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Function of Juries & Jury Nullification | 03 Jan 2015

-Kansas Supreme Court Upholds Jury Nullification

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GavelIconI am pleased to report another court victory in the final days of 2014! This ruling upholding jurors’ ability to exercise jury nullification and otherwise preserving the role of the independent jury comes from the Kansas Supreme Court in the case of State v. Smith-Parker.

There were several jury-related and other matters at issue in this case, including the incorrect wording of an instruction to the jury regarding their verdict options:
State v. SMITH-PARKER, Kan: Supreme Court 2014

Smith-Parker next argues that the jury instruction on alternative first-degree murder theories contained a misstatement of law with respect to reasonable doubt. The instruction read: “If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.” (Emphasis added.) According to Smith-Parker, the instruction should have been identical to the general reasonable doubt instruction that was also given. That instruction said: “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)

Earlier Kansas Supreme Court precedent allowed the more intimidating “must convict” language in jury instructions, effectively taking conscientious acquittal off the table for all but the most courageous and tenacious of jurors. The Court in this case, however, ruled that previous decision was in error and overturned it, stating clearly that both “must convict” and “will convict” language comes too close to directing a Guilty verdict, which the judge is never permitted to do:

This court addressed a similar instruction challenge in State v. Lovelace, 227 Kan. 348, 607 P.2d 49 (1980). The questioned Lovelace instruction told jurors that they “must” find defendant guilty if they did had no reasonable doubt on the elements of the crime. 227 Kan. at 354. This court rejected Lovelace’s argument that “must” commanded the jury to find the defendant guilty and noted that “should” and “must” could be used interchangeably in criminal instructions. 227 Kan. at 354. Smith-Parker acknowledges this precedent but argues that it was wrongly decided. We agree with him and overrule the Lovelace holding.

Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, see State v. Naputi, 293 Kan. 55, Syl. ¶ 4, 260 P.3d 86 (2011) (juries possess power to decide case contrary to applicable facts and law, i.e., power of jury nullification, but defendant not entitled to instruction on power), the district judge’s instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification. Cf. State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973) (“Although it must be conceded that the jurors in a criminal case have the raw physical power to disregard both the rules of law and the evidence in order to acquit a defendant, it is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon.”). Both the wording of the instruction at issue in Lovelace—”must”—and the wording at issue here—”will”—fly too close to the sun of directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.

FIJA Advisory Board member Dr. Roger Roots, J.D., Ph.D. has written about the disturbing trend in criminal courts of instructing jurors that they “must” convict as opposed to “may” or “should” convict. He points out the 2-1 majority opinion in the 1972 case of United States v. Dougherty was based largely on a distinction in jury instruction verbiage that is no longer a given.

Criminal Courts have Quietly Moved From “May” Convict to “Must” Convict Jury Instructions Over the past 40 Years

Unfortunately, however, Judge Bazelon was outnumbered by Judges Leventhal and Adams, who held that trial judges are under no obligation to inform jurors of their “unreviewable and unreversible power . . . to acquit.” The two-judge majority decided that juries did not need to be explicitly informed because the power of jury nullification is implicit in the overall tone of commonly-given jury instructions.

According to Judge Leventhal (with emphasis added):

The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. . . . Even indicators that would on their face seem too weak to notice — like the fact that the judge tells the jury it must acquit (in case of reasonable doubt) but never tells the jury in so many words that it must convict — are a meaningful part of the jury’s total input. Law is a system, and it is also a language, with secondary meanings that may be unrecorded yet are part of its life.

The problem with Judge leventhal’s 1972 statement is that it is no longer true. During the 1970s, when Dougherty was decided, the common practice was for judges to use the word “must” only when instructing jurors to acquit when prosecutors fail to establish proof beyond a reasonable doubt. In contrast, the word “should” was used when instructing jurors about their obligations when prosecutors prove their cases. But today, many courts have switched to using “must” in both commands.

Thus, a central tenet supporting the opinion of the Dougherty majority—perhaps the lynchpin of the decision—is no longer accurate.

This is further complicated by cases such as that of United States v. Krzyske in 1988. In the Krzyske case, jurors specifically asked the judge during their deliberations about the possibility of nullification. He did not simply fail to instruct them on it, but rather when specifically asked about it by jurors, went so far as to discuss it and give them an explicitly untrue answer that effectively took that option off the table for them.

US v. Krzyske, 836 F. 2d 1013 – Court of Appeals, 6th Circuit 1988

The trial court denied defendant’s request to instruct the jury on his asserted doctrine of jury nullification. The court also denied the government’s motion to prohibit the use of this term during the proceedings and, as a result, Krzyske mentioned the doctrine of jury nullification in his closing argument. During its deliberation the jury asked the court what the doctrine stood for. The court responded, “There is no such thing as valid jury nullification. Your obligation is to follow the instructions of the Court as to the law given to you. You would violate your oath and the law if you willfully brought in a verdict contrary to the law given you in this case.” Defendant objected and claims it was error for the court to so instruct the jury.

