Thanks to Eapen Thampy of Americans for Forfeiture Reform for this piece of good news out of the Fifth Circuit Court of Appeals earlier this month. Without mentioning it by name, the Fifth Circuit has in effect re-affirmed jurors’ right to judge the law as well as the facts of the case and to exercise jury nullification when they deem it appropriate by delivering a Not Guilty verdict even in the face of overwhelming evidence that the defendant has broken the law.
Juan Salazar was charged with multiple drug and gun violations. At trial, the government presented overwhelming evidence of guilt; against the advice of counsel, Salazar decided to testify and confessed to all of the crimes charged. At the trial’s conclusion, believing no factual issue remained for the jury, the district court instructed the jury “to go back and find the Defendant guilty.” Because the Sixth Amendment safeguards even an obviously guilty defendant’s right to have a jury decide guilt or innocence, we vacate the conviction and remand.
Click through (.pdf) to read the entire opinion.
Judges have absolutely no business directing jurors to deliver a Guilty verdict, and they know this very well. Competence to serve credibly in this legal role is questionable with respect to any judge who is unclear on this fundamental concept.
The opinion also calls into question the credibility of the prosecution, who apparently argued that a confession in court is a de facto change of plea from Not Guilty to Guilty, which then allows a directed verdict of Guilty:
In Griffin, the defendant pleaded not guilty of assaulting his wife. During trial, “after [his wife] testified to the assault . . . , [Griffin] informed the court that he wished to plead guilty.” Griffin, 255 S.W.2d at 774. The state, however, did not waive its right to have a jury trial. Id. In light of the fact that the defendant wanted to plead guilty, “the court informed [the parties] that the jury would be instructed to return a verdict of guilty. Neither party objected to the procedure or the charge, and the court so instructed the jury.” Id. at 774–75. Because the defendant wanted to plead guilty, the appellate court considered any problem to be invited error. Id. at 775.
As Walker and Griffin instruct, if a defendant wished to change his plea during trial to a guilty plea and thereby waive his right to a jury, we might invoke the doctrine of invited error. Nothing in this record, however, suggests that Salazar wished to change his plea or consented to the directed verdict.
Contrary to the government’s suggestion, Salazar’s confession did not deprive him of his right to have a jury determine his guilt. The Sixth Amendment permits a jury to disregard a defendant’s confession and still find him not guilty. This conclusion does not depend on when the confession occurs—on the stand or pre-trial—or how much the defendant confesses—to one element or to every crime. A defendant’s confession merely amounts to more, albeit compelling, evidence against him. But no amount of compelling evidence can override the right to have a jury determine his guilt.
It is true that a defendant may waive his right to a jury trial by pleading guilty. And he can, at least in theory, waive this right in the midst of trial. We have never held, however, that he changes his plea from not guilty to guilty just by confessing on the stand; certainly none of the cases cited by the government hints as much. And nothing in this record suggests that Salazar, at any point, wished to change his plea to guilty; the court did not ask him, following his confession, whether he wished to do so.
A judge may direct a verdict of Not Guilty if he finds, after all the government’s evidence or after all the evidence has been presented, that there is insufficient basis on which to convict. He or she may also set aside a Guilty verdict delivered by a jury in favor of acquittal. But a jury may not legally be directed to return a Guilty verdict against a defendant who is pleading Not Guilty.
Our legal system was never intended to be a level playing field. In fact, it was purposely designed to err on the side of acquittal based on the long-standing principle articulated by the English jurist William Blackstone in 1765 that, “It is better that ten guilty persons escape than that one innocent suffer.” This principle has even deeper roots, being invoked in various forms in the Salem witch trials in the 1690s, by Sir John Fortescue (Chief Justice of the King’s Bench of England) in the 1400s, by the 12th century legal scholar Maimonides, and in the book of Genesis in the Bible. For this reason, the prosecution is meant to bear a much heavier burden of proof in any criminal case, with the defense bearing no burden at all to prove innocence.
In short, defendants are to be presumed innocent until proven guilty, and the task of deciding whether such proof has been made is within the purview of the jury and not the judge. We are pleased that in its ruling in U.S. v. Salazar, the Fifth Circuit has defended the role of the jury against incursion from the bench and has in effect re-affirmed the right of jury nullification, in which jurors may conscientiously deliver a Not Guilty verdict even in the face of overwhelming evidence that the law has technically been broken.