A juror asks,"Where “is a constitutional grant of authority to ban possession of cocaine today?"

[tannybogus]

Juror Becomes Fly in the Ointment

It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”

That’s a fair question. It is a point that has been made in Cato’s publications ( go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.” Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations. So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf). I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below

http://www.cato-at-liberty.org/2008/08/14/juror-becomes-fly-in-the-ointment/

Whoa! Now I want to know too! I also agree with the author. Why did the judge meddle in this jury?
:shrug:

[L. Coyote]

1. Because a million people could have their right to vote restored???

[bluestateguy]

2. I'm all for jury nullification

It is democratic.

[bananas]

3. It's what the jury is for.

[Guaranteed]

8. No- juries don't decide the law.

They decide the facts.

[bluestateguy]

10. If I am ever on a jury in a non-violent drug possession case I will vote to acquit

Now if the lawyers ask me on the stand during jury selection what I would do, of course I would tell the truth under oath, and that would likely lead to me being excused. But if they do not ask, and I am seated on a jury in such a case, I will vote to acquit.

The state has no business wasting my time on a non-violent drug possession case.

[yowzayowzayowza]

11. This jurist would respond similarly. n/t

[nebenaube]

4. heh...

They don't have one for pot either...

[Canuckistanian]

5. Justice Clarence Thomas made a point?

He rarely opens his mouth or writes an opinion.

Now he makes a point about cocaine possession?

[unblock]

6. that's really devious. the judge knows what he's doing.

it's not right, and it's not the way it's supposed to work, but he obviously knows how to work the system.

had he let the juror stay on, they might have returned a non guilty verdict on the basis of jury nullification. judges don't like that outcome, especially in a drug case, and ESPECIALLY if the judge has any ambitions (political or judicial) beyond his current station.

by kicking the juror out, the worst possible outcome is that the defense has valid grounds for an appeal and the case is sent back for retrial. new jury, and odds are no one who knows about jury nullification, ergo, guilty verdict.

in this case the remedy available to the defense is inadequate.


the juror made a mistake in presuming that prohibition could not have been accomplished by mere legislation. just because it was done via consitutional amendment doesn't mean mere law would have been unconstitutional. that's a much more complex question.

[Piewhacket]

7. Hazardous ground...

I can help answer the question "Why did the judge meddle in this jury?"
This is not a justification, it is an explanation.
It has to do with the role of each of the parties in a criminal case.
It is a balance of power (a delicate balance).

The current state of law has it that the "law" is for the judge to decide,
and a jury is the "triers of fact", that is, they decide if the charge
is true. The judge decides what is "law" and what is "fact". (FN1)

Typically the defense and the prosecutor help the judge decide the "law"
of the case including, for example, whether the statute the defendant is being
prosecuted under is a "crime".(FN2) The judge's decision may later be
overturned on review by a higher court.

There is also the 'rule' that the jury is obliged to obey the
instructions of the court. A juror who refuses to obey may be
removed from the jury.

Given this posture it is still proper for a juror to ask the judge
a question, like "what is the law concerning...", and sometimes these
questions are REALLY GOOD, although mostly they are unskilled.

Yet here the juror did two things. He demanded the judge 'show him
where it says'... this is quite argumentative, takes a posture of
as that superior to the judge, and is essentially a usurpation of
judge's role. Its NOT a fair question, it is an unskilled and
insubordinate question. Yet such is sometimes asked, and any
judge who the question upset would be (imho) too unstable to sit on
the bench. (Judge Judy, for example).

Here the judge actually answered, and sympathetically too. Good for him.
He explained that the COMMERCE CLAUSE of the Constitution provided the
authority for the law.

That's when the second juror error occured. The juror apparently
did not accept the judge's answer, but indicated (somehow) that he
wasn’t going to "sign off on an unconstitutional prosecution". This
is tantamount to a refusal to obey the judge's instructions (the juror
is refusing to try the case in accordance with instructions). This can
happen in a variety of circumstances, sometimes as a matter of conscience,
and the proper remedy is to simply (respectfully) replace the juror
with another.

So, as I have explained Jury nullification is (presently) an act of
defiance of the court's instructions, of the juror oath. The law on
this has changed over time, but that is how it is presently.

At one time it was impossible in the south to convict a white man of
the charge of murder of a black man, or to acquit a black man of the charge
of rape of a white woman. Nullification, as an act of civil disobedience which
can be used to oppose injustice, but it can also be used to inflict injustice.
And to do it you must commit an act of dishonesty, you must lie to the judge, and
swear a false oath.

That is not to say it is unthinkable. Professor (of law) P. Butler (a former assist AG)
has professed, as an act of civil disobedience in response to "unjust drug laws" and
biased prosecutions, that nullification be used to acquit black defendants of NON-VIOLENT
drug offenses (particularly possession of crack cocaine).

So, the jury has the POWER to nullify, but not the legal right to do it.
In short, its kinda like the way BUSHCO runs the US, is it not?

But you can decide where you stand on it.

------
FN1. A judge (or prosecutor) who usurps the role of the jury to determine
the "facts" (and that can happen in a variety of ways), commits misconduct.

FN2. Occasionally a judge may harrumph about how this advisory role of lawyers is
a mere formality better done away with so that the hanging part can proceed
without further delay.

[tannybogus]

9. Thanks - food for thought. nt

[crikkett]

12. thanks for this.n/t

[librechik]

13. interesting

thanks and welcome to DU, Piewhacket!

(and have you seen Kim Novak lately? I love that movie!)