Norm Pattis posts about a letter he received from a jury foreman a few weeks after the trial, complaining that the jury convicted because it was unaware of its authority to nullify.  Norm muses, what would they have done if they realized that the defendant, acquitted of the top count but convicted of the lessers, would have to do at least 2 years in the can.

Of course, no one ever told this juror that there is a two-year mandatory minimum sentence in this case. Thus, a lenient judge sends my client to prison for two years. I wonder whether the jury would have convicted if they had known the truth?

Other than a capital case, the sentence is never (except in Texas, apparently) a subject for the jury.  Lawyers are prohibited from raising it, mentioning, suggesting it, so that we don’t taint the jury and “divert” them from their job, the determination of guilt.  After all, guilt is guilt, regardless of what sentence the legislature, sentencing commission, judge decides to impose.  To argue sentence is to plead for mercy, without regard to guilt or innocence.

And what’s wrong with that? 

The question of whether the jury, in reaching a verdict, should be aware of the seriousness (or lack thereof) of their decision has been decided against the defendant.  But in doing so, it has removed from the jury one of the fundamental purposes to the right to be tried by a jury of one’s peers.  They are the conscience of the community.  If not for this, it would be nuts to have ordinary people sit in chairs for days, weeks or months on end (except in Texas, where jury trials take 3 hours).  This takes them away from their lives, bores them to tears and requires them to listen to a foreign language (legalese) that means nothing to them.  That’s crazy.

We do all this, and make ordinary people suffer their civic duty, because we need them.  We need them desperately to serve as the buffer to a government that has all the power and all the answers, and who would happily let their agents lock people away without a second thought because, well, they can.

We, the People, can stop them.  The defendant is not on trial. The government is on trial.  You are not here to decide the defendant’s guilty.  You are here to decide whether the government can PROVE the defendant’s guilt.  They already have decided, which is why we are all sitting in this room.  But we have you, the jury, to stop them from locking people away at will.  You are the last hope of society to keep the government honest. 

But then we conceal a critical piece of information from the jury.  We cannot tell them what will become of a defendant should they find one way or the other.  The law says that should not matter.  But it does.

First, the jury always possesses the power to nullify a prosecution.  A dirty little secret that we also prohibited from mentioning, the jury never has to explain its verdict.  If it decides it doesn’t support what the government is doing, it can just say no.  Jurors don’t often know that they have this power, and are instructed that they cannot do this, but they can.  And no one, ever, can stop them.

But finding guilt is a relative process.  The more serious the consequences, the more seriously we take the responsibility.  We can decide whether, and how, to trade off our gut feelings for a life in prison.  When the jury thinks that a conviction, especially a lesser offense as in Norm’s case, won’t have particularly serious ramifications, they may be far more inclined to go for a compromise verdict.  Will they do the same when they realize that it is no laughing matter?  Will they do the same when they realize that their casual compromise means a person goes to jail for years?

If the answer to the question is yes, then there’s no harm in letting the jury know.  If the answer is no, then the legitimacy of the verdict is in doubt.  Either way, the ramification of a decision is part of the mix, something that jurors think about but lack the necessary information to make anything beyond a blind guess.  And too often, they miss the mark by quite a bit, leading them to wrongly assume that a conviction on a crime that they don’t take too seriously is just no big deal.  Bad decision by the jury?  So what, it’s not like it’s murder.  But it may result in the same sentence.

For all those who argue about the jury knowing the “truth”, I submit that this is a critical part of the truth that the jury is now denied.  You want a legitimate verdict?  Then let the jury give some thought to the consequences of their decision.  There’s just no sound reason to deny the conscience of the community the ability to make its decision based on the full panoply of influences, and with full knowledge of its power.