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thursday, march 1, 2012
Volume 247—NO. 40
Corporate crime
Jury Nullification
In New York Cases
E
very so often, an item in the news brings up
a debate as old as the nation itself: whether
jurors may acquit a defendant in accordance
with their own sense of justice even if they
believe that the defendant violated the law
as charged. The doctrine, called “jury nullification,”
has a long and controversial history, stretching back
before the Constitution to colonial America and
England.1 Both proponents and opponents of the
doctrine have their own sets of historical examples
to point to as positive or negative, with, for example,
nullification-based acquittals in pre-Civil War prosecutions under the fugitive slave laws contrasted with
subsequent nullification-based acquittals in raciallycharged homicides in the Jim Crow South.
The debate has resurfaced in the New York legal
community recently with the federal government’s
jury tampering indictment of an activist named Julian
Heicklen, who was handing out pamphlets advocating nullification to members of the public (potentially
including those who had been called for jury service)
in front of the federal courthouse in Foley Square.2
Meanwhile, late last year, former federal prosecutor
(and current law professor) Paul Butler published
an op-ed in the New York Times defending Heicklen
and calling on readers, if ever seated as jurors, to
vote to acquit regardless of the evidence in any trial
involving marijuana-based charges.3
Under current law, neither the views in Heicklen’s
pamphlets nor those in professor Butler’s op-ed can
be explicitly heard inside the courtroom. But issues
related to jury nullification repeatedly play out under
the surface in day-to-day criminal defense practice.
These issues are not just the radical claims that
jurors should ignore “bad law” for certain conduct
that they think should not be illegal in the first place,
but more subtle defense themes such as that a particular district attorney’s or U.S. attorney’s office has
improper animus against a defendant (whether on
political, racial, or other grounds), or a prosecution
has been unfairly tainted by inappropriate police
or prosecutor conduct. Judges (and prosecutors)
may take the view that such issues are only for the
court, but many jurors are receptive to notions of
fair play and common-sense right and wrong. There
STEVEN M. WITZEL is a partner of Fried, Frank, Harris, Shriver
& Jacobson. JOHN W. BREWER, special counsel, and SAMUEL
A. MATHIAS, a law clerk, assisted in the preparation of this
article.
is thus a continual struggle as to exactly how far
defense counsel may go in raising such themes
before the jury.
No Direct Instructions
Under current New York federal and state case
law, defendants have no right to have jurors instructed on their power to acquit—even if they believe
justice so requires. Federally, the Second Circuit
has recognized the “power of juries to ‘nullify,’” but
“categorically reject[ed] the idea that, in a society
committed to the rule of law, jury nullification is
desirable.”4 On the state side, the New York Court of
Appeals has similarly determined that jury nullification “is not a legally sanctioned function of the jury
and should not be encouraged by the court.”5 The
Second Circuit has been aggressive in policing what
it perceives to be related issues, such as proposed
instructions to the jury on the sentence a defendant
would receive if convicted, reasoning that any concern by jurors for the real-world consequences of
their verdict could encourage nullification-based
acquittals. In one notable case, the court used the
extraordinary remedy of mandamus to prevent then
District Judge Gerard E. Lynch from providing a jury
with unquestionably accurate information about the
sentencing consequences of a guilty verdict.6
Zealous advocacy does not always mean
taking the most aggressive approach on
potential nullification themes, since that
often may not be on balance the most
effective or ethical approach.
This wide-ranging judicial hostility to the nullification power has also meant in practice blocking
a jury’s consideration of recurrent issues such as
whether criminal sanctions as opposed to another
remedy are necessary or appropriate in a particular
case; whether it’s fair for the government to charge a
particular defendant while declining to charge others
who committed similar acts; or whether the government’s methods of conducting its investigation
and gathering evidence were abusive or inappropriate.
It should be remembered, however, that if jurors
themselves are inclined to nullify and have not been
weeded out at voir dire, there is little a court can do
to stop them.7 The Second Circuit has ruled that a
By
Steven M.
