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Function of Juries & Jury Nullification | 08 Jul 2014

-Jury Nullification Can Protect against Unjust Sentencing

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Fence_of_Prison-BPOJurors have the right and the power to conscientiously acquit through jury nullification for any reason they believe will deliver a just verdict. Sometimes they do this because they think the offense should not be illegal, but there are also other reasons they may feel moved to acquit even though a law has technically been broken. In this article, Molly Knefel discusses jury nullification as a tool by which jurors can protect defendants from sentences that are unjustly harsh compared to the severity of the offense.

Nullification: Jurors’ Secret Weapon Against Harsh Sentencing

On July 2, Occupy Wall Street protester Cecily McMillan was released from Rikers Island, completing a sentence that her jury never wanted her to serve. On May 19, that jury of twelve convicted McMillan of felony assault against police officer Grantley Bovell. The verdict came after a four-week trial, during which McMillan’s defense team argued that it was actually Bovell who assaulted McMillan, and that she had elbowed him as a reflexive response after he grabbed her breast. The trial carried symbolic weight because it was the last Occupy criminal case, one of the few Occupy-related felonies, and an incident of alleged police violence that many protesters felt characterized NYPD norms. Still, the jury returned a “guilty” verdict. As is typical, jurors had been instructed by the judge not to read or research any further details of the case on their own, including the punishment that McMillan would face if convicted.

After the conviction, members of the jury learned that McMillan faced two to seven years in prison, according to sentencing guidelines. An anonymous juror told The Guardian that “they felt bad,” and that “even a year in jail is ridiculous.” The juror added that he hadn’t been convinced of McMillan’s guilt, but gave in to his fellow jurors and, not expecting harsh sentencing, voted to convict. Nine of the twelve jurors petitioned Judge Ronald Zweibel for leniency and no incarceration. At that point, however, the power was out of their hands (Zweibel ended up sentencing McMillan to ninety days in jail and five years’ probation). Many of McMillan’s supporters expressed frustration that the jurors who had held Cecily’s freedom in their hands didn’t take the consequences of the trial seriously until after it was over.

Cecily McMillan’s case is one of many cases where jurors had the power to protect a defendant from a harsh sentence, but for one reason or another forfeited it and left the defendant at the mercy of an unmerciful judge, or an unmerciful system with mandatory sentencing rules. Often jurors come forward afterward, distraught or angry over the injustice they were railroaded into aiding and abetting.

We previously reported on the case of Antwuan Ball, convicted of a single drug transaction worth about $600. In that same trial, his jury unanimously acquitted him of the prosecution’s long laundry list of charges related to racketeering, conspiracy, and even a murder indictment, but left the door open for the judge to sentence harshly based on this single conviction for a totally victimless offense. Based on the conduct of which the jury outright acquitted Ball, U.S. District Judge Richard W. Roberts sentenced him to MORE THAN 18 YEARS IN PRISON for a single transaction involving a half ounce of cocaine. After helping deliver the verdict, juror Jim Caron learned that prosecutors were, in fact, seeking 40 years in prison for this single conviction, along with harsh sentences for Ball’s co-defendants who were likewise convicted of instances of selling small amounts of drugs. He wrote to the judge decrying the blatant circumvention of the jury’s Not Guilty verdicts in these cases:

I write because I recently saw a press release from the US Attorney’s Office which states that Gregory Bell and Joseph Jones were sentenced to 16 years and 15 years, respectively, “for their roles in this case”. It also states that Antwuan Ball, Desmond Thurston, and David Wilson “each face up to 40 years imprisonment for the narcotics crimes for which they were convicted.”

Can this be true? We as a jury found these individuals guilty of somewhere around 20 instances of selling drugs, but as I remember it, most of these were very small amounts. And this was over a period of nearly 10 years. Now I’m not a lawyer, but after 30 years of living in the District, I believe people selling small amounts of crack on the street usually end up with probation or only a year or two in prison if they have a previous offense.

And then there is the case of Richard Paey, a chronic pain patient, charged with and convicted of 15 counts of drug trafficking, obtaining a controlled substance by fraud, and possession of a controlled substance due to the large volume of medication he sought for his extreme, debilitating pain. While in prison, doctors supplied him with painkillers for his own personal use in excess of what he was accused of having for so-called trafficking purposes.

According to juror Dwayne Hillis however, had the jury been aware that prison time was on the table, they never would have reached a consensus to convict:

They said he would get treatment. If I would have known he wasn’t going to get help I would still be in that room fighting for what I thought was right.

Hillis regretted his decision afterward, and said that he wanted to vote Not Guilty, but relented under pressure during deliberations after being assured by the jury foreman that Paey would serve no prison time. This was not true. In fact, the charges on which the jury convicted Paey triggered a mandatory minimum sentence of 25 years in prison. Paey was eventually given a full pardon by then Florida governor Charlie Crist in September of 2007, after serving nearly four years in prison, including what seems to be punitive time in solitary confinement for an interview he gave that displeased prison officials. During the entire 30 days, Paey was subjected to sleep deprivation with the lights on the entire time, and corrections officers banging on his cell door nearly hourly to keep him awake.

All of these cases share two things in common:
1. The jurors were kept unaware of the potential punishment to which they would be subjecting the defendant.
2. In spite of that, all of the jurors made these egregiously unjust punishments possible by voting to convict, in spite of not knowing all of the relevant information in the case.

This past fall, the ACLU released its report “A Living Death: Life without Parole for Nonviolent Offenses”, documenting thousands of cases across the country of individuals serving life without parole for nonviolent offenses, mostly for nonviolent drug offenses:

Life in prison without a chance of parole is, short of execution, the harshest imaginable punishment. Life without parole (LWOP) is permanent removal from society with no chance of reentry, no hope of freedom. One should expect the American criminal justice system to condemn someone to die in prison only for the most serious offenses.

Yet across the country, thousands of people are serving life sentences without the possibility of parole for nonviolent crimes as petty as siphoning gasoline from an 18-wheeler, shoplifting three belts, breaking into a parked car and stealing a woman’s bagged lunch, or possessing a bottle cap smeared with heroin residue. In their cruelty and harshness, these sentences defy common sense. They are grotesquely out of proportion to the conduct they seek to punish.

Using data obtained from the Bureau of Prisons and state Departments of Corrections, the ACLU calculates that as of 2012, there were 3,278 prisoners serving LWOP for nonviolent drug and property crimes in the federal system and in nine states that provided such statistics (there may well be more such prisoners in other states). About 79 percent of these 3,278 prisoners are serving LWOP for nonviolent drug crimes. Nearly two-thirds of prisoners serving LWOP for nonviolent offenses nationwide are in the federal system; of these, 96 percent are serving LWOP for drug crimes. More than 18 percent of federal prisoners surveyed by the ACLU are serving LWOP for their first offenses.

That these kinds of sentences can happen so frequently reflects a legal system bent not only on conviction, but on vindictive punishment. Jurors have the power and the responsibility to protect our communities from such grotesquely unjust sentences.

As a juror, if you do not believe that the punishment is appropriate for the crime, or if you do not have access to the relevant information about what the punishment is for a an offense, you have the right to conscientiously acquit by exercising your jury nullification authority. A judge may tell you that you are not to concern yourself with the penalty phase of the case and that you are only to decide whether or not the law was broken, but you should not cede your conscience when your vote can open the door for all manner of unconscionable mandatory minimums or vindictively imposed punishments that circumvent the intent of the jury, and for which defendants have little or no recourse.

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