Judge Jack Weinstein is a legend in the Eastern District of New York. Uncowed by the powers above him, he has long bowed to no one and stood his ground on what he believes to be right and wrong. Someday, books will be written about him, as he is one of the few who was unafraid to use his authority to do justice.
In his magnum opus, a 236 page decision (plus a 50 page addendum) in US v. Polizzi, Judge Weinstein held that he failed the defendant by not informing the jury that a conviction would subject him to a mandatory minimum sentence. But he had much more to say than just that.
Judge Weinstein considered the role of the jury in our criminal justice system as the buffer between government and individual. He came out on the side of the jury. As quoted by Orin over at Volokh,
Perhaps the issue is as well summed up as it need be by quoting briefly from Professor Roscoe Pound and Judge Learned Hand. Pound referred to jury nullification as “the great corrective of law in its actual administration.” Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12, 18 (1910). And Learned Hand declared that nullification supplies the necessary “slack into the enforcement of law.” United States ex rel McCann v. Adams, 126 F.2d 774, 776 (2d Cir. 1942). It allows the jury to temper the law’s rigor “by the mollifying influence of current ethical conventions.” Id.; see, e.g., Andrew J. Parmenter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L. J. 379, 426 (2007) (providing other supporting citations); Appendix A, infra.
In Harry Kalven, Jr. and Hans Zeisel’s comprehensive and still valid study, The American Jury (1966), the authors concluded that in the relatively rare cases where the jury reaches a “different conclusion from the judge on the same evidence, it does so not because it is a sloppy or inaccurate finder of the facts, but because it gives recognition to values which fall outside the official rules.” Id. at 495. “It . . . will move where the equities are. And where the equities are at any given time will depend on both the state of the law and the climate of public opinion.” Id. See also, e.g., Valerie P. Hans, Judges, Juries, and Scientific Evidence, 16 J.L. & Pol’y 19, 23 (2007) (“[M]any disagreements [between judges and juries] are explained by the fact that compared to judges, juries appear to require a stronger case by the prosecution to convict the defendant; or by the fact that juries infuse community notions of justice into their verdicts.” (citing, inter alia, Kalven and Zeisel, supra)). Above all, the experience of trial judges is that the jury is among our most conservative institutions. When in doubt we should trust its judgment, as did those who adopted the Sixth Amendment.
Notably, this comes on the heels of Bennett’s fascinating discussion of jury nullification (making me wonder if Jack Weinstein reads Bennett regularly) as well as Gideon’s discussion of what else the jury should be told to flesh out the full force of public influence.
In his consideration of Judge Weinstein’s decision, Orin, with his lawprof hat firmly in place, finds it wanting:
The most obvious difficulty with Judge Weinstein’s decision is that the perceived spirit of the Supreme Court’s latest decisions doesn’t trump otherwise binding precedents simply because older precedents may be in some conceptual tension with new cases. See, e.g., Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). And even if they did, I don’t see the inconsistency between the new Sixth Amendment decisions and the traditional rules on what the jury is told about sentences.
Of course, this was not a decision to be read with a pointy hat on one’s head. That’s the hat one wears when blindly affirming precedent, never to be changed once carved in stone.
One has to assume that Judge Weinstein realizes that his decision will not be embraced by the Second Circuit, with a rousing chorus of Kumbaya following oral argument. Judge Weinstein is a brilliant jurist, but more importantly, a fearless one. He’s been around long enough to have gotten beyond the desire to climb the ladder of judicial importance, and now seeks only to do whatever he can to make people think. He knows the harm the law can do, and is trying, in his own way, to change it.
For those who criticize judges for activism, Judge Weinstein is unlikely to be their model of the perfect judge. For those who are slaves to stare decisis, this decision is going to make their hair stand straight up. But for those who believe that Congressional micromanaging of the criminal justice system to meet some politically valuable vision of an acceptable tyranny of the majority, who are happy to do as much harm as necessary to those who bring inadequate political clout to the table, and for those who continually seek to find a more fair and just system despite its inherent inadequacies, Judge Jack Weinstein is a hero.
There is little likelihood that smaller minds with narrower visions will find Judge Weinstein’s decision persuasive or legally fulfilling. But that wasn’t the judge’s point. At least he got some people thinking, and so he accomplished his goal to some extent. Hopefully, more people will learn of this decision, a discussion will ensue, and Judge Weinstein’s effort will not have been in vain.