Witzel
juror may not be dismissed from a case even when
the court suspects the juror is intent on defying
its instructions on the law and planning to nullify
(which could result in a hung jury and mistrial if
the other jurors do not take the same course). In
order to protect the secrecy of jury deliberations,
an allegedly nullifying juror cannot be discharged
if the record discloses “any possibility” that the
juror’s position is based on the juror’s view of the
sufficiency of the evidence.8 Effectively, this stringent
rule means that if any empanelled juror buys into a
nullification argument, whether the defense planted
the seed or merely watered it, the prosecution has
no recourse.
Illustrative New York Cases
Case law bearing on nullification-related themes
is rare and case-specific, since opinions are often
only generated when the court disapproves of a
particular defense tactic and the defendant is subsequently convicted. However, the judge in the New
York state case of People v. Douglas9 took the somewhat unusual and helpful step of issuing an opinion
after an acquittal to memorialize his rulings during
trial. Before trial, the judge had denied a motion
to suppress premised on the claim that evidence
secured during the stop and search of a car was the
fruit of improper racial profiling. During trial, the
“race card” was brought forth during testimony as
a reason for the stop. At summation, despite having
been cautioned by the court not to raise the issue
of why the police stopped the car, defense counsel
argued to the jury that the (white) police had pulled
over the (black) defendants “because they just did
not like something about the people in the car.”
The judge considered this an impermissible jury
nullification argument and an improper attempt to
reargue the motion to suppress to the jury, which
would encourage the jury to disregard the evidence
resulting from the stop. Accordingly, the judge gave
a cautionary instruction that the jury must not determine the validity of the stop and admissibility of the
resulting evidence because the court had already
done so. However, the court accompanied its instruction with a reminder that the jury has the right to
judge the credibility of the witnesses, including the
police officers who had made the stop in question.
Ultimately, the jury acquitted.
Reasonable minds might differ as to how clearly
a jury can distinguish in practice between its right,
on the one hand, to consider the credibility of officer testimony possibly tainted by racial or other
thursday, march 1, 2012
bias and its supposed obligation, on the other, to
consider the prosecution’s evidence without regard
to the propriety of an allegedly-biased practice or
the search it was derived from. Acknowledging the
defense’s right to argue witness credibility aggressively may provide an opening to get the theme, if
not the precise words, of nullification before the
jury.10
Defense strategies that cannot be couched as
going to witness credibility but instead require
the jury to hear affirmative evidence in their support may, by contrast, be more easily precluded
as nullification-based. For example, in the Eastern
District case United States v. Gole, a prosecution for
providing fraudulently-inflated pension information,
the court rejected attempts to inject a “good faith”
defense “which appealed to the power of the jury
to nullify” and was not otherwise available under
the substantive law.11
The court considered the defendant’s supposedly
benign subjective intentions—he had allegedly acted
on concerns that his pension would be miscalculated
if he provided truthful information about his outside
income and instead provided false information that
yielded what he considered the correct result—to
be irrelevant to mail fraud liability as long as the
defendant knew that he mailed false documents.
The court barred counsel from introducing evidence
substantiating the defendant’s alleged contemporaneous calculations of what he believed had been
due to him. Despite the court’s ruling, counsel persisted in injecting the “good faith” defense at trial.
The court instructed the jury to disregard defense
counsel’s arguments based on “good faith” and
over objection from the defense, added additional
charging language that the defendant’s “good faith
belief” was not relevant to his guilt or innocence.
Ultimately, the jury convicted.12
A more recent example of the significance over
what evidence may be introduced (and thus argued)
occurred in the Southern District of New York last
year in United States v. Aleynikov.13 A former programmer with a major investment bank was indicted
and convicted under corporate espionage laws for
misappropriating proprietary software so he could
use it for the benefit of a new employer. The defense
wanted to argue that criminal prosecution was overkill, because the bank could have pursued numerous private remedies in civil litigation, including
injunctive relief, sufficient to protect its alleged trade
secrets from being disclosed to its competitors.
