Fully Informed Jury Association

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Function of Juries & Jurors Doing Justice & Jury Nullification | 17 Apr 2015

-How Prosecutors Can Control Jury Nullification through Jury Instructions

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LawBooksThe trial of a San Antonio juvenile has been interrupted by an emergency stay just short of closing arguments, as the prosecutor and defense attorney take their dispute over jury instructions to an appeals court. An unnamed teen is being tried in connection with the death of a classmate. Witnesses in the case reportedly testified that the defendant was repeatedly picked on by fellow classmates who were throwing things at him and at other students. The defendant testified that he warned one of them that if he didn’t stop it, he was going to hit him back. When the behavior continued, the defendant apparently punched the classmate who had continued to throw things at him, knocking him unconscious. He was declared brain dead the next day.

The prosecutor in this case is seeking conviction on murder or manslaughter charges, putting the now 16-year-old at risk of up to 40 years in prison for murder or 20 years for manslaughter. Another student was indicted for murder as well, even though he never threw a punch, but was granted testimonial immunity to take the stand in this case.

Jurors sat through most of the trial before being sent home on Tuesday, with the trial indefinitely on hold, as the state appeals the instructions that will be read to the jury. At the time the appeal was mounted, the jury instructions reportedly allowed the jury to consider, in addition to the possibility of acquitting the defendant, the options of convicting the defendant of murder or manslaughter, as desired by the prosecutor. However, the defense and judge also want to include the option for the jury to convict on another lesser charge—misdemeanor assault, with a penalty of up to one year in jail and $4000 in fines. It is this lesser option to which the prosecution objects:

Stay leaves murder trial on hold

New Braunfels defense attorney Joseph E. Garcia III said he had planned to be ready Thursday morning to present his closing arguments in the Canyon High punching death trial, but that the emergency stay would leave the trial in limbo for now.

On Tuesday, Garcia requested jurors be given the option to consider misdemeanor assault along with the murder and manslaughter charges his 16-year-old juvenile client faces. Clayten Hearrell, a Comal County assistant district attorney, objected to the inclusion.

Judge Charles A. Stephens II denied the state’s request. So prosecutors decided to seek a decision from a higher court hoping to have the lesser-included offense removed from the jury’s instructions.

Prosecutor Clay Hearrell explained part of the reasoning for his objection:

Punching trial paused by appeal of jury instructions

“I wouldn’t have some quarrel if aggravated assault was included,” prosecutor Clay Hearrell told the judge in a bench conference just before jurors were sent home. “But misdemeanor assault is inconceivable in this fact circumstance. There’s no way to escape that a death occurred.”

Definitions for lesser included offenses vary, but the basic idea is that a lesser included offense is one that involves some, but not all, of the elements of a higher level offense. Instructing juries on lesser included offenses is somewhat up to judges to decide, except in capital cases. Per the 1980 ruling of the United States Supreme Court in Beck v. Alabama:

The unavailability of lesser included offense instructions and the apparently mandatory nature of the death penalty both interject irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the “third option” may encourage the jury to convict for an impermissible reason — its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage the jury to acquit for an equally impermissible reason — that, whatever his crime, the defendant does not deserve death. While, in any particular case, these two extraneous factors may favor the defendant or the prosecution or may cancel each other out, in every case, they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.

Prosecutors have a great deal of power to influence the outcome of a case, simply by picking and choosing charges to level against the defendant. By stacking on extra charges, they can poison the jury’s view of the defendant by leading them to believe that with so many charges, he must be guilty of something! Stacking of charges or mixing of certain types of charges, such as mixing firearms and drug charges, can also bring mandatory minimum sentences into play, drastically raising the stakes in the case and psychologically strong-arming the defendant into accepting a plea bargain.

Plea bargains often involve defendants pleading guilty to a lesser offense or fewer charges than what he or she would face in court, in exchange for eliminating the risk of being convicted on much more serious—and therefore, more likely to involve more severe punishment—offenses. It is noteworthy that when prosecutors maintain near total control of the situation, they don’t seem to have much problem with lesser included offenses.

But beyond that, prosecutors can also manipulate the jury with their influence over jury instructions. For one thing, pre-filtering which charges the jury is allowed to consider usurps the jury’s authority as the trier of fact in the case at hand. Consider the 1895 case of Sparf and Hansen v. United States, which is usually noted for eroding the jury’s ability to nullify the law. In its decision, the Supreme Court ruled that “if there be no evidence upon which the jury can properly find the defendant guilty of an offense included in or less than the one charged, it is not error to instruct them that they cannot return a verdict of guilty of manslaughter, or of any offense less than the one charged”. This specifically calls for the judge to be the initial finder of fact in that he or she must first determine if there is or is not such evidence in order to instruct the jury regarding lesser included charges before they commence with their deliberations.

In a case where a prosecutor fears a jury may find reasonable doubt regarding some of the elements required to make the case for a very serious offense, he or she may wish to have lesser included offenses presented to the jury. That way, the odds of the jury convicting on at least something are increased. On the other hand, for particularly disturbing cases where a jury may be loathe to let the defendant off the hook entirely with an acquittal, a prosecutor may wish to keep lesser included charges off the table so that jurors feel pressured into convicting the accused of a more serious offense than is warranted rather than letting the accused go without any penalty whatsoever.

Prosecutors surely know that jurors will sometimes choose to temper justice with mercy in unusual cases by convicting on lesser charges, even if a higher level offense has technically been committed. We have previously discussed several cases where conviction on lesser included charges can be a form of jury nullification:
Guilty on Lesser-Included Charges Can Be a Form of Jury Nullification
Jury Nullification and the Saint Patrick’s Day Four
Jury nullifies felony pot charge, reduces to misdemeanor

In her 1985 paper The Jury’s Political Role: “To See With Their Own Eyes”, law professor Valerie P. Hans noted certain types of cases in which juries were more lenient with defendants:

In their landmark book, The American Jury, Harry Kalven and Hans Zeisel asked judges presiding over jury trials to report the jury’s verdict in a specific case and compare it with the verdict the judge would have reached had the case been tried by judge alone. In 78% of the trials, judge and jury would have reached the same verdict. However, in the remaining 22% of cases, the jury’s sense of justice led it to a different verdict. Interestingly, these disagreements occurred almost always when the evidence in the case was close, suggesting that jurors bend the law or facts rather than ignore them entirely. The explanations for the disagreements constituted something of a casebook of jury law. For instance, juries had an expanded view of permissible self-defense that went beyond the bounds prescribed by law. Jurors sometime excused defendants if their victims played a contributory role.

Agents of the state who have a vested interest in the widespread criminalization and incarceration that their livelihoods depend on, have already dramatically eroded in many ways the jury’s traditional, legal authority to exercise jury nullification to deliver just verdicts. By taking lesser charges off the table, the state not only encroaches on the jury’s authority as finders of the facts in the case at hand—what is supposed to be a non-controversial function of the jury—but it can also lessen the chances that jurors will conscientiously acquit in certain types of cases.

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