendment right to a jury trial does not contemplate a
right to a jury which will disregard the district court's
instructions. See Response at 3. Nullification, the
United States argues, is a power and not a right.
See Response at 3. The United States asserts:
It is the function of this Court to make determinations
regarding the validity of the law. A jury must apply the law
as given. While a jury has the inherent power to nullify a
verdict, instructing them of this unlawful power is improper.
An instruction explaining this concept would encourage the
jurors to violate their oaths and disregard the law.
the United States argues that it would be improper to
reference potential punishment to the jury. See
Response at 3. The United States argues that sentencing is a
task for the Court and is irrelevant to the jury's task.
See Response at 3-4. The United States sets forth
several arguments for not informing a jury about potential
sentencing ramifications of their verdict. See
Response at 4. According to the United States, informing a
jury about sentencing would “tend to draw the attention
of the jury away from their chief function as sole judges of
the facts, open the door to compromise verdicts and to
confuse the issue or issues to be decided.” Response at
4 (citations omitted). The United States further argues that
informing a jury about sentencing “invites jurors to
ponder matters that are not within their province, distracts
them from their factfinding . . ., and creates a strong
possibility of confusion.” Response at 4. The only
possible purpose served by instructing a jury to consider
sentencing, the United States argues, “would be to
invite jury nullification.” Response at 4.
United States argues that the Court has ruled on this issue
in United States v. Courtney, and in United
States v. Edwards, No. CR 16-3068 JB, 2017 WL 3706390
(D.N.M. Aug. 22, 2017)(Browning, J.), in each case denying
motions to modify jury instructions on nullification and to
inform juries about the sentencing ramifications of their
verdicts. See Response at 5. The United States asks
that the Court rule in conformity with its prior rulings,
requests that the Court deny the Motion, and that the Court
prohibit the Defendants from “instructing, arguing, or
introducing evidence related to the jury's power to
nullify or potential penalties.” Response at 5.
Defendant Williams submits a Reply. See Williams
Reply at 1. Williams argues that the United States ignores
the historical roots of juries and “denigrates [the
jury's] sacred role as the people's last defense, and
lays the foundation for the return of tyranny when it refuses
to accept the jury in its entirety as envisioned by the
Founders.” Williams Reply at 1. Williams contends that
the United States cites “neither authority from the
youthful years of the republic, nor any
decisions, ” and that the Supreme Court commands that
today's jury emulate the jury of the Founders' time.
Williams Reply at 2. Williams concedes that the Supreme Court
has yet to decide this issue but argues that the Supreme
Court overturned the decisions that the United States cites
in the Response by describing the role of the jury in terms
of its characteristics at the time of the Founders in its
opinions in Jones v. United States, Blakely v.
Washington, and United States v. Booker.
See Williams Reply at 2.
also argues that the United States cites to an unpublished
opinion, United States v. James, 203 F.3d 836, No.
CR 98-1479, 2000 WL 136816, at *3 (10th Cir. Feb. 7,
2000)(unpublished table decision), on pages 2 and 3 of the
Response, and that this opinion has no precedential value.
See Williams Reply at 3 & n.1. Williams contends
that the only eighteenth-century opinion before the Court is
Georgia v. Brailsford, 3 U.S. 1, 3 Dall. 1 (1794),
which, Williams argues, should guide the Court's
understanding of the jury as the Framers intended.
Williams argues that, in the Response, the United States
conceded that the jury has the right to decide the law by
stating that the “jury has the inherent power to decide
the law through nullification.” Williams Reply at 4
(citing Response at 3).
Court held a hearing on March 19, 2018. See Tr. at
1. On the Motion, the Court first acknowledged that, as
evidenced by the Court's opinion in United States v.
Courtney, the Court is “very sympathetic to the
Defendants' position on this, and [has] written on it --
but [thinks] Tenth Circuit and Supreme Court law is . . .
against the defendants on this.” Tr. at 33:4-11
(Court). The Court assumed that the Motion is primarily about
preserving these issues for appeal and asked the Defendants
if they would like to argue it. See 33:12-16
(Court). Williams' counsel, Mr. Paul Linnenburger,
averred that they expected the Court to deny the motion and
that they disagree with that ruling, and want the record to
be clear on that point. See Tr. at 33:19-24
Linnenburger added that, in this particular case, they
believe the proposed instructions are vital because of an
“extremely lengthy mandatory minimum sentence of
fifteen years” that applies to Williams. Tr. at 34:1-4
(Linnenburger). Baker's counsel, Sylvia Baiz, declined to
make further arguments. See Tr. at 34:23-25 (Court,
Baiz). The United States did not present arguments at the
hearing. See Tr. at 35:1-4 (Court, Simms). The Court
orally denied the Motion, see Tr. at 35:5-6 (Court),
but expressed that, while the Court would have to follow
Tenth Circuit and Supreme Court law, it would deliver an
opinion referring to United States v. Courtney and
other decisions that the Court has provided in this area.
See Tr. at 35:6-12 (Court).
REGARDING JURY NULLIFICATION
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
Jury's Role at the Founders' Time.
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)(footnotes omitted). The Honorable Judge
Weinstein, United States District Judge for the Eastern
District of New York, has 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 308, 405
(E.D.N.Y. 2008)(Weinstein, J.)(internal quotations omitted).
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 shared during the
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)); 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.”)).
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 at 1164. Professor Irwin A.
Horowitz, Emeritus Professor of Psychology at Oregon State
University, 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)(quoting Akhil Reed Amar, The
Bill of Rights: Creation and Reconstruction 110 (1998)).
Similarly, Clay S. Conrad, a trial lawyer in Houston, Texas
with the law firm of Looney & Conrad, P.C., 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 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.
Conrad, supra, at 46-47 (footnotes omitted). The
assertion that criminal juries embraced decisions of law as
well as fact finds support in precedent case law from the
Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794),
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.
3 U.S. at 4. In People v. Croswell 3 Johns. Cas. 337
(N.Y. Sup. Ct. 1804), Hamilton was counsel for the defendant,
who was 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 be libelous -- was a matter of law exclusively
for the court. See 3 Johns. Cas. at 341-42. Hamilton
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
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
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
York Supreme Court 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. Justice Kent 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
[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).
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
People v. Croswell 3 Johns. Cas. at 409.
Sparf v. United States, 156 U.S. 51 (1895).
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 United States v. Polouizzi, 687 F.Supp.2d 133,
190 (E.D.N.Y. 2010)(Weinstein, J.)(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 . . .”), vacated, 393 Fed.Appx.
784 (2d Cir. 2010)(Miner, Leval, and Wesley,
Js.)(unpublished); 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 . . .”). 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 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));
C. Conrad, supra, at 66. 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.
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 ...