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United States v. Baker

United States District Court, D. New Mexico

October 25, 2018


          James D. Tierney Acting United States Attorney Letitia Carroll Simms Assistant United States Attorney Attorneys for the Plaintiff United States of America

          Paul M. Linnenburger Rothstein Donatelli L.L.P. Attorney for the Defendant Leotha Williams

          Sylvia A. Baiz Federal Public Defender's Office [17] Carey Corlew Bhalla Law Office of Carey C. Bhalla LLC Attorney for the Defendant Adonis Baker

          Amy Sirignano Law Office of Amy Sirignano, PC Attorney for the Defendant Inkosi Grandberry


         THIS 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.


         On 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.[2] 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 abetting.[3]

         The 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.[4] 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.


         On 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.

         1. The Motion.

         In the 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.[5]

         The 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.[6] 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.[7] See Motion at 4; Proposed Instructions at 11.

         The 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.

         2.The Response.

         In its 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)).

         Turning 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.

         Response at 3.

         Next, 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.

         The 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.

         3. Williams' Reply.

         The 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 post-Jones/Blakely/Booker 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.

         Williams 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.

         Finally, 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).

         4. The Hearing.

         The 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).

         Mr. 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).


         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)(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).

         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 shared 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)); 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 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.

         Clay S. 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 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.

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 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.

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 (citations omitted).

         The New 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 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 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.

         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 ...

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