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September 2, 2024
Notable (and failed) argument that “originalist" jury trial right must allow juries to know about sentence and nullification
Last week I came across a short federal district court opinion in US v. Valdivias, No. 20-20054-02-DDC (D. Kan. Aug. 26, 2024) (available here), rejecting some notable originalist jury claims by a drug defendant. I recommend the entire opinion, and here are excerpts:
Before trial, Defendant Hugo Chavez Valdivias filed a Motion to Inform the Jury of the Sentencing Range, to Permit Nullification Arguments, and to Exclude Pattern Criminal Jury Instruction 1.20 (Doc. 204). First, he asks the court to instruct the jury on sentencing ranges for the charges in the Superseding Indictment. Second, he asks the court not to instruct the jury that it must ignore possible punishment in evaluating guilt. Third, he asks the court to permit sentence-based “nullification” arguments.
Defendant supports these three requests by invoking an “originalist understanding of the constitutional jury trial right.” Doc. 204 at 1. He first argues that our Circuit’s cases prohibiting nullification arguments are based on policy, not the Constitution’s original meaning. This basis, he argues, requires the court to disregard the cases as “obsolete” in light of the Supreme Court applying “methods of originalism” to interpret the Sixth Amendment. Id. at 6. He next argues that Supreme Court cases frequently cited in opposition to jury nullification don’t resolve the issue before the court. Id. at 9–14.
The government disagrees. It argues that the jury in this case has no role to play in sentencing and so it can’t consider any possible sentence. Doc. 208 at 2. What’s more, our Circuit has held there isn’t a right to sentence-based nullification arguments, id. at 4, and, the government argues, is bound by those precedents, id. at 6.
Our Circuit and the Supreme Court disagree with defendant’s position as well. And so, following precedent, this court must disagree.
Though I am not completely versed on every aspect of originalist history and arguments regarding the jury trial right, I have read enough historical accounts or jury functioning at the Founding to believe the defendant here could make a robust originalist claim. But, as the ruling suggests, all contemporary precedents on informing a jury about sentencing issues and nullification power are contrary to these kinds of originalist contentions. This arena, then, serves as another example (of many) where it would seem a serious commitment to an originalist interpretation of the Constitution would provide crminal defendants more rights than they have under modern jurisprudence.
September 2, 2024 at 12:47 PM | Permalink
Comments
Here in Kentucky, juries help determine the sentence the defendant will receive, but they are not advised of the sentencing ranges until AFTER they have found the defendant guilty of one or more charges. It may be that juries should be advised about sentencing too. It would be interesting to look at how this was handled during the 18th and 19th centuries. Essentially, a Kentucky criminal trial is bifurcated. In felony cases, the jury is 12 people, but in misdemeanor cases, the jury is only 6 people. After the initial CONVICTION, the prosecution gets to present additional evidence relevant to sentencing, including certified copies of prior judgments of convictions in other criminal cases, where those prior convictions will increase the sentencing range in the current case. of course, the defendant's counsel gets to cross-examine the prosecution's sentencing witnesses too. The jury then retires a second time, to deliberate on the recommended sentence. Once they have reached a sentencing verdict, it is published in open court. The Judge may then sentence the defendant at or below the sentence recommended by the jury. Kentucky followed Apprendi rules under the terms of its state Constitution before the Supreme Court decided Apprendi based upon the U. S. Constitution. I once saw a local case where the sentencing Judge told the defendant in a teacher - student sex abuse case [where the abuse had gone on for many years, and included the teacher having sex with the student in the school during school hours] that if it was up to him he would give the defendant a life sentence, but that he was constrained by the Constitution to only impose the 6 years that the jury had recommended.
Posted by: Jim Gormley | Sep 2, 2024 2:35:08 PM
Not informing juries of their nullification power is bad enough. But it's worse than that. Juries are generally required to swear to render a "correct" verdict, which is interpreted to mean among other things they are swearing not to nullify!
Posted by: William Jockusch | Sep 2, 2024 10:37:08 PM
I would agree that an originalist reading would supports permitting informing the jury and permitting them to decide both the legal and factual questions — in short whether or not to nullify. Judge Weinstein’s opinion in Polizzi addresses this question and offers a robust analysis (originalist and otherwise) of why such jury consideration is appropriate.
Posted by: Jenny Carroll | Sep 3, 2024 7:35:59 AM
In Missouri, if the jury is doing sentencing (i.e. defendant is not a prior offender and does not waive the right to jury sentencing), the parties are allowed to voir dire on punishment as a qualified juror must be able to consider the full range of punishment.
My understanding of jury trials at the time of the Framing was that juries got to determine both the law and the fact. But that works both ways and there was no right to challenge a finding of guilt on appeal based on the sufficiency of the evidence. I don't know many defendants or defense attorneys who would want to get away from the ability to request a directed verdict or a judgment notwithstanding the verdict.
Posted by: tmm | Sep 3, 2024 1:38:41 PM
