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United States v. Young

United States District Court, D. New Mexico

May 3, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
APACHE YOUNG, Defendant.

          John C. Anderson United States Attorney Paul H. Spiers Kristopher N. Houghton Paul Edward Schied Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Jennifer J. Wernersbach Law Offices of Jennifer J. Wernersbach, P.C. Albuquerque, New Mexico and Charles E. Knoblauch Charles E. Knoblauch Attorney at Law Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Amended Motion in Limine on Informing the Jury, filed November 26, 2018 (Doc. 138)(“Motion”). The Court held a hearing on November 28, 2018. The primary issue is whether the Court should enter an order permitting Defendant Apache Young to inform the jury about a guilty verdict's consequences. 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 exercised its power to mitigate the defendant's sentence even when 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 Young's Motion, and prohibit Young from instructing, arguing, or introducing evidence related to the jury's power to nullify or related to potential penalties resulting from a guilty verdict.

         FACTUAL BACKGROUND

         On March 14, 2017, a federal grand jury returned an indictment[1] charging Young with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). See Indictment at 1, filed March 14, 2017 (Doc. 2). If convicted, Young faces a fifteen-year minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). See Motion at 1.

         PROCEDURAL BACKGROUND

         In the Motion, Young begins by asserting his expectation that the United States will rely on United States v. Parrish, 925 F.2d 1293 (10th Cir. 1991), and United States v. Greer, 620 F.2d 1383 (10th Cir. 1980), “for the proposition that a jury can only be informed of the possible penalties if a statute requires their participation in sentencing.” Motion at 1. Young contends that the Supreme Court “implicitly overturned” United States v. Parrish and United States v. Greer in United States v. Booker, 543 U.S. 220 (2005)(“Booker”); Blakely v. Washington, 542 U.S. 296 (2004); and Jones v. United States, 526 U.S. 227 (1999)(“Jones”), which, according to Young, “command[] the courts to protect the right to a jury trial as it was at the time of the Founders and as it was understood by the Framers.” Motion at 2. The Framers, Young argues, openly acknowledged and praised jury nullification, and courts therefore should permit modern juries to know a guilty verdict's consequences, which is the only way to preserve the Sixth Amendment's “sacred role within our criminal justice system.” Motion at 2.

         Young avers that, although courts in the twentieth century denigrated the jury's centuries-old common-law right to nullify the law's unjust application, the Supreme Court, beginning in Sullivan v. Louisiana, 508 U.S. 275 (1993), has since directed district courts to examine the common law to deduce the jury-trial right's parameters. See Response at 2-3 (citing Sullivan v. Louisiana, 508 U.S. at 278). The Framers did not incidentally include the jury trial right in the Constitution, Young argues, but rather “‘knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority.'” Motion at 4 (quoting Duncan v. Louisiana, 391 U.S. 145, 155 (1968)). According to Young, the Supreme Court has equated the people's right to control the judiciary through the jury trial with the people's right to control the legislative and executive branches through suffrage. See Motion at 4 (citing Duncan v. Louisiana, 391 U.S. at 155). Young adds that the current practice evidences the United States' delineating the jury's role in contradiction to the Supreme Court's guidance in Blakely v. Washington. See Motion at 4 (citing Blakely v. Washington, 542 U.S. at 306 (“The very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury.”)). Young maintains that the Framers “would abhor attempts to limit” the jury's role in determining the law, because the Framers “saw the jury as a community body ‘to guard against a spirit of oppression and tyranny on the part of rules' and to act ‘as the great bulwark of our civil and political liberties.'” Motion at 4 (quoting Booker, 543 U.S. at 239). Young adds that the Supreme Court in Jones emphasizes that the Framers strove to protect liberty “‘from all secret machinations, which may sap and undermine it, '” which, according to Young, is precisely what results when courts keep from the jury information regarding sentencing ramifications. Motion at 5 (emphasis in Motion)(quoting Jones, 526 U.S. at 246). Hence, Young insists that the Framers would agree with him that this practice is “an affront to liberty.” Motion at 5.