The court considered this theme to be irrelevant
to the defendant’s criminal liability and, accordingly,
attempted to keep it from the jury, giving curative
instructions when it was raised in argument and
refusing to permit questioning of witnesses from
the bank as to what civil remedies they had understood might be available and whether they had in
fact sought to pursue them. Ultimately, the Second
Circuit reversed, but it appears unlikely that the
district judge’s refusal to allow this defense theme
will be found to be independently erroneous.14
Alternative Justifications
As described above, prosecutorial claims that
certain evidence should be excluded because it will
only encourage the jury to nullify can be countered
if the defense can articulate a plausible alternative
rationale for admission. The 2005 federal trial of
former Illinois governor George Ryan on corruption charges is instructive.15 Prosecutors sought to
exclude evidence of the government’s elaborate and
expensive investigation that was allegedly conducted
with the political goal to find something with which
to criminally charge the governor. However, the court
ruled that the defense could explore facets of the
prior investigation for the purpose of challenging
the “credibility” of government witnesses. As with
Douglas, the conceptual distinction between legitimate exploration of government witnesses’ motives
and bias, on the one hand, and nullification-type
attempts to make the nature of the investigation
itself a basis for acquittal, may be clearer in theory
than in practice.
Another issue was the prosecution’s attempt to
bar evidence that certain of Ryan’s predecessors in
office had engaged in similar conduct. While rejecting
the notion that “everyone else was doing it” was a
legally valid defense, the court denied the government’s motion because it could conceive of circumstances where such evidence could bear on intent
or help provide an innocent explanation for facially
troubling actions. This contrasts with the Gole case
discussed above, where the court considered the
“good faith” defense being mounted as legally invalid
and irrelevant. Statutes with complicated or subjective state-of-mind elements may provide room for
a creative defense to highlight nullification-themed
reasons why a conviction might seem unjust under
the circumstances.
Conclusion
Regardless of your position in the philosophical debate about jury nullification, New York practitioners need to be aware of the lines drawn by
prevailing jurisprudence and ethics. However, in
our current developed democratic system of selfgovernance, if one objects to laws on the books
or prosecutorial initiatives, or in how “justice” is
being delivered, conceptually the place to change
the system should be in the voting booth through
Under current New York federal and
state case law, defendants have no
right to have jurors instructed on their
power to acquit, even if they believe
justice so requires.
new and accountable legislators, not through jury
room protests. Indeed, similarly situated defendants
should be judged by juries guided by similar legal
principles and instructions. Given the realities of
the political system, however, jury nullification may
continue to play an important role in the criminal
justice system.
But returning to the practical, a defense counsel’s ability to invoke jury nullification themes may
depend on the procedural context. If the defense
argument in question requires specific targeted
testimony or documents to be admitted into evidence so that the nullification theme can be plausibly
presented to the jury, the evidence may likely be
precluded. By contrast, if a theme can be introduced
through general trial testimony or directly in closing
argument based on the existing record, the options
for the prosecution and, for that matter, the court,
may be more limited.
Zealous advocacy does not always mean taking
the most aggressive approach on potential nullification themes, since that often may not be on balance
the most effective or ethical approach. Nonetheless, while it is unlikely that Heicklen’s pamphlets
will be distributed at voir dire anytime soon, there
may be situations when defense counsel can implement a more limited and veiled version of Heicklen’s
vision, in which juries use their own sense of justice to moderate what the judge may tell them the
law requires. The borderline between the sort of
practical flexibility our system needs to be workable and the descent into lawless chaos invoked by
appellate courts that inveigh against jury nullification
issues may be amorphous and at times difficult to
discern, but good lawyering may enable effective
client advocacy while staying on the right side
of the line.
••••••••••••••••
•••••••••••••
1. The history of jury nullification in New York goes back at
least as far as the famous 1735 defense of John Peter Zenger
against charges of seditious libel. The acquittals of Quakers William Penn and William Mead in London for unlawful assembly,
and the subsequent ruling rescinding punishment against the
nullifying jurors, Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670),
are primary authority for advocates of jury independence.
United
States
v.
Heicklen,
No.
2.
