When Eastern District of New York Judge Jack Weinstein took 236 pages to explain in US v. Polizzi why he had failed to fulfill his duty as a judge by instructing the jury as to the sentencing consequences of its decision, few expected it to hold up.  It’s not that he wasn’t right about the problem, jurors denied an understanding of the full picture of what they are doing by being told of the mandatory minimum sentence that would flow from their verdict, but that precedent was strongly against him.

And when the Second Circuit issued its decision reversing Judge Weinstein’s vacatur of the verdict and grant of a new trial, it came with two elements that turn this reversal into a striking vindication of Judge Weinstein, as well as some significant benefit for Polizzi as well.

As to Polizzi, who was convicted of 12 counts of possession of child pornography, resulting in sentence stacking that would require the imposition of a 5 year mandatory minimum sentence per count, the Circuit held:

Because the defendant’s possession as charged in the indictment constituted a single unit of prosecution and because the district court erred by granting defendant’s motion for a new trial on the counts charging receipt of child pornography, we vacate the April 9, 2008 order of the district court granting defendant’s motion for a new trial and remand this case to the district court to vacate all but one of the possession convictions and for further proceedings consistent with this opinion.

This is a huge functional change, holding that this possession was a”single unit” despite the government have charged it separately in twelve counts, thus fundamentally altering the government’s ability to manipulate the sentence by the manner in which it indicts.  This appears to signal that smurfing counts, breaking up a crime into components and charging each separately, as if an independent crime that requires an independent mandatory minimum sentence, will not longer be tolerated.  The Circuit has taken back the authority to determine the crime, and hence the sentence, from the government.  This is huge.

But it’s not all that the Circuit had to offer in its reversal.  While it did not sustain Judge Weinstein’s holding that it was error to deny the jury instructions as to the mandatory minimums to be imposed, it nonetheless approved of the trial judge, in his discretion, doing so.

[W]e do not conclude, as the government urges, that a district court may never instruct the jury on an applicable mandatory minimum sentence. Rather, without deciding whether it would have been within the district court’s discretion to instruct the jury on the applicable mandatory minimum sentence in this case, we find that the district court acted beyond its proper discretion when it ordered a new trial at which the jury would be instructed on the applicable mandatory minimum. The court submitted the case to the jury without instructing the jury on the mandatory minimum sentence, a course that was certainly within its discretion and the jury rendered a verdict upon the error-free trial. Absent a strong justification for redoing a properly conducted trial, the interests of finality, as well as respect for the jury’s verdict, counsel against requiring retrial.

The rationale, of course, was that the failure to do so, it being a discretionary decision, did not render the trial infirm, thus entitling the defendant to a new trial. On the other hand, had the judge chosen to do so, that would have been fine as well, and within the judge’s discretion.  This too is huge.

It appears that judicial antipathy toward mandatory minimums is far more pervasive than expected, sufficient to push precedent to the limits (and maybe beyond).  This is an outstanding result, putting the political grandstanding of mandatory minimums to the test of a jury’s verdict.  No longer will it be deemed as required that juries be told not to worry their pretty little heads with such details as sentence, but the decision will be left to the sound discretion of the trial judge.  Sure, that could be the rub, but at least it’s now an option.

While those who have a finer appreciation of the slavish adherence to precedent may find this decision disturbing, not so much because they disagree with its policy but because stability is an end in itself, the Second Circuit’s reversal of Judge Weinstein’s order, but approval of his ideas, could be one of the most significant improvements in jury trials in a very long time.

Imagine.  A jury being told the truth, the whole truth and nothing but the truth.  For once.

H/T Doug Berman and Orin Kerr