When Judges Overreach 

Timothy Lynch is director of the Cato Institute's Project on Criminal Justice. 

Fearful that more and more citizens are becoming aware of the doctrine of jury nullification, judges have started policing jury trials with greater assertiveness than in years past. This year, the California Supreme Court will decide whether a trial court violated a defendant's right to trial by jury by dismissing a deliberating juror because that juror did not intend to follow the law on a particular charge. The case, People v. Williams, raises the question of how far a trial judge can go before a jury verdict is deemed to be coerced by the bench. 

Eighteen-year-old Arashiek Wesly Williams was charged with committing numerous crimes, including rape, against his former girlfriend. At trial, the young woman testified that she was compelled to engage in sexual intercourse because of Williams's use of force and threats. Williams took the stand and testified that the two had engaged in consensual intercourse. Because Williams admitted to having had sexual relations, the trial judge decided to instruct the jury on the offense of statutory rape -- since the woman was only 15 years old at the time. 

Shortly after the jury retired to deliberate on guilt or innocence, the foreperson sent a note to the trial court complaining that one of the jurors believed the statutory rape count was unjust. The trial judge brought the named juror into the courtroom and asked him if he was having difficulty with the court's legal instructions. The juror told the judge that he was willing to follow the court's instructions pertaining to the various charges but that he had some qualms about the statutory rape offense. The juror said that he could not condemn "a young man for the rest of his life for what I believe to be a wrong reason." 

Finding that belief to be unsatisfactory, the trial judge discharged the "holdout" juror and replaced him with an alternate juror. No one was surprised when the jury later announced its "guilty" verdict on the statutory rape count. The issue that is now pending before the state supreme court is whether the trial judge's interference with the jury's deliberations violated Williams's constitutional rights. 

A proper legal analysis of a trial judge's authority in such circumstances should begin with first principles. The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . ." The very existence of that amendment tells us something important. As Justice Antonin Scalia has pointedly observed, "The Constitution does not trust judges to make determinations of criminal guilt." That truth is so humbling for the men and women in robes that it is difficult for many of them to fully accept. And it is precisely because of that bias that we must jealously protect the constitutional right to trial by jury from possible usurpation by judges. 

The first principles that undergird the jury trial proceeding in criminal cases are so long-standing that many people have lost sight of their original function and significance. For example, a judge cannot stop a criminal trial and direct a verdict for the state even where there is overwhelming evidence of guilt. In America, such a move would be seen as high-handed and improper. Even if the person on trial confesses on the witness stand, the judge does not have the authority to pull the plug. The jury must still retire, deliberate (however briefly) and return with its verdict. By strictly limiting the power of the judge, the jury's prerogative to bring in a general verdict of "not guilty" is preserved. 

Similarly, a trial judge does not have the authority to override a jury verdict of acquittal -- again, no matter how conclusive the evidence of guilt. The principle that a trial judge may not interfere with a jury's verdict of acquittal is universally acknowledged and accepted. 

What's important to note here is that these mutually reinforcing first principles are not the result of mere happenstance. The limitations on the power of the trial judge were purposely designed to give the jury a prerogative of lenity. That prerogative was to be unreviewable and unreversible by state functionaries. As Justice Oliver Wendell Holmes once noted, "The jury has the power to bring in a verdict in the teeth of both law and facts." 

Here, then, is the crux: If a body of 12 jurors can decline to follow the instructions of the trial judge and render a verdict according to its collective conscience, then a lesser number of jurors (whether 9, 3 or even 1) should be able to cast a vote according to their conscience, without interference from the trial judge. 

Now it is true that jury service does entail a duty to deliberate. Any juror who is unable or unwilling to deliberate should be discharged. But no juror should be dismissed because of a conscientious refusal to cast a vote for conviction.
 
 

This essay originally appeared in the January 24, 2000 Los Angeles Times.

© 2000 The Cato Institute