Time: Wed May 21 19:50:42 1997
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Date: Wed, 21 May 1997 19:47:53 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Court Attacks Practice of Acquittals as Social Protest
  (fwd)

Ominous overtones here!

Juror votes are protected by 
the First Amendment and other
provisions in the Bill of Rights
(e.g. see Seventh Amendment).

The fact that they may be done
as a form of social protest is
totally irrelevant to the Rights
guaranteed by the Ninth and Tenth
Amendments.

<snip>
>
>Date: Wed, 21 May 1997 16:12:23 -0600 (MDT)
>From: Jury Rights Project <jrights@darkstar.cygnus.com>
>Subject: NYT: Court Attacks Practice of Acquittals as Social Protest
>To: Jury Rights Project <jrights@darkstar.cygnus.com>
>
>New York Times
>May 21, 1997
>
>Email: letters@nytimes.com
>
>Court Attacks Practice of Acquittals as Social Protest
>
><http://www.nytimes.com/yr/mo/day/news/national/ny-jury.html>
>
>By BENJAMIN WEISER
>
>NEW YORK -- Stepping into a legal debate with racial and political
>overtones, a federal appeals court in Manhattan declared Tuesday that
>judges have a duty to make sure jurors do not ignore the evidence or law 
>in a case and instead impose their own values to acquit or convict a
>defendant.
>
>The ruling by the court of appeals for the second circuit offered the
>strongest denunciation yet by the federal courts of the practice known 
>as "jury nullification," in which a juror might vote, for example, to
>acquit a defendant for racial reasons, rather than considering the
>strength of the case against him.
>
>Calling such an action "a violation of a juror's sworn duty to follow
>the law as instructed by the court," Judge Jose Cabranes wrote for a
>unanimous three-judge panel that "trial courts have a duty to forestall 
>or prevent such conduct," by admonishing or even dismissing jurors from 
>a case.
>
>The decision stemmed from a drug case tried in Albany in which jurors
>complained to the judge that one juror, the only black member of the
>panel, appeared opposed to applying the drug laws in the case, believing 
>that the defendants had "a right to deal drugs," the opinion said.
>
>After interviewing the jurors, the trial judge concluded that the black 
>juror felt that the defendants "were in a disadvantaged situation" and 
>would not vote to convict "no matter what the evidence was." The judge 
>removed the juror and the 11 remaining jurors voted to convict.
>
>In its ruling Tuesday, the appellate court actually overturned the
>convictions, saying that the juror in this case may truly have been
>unpersuaded of the defendants' guilt and that the judge was wrong to
>conclude that he was disregarding the law. But the appeals court said
>the judge was right to investigate the juror's motivation, and used the 
>case to take a strong stand against nullification.
>
>"We categorically reject the idea that, in a society committed to the
>rule of law, jury nullification is desirable, or that courts may permit 
>it to occur when it is within their power to prevent," Cabranes wrote. 
>
>The decision comes as the legal community is embroiled in a debate over 
>race and the justice system, and whether it is ever appropriate for
>jurors to intentionally disregard the law, in acquitting or convicting,
>as a form of protest.
>
>The appellate court noted that jury nullification has deep roots in
>American jurisprudence. It protected fugitive slaves from being sent
>back to the South in the period before the Civil War, as northern juries 
>refused to convict. But the court noted that there were also "shameful 
>examples of how nullification has been used to sanction murder and
>lynching." Among the cases cited were the hung juries in the 1964 trials 
>of Byron De La Beckwith in Mississippi for the murder of Medgar Evers. 
>
>"It's a two-edged sword," said Burt Neuborne, professor at New York
>University School of Law. "It's become, we can't live with it and we
>can't live without it. We acknowledge that jury nullification can be the 
>ultimate defense against government oppression, but we also fear it
>because it's corrosive of the rule of law."
>
>The debate intensified recently when a George Washington University law 
>professor, Paul Butler, who is black, wrote that in certain nonviolent 
>cases, black jurors would be justified in acquitting black defendants to 
>protest racism in the criminal justice system.
>
>Randall Kennedy, who teaches race and the law at Harvard University Law 
>School and is also black, recently attacked Butler's position. He argued 
>that jury nullification, even as a form of protest, is immoral and
>self-destructive for black people.
>
>Kennedy said he had not yet seen the court's decision but "it sounds to 
>me like the second circuit acquitted itself well."
>
>"It seems that it wanted to set forth a marker," he said, "given all the 
>loose talk going on. One simply cannot allow ideas to be in the air
>unopposed."
>
>The appeals court said that even after secret deliberations had begun in 
>a case, a judge could dismiss a juror for failing to adhere to the
>evidence and the law.
>
>But it placed a heavy burden on judges to make a solid case that a juror 
>intended to disregard the law, because even beginning to question jurors 
>about their intentions would mean invading the historic secrecy of the 
>deliberative process. Judges will have to walk a narrow line, as they
>inquire about a juror's intentions at the same time as they endeavor to 
>safeguard jury secrecy, the opinion suggested.
>
>If the decision stands, it will apply to all federal criminal cases
>within the circuit, which includes New York, Connecticut and Vermont.
>But given the high visibility of the second circuit and the prominence 
>of Cabranes, who has been mentioned in the past as a Supreme Court
>contender, legal experts said the decision, while not binding elsewhere, 
>was likely to be widely influential.
>
>Federal prosecutors in New York praised the decision. Mary Jo White, the 
>U.S. attorney in Manhattan, said the ruling was important "not only for 
>law enforcement but for just verdicts based on the law."
>
>Thomas Maroney, the U.S. attorney whose Albany office handled the cases 
>that were overturned, said no decision had been reached on whether to
>seek a review by either the appeals court or the Supreme Court, or to
>retry the case.
>
>The decision, written by Cabranes and joined by Judges Edward Lumbard
>and Joseph McLaughlin, remanded the drug cases for new trials.
>
>Defense lawyers also praised the decision for imposing a high threshold 
>on judges considering whether to remove a juror accused of disregarding 
>the law.
>
>Cabranes wrote that a judge must be sure that the juror is not merely
>unpersuaded by the government's evidence, a hurdle the court said the
>judge in the Albany drug case failed to clear.
>
>"A presiding judge faced with anything but unambiguous evidence that a 
>juror refuses to apply the law as instructed need go no further in his 
>investigation of alleged nullification," Cabranes wrote. Such a juror
>could not be dismissed.
>
>"It's a strong statement that just because a juror is voting not guilty, 
>doesn't mean it is nullification," said Barry Leiwant, a lawyer with the 
>federal defender division of the Legal Aid Society, who represented one 
>of the drug defendants in the Albany case.
>     
>                           ###
>
>New York Times
>229 W. 43rd Street
>New York, NY 10036
>Phone: (212) 556-1234
>Fax: (212) 556-3690
>Email: letters@nytimes.com
>Web: http://www.nytimes.com
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Paul Andrew, Mitchell, B.A., M.S.    : Counselor at Law, federal witness
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