L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 121, May 14, 2001
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Judges can oust jurors who sub conscience for law.
May 8, 2001
SAN FRANCISCO - Judges can remove jurors who apply their conscience instead of the law, the California Supreme Court ruled Monday in a case frowning on what is known as "jury nullification."
The high court, which ruled for the first time on the issue, unanimously backed a Santa Clara County judge who dismissed a panelist who did not believe statutory rape was a crime. An alternate juror took panelist No. 10's place for deliberations - leading to a conviction and six-year prison term for Arasheik Williams, who was charged with having sex with a 15-year-old girl and other crimes.
"Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution's case and the defendant's fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law," Chief Justice Ronald M. George wrote for the court.
Deputy Attorney General Karl S. Mayer said the high court simply ruled that jurors must uphold the oath they took before being empaneled.
Even so, juries sometimes acquit criminal defendants based on their beliefs that the crimes charged should not be criminal offenses or the penalties are too high. California juries acquit some marijuana offenders who say the drug eases pain and suffering from cancer, and in some cases set free repeat offenders facing life sentences under the three-strikes law.
The case decided Monday tested for the first time what to do when a California judge learns that a juror is not upholding the law.
California judges now have the power of the law on their side when it comes to finding out about jury misconduct. Under a 1998 edict, known as the "snitch" rule, the judge orders jurors to inform the court if a juror is not applying the law during deliberations.
That is what happened in the case decided Monday. A conscientious juror, after being ousted by fellow jurors, confessed to the judge that, "I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be a wrong reason." The juror was removed.
California jurors must follow the law, and not their consciences, when deliberating, the state Supreme Court ruled Monday, dismissing the historic doctrine of jury nullification as "contrary to our ideal of equal justice for all."
The justices unanimously upheld a Santa Clara County judge's decision to remove a juror who refused, on principle, to consider convicting an 18-year-old defendant of statutory rape.
The ruling, the court's first on nullification, is a blow to proponents of the unwritten, but time-tested, principle that jurors are the "conscience of the community" and should reject unjust laws by refusing to convict.
"Judges have systematically refused to grapple with what nullification really means," said Alan Scheflin, a Santa Clara University law professor. "They've erected this bogeyman that they take great delight in destroying."
Nullification "may sound lofty," Chief Justice Ronald M. George wrote, "but such unchecked and unreviewable power can lead to verdicts based on bigotry and racism."
The court, in its 28-page opinion, also warned that nullification would leave the fate of defendants to the "whims of a particular jury" which could disregard the presumption of innocence or even convict "by the flip of a coin."
Jury nullification dates back hundreds of years, but rose to prominence during the Revolutionary War period. Juries have since used the principle to acquit those who helped free slaves during the 1800s, as well as bootleggers prosecuted during Prohibition.
"There's no constitutional basis for jury nullification, yet it does exist," said Rita Simon, a law professor at American University. "De Toqueville even mentioned it when he praised the American jury system."
Monday's opinion stems from the 1995 conviction of Arasheik W. Williams by a Santa Clara jury on charges of torture, false imprisonment, assault and statutory rape.
During closing arguments, Williams' attorney told the jurors that "a jury may, at times, afford a higher justice by refusing to enforce harsh laws."
Hours into deliberation, the jury foreman reported to the judge that juror James Kelly refused to discuss the statutory rape charge because "he believes the law is wrong."
Kelly told Judge Paul Teilh he couldn't consider the rape charge: "I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be the wrong reason."
Under the American legal system, juries need not explain how they arrived at their verdicts. But judges can, and do, remove jurors who make it known they will practice nullification.
In the Williams case, the judge removed Kelly from the jury, saying he had violated his oath of service that required the juror to follow the judge's instructions.
The jury, with an alternate in place, voted the next day to convict Williams, who was later sentenced to six years in prison.
"This ruling will only encourage jurors to lie," Scheflin said.
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