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Function of Juries & Jury Nullification | 25 Feb 2014

-Jury Nullification Must Check Abusive Prosecutor Nullification


Jury BoxI came across this scholarly paper in the Washington and Lee Law Review as I was looking for information on how many judges come from a prosecutorial background. While it doesn’t answer that question, it does address another important point that we as jury nullification advocates should be making. Often it is claimed that if jurors know about their authority to exercise jury nullification, all kinds of chaos would ensue and the legal system would come crumbling down. But in fact, every other step of the legal process involves nullification power:
1. Law enforcement officers have discretion over whom to arrest or not.
2. Prosecutors have a HUGE variety of nullification powers that we will get to below.
3. If a jury convicts, a judge can overturn that verdict.
4. Assuming a judge lets a jury’s Guilty verdict stand, it can STILL be overturned or softened through an executive’s powers of pardon or commutation.
So why is that when EVERY GOVERNMENT AGENT in the legal process has and is informed about their nullification powers, it is magically going to throw the entire system into disarray if jurors find out that they may conscientiously acquit people by setting aside the law when a just verdict requires it?

Of all of the above agents, prosecutors by FAR have the most extensive nullification power, and it is used HEAVILY in favor of conviction as this paper illustrates:

Prosecutors as Judges

As demonstrated by some recent high-profile cases and suggested by a seemingly endless litany of misconduct, American prosecutors exercise almost limitless discretion in a series of decisions affecting individuals embroiled in the criminal justice system. They decide whether to accept or decline a case, and on occasion, whether an individual should be arrested in the first place; they select what crimes should be charged and the number of counts; they choose whether to engage in plea negotiations and the terms of an acceptable agreement; they determine all aspects of pretrial and trial strategy; and in many cases, they essentially decide the punishment that will be imposed upon conviction. These and other discretionary judgments are often made without meaningful internal and external review or any effective opposition. In many (if not most) American jurisdictions, the prosecutor is the criminal justice system. For all intents and purposes, he makes the law, enforces it against particular individuals, and adjudicates their guilt and resulting sentences.

That’s right. In many cases, American prosecutors now act as judge, jury, and executioner, with little check on their power. This is why we are seeing more and more a HUGE disparity between the sentence offered in a plea bargain vs. the MUCH HARSHER sentence that will be enforced upon a defendant if convicted, often due to mandatory minimum sentencing schemes. The authors use the tragic case of Weldon Angelos, a 23-year-old, first-time offender, arrested for dealing marijuana and possessing firearms, which were never brandished or used while he was selling small amounts of pot to help pay the bills after the birth of his second son:

Instead of bringing state charges, officials decided to prosecute the case in federal court employing an infamously harsh law that carries mandatory minimum punishment. That statute, 18 U.S.C. § 924(c) , provides an obligatory five-year sentence for possessing a firearm during a drug transaction and a twenty-five-year sentence for each subsequent transaction. Multiple charges can be brought under § 924(c) in one case, and the mandatory sentences must be served consecutively, that is, one after the other rather than simultaneously! As a result, the prosecution can slice a drug dealer’s actions into as many transactions as it likes (or wishes to corroborate) and bring them in a single case, where the mandatory sentences can be stacked on top of each other in twenty-five-year increments. A defendant does not need a criminal record to trigger § 924(c). What is more, the firearm does not even have to be brandished or used, nor does the law require that any violence or injury be caused or threatened. When Angelos was convicted of three § 924(c) counts in December of 2003, the punishment was predetermined: a mandatory sentence of fifty-five years.

The authors continue, explaining how the prosecution tried to leverage its nullification power (aka plea bargain) to force Angelos into an unreasonable prison sentence in exchange for dropping charges:

Angelos’s case also reveals the rough play of American adversarialism and the extent of prosecutorial power in plea bargaining. The prosecution initially said that if Angelos pled guilty to a charge of drug distribution and one count of § 924(c), it would recommend a prison term of fifteen years- a steep sentence given the nature of the offense and the background of the offender. If the offer was not accepted, however, the prosecution threatened to obtain a new indictment that carried more than 100 years of mandatory imprisonment via multiple §924(c) counts. When the plea bargain was declined, the prosecution followed through on its promise, charging crimes with the potential for 105 years of mandatory incarceration. And when Angelos was convicted on three § 924(c) counts, the prosecution only obtained an obligatory sentence of fifty-five years.

Of course, some might say that Angelos should have taken the deal, with any disproportionality between crime and punishment the result of his own intransigence rather than the government’s vindictiveness. He is the author of his own demise, or so it might be argued. The counterargument seems just as strong, however. If this defendant is so extremely dangerous or the public interest is so important as to merit a 105-year mandatory sentence, how could the prosecution put the citizenry at risk by permitting Angelos to serve a fraction (1/7) of that amount? Surely, prosecutors would not offer a serial rapist, mass murderer, or violent terrorist a fifteen-year deal when justice demands a century of incarceration.

This is what prosecutorial nullification has come to-it is nothing more than a tool to bully and intimidate defendants into taking unjustly harsh plea bargains to guarantee avoiding unconscionably abusive mandatory minimum sentences as prosecutors stack up charges against them. If the system has fallen into disarray, it is NOT because jurors have too much power as the Angelos case demonstrates:

For Angelos, it did not matter that few U.S. Attorneys would have prosecuted the case in such a heavy-handed manner. Nor did it matter that the sentence was longer than those prescribed for far more serious crimes (e.g., aircraft hijackers, terrorists, second-degree murderers, and rapists). Moreover, it was irrelevant that jurors who heard his case would have recommended a sentence decades less than that demanded by the prosecution, and that his punishment was opposed by twelve dozen former federal judges and prosecutors, including four former U.S. Attorneys General. Most of all, it did not matter that the sentencing judge himself believed that the punishment was “unjust, cruel, and irrational.” By charging the case as it did and obtaining the relevant convictions, the prosecution was the adjudicator of the sentence, with the court relegated to the role of an unwilling rubber stamp.

With the prosecution operating with drastically unchecked power to determine the outcome of the case, the injustice and chaos in this legal system, which gave a man a de facto life sentence for completely victimless activity, stems not from juries having too much power, but from FAILING to exercise their rightful power of jury nullification conscientiously to deliver a just verdict. Angelos never needed to be sentenced to a day in prison, let alone a de facto life sentence, had one single juror asked “Who has he harmed?”, answered “Nobody”, and then voted Not Guilty on every single charge against him.

Erik Luna and Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413 (2010), http://scholarlycommons.law.wlu.edu/wlulr/vol67/iss4/6