April 2, 2008
Judge Weinstein makes notable headlines with notable jury-based ruling
Famed EDNY Judge Jack Weinstein has found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case. Here are the headlines:
- From the New York Post here, "Judge's Bizarre Ruling Aids Perv"
- From the New York Daily News here, "Father convicted of downloading child porn not given jail time"
Here is the start of the Post article:
In a decision that turns hundreds of years of legal precedent on its head, a judge ruled yesterday that juries should be made aware of "harsh mandatory minimum" sentencing rules in certain cases. Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided - chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.
The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long. It attempts to reverse the long-standing rule that jurors not be given sentencing information so they can decide guilt or innocence, without letting the potential punishment color their thinking.
"The judge has gone out on a limb here," said a law-enforcement source. "There's clear case law that says the jury should not be informed about mandatory minimums."
April 2, 2008 at 10:13 PM | Permalink
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» Weinstein Tosses Child Porn Charge for Failure to Tell Jury of Mandatory Minimum Sentence: from The Volokh Conspiracy
When I was in law school, several of my professors expressed their admiration of District Judge (and former Columbia lawprof) Jack Weinstein for his notable "judicial creativity." In light of that, I was interested in [Read More]
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» A Revolution of One from Sex Crimes
Judge Weinstein has set off a little bit of a legal firestorm (which was probably his intention) by releasing a lengthy opinion in a child porn case holding that he should have instructed the jury that mandatory minimums applied in [Read More]
Tracked on Apr 8, 2008 9:19:09 PM
Gotta love the NYP... only they would say that telling a jury the consequences of their actions helps the defendant.
Posted by: S.cotus | Apr 2, 2008 10:25:02 PM
"Judge's Bizarre Ruling Aids Perv"
This is why I no longer believe free speech should apply to the media, at least insofar as the media is covering criminal law issues. Letting the media have free reign to say whatever it wants about crime and criminal trials/appeals is destructive to freedoms more important than the speech being offered. It's against public policy and is the single largest contributing cause to the mass erosion of our rights, the level of fear in the average american, and the large number of firearm shootings each year. Yes, it's the media's fault. When they cover nothing but crime (murder here, pervert there, kids all in danger all the time), they make people scared, nervous, and trigger happy. Giving some judges lifetime tenure is not enough to counteract the problem.
Posted by: bruce | Apr 2, 2008 10:28:05 PM
Actually, this is why I no longer speak to non-lawyers.
Posted by: S.cotus | Apr 2, 2008 10:54:46 PM
The headline from the NY post is misleading. I believe the Judge was right, this is the reason the Constitution allows for a person to be tried by a Jury of its peers. A better example would be the Wilson case from Georgia, where many jurors admited that if they had known about the 10-year mandatory minimum they never would have convicted him.
Almost everything is illegal now a days. If a prosecutor wants to charge a person with something he can find 20 different laws(example) the person broke in a single action. The right to Jury trial is supposed to help people when they are being unjustly prosecuted.
Posted by: EJ | Apr 3, 2008 12:02:00 AM
I don't understand what the big deal is. For as long as I've been arguing to juries in North Carolina, 35 years, I've been able to inform juries of the punishment a def faces if convicted. There are cases, State v McMorris comes to mind, which specifically allow this in order to impress upon the jury the seriousness of their task
Posted by: | Apr 3, 2008 12:12:39 AM
"After Polizzi was convicted, Weinstein polled the jurors, asking if they would have issued the same verdict had they known the mandatory minimum sentence. Many said no, stating they felt Polizzi needed treatment, not prison time."
This is missing from the Daily News article and 100 to 1 it will rarely be mentioned in the coming backlash about "activist judges."
bruce, does State v McMorris rely on federal case law at all?
Posted by: George | Apr 3, 2008 12:50:30 AM
Fox News is going to love this..
Posted by: Mark | Apr 3, 2008 7:04:22 AM
"Many said no, stating they felt Polizzi needed treatment"
And what treatment would that be?
Posted by: Steve | Apr 3, 2008 8:36:17 AM
Of course, this is a pro-defendant ruling: as the comments above indicate, informing a jury of the punishment is nothing less than an invitation to have them engage in an improper act--jury nullification. Why some commenters can't be honest and say that this is what's going on baffles me.
