That's exactly what happened last month when a divided
three-judge panel of the U.S. Second Circuit Court of Appeals rebuked U.S.
District Judge Stefan Underhill, who presided over what he called "a
shocking case" in his court "that calls for jury nullification."
The prosecution that shocked Underhill was a dubious federal
"child pornography" case growing out of a state statutory rape case.
It was summarized by the feds themselves in a U.S. Attorney's Office press
release, which alleges that defendant Yehudi Manzano "sexually
assaulted a 15-year-old female victim in Connecticut, video recorded the
assault with his cell phone, and uploaded the video to his Google
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 about the video.
How did the feds get jurisdiction in what would normally be
a state criminal case?
The feds chose to pile on a questionable prosecution for
acts already being addressed in the state courts. "Apparently, the mere
fact that the recording equipment was manufactured outside Connecticut is
sufficient to meet the interstate commerce requirement of the [child
pornography] statute," as Judge Underhill marveled.
You would think a federal judge would have learned by now
that the mere invocation of "interstate commerce" is the legal
equivalent of muttering "Beetlejuice" three times, causing federal
lawyers in ill-fitting suits to materialize amidst clouds of sulfurous smoke.
And materialize they did, with high stakes for the
defendant.
"The charge of production of child pornography carries
a mandatory minimum term of imprisonment of 15 years and a maximum term of
imprisonment of 30 years, and the charge of transportation of child pornography
carries a mandatory minimum term of imprisonment of five years and a maximum
term of imprisonment of 20 years," the U.S. Attorney's press release
notes.
Such a sentence would be in addition to the one to
20 years in prison faced by Manzano for sexual
assault in the second degree, a class B felony in
Connecticut, for sex with a 15-year-old who was legally incapable of consenting
to the relationship.
Manzano's attorneys argued that the feds were overreaching
and that their client should be allowed to inform the jury of the potential
sentence and argue for jury nullification. Judge Underhill agreed.
"This is a shocking case," Underhill wrote.
"This is a case that calls for jury nullification. … I am absolutely
stunned that this case, with a 15‐year mandatory minimum, has been
brought by the government. … I am going to be allowed no discretion at
sentencing to consider the seriousness of this conduct or the lack or
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."
Prosecutors promptly filed an emergency
motion seeking a writ of mandamus—an order from a higher court that
would bar Judge Underhill from permitting the defense to inform the jury of the
potential sentence and to argue in favor of jury nullification.
Given the judicial system's strong aversion to loosening the
puppet strings judges and prosecutors routinely fasten on jurors, it's no
surprise that two of the three appeals court judges hearing the case sided with
the prosecution.
"Our case law is clear: 'it is not the proper role of
courts to encourage nullification,'" Judge Richard J. Sullivan wrote in
a ruling joined by Judge Denny Chin "As a practical matter, there is no
meaningful difference between a court's knowing failure to remove a juror
intent on nullification, a court's instruction to the jury that encourages
nullification, and a court's ruling that affirmatively permits counsel to argue
nullification."
The appeals court did not agree to bar Underhill
from allowing sentencing information to be presented to the jury, since there
are potentially grounds other than nullification that could justify its
introduction.
More surprising is that the decision was close, with Judge
Barrington D. Parker opposing writs of mandamus regarding both sentencing and jury
nullification.
"An especially unsettling aspect of this case is that
the record the prosecution presented to the District Court and to this Court is
barren of anything that would explain, much less justify, the prosecutors'
decision to file the most serious child pornography charges available to them
against a man who made a single video which no one else ever saw and which he
then attempted to erase," Judge Parker argued in his dissent.
"Faced with the Government's charging decision, Judge
Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted,"
Parker continued. "But he is not a piece of Steuben glass. Instead,
witnessing what he perceived to be abuse, he pushed back. I believe that most
conscientious jurists would have done the same. I have no difficulty concluding
that Judge Underhill was right to do so. … I respectfully dissent from the
majority's grant of a writ directing the District Court to allow no arguments
for jury nullification."
Those are strong words. But, since they're on the losing
side, Manzano won't be allowed to argue in his defense in favor of jury
nullification. His trial will feature jurors informed that they must abide by
the federal government's legal-contortionist interpretation of the law—though
they may be told about the draconian potential sentences in the case.
But Judge Parker's dissent, following Judge Underhill's
willingness to entertain jury nullification arguments in his court, have
provided dramatic fodder for headlines.
A public pissing match between federal prosecutors and judges features in news
stories exposing the public to judges' doubts about the wisdom and humanity of
the criminal justice system.
An appeals court decision allowing Manzano to argue in favor
of jury nullification would have been a better outcome in this case—short of
the feds entirely leaving the matter to the state. But despite the loss, we're
getting an eyeful of how the system works, and how responsible jurors can bring
otherwise-lacking judgment and mercy to courtrooms.
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