10-CR-1154-KMW
(S.D.N.Y.),
available
at
https://www.documentcloud.org/documents/70771-heicklenindictment.html. Oral argument on a wide-ranging motion to dismiss is currently scheduled for March 21, 2012.
3. Paul Butler, “Jurors Need to Know That They Can Say No,”
N.Y. Times, Dec. 21, 2011, at A39, available at http://www.nytimes.
com/2011/12/21/opinion/jurors-can-say-no.html. Many subsequent online comments and published letters to the editor, including from New York lawyers, supported Heicklen’s position
and advocated joining Butler in vowing to vote to acquit any defendant charged with violation of state or federal drug laws.
4. United States v. Thomas, 116 F.3d 606, 614-15 (2d Cir. 1997);
see Sparf v. United States, 156 U.S. 51, 102 (1895) (jury’s duty is “to
take the law from the court”).
5. People v. Goetz, 73 N.Y.2d 751, 752 (1988), cert. denied, 489
U.S. 1053 (1989).
6. United States v. Pabon-Cruz, 391 F.3d 86, 91-92, 95 (2d Cir.
2004); see also United States v. Polouizzi, 564 F.3d 142, 159-61 (2d
Cir. 2009) (similar holding in different procedural posture).
7. In fact, a recent Time Warner Cable commercial demonstrates humorously an all-too-real possibility in the black
box of jury deliberation. See http://www.youtube.com/
watch?v=BWNTyXq3XIQ.
8. Thomas, 116 F.3d at 621-22.
9. 178 Misc. 2d 918, 680 N.Y.S.2d 145 (Sup. Ct. Bronx Cty.
1998).
10. Ethical guidance provides that criminal defense counsel
“should not make arguments calculated to appeal to the prejudices of the jury,” A.B.A. Standards for Crim. Justice §4-7.7, which
can be read to prohibit jury nullification arguments in the vast
majority of jurisdictions where the courts refuse to condone the
practice. See also N.Y. Crim. Proc. §310.10(2) (jury charge should
inform the jury that it may not “consider or speculate concerning
matters relating to sentence or punishment”). At least one bar
ethics committee, however, has endorsed making any good faith
evidence-based argument even with conscious awareness that
the same argument may serve to convey a nullification appeal
to the jury. D.C. Bar Op. 320 (May 20, 2003). For example, Johnnie Cochran’s famous closing argument in the O.J. Simpson trial,
considered a blatant plea for jury nullification by the prosecution
and many observers, was described as “very artfully phrased”
by the trial judge. Christopher C. Schwan, “Right Up to the Line:
The Ethics of Advancing Nullification Arguments to the Jury,” 29
J. Legal Prof. 293, 297-98 (2005).
11. 21 F. Supp. 2d 161, 162 (E.D.N.Y. 1997), aff’d, 158 F.3d 166
(2d Cir. 1998).
12. See also United States v. Blixt, 548 F. 3d 882, 890 (9th Cir.
2008) (no error for court to instruct jury to disregard “blatant
jury nullification arguments” by defense counsel to effect that
case should not have been federally prosecuted); United States
v. Thompson, 253 F.3d 700, 2001 WL 498430 at *16 (5th Cir. 2001)
(no error for court to reject summation attempt to compare defendant’s conduct with that of other uncharged or immunized
witnesses in order to prevent “jury nullification” argument).
13. 785 F. Supp. 2d 46 (S.D.N.Y. 2011), rev’d, No. 11-1126 (2d
Cir. Feb. 16, 2012).
14. The Second Circuit reversed Aleynikov’s conviction on Feb.
16, 2012, shortly after oral argument and mandated an acquittal.
The next day, the Second Circuit revoked its acquittal mandate
and issued an order that an opinion would follow “in due course.”
It would thus appear that the decision will likely be based on the
parameters of the government’s criminal enforcement powers
under the statute.
15. United States v. Warner, 396 F. Supp. 2d 924, 937-38 (N.D.
Ill. 2005). Governor Ryan was convicted and is currently serving
his sentence.
Reprinted with permission from the March 1, 2012 edition of the NEW YORK LAW
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