It's certainly NOT about "truth in sentencing" or some such canard-- in that case, we'd also tell the jury about parole, about pardons, about the ability of the judge to modify the sentence, about time off for good behavior, etc.
No, informing juries about mandatory minimums is all about nullification, which is why my own state's (Virginia) appellate courts have repeatedly rebuffed this tactic. Of course, in addition to being an inappropriate, unethical attempt to invite nullification, sentencing information in the guilt phase is also simply irrelevant to the sole question of guilt or innocence.
Posted by: Tom | Apr 3, 2008 8:45:48 AM
Jury nullification is not always improper. If juries can't nullify, then there's absolutely no point in having juries to begin with.
Posted by: bruce | Apr 3, 2008 9:31:46 AM
Apparently, what Tom thinks is unethical and inappropriate is just fine in Carolina. It's also completely permissible to review with a cooperating witness any possible exposure he/she may have had due to charges identical to that facing a defendant on trial. Is this unethical, too? If the jury can find out the sentencing issues in a cross examination context, a jury instruction doesn't seem so horrible. Why are folks afraid of fully informing juries?
Posted by: D | Apr 3, 2008 10:01:24 AM
Tom, There was absolutely nothing unethical about the judge’s decision. Your effort to confuse a legal decision with you don’t like with the ethical canons for judges will dilute whatever ethical standards do remain. If you can point to the ethical canon violated go ahead, but otherwise, I think that you lied and have no sense of the truth or even basic legal research.
Whether it was the correct legal decision or not is another story. But, due to the procedural posture, the government will be able to appeal.
I think, however, the informing juries about sentences cuts both ways. A prosecutor could use a high sentence to argue for a conviction. Both parties could take a sentence out of context, etc. etc.
Jury nullification gets a bad name, but at some level, any time a jury decides to acquit, they are “nullifying” the “law” as the prosecutor sees it. Every charge brought in this country is brought based on some executive officer’s view of the law. By the time jeopardy attaches, the government has likely repeatedly said that they are entitled to a conviction because they believe the facts to be true beyond a reasonable doubt as applied to the law as they see it. When a jury disagrees with them they are “nullifying” that decision.
And finally, of all the regular posters here, I have proposed the highest “ideal incarceration rate” for the country. Therefore, I have impeccable law and order credentials and care more about justice than anyone else.
Posted by: S.cotus | Apr 3, 2008 10:08:25 AM
It's certainly NOT about "truth in sentencing" or some such canard-- in that case, we'd also tell the jury about parole, about pardons, about the ability of the judge to modify the sentence, about time off for good behavior, etc.
What would you tell them about Pardons? That they do not exist?
Posted by: | Apr 3, 2008 10:41:33 AM
Telling the jury about parole in the federal system is very easy.
But, I agree. If, as a constitutional matter, a jury is entitled to be told about a sentence, they should be told about the possibility of parole.
Modification of the sentence is just that -- changing the sentence. It still must be done according to law.
Posted by: S.cotus | Apr 3, 2008 11:42:41 AM
Personally, I think its "unethical" and violates the spirit of the Fifth and Sixth Amendments, to NOT inform juries that there is a mandatory minimum involved. If juries nullify verdicts by convicting of a lesser charge or acquitting defendants in cases where there is a mandatory minimum involved that reflects the entire point of having a jury and courts in the first place which is to check overzealous prosecutors and legislatures.
Virginia's appellate courts are hardly a model of good practice when it comes to criminal law. The Virginia Court of Appeals could save everyone a lot of time by simply issuing a standing opinion that reads "Defendants have no rights Virginia courts are bound to respect. Affirmed. Benton dissenting. The majority's conclusion that the defendant has no rights that Virginia courts are bound to respect violates the Constitution. I would [circle appropriate choice] vacate/reverse and remand the conviction." and using it in all criminal law cases (well, at least the ones with Judge Benton on the panel). Assuming what you are saying is true (and not working in state criminal appeals I lack information to confirm or deny it veracity), the fact that Virginia does it, is hardly an argument in support of a proposition. In fact, like Texas, when it comes to criminal law, the fact that Virginia does it is actually an argument against a rule.
