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November 6, 2018

Mandatory minimum drives US District Judge to countenance arguments for jury nullification in federal child porn case

Over at Reason, J.D. Tuccille has this remarkable report about a remarkable federal prosecution in Connecticut under the headline "Federal Judge Advocates Jury Nullification After Being Shocked by Overzealous Child Pornography Prosecution."  Based on the description that follow under the headline, I am not entirely sure it is quite right to say the judge is advocating for nullification. But readers should click through and here is a piece of the story:

"This is a shocking case. This is a case that calls for jury nullification."

Many have had similar reactions when confronting cases involving authorities running roughshod over people with bad laws, punitive sentences, and ill-considered prosecutions. But this time, the person invoking jury nullification was a federal judge — District Judge Stefan R. Underhill of the District of Connecticut — and he spoke in court about a case over which he presided.

The prosecution that shocked Underhill involves Yehudi Manzano, a 30-something man charged with producing and transporting child pornography after saving, and then deleting, a video of his teenage sex partner to and from his own phone and its associated Google cloud account. "The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents," Norman Pattis, Manzano's attorney, told me.

But that, prosecutors say in the indictment, was enough for the federal government to proceed with charges under the assumption that Manzano acted "knowing and having reason to know that: such visual depiction would be transported and transmitted using any means and facility of interstate and foreign commerce."  And that's important, because the mandatory minimum sentence under federal law for recording video of sex with an underage partner is 15 years.

That draconian sentence — independent of what was in store in the entirely separate state trial for sex with a minor — was too much for Judge Underhill.  "I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government," he said in court.  "I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I'm not sure."

Judge Underhill acknowledged that he's not allowed to encourage jury nullification, but "if evidence comes in about the length of the sentence, or if Mr. Pattis chooses to argue, I do not feel I can preclude that.  I don't feel I'm required to preclude that.  And I think justice requires that I permit that."...

"Juries exist for a reason," Pattis argued in court.  "They stand between the government and the accused, and they provide the accused with an opportunity to hold the government to its burden of proof.  And in certain trials in our history, juries have done more than that.  They've said the law is wrong, and we, the people, say it's wrong."

In response to that, Neeraj N. Patel bluntly told the court on behalf of the U.S. Attorney's office, "you should take steps to prevent jury nullification and not inform the jury of the sentencing consequences."  Normally, that's where the matter would have remained.  Judges don't generally want jurors told they can pull the plug on a prosecution because they don't like the law or the possible sentence.  They're generally not permitted to inform juries about nullification, and they're discouraged from informing juries about the consequences in store for convicted defendants.

However, that doesn't mean judges must ban all discussion of jury nullification and sentencing from trials. And occasionally you run across one who is horrified by what prosecutors have in mind. That's why Pattis, who passionately believes in the right to nullification, keeps arguing for a principle that generally gets shot down in court. And last week, he found a judge sympathetic with his arguments.

The U.S. Attorney's Office for the District of Connecticut declined to comment on this case, but did provide me with a copy of the emergency motion it filed seeking a stay in the trial. Prosecutors want time to get a higher court to prevent Judge Underhill from allowing Manzano's defense counsel to inform jurors of the potential sentence and argue for jury nullification.

I have long thought that juries should be informed of the basic sentencing consequences that go with guilty verdict (and I am also generally a fan of jury sentencing). I also think informing juries of sentencing consequences might reasonably be viewed as a requirement of the Sixth Amendment and the Apprendi line of cases.

And, speaking of provisions of the Constitution, it seems to me that this case, if there were a conviction, calls for serious consideration of the Eighth Amendment's limits on grossly disproportionate sentences. If the full offense here is just taking (and then deleting) a video of a teenager having consensual sex, I have a very difficult time seeing how one would not conclude, in the word of Harmelin v. Michigan, that "a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality."

November 6, 2018 at 12:12 PM | Permalink


"Gross disportionality" has been exercised in most internet CP cases. CP viewing and downloading would not be a part of our country's on going sex witch hunt without gross proportionality as it's defining sentencing characistic.

Posted by: tommyc | Nov 6, 2018 1:58:09 PM

It pisses me off that juries aren't supposed to know about nullification. Prosecutors can and frequently do nullify. Why should juries not be told that they can do the same?

Posted by: William Jockusch | Nov 6, 2018 10:47:47 PM

The interstate commerce nexus here is a complete joke. But I think some context is in order here, before the chorus of demonizing cops and prosecutors gets into full choral mode.

Googling the case turns up repeated mentions of Manzano being charged with "sexual assault." Which may be the Connecticut catch-all term for what is in ordinary language known as statutory rape. Or perhaps Johnny Law is being vindictive here for other reasons.

Google also gives me: https://archives.rep-am.com/2016/12/02/girl-15-claims-she-had-sex-with-man-31/

Dec 2 2016--"WATERBURY – A 31-year-old city businessman is facing sexual assault and threatening charges in connection with the allegations of an underage girl who said he assaulted her and he pointed a handgun at her on multiple occasions. Yehudi “Jay” Manzano,…" (Maybe someone could do a journalisum and find out what the hell happened to those charges?)

Judges fucking around with cases like this are what drives the electorate to demand mandatory minimum sentences in the first place.

Posted by: John Bragg | Nov 7, 2018 8:48:19 AM

I'm not a fan of jury sentencing unless juries are allowed to be told what the sentencing guidelines are in a case. Otherwise, they tend to sentence more harshly than a Judge and jury sentencing is really just a mechanism to discourage jury trials. Especially when the range of punishment is something like two to ten years and a Judge has a right to suspend the two years but the jury has to treat it as a mandatory minimum.

Posted by: Erik M | Nov 7, 2018 9:32:02 AM

Under current law prosecutors get to charge whatever they want, as here. They can manipulate mandatory min sentences (and regularly do). In light of such unbridled power, the Supreme Court should at least permit juries to be told of the mandatory minimum punishment the defendant faces upon conviction. If nothing else, this would moderate the prosecutor's charging decisions.

Posted by: Michael R. Levine | Nov 7, 2018 12:43:28 PM

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