Below is the jury nullification argument that is before the United
States Supreme Court in a Petition for Writ of Certiorari. The government
did not plead in the indictment, and no jury found, any prior criminal record
of the Defendant. Even so, the government gave notice that it wanted the
defendant to receive a mandatory sentence of life in prison for the drug
charge based on the defendant's prior record, which consisted of no violent
crimes, though some non-violent vices. In the trial court, the Defendant
moved for a bifurcated trial to argue jury pardon/nullification for both
the issue of the charge itself, as well as the for the issue of the minimum
mandatory life sentence. The trial judge rejected the Defendant's motions.
This Petition for writ of Certiorari followed the affirmation of the conviction
and sentence on appeal. For the entire Petition for writ of Certiorari in .html click here The petition includes other arguments that vice laws are unconstitutional.
JURY NULLIFICATION OF MANDATORY MINIMUMS: Related to the Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348 (2000) issue (previously discussed) is that,
even though the government did not plead, and no jury found, any prior record,
the Defendant moved for a bifurcated trial regarding his prior record and
to argue jury pardon/nullification (Doc 47, 77 and 91).
In the types of cases alleged here (whenever there is
audio and video tape evidence and the testimony of an undercover law enforcement
officer in a hand-to-hand transaction) the government often characterizes
the evidence as overwhelming, even suggesting that there is no serious defense
against the facts, only absurd defenses. In such cases, and if this
is one of those cases, then there is only one trial defense left: That the
law is unjust and should be rejected by the jury (the jury pardon or nullification
defense). The Defendant should have the right, should he so decide,
to present a pardon/nullification defense, either alone or in conjunction
with any other defense.
Recent case law indicates that it is ineffective assistance
of counsel for an attorney to admit a defendant's guilt to a jury. In cases
where the government's evidence cannot be rationally disputed, and where
the law prevents the nullification defense, then the law forces defendants
to mount irrational/absurd defenses, or no defense at all. Such predicaments
are a violation of a defendant's right to due process and of a defendant's
right to a meaningful jury trial.
At the very least, the jury should have been informed
of the penalty in this cause, and it should have been possible to argue to
the jury that the penalty is also an independent basis for acquittal.
An analogy can be made to inadmissible hearsay rules as
applied to the defense. Chambers v. Mississippi, 410 US 284 (1973) held that
the right to present a defense entitled the defense to introduce technically
inadmissible hearsay evidence. The rules of evidence can not be mechanistically
applied in such a fashion as to deny defendant a right to present a defense
and a fair trial. As an example, the right to present a defense gives the
defense a firm basis upon which to argue for admission of information
in a police report that might otherwise be inadmissible under a statute restricting
the evidentiary use of police reports as business records.
An analogy can be made to polygraph examinations. If
a Daubert hearing is held in a case in which the defense is trying to get
the polygraph admitted then the rules should be more open for the defense
and more restrictive for the prosecution regarding polygraph results. An
academic psychophysiologist has testified that false negatives were very
rare - from 2 to 15%, depending on testing conditions. But false positives
were very common - nearly half the time an innocent person will test guilty.
Polygraph technology is uniquely suited for defensive purposes. It is reliable
if it says innocent, and it is a coin-toss if it says guilty. Yet, there
is no case law reflecting this aspect of the polygraph.
In cases involving crimes of violence and theft, the pardon/nullification
defense is rejected by jurors because crimes of violence and theft violate
the NAP (the Non-Aggression Principle), which is a basic moral concept to
many jurors and to some judges (see e.g. Lawrence v. Texas, 2003 U.S.
LEXIS 5013,*;123 S. Ct. 2472; 156 L. Ed. 2d 508;71 U.S.L.W. 4574 (2003)).
But this is a case that does not allege violence or theft, it is a drug case,
and drug cases are in that league of cases where the nullification defense
has potential because the NAP is attractive to some jurors and judges.
In the former Soviet Union under Stalin it was said that
“the accused was given a trial but no defense.” If the government has
the power to prevent a defendant from arguing that the law is wrong, then
the government has the power to prevent the defendant from having any defense
whatsoever, because the government can legislatively deprive the defendant
of every other defense. The so-called "strict liability," laws are
one example. Many drug cases are also examples.
Witchcraft was illegal in the U.S. and still is illegal
in other parts of the world. Our criminal justice system would not
allow anyone to argue to a jury that a witchcraft law should be rejected
because witches do not cast spells that make children fall into fits.
Jurors would be instructed to determine the facts based on the testimony
and to follow the law, just as they did in the Salem Witch Trials.
And the defendant would be sentenced to life in prison or even to death.
Some people incorrectly argue that for any defendant to
argue that drugs should be legal under any circumstances, is a foolhardy
defense. But those arguments are made by people who make sure the public
never hears the comparison of modern prohibition to old prohibition, and
the similar corruption, violence, and irresponsible behavior that is caused
by the government, and perpetrated and perpetuated by the government.
Some defendants are deprived not only of their only defense,
they are deprived of the best defense. It might be the best defense
because it is the defense that the government has already abjectly lost in
old prohibition, and that the government has already arguably abjectly lost
in modern prohibition, though the government persists in digging its hole
ever deeper. Today, defendants are charged under modern prohibition,
and the government prevents them from presenting the exculpatory proof that
has already been established under old prohibition.
Most case law rejects the right to present a jury pardon/nullification
defense. However, U.S. v. Datcher, 830 F. Supp. 411 (M.D. Tenn. 1993), cites
the political history of jury nullification, and Datcher held that the defendant
was entitled to argue the issue of punishment to the jury, which the defendant
argued was draconian, hoping the jury would deem the penalty too great and
thus acquit pursuant to power of jury nullification. The court based
its ruling on the importance of allowing the jury "to decide whether a sentencing
law should be nullified." Id. at 412.
Rex Curry
Attorney at Law
Tampa, Florida
rexy@ij.net