Via Doug Berman, the amici brief in United States v. Polizzi is a remarkable piece of work.  This is the case where Eastern District of New York Judge Jack Weinstein, after receiving a guilty verdict in a kiddie porn case, decided that he had erred by his failure to inform the jury that their verdict would require him to impose a mandatory minimum prison sentence, 

As discussed here, Judge Weinstein concluded that denial of this information to the jury, the buffer between the government and the individual, impaired the defendant’s rights under the 6th Amendment.

The National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums, were granted leave to appear amici curiae, with the brief prepared by Wilmer Cutler Pickering Hale and Dorr.  The meat of the brief is a very well developed and documented argument that the right to a jury, as understood and demanded by our forefathers, particularly the anti-federalists who insisted on inclusion of the Bill of Rights, that was fully aware of the penal consequences of their verdict. 

As this colonial practice and understanding make clear, the right to a jury trial embodied in the Sixth Amendment assumes, as an essential characteristic, that the jury would possess all accurate available information about crimes and punishments that will aid its decision-making. See, e.g., United States v. Glick, 463 F.2d 491, 492, 494 (2d Cir. 1972) (judges must correct possible juror misimpressions of sentencing rules; conviction vacated where court answered “yes” to the jury’s query, “[c]an the jury in its verdict recommend leniency?”). Such information is critical if “an open and public discussion of all causes” submitted to the jury for verdict is to occur.

The brief spans a broad array of colonial sources to show that juries then, as opposed to now, realized the practical consequences of their decision, and were thus able to make choices, such as partial verdict, in order to keep the hot and panting prosecutors under control.

All of this begs a question, as I read the fascinating brief, whether the real issue is whether the court has the authority to instruct the jury as to the existence of mandatory minimum sentencing for a particular offense, or whether the defendant has the right to a jury that possesses all the information required to render a proper verdict.  If the former, as argued in the brief, then the decision would be left to the judge as to whether, and to what extent, a jury should be told of sentencing consequences.

If the latter, however, then it would seem that the authority to inform the jury is not the province of the judge at all, but rather the defendant and, perhaps, the jury.  if so, then defense counsel should be able to decide whether to inform the jury that a guilty verdict will put a defendant in prison for some prolonged length of time or some mandatory minimum period. 

I had a chat about this yesterday with Richard Willstatter, who is the co-chair for the NACDL amicus committee (and my lineal successor once removed as amicus chair for the NYSACDL) and posed the question whether the same arguments used here would apply with equal force to the defense’s authority to inform, and thereby use, the sentence as part of its argument to the jury.  Richard didn’t know the answer (nor do I), but found it a very interesting proposition.

While this point is neither applicable nor involved in the Polizzi case, and extends the historical argument into other areas that may well push a federal judge to the breaking point, my read of this brief suggests that there is good reason to believe that the defendant’s right to a jury under the 6th Amendment includes the right to a jury that possesses a full appreciation of the consequences of its decision and, most importantly, is not operating in a vacuum or under a misapprehension.  The only way to accomplish this is to make sure the jury is aware of the sentencing consequences of its verdict.