Posted by: Zack | Apr 3, 2008 11:52:19 AM
Zack, unfortunately I think the same basic set-up would mirror the practices of the Michigan Court of Appeals (and Mich. Supreme Court) as well...
Posted by: Reader | Apr 3, 2008 1:44:37 PM
The Second Circuit will have a field day with this case. All Judge Weinstein has done is guarantee himself a 3-0 reversal.
Posted by: Reversed | Apr 3, 2008 3:58:42 PM
Should a jury be told that a given case is a death penalty case (putting aside questions during voir dire about the death penalty)? If so, then how is a mandatory minimum any different?
I think juries not only should be told about the punishment range and any mandatory sentences, but it is a fundamental requirement of a fair guilt/innocence phase. "Beyond a reasonable doubt" mean entirely different things to reasonable people when it's the difference between automatic life in prison, automatic 20 years in prison, one year in prison, or probation. A jury has a right to know, and must be told IMHO, that its decision to convict will mean, say, an automatic life sentence for the defendant. I've heard more than enough jurors upset at having found a defendant guilty b/c they didn't know it would mean automatic life (or some other large mandatory minimum). Had they known the sentence would be that serious/long/disproportionate, they would have returned a different verdict. A lot of jurors will convict by default with the belief that they can give, or the defendant will get, a light sentence. The jurors want to please the prosecutor and the defense lawyer, so this is how they split the baby. It's human nature. The lawyers put on a show for the jurors, catered to them, stood up when they walked into the courtroom, and in most cases the jurors want to appease both lawyers. The only way to do that is to find the defendant guilty and give him a low sentence. Again, it's just human nature.
This is why jurors have to be told about the consequences of a guilty verdict. They should also be told the consequences of a not guilty by reason of insanity verdict so they don't think they'll be turning loose an insane, dangerous person, but rather sending them to a mental hospital until such time as they are better (if ever).
Jurors should be instructed on their right to nullify in each and every case. "If you find beyond a reasonable doubt that the defendant committed the crime as set forth in the indictment, then you can find him guilty... or not, it's up to you."
Posted by: bruce | Apr 3, 2008 8:14:22 PM
I think juries not only should be told about the punishment range and any mandatory sentences, but it is a fundamental requirement of a fair guilt/innocence phase.
If so, then should they also not be told about the defendant's prior bad acts, including other pending charges, acquitted conduct, and the like?
Moreover, shouldn't many of the other rules of evidence be suspended as well? After all, the main reason for rules of evidence (aside from efficiency, perhaps) is that we think that justice is better served by keeping certain information away from juries because they might give it too much weight. I say that if you're going to take the blinders off for nullification, you should take 'em off fully and let the jury know what's going on.
This is not an argument for reverse nullification, but rather an argument that if jury nullification is going to be fully on the table, then the jury should also be made aware of all of the information that's potentially relevant to that decision.
Posted by: | Apr 3, 2008 8:32:22 PM
These things cut both ways. Someone in NY or Connecticut recently got off scot free after being convicted of manslaughter in stead of mureder, since the statute of limitations for manslaughter had expired. The jury was given the manslaughter option, and probably reached it as a compromise verdict. It is hard to justify such a rule and require a defendant-friendly rule that juries be told about mandatory minmums at the same time, unless you happen to be of the persuasion that juries should not be allowed to nullify the prosecutors burden of proof but be allowed to nullify an overarching, legally correct result.
I agree with Bruce that one of the main reasons we have the right to juries is for the latter type of nullifcation, a viewpoint which Justice Scalia shares. But unlike Justice Scalia, I think that there is constitutional rigth for a jury to be given information about the law in order to allow them to make an informed decision whether or not to nullify. Even before the Suprem Court's modern death penalty regime, juries were always told about a potential for capital punishment, and certainly its use was invoked by defense temas duting opening and closing arguments when the punishment was mandatory. Just because we have largely moved away from fixed sentences and death as the standard punishment for most serious crimes doesn't mean that the right for jurors to know what's at stake whould be diminished. But a defendant should also possess the right not to be convicted based on moral judgement if we we are to succumb to the rule of law. So I feel that keeping this rule on place only when it benefits the defendant is justified based on the original American understanding of the right to trial by jury, though I doubt that many others share my view.