The majority ruling in this case—another 2-1 split—upheld the right of a jury to reach any verdict it wishes, including exercising jury nullification if jurors see fit, but approved “the district court’s refusal to discuss jury nullification with the jury” while completely ignoring the fact that the judge had, in fact, discussed jury nullification and made false statements about it to the jury. On this basis, the majority refused an appeal. In dissenting with the majority, Judge Merritt was very pointed in his criticism of the faulty majority ruling:

The law is settled that the jury has the power to decide against the law and the facts. The jury specifically asked about its power to do so, and was told by the District Court that it had no such power. The least that the jury should have been told was “the jury has the power to bring in a verdict in the teeth of both law and facts … the technical right, if it can be called so, to decide against the law and the facts …..” Horning v. District of Columbia, 254 U.S. 135, 138-39, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920). These were the words of Justice Holmes speaking for the Court. The Supreme Court has never taken these words back or indicated that they do not properly state the law. The District Court and our Court are simply refusing to apply these words because they do not agree with them. It is not our prerogative to overrule the Supreme Court.

Subsequent to the initial ruling from the Court of Appeals, the defendant submitted an affidavit from one of the jurors in the original trial. In that affidavit, that juror clearly stated that the false information given to the jury by the judge specifically led to the defendant’s conviction.

US v. Krzyske, 857 F. 2d 1089 – Court of Appeals, 6th Circuit 1988

The sworn affidavit of a juror submitted to us now by defendant Krzyske reports the jurors’ reaction to the warning given them by the district judge:

. . . . .

2. On June 25, 1985 we jurors asked the trial judge, Charles W. Joiner, during the first day of deliberations and before any verdicts were returned, the following question:
“WHAT IS JURY NULLIFICATION?”
3. This question was in the form of a note to the judge, and it was asked because we were very inquisitive as to its meaning.
4. When the trial judge responded by saying “There is no such thing as valid jury nullification”, we were left very confused.
5. After the trial was over, I learned what jury nullification was because I was still in doubt over its meaning as the trial was concluding.
6. If we were told the truth about jury nullification a different outcome would have resulted in favor of the defendant, Kevin Elwood Krzyske, because I (for one) would have voted for “acquittal” on all counts of the indictment.

Yet even upon revisiting the issue in light of the affidavit, the court remained split 2-1 upholding the conviction. Here we have a ruling in which it is clear that the judge’s words to the jury about jury nullification were untrue, and in fact that his erroneous statement led to the defendant’s conviction, and yet the Court of Appeals affirmed the district court and let the conviction stand.

This leads me to be somewhat cautiously optimistic about the ruling from the Kansas Supreme Court. Definitely optimistic, but still cautious. It is not clear to me from the Smith-Parker ruling how much unaccountable wiggle room is left for judges in Kansas to “err” in this way. Note that throughout the many issues the Kansas Supreme Court investigated, the Court declined to rule with respect to any single issue for which it found in favor of the defendant, including the “will” language in the jury instruction, that such issue by itself constituted reversible error. The court found four such errors in this case:

State v. SMITH-PARKER, Kan: Supreme Court 2014

We have found four errors: the exclusion of Letourneau’s out-of-court statement, the faulty jury instruction, the failure to instruct the jury to begin its deliberations anew after N.B. was replaced with an alternate juror, and the denial of Smith-Parker’s motion to recall at least N.B. and the presiding juror to investigate the allegation of jury misconduct.

When a judge errs, such error may be deemed reversible or harmless. A reversible error is one which is deemed to have resulted in an unfair trial and thus results in a reversal on appeal. A harmless error is one which is acknowledged to be an error, but which is not considered a sufficiently egregious error as to warrant a new trial. In this case, the Court did not explicitly rule on which, if any, of these errors it found were considered reversible vs. harmless errors. Rather, it ruled based on the cumulative error doctrine, under which the existence of errors, no one of which necessarily merits reversal, are in combination deemed to necessitate the reversal of a finding or sentence.

If, indeed, the error with respect to the jury instruction is by itself not considered reversible error, that opens the door to judges making this same error in other cases, potentially leading so far as to result in a defendant’s conviction, without any accountability for such error in the higher courts. That leaves plenty of room for concern. Nonetheless, the ruling is a welcome step back in the right direction, reversing the previously standing ruling in the Lovelace case, in which the Court denied any substantial difference in meaning between the “must” and “should” wordings of jury instructions.

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