People v. State

In a comment over at Simple Justice, I was not as hopeful as Scott Greenfield about the significance of the Second Circuit’s equivocal reversal of EDNY Judge Jack Weinstein’s gutsy and brilliant 236-page decision in U.S. v. Polizzi. On closer examination of the Second Circuit’s opinion, however, I am more able to share some of Scott’s optimism. Judge Weinstein’s decision held, among other things, that

The American petit jury is not a mere factfinder. From the time the right to trial by jury was embedded in the Constitution as a guarantee to criminal defendants through the Sixth Amendment in 1791, it has been expected to bring to court much of the wisdom and consensus of the local community. See Part IV, infra. It has, when jurors deemed it necessary, stood as a guardian of the individual against the sometime cruel overreaching of government and its menials. Much of our modern procedural “reforms” have been designed to limit the jury’s reach and power, increasingly shifting control to judges; these efforts have attempted unconstitutionally to transform the jury into a simple factfinder from its grander historical position under the Constitution as representative of the people in the courts.

Recent Supreme Court developments stress “originalism” – – that is to say, the meaning at the time the relevant constitutional language was adopted. The approach has been applied to sentencing in a series of Supreme Court cases reviving the original meaning of the Sixth Amendment guarantee of trial by jury in criminal cases and the right of a defendant to be confronted with opposing witnesses. See Part IV.D, infra. The development is based upon what is believed to be colonial practice immediately preceding adoption of the Sixth Amendment, and the reception of then current British practice. See Part IV.A, infra.

Extrapolation of the recently emphasized constitutional principle requiring a jury finding of the facts needed to enhance a sentence requires courts to recognize that colonial and British juries in the late eighteenth century had power to control the finding of guilt in order to affect the sentence. In exercising its extensive discretion, the jury was expected to be aware of and understand the sentence that would follow from its decision. That jury power to know and act may not be eviscerated, as was done in this case by this court’s error in failing to advise the jury of the five-year mandatory minimum sentence required on conviction of receipt of child pornography.

The Second Circuit, as pretty much everyone expected, overruled, on the basis of existing Second Circuit and U.S. Supreme Court precedents (which Judge Weinstein believed had been “effectively rejected” by more recent precedents), Judge Weinstein’s holding that Polizzi had a Sixth Amendment right to a jury informed of the applicable mandatory minimum sentence. Since Judge Weinstein’s failure to advise the jury of the applicable mandatory minimum sentence was therefore not error, he did not have the discretion to order a new trial on that basis. Interestingly, however, the Second Circuit consciously and expressly refrained from deciding whether the district court judge would have had the discretion to give such an instruction to the jury at Polizzi’s trial, while simultaneously going out of its way to explicitly hold (rejecting the government’s argument to the contrary) that district courts have the discretion to instruct the jury on applicable mandatory minimum sentences “in some circumstances.” What’s interesting to me, and allows me to cautiously share some of Scott Greenfield’s optimism about the decision, is that although the Second Circuit’s discussion (apparently dicta) of the circumstances in which such an instruction might be appropriate contemplates the use of such an instruction to discourage jury nullification, and the opinion states that “it is not the proper role of courts to encourage nullification,” the Court did not take this obvious occasion to hold or opine that district courts do not have the discretion to use such an instruction to encourage or enable nullification. Indeed, the Court recognized that the “only justification cited by the district court for the retrial order was that some jurors might have voted for acquittal so as to nullify the application of the harsh sentencing law had they been aware of the mandatory minimum sentence,” and yet still declined to decide whether it would have been within the district court’s discretion to instruct Polizzi’s jury on the applicable mandatory minimum sentence, or whether district courts in general may provide such an instruction for such a reason.

Perhaps the Second Circuit was persuaded by Judge Weinstein’s magnum opus after all, but couldn’t bring itself to say that a district court has the discretion to give a jury instruction designed to enable nullification, and is waiting along with the rest of us to see what the Supreme Court makes of it. In the meantime, perhaps another courageous district court judge, fed up with mandatory minimums, will take up the gauntlet left by the Second Circuit and exercise its discretion by giving such a jury instruction, avoiding the retrial issue that complicated matters in Polizzi. And while we’re hoping, let’s hope that the Supreme Court takes up Polizzi and determines that there is a Sixth Amendment right to a fully-informed jury, leaving judicial discretion out of it entirely.

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