A Stitch in Haste

In my last post on jury nullification, I noted the following:

[I]f, through no subterfuge of my own (i.e., I did not lie my way onto the jury), I suddenly found myself serving as a juror and witnessing a manifestly unjust prosecution (which would more likely involve wrongful conduct by the prosecutor or judge than a "bad law"), then I might very well vote to nullify the trial. But that is an altogether different question from traditional jury nullification of a law.

This fact pattern, in reverse, is something close to what I had in mind:

Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided -- chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.

The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long.

It attempts to reverse the long-standing rule that jurors not be given sentencing information so they can decide guilt or innocence, without letting the potential punishment color their thinking.

This is all very wink-wink legal theater by Weinstein, who is known for making rules up as he goes along. Just as modern juries are only supposed to decide questions of fact and not to second-guess the propriety of the law itself, so too are they not supposed to consider the potential penalties a criminal defendant would face. The potential sentence a defendant may face is also part of the law and not "evidence" to be weighed by the jury.

Weinstein knows this full well -- every lawyer does. But in order to grab a headline he self-righteously decides to declare a mistrial based on a perfectly incorrect reading of the law: that every jury should always know what potential sentence a defendant faces -- or at least the most onerous sentences.

Weinstein's unprofessional antics were of course pro-defendant. But judicial or prosecutorial misconduct can also be anti-defendant. And in that instance, where I did not lie my way onto a jury, was attempting to perform my function in good faith, and was suddenly blindsided by an egregious miscarriage of justice, then -- and only then -- might I indeed choose to nullify the trial. Unlike an unjust law -- of which the defendant had or ought to have had fair knowledge beforehand -- an unjust trial is an abomination that one cannot anticipate or incorporate into one's decision-making calculus. It is outside the system of justice in a way that an unjust law is not. It is a different, and more malignant, kind of governmental abuse.

When one party breaches a contract, the other party is typically not required to continue performing his end of the bargain. The first breach destroys the contract itself and therefore all subsequent duties under the contract. To the extent that a trial is a "judicial compact," and given a precedent breach of that compact by the judge or prosecutor, the duty of the juror to honor the compact terminates, and no juror has any ethical obligation to fulfill any original duty under the original judicial compact.

The case is U.S. v. Polizzi, No. 06-CR-22 (E.D.N.Y, April 1, 2008) (PDF - 288 pages)

(Via Sentencing Law & Policy.)

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Meanwhile:

In a legal victory for the tobacco industry, a federal appeals court on Thursday threw out an $800 billion class-action lawsuit on behalf of smokers who said they were misled that light cigarettes were safer than regular ones.

Plaintiffs' lawyers had wanted to represent potentially millions of people across the country who had smoked light cigarettes, but the court found that it was impossible to tell why smokers chose light cigarettes, so the group could not be treated as a class. Instead, smokers will have to sue individually.

"Individualized proof is needed to overcome the possibility that a member of the purported class purchased lights for some other reason than the belief that lights were a healthier alternative," the ruling said.

Of course, every second-year law student knows that "commonality" is a requirement for certification of a class in a federal lawsuit.

Guess who didn't know it -- or didn't care:

The court decision was a setback for lawyers who thought that the ruling approving the class, issued by Federal District Judge Jack B. Weinstein in Brooklyn in September 2006, could have opened a new avenue for litigation against the tobacco industry, exposing cigarette companies to potentially large damages.

I don't believe in "activist judges." But there certainly is such a thing as a rogue judge. Better to be correct in two pages than wrong in 288 pages. Better to apply uncomplicated and well-settled principles of federal civil procedure correctly than to grab a gratuitous headline at the expense of an industry that sells a legal product.

At least the Second Circuit knows when it's proper to nullify.