Posted by: Jacob Berlove | Apr 3, 2008 11:12:46 PM
Yes, juries should never hear about a defendant's prior bad acts, maybe with the exception of a defendant takes the stand and lies about never having committed X crime when in fact he has been convicted of X crime. But all of the 404(b) exceptions are extremely lame, and in practice they let prosecutors bring in any prior bad act to show character conformity, the very thing that 404 is supposed to bar. All a prosecutor has to do is say "goes to motive!" and 99% of judges will allow prior bad acts to come in. Prior bad acts are simply NEVER relevant and are unfairly prejudicial. People convicted of crimes deserve fair trials, even if they commit the same crime (or a different crime) again. Just because you've committed DWI 8 times in the past doesn't mean those convictions are relevant to your 9th DWI charge. The state should not need to rely on prior convictions/accusations of the accused in order to secure a conviction. If the state has enough evidence, the introduction of prior bad acts during the guilt/innocence phase is simply unnecessary.
I certainly don't agree with a "if we allow jury nullification we should not keep any evidence away from the jury" theory. It's an appeal to emotion -- one thing has nothing to do with the other. Juries should not hear about irrelevant and prejudicial facts that do not make any necessary facts to be proven at trial more true or less true. Unfortunately most people can't see why prior convictions are irrelevant to the current prosecution. It sure seems relevant that an alleged rapist has committed rape 10 times before. But when we go down that road, it makes it horrendously easy to frame someone with a criminal record. It already is easy to do that, because prior bad act evidence will be allowed in evidence at trial under some dumbass exception to 404(b) that swallows up the whole rule.
In Texas, merely saying a complaining witness is fabricating the allegation permits prior bad acts to come in. I once had a trial where I had an audiotape of the c/w admitting she was lying about a rape allegation against her ex-boyfriend (the defendant) because he cheated on her and she figured that would be a good way to get even with him. Merely playing that audiotape and cross-examining the witness about fabrication opened the door to letting in a prior allegation (not even a conviction, mind you) that the defendant sexually harassed some other girl. Got an acquittal, but it was fundamentally unfair. Shit like that is one of the prime reasons I don't do much criminal litigation anymore. The whole system is bullshit, prosecutors make all the rules and get whatever they want. Everyone wants them to win, all the judges are ex-prosecutors (judge = highest position in the DA's office), and everyone "knows" the defendant is guilty; if he were innocent he wouldn't be there. He must have done something bad so fuckit - convict him quick and let's go home and watch American Idol.
Jacob: Well said. It's quite amazing how far we've gone away from jury nullification. It's gotten to the point where people passing out little pamphlets about jury nullification outside of courthouses to prospective jurors (and others) are being arrested and charged with tampering with juries and obstruction of justice. Also, I think it is fundamentally unconstitutional to force jurors to take an oath swearing not to commit jury nullification. They all have to take an oath promising to render a true verdict based on the evidence, yadda yadda. It's unamerican, and anathema to the purpose and principals of the jury system. How does a jury trial provide protection from abusive laws and abusive prosecutors if a jury MUST convict if the elements are proved beyond a reasonable doubt?
Posted by: bruce | Apr 4, 2008 1:01:12 AM
I have to agree with Reversed. This decision will not stand.
Much as I like Judge Weinstein, I cannot really justify this decision on, well, law. If anyone else can, I invite it. While I am sure there are ways of doing this indirectly, that doesn't seem to be the case here.
On the other hand I am sleep deprived and I have a simulated trial this weekend. Maybe Weinstein has something up his sleeves.
Posted by: Alec | Apr 4, 2008 3:39:03 AM
But maybe this is a really good opportunity for a cert. pet. It does raise the most fundamental issues about the role of a jury.
Is a jury really there to just approve the state's facts, and then government employees (the prosecutor and judges) get to send the defendant to a taxpayer-funded hole for as long as the statute allows?
The text of the constitution isn't clear on this.