         The jury historically has exercised its role as “the conscience of the community, ” Young continues, by exercising its nullification power when facing “severe sentencing laws.” Motion at 5 (citing Jones, 526 U.S. at 245 (“The potential or inevitable severity of sentences was indirectly checked by juries' assertions of a mitigating power when the circumstances . . . endowed a criminal conviction with particularity sanguinary consequences.”)). Courts must facilitate the modern jury's ability to exercise this vital role, Young argues, given “sentencing schemes['] . . . ever-increasing harshness” and the Supreme Court's mandate to consider the jury's historical role in our society. Motion at 5-6. Young then quotes extensively from the dissenting opinion in Sparf v. United States, 156 U.S. 51 (1895), wherein the Honorable Horace Gray, then-Associate Justice of the Supreme Court of the United States, in turn quotes extensively from Alexander Hamilton and John Adams for the proposition that the Framers entrusted the historical jury with the power to decide both the law and the facts in all criminal cases. See Motion at 6 (quoting Sparf v. United States, 156 U.S. at 143, 147)(Gray, J., dissenting)). Avoiding candor with the jury for no reason other than to prevent the jury from understanding the “true essence of the case before them” disregards the Framer's intent for the Sixth Amendment, Young insists, and is therefore unconstitutional. Motion at 6. Young adds that such disregard for the Framer's intent for the Sixth Amendment is “a dangerous step towards tyranny.” Motion at 7 (citing United States v. Datcher, 830 F.Supp. 411, 413 (M.D. Tenn. 1993)(Wiseman, J.)(“The Founding Fathers knew that, absent jury nullification, judicial tyranny not only was a possibility, but was a reality in the colonial experience. Although we may view ourselves as living in more civilized times, there is obviously no reason to believe the need for this protection has been eliminated.”).

         Without knowing a given sentence's harshness, Young asserts, the jury cannot perform its constitutional function. See Motion at 8. Although the function, according to Young, historically did not involve expressly informing the jury of its verdict's consequences, because harsh mandatory sentences were commonly known, for example, that convicted felons would receive the death penalty, the modern criminal justice system's complexity requires courts to permit juries to receive information regarding a guilty verdict's consequences. See Motion at 8 (citing Sparf v. United States, 156 U.S. at 110-83 (Gray, J., dissenting); United States v. Dougherty, 473 F.2d 1113, 1138, 1144 (Bazelon, J., concurring in part and dissenting in part); United States v. Polouizzi, 549 F.Supp.2d 308, 402-50 (E.D.N.Y. 2008)(Weinstein, S.J.)). Keeping such information from jurors, according to Young, “so denigrates their role that they become ‘no more than menial factfinders rather than spokespersons for the community.'” Motion at 8 (quoting United States v. Polouizzi, 549 F.Supp.2d at 440).

         Young argues that withholding sentencing information from juries evidences that courts do not trust juries with information that might lead to nullification, that is, that courts “‘fear that the community might in fact think a law unjust.'” Motion at 9 (quoting United States v. Datcher, 830 F.Supp. at 415). Young insists that such misplaced fear “has no role in criminal proceedings” because the United States has a duty “‘to seek justice and not merely conviction, '” and, therefore, “‘should not shy away from having a jury know the full facts and law of a case.'” Motion at 9 (quoting United States v. Datcher, 830 F.Supp. at 415). According to Young, keeping sentencing consequences from the jury diminishes the jury's role and is thus the dangerous step towards tyranny that the Supreme Court cautions against in Duncan v. Louisiana when it states: “‘The first object of any tyrant in [Washington] would be to make [Congress] utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen.'” Motion at 10 (brackets in Motion)(quoting Duncan v. Louisiana, 391 U.S. at 156 n.23).

         Young directs the Court to The King v. Penn and Mead, 6 How. 951 (1670), a seventeenth-century English case wherein the jury determined that the charges against William Penn[2] were unjust despite the prosecution having proved all the necessary elements. See Motion at 10 (citing The King v. Penn and Mead, 6 How. at 951-58). Young insists that the Framers' had Penn in mind when they drafted the Constitution. See Motion at 10. Young concludes by quoting extensively from Lysander Spooner's 1852 Essay on the Trial by Jury for the proposition that, when courts hold jurors “ignorant of the consequences of their decision, ” they deprive jurors of their primary duty -- “‘to judge the justice of the law'” -- and thereby turn them into “mere tools . . . for carrying into execution any injustice and oppression [the government] may desire to have executed, ” which disregards the Framers' efforts to draft a constitution with the power to protect the people from tyranny. Motion at 10-11 (emphasis in Motion)(quoting Lysander Spooner Essay on the Trial by Jury 5 (John P. Jewett ed., 1852)).