Posted by: S.cotus | Apr 4, 2008 7:41:11 AM
Call me old-fashioned,but the role of a jury in the guilt phase of trial is simply this: to decide if the state has produced enough evidence to convince them beyond a reasonable doubt of the defendant's guilt. Of course, in this prosecutor-led system we have, any improperly gained evidence is suppressed,no matter how relevant to the defendant's guilt, and even wholly voluntary admissions are excluded if the correct incantations were not made by the police prior to a custodial interrogation.
Nevertheless, despite this rigged system in favor of the state, juries routinely find defendants not guilty. Amazing. Obviously prosecutors and prosecutor/Judges are not wielding their immense power correctly.
It remains that any discussion of sentencing matters with respect to the defendant is irrelevant in the guilt phase of trial, and at least in my humble opinion, such a blatant attempt to induce the jury to disregard their oaths to render a verdict solely according to the law and facts is unethical.
Posted by: Tom | Apr 4, 2008 9:04:15 AM
S.cotus: It's definitely a good cert petition in theory, the only problem is that all 9 justices (well, maybe not Ginsburg) wouldn't question the notion that a jury is there just to approve the state's facts so that government employees (don't forget the probation officer, who is not even a lawyer and has no ethical constraints) can send him to the taxpayer-funded dungeon for as long as the statute permits.
Alec: In my penultimate post I justified what Judge Weinstein did based on the principal of a fair trial. Call it due process or call it a meaningful jury trial under the 6th Amendment (or both).
Posted by: bruce | Apr 4, 2008 9:06:20 AM
Tom - if the jury has the sole purpose of finding guilt or innocence, then you should believe that the "death qualification" of juries in death penalty cases is unconstitutional and it is unethical to even ask a prospective juror whether they support the death penalty or not. Otherwise, your objection to "jury nullification" is simply an objection to juries who refuse to do what the prosecutors want. Of course, the death penalty experience shows why it may backfire to tell jurors about a mandatory minimum - since courts may hold that jurors who oppose the mandatory minimum law cannot be seated as has been done with the death penalty (thus disenfrancising 1/3 of the population from those juries often based on their religious beliefs). That would lead to a result more unfair than the current situation (which has happened in death penalty cases).
Virginia has a long history of juror nullification, going back to colonial times - at times, the prosecutors even have gotten the message (there is a reason why the Commonwealth almost never brings moonshining charges in southwestern Virginia, for example - they know that the juries are not going to convict or if they convict, they will sentence the defendant to a $1 fine because people in that area believe they have the right to make liquor in their homes without the government interferring in their business (actually some judges and prosecutors down there believe this as well)).
Posted by: Zack | Apr 4, 2008 10:44:31 AM
Jails are properly referred to as "tax-payer funded holes." "Dungeons" are generally paid for by governors for their personal use.
I think that Judge Jack sets the issue up in a different way. Rather than say, "Should the jury be told" I think he is asking "Should the judge set aside the verdict based on a clear statement from the jurors, on the record that they would not have convicted if they had known the consequences." Depending on how you look at it, this is a slightly (or very) different issue.
Posted by: S.cotus | Apr 4, 2008 2:49:55 PM
S.cotus: It sounds like a more legitimate issue because it's phrased in a less callous way, but I don't think it's any different an issue when you get to the heart of the matter.
I will amend my mental definition of holes (which are public) vs dungeons (which are private).
Posted by: bruce | Apr 4, 2008 7:30:09 PM
Turns out that he wrote 236 pages. Now, we have to read it.
Posted by: S.cotus | Apr 5, 2008 7:52:35 AM
I was looking forward to reading that opinion/order (though too lazy to find it on PACER). Now I'll have something to read this weekend.
Posted by: bruce | Apr 5, 2008 12:11:35 PM
Zack--The only reason we have the death qualification issue is the highly questionable idea that the constitution requires the use of a jury to sentence someone to death. So, if you want to get rid of that concept, we won't have to ask jurors their feelings on the death penalty anymore, and problem solved.
Posted by: Jay | Apr 5, 2008 5:28:22 PM
I live in Oregon and mandatory minimums are public record. If I was on a jury I would consider it my job to understand the charges and consequences. Of course, if there were no mandatory minimums and judges were allowed to do their job and not act as the puppet for the DA this would be a mute point, wouldn't it?