         The United States did not file a written response to the Motion. At the November 28, 2018, hearing, the Court asked Young's counsel whether he had read the Court's opinions on jury nullification, to which Young's counsel replied that he had read them and finds them “wonderful.” Transcript of Hearing at 7:18-22 (taken November 28, 2018)(“Tr.”)(Court, Knoblauch).[3] The Court replied in gest that Young's counsel could have flattered the Court by citing the Court's opinions in the Motion, see Tr. at 7:23-24 (Court), and stated that, although the Court is “quite sympathetic” to arguments that favor informing jurors of their nullification right, Tenth Circuit caselaw concludes that the Supreme Court has foreclosed such arguments; “so I think we'll just have to preserve your position.” Tr. at 7:24-8:4 (Court). The Court added that, although Young can assert his arguments on appeal, in one of the Court's recent cases the Tenth Circuit indicated that it “wasn't terribly interested in the issue.” Tr. at 8:4-8 (Court). Young replied that the Tenth Circuit is like a jury in the sense that one “never know[s] what they're going to do.” Tr. at 8:9-11 (Knoblauch).

         In response to the United States' concerns over Young informing the jury about his charge's “potential penalties, ” Tr. at 8:24-9:3 (Schied), the Court again expressed that, although it is sympathetic to Young's position that “the jury should know sentencing parameters, ” “that's just not the law, ” and the Court therefore cannot allow such representations, Tr. at 9:4-11 (Court). The Court thereafter denied the Motion. See Tr. at 37:7 (Court).

         LAW REGARDING JURY NULLIFICATION

         Although the United States is often described generally and somewhat loosely as a democracy, and certainly enjoys democratic features, the focus is often on, at the federal government level, the elected branches -- the President and the Congress. Yet, when one stares at the mosaic that makes up the United States' constitutional system, there is, in fact, nothing more truly democratic than what takes place, day after day, in federal courts across the nation, when the citizens are summoned to the courthouse to apply the law that Congress has passed and the President has signed to the specific facts of a particular case and of an individual defendant. The citizens of this country valued this democratic mechanism well before the Constitution and the Bill of Rights were drafted, and the passage of time has only ingrained further the importance of jury trials into the fabric of the nation's view of what constitutes justice.

         One now cannot seriously dispute, as the nation enters its third century, that one of the most precious and treasured rights that United States citizens and residents have is the Sixth Amendment right to “an impartial jury.” U.S. Const. amend. VI. This fundamental right is a cornerstone of the American criminal justice system, and the Sixth Amendment has long embodied and protected this means of resolving criminal charges that the government brings. “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 that the Magna Carta enshrines. See 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 Jack 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 Mr. 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 . . . [s]ignifies 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.

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

         In Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794), [4] 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. The Honorable John Day, then-Chief Justice of the Supreme Court of the United States, 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), Mr. 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. Mr. 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. Mr. 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 Supreme Court of New York was equally split, with two justices agreeing with Mr. Hamilton and two justices siding with the prosecution. The Honorable James Kent, then-Associate Justice of the Supreme Court of New York, wrote in agreement with Mr. 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).

         The Honorable Morgan Lewis, then-Chief Justice of the Supreme Court of New York, disagreed with Mr. 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.

         In the nineteenth century, the Honorable Joseph Story, then-Associate Justice of the Supreme Court of the United States, 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 at 190 (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, J., joined by Leval and Wesley, JJ.)(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 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.

Pierce v. State, 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, 10 Metcalf 263, 263 (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 . . . .”)(quoting Vt. Const. art. 4, 10).

         Sixty years after United States v. Battiste, the Honorable Justice John Marshall Harlan, then-Associate Justice of the Supreme Court of the United States, 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 to determine the law and the facts in criminal cases, where the judge instructed the jury on manslaughter and murder, but also instructed the jury:

I do not consider it necessary, gentlemen, to explain [manslaughter] further, for if a felonious homicide has been committed, of which you are to be the judges from the proof, there is nothing in this case to reduce it below the grade of murder. In other words, it may be in the power of the jury, under the indictment by which these defendants are accused and tried, of finding them guilty of a less crime than murder, to wit, manslaughter, or an attempt to commit murder; yet, as I have said in this case, if a felonious homicide has been committed at all, of which I repeat you are the judges, there is nothing to reduce it below the grade of murder.

56 U.S. at 60. The judge additionally instructed the jury: “[A]s one of the tribunals of the country, a jury is expected to be governed by law, and the law it should receive from the court.” 156 U.S. at 63. The Supreme Court held that ...


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