Posted by: ellen | Apr 28, 2008 5:24:19 AM
Prosecutors are wrong 90% of time, other 10% there under DA's desk trying to get a career advancement.
Posted by: judge dredd | May 17, 2008 7:22:45 AM
At least this judge is not corrupting or undermining the system. Because in a courthouse in orange county they can remove delete alter and tamper with evidence of innocence with an immediate conference in the back hallway with court reporter. The evidence of innocence is no longer in the record. If you try to correct the record they can obstruct justice and you from doing so. Conceal and cover up evidence is then followed up by them presenting a printed document with false fixed planted rigged framed evidence for the jury to use against the accused and be convicted.
Posted by: MOLINA | Jul 23, 2008 3:56:10 AM
I WANT THAT JUDGE TO COME TO GOOD OLD VIRGINNY.WE PLACE TO MUCH ON THE JURY.THE JURY MIGHT NOT BE STRONG ENOUGH TO FIGHT WHOEVER HAVE THE STRONGEST WILL. IT IS TIME FOR THE JURY TO BE JUDGED. WHAT MAKES YOU A GOOD JURER IS ARE YOU OPEN TO THE CASE,DO YOU LISTEN,AM I YOUNG ENOUGH TO BE FAIR TO WHAT I AM HEARING.RECENT CASE IN MY TOWN,MY SON CONVICTED AND THE LAWYERS SITTING IN AND OTHER POLICE ENFORCEMENT ASKED US WHAT DID THE JURY HEAR FOR THAT VERDICT.IT IS TIME NOW FOR THIS WEIGHT CONCERNING THE TRUTH NOT TAKE PLACE 12 OR 22 YEARS, IT IS A SHAME HOW JUSTICE IS BOTH BLIND AND UNCARING. NOT ONE PERSON ON MY SON JURY UNDERSTOOD HIS GENERATION BECAUSE THEY HAD 20 YEARS OR MORE ON THEM.
Posted by: JERI ROSE | Apr 8, 2009 8:48:49 PM
I AM JUST A MOTHER FORCED TO LEARN THE LAW TO SAVE MY SON FROM INJUSTICE THAT RAN THRU HIS ARREST,TRIAL AND CONVICTION,WHO THOUGHT THAT WHEN THE JURY MADE A MISTAKE THAT AN AGENCY WHO PROMISED TO HELP RIGHT THIS WRONG SOLD US OUT BEFORE THE 4 LAWYERS TOOK ALL OF OUR MONEY WITH FALSE PROMISES.
Posted by: JERI ROSE | Apr 8, 2009 8:54:33 PM
I AM JUST A MOTHER WANTING JUSTICE BUT WHAT ANYONE DID IN THEIR PAST AND THEY HAVE COMPLETED THEIR SENTENCE ,HAVE PAID FOR THEIR CRIMES AND TO ME THAT DOUBLE PERSECUTION.WHY NOT JUST PUT THE CRIME IN THE PAPER LIKE OUR LOCAL PAPER DID. RUN IT FOR 9 STRAIGHT FRONT PAGES AND 2 SECOND PAGES AND ALWAYS SAY THE DNA IS CORRECT EVEN THOU WE WERE IN COURT FOR 8 STRAIGHT DELAYS BECAUSE IT WASN'T A MATCH AND THE COMMONWEALTH NEEDED A MATCH AND BEHOLD A SO CALLED EXPERT DELIVERED .IT DOESN'T MATTER THAT THIS PERSON IS NOT AN EXPERT AND SHE HAS BEEN REPRIMATED FOR USING UNFAIR TEST PATTERNS FOR BLACKS AND OTHERS.I COME TO THE CONCLUSION THAT
THE SYSTEM IS MORE THAN FLAWED FOR THE COMMONWEALTH AND THERFORE THIS JUDGE GAVE PEOPLE LIKE ME HOPE ,CONSIDERING WE HAD 4 LAWYERS AND MEDEAS SAYS THEY LIE BUT NOT FOR THEIR CLIENTS. STUDING LAW IS WHAT I MUST DO TO FIND JUSTICE BEFORE THE SYSTEM LOSES MY SON.
Posted by: JERI ROSE | Apr 8, 2009 9:13:41 PM