Jay Michaelson at the Daily Beast questions why we’re all so focused on the wrongs committed by police while ignoring prosecutors gone wild.
Almost nothing is being done to systematically fix prosecutorial misconduct despite multiple avenues available for reform and bipartisan agreement that there’s an epidemic on our hands. But, let’s face it, convicted criminals (even wrongfully convicted ones) don’t play well at the polls.
Of course, it’s not as if prosecutorial misconduct hasn’t be the subject of a post or two here, or maybe a few thousand, discussing deep systemic problems, conflicted incentives and political resistance to change, but we’re just lawyers. What would we know about stuff like prosecutorial misconduct when it can be addressed by dilettantes with only the most superficial grasp of the mechanics of the legal system?
At Volokh Conspiracy, a wild, mud-slinging brawl broke out between Ilya Somin and Orin Kerr, stemming from Instapundit Glenn Reynolds’ USA Today op-ed in favor of jury nullification rather than relying on the kindness of prosecutors.
If you are a member of a jury in a criminal case, even if you think the defendant is guilty of the crimes charged, you are entirely free to vote for acquittal if you think that the prosecution is malicious or unfair, or that a conviction in that case would be unjust, or that the law itself is unconstitutional or simply wrong. And if you do so, there’s nothing anyone can do about it.
Judges and prosecutors know this. But they don’t want jurors to know it.
I know, it sounds friggin’ wonderful when you put it that way. Much like your typical plea allocution, where the judge recites the litany of constitutional rights to which every defendant is entitled, making the mountain the prosecution must climb to obtain a conviction sound so tall that no one could ever surmount it. And yet they do. All the time. How is that even possible?
As with almost every fairy tale, it’s all in how the story is told. This is the unspoken jury nullification discussion in the back room, when deliberations are untethered from the facts and law:
Juror 3: Wow, this crime is just horrible, awful.
Juror 7: Horrible. And the defendant is just as awful. A terrible human being. Can you imagine him knocking on your door? [Shudder.]
Juror 10: But, you know, they really don’t have the evidence to prove he did it. I mean, that hole was big enough to drive a Mack truck through.
Jury Foreman: True, but do you want to see that guy on the street again? Society would be much better off with him behind bars for the rest of his life.
Jury, in unison: Agreed. Guilty!
Discretion cuts both ways, an inconvenient fact that jury nullification advocates seem to forget.
Or the opposite discussion, where the jury, as conscience of the community, decides to let a guilty defendant walk free, but only because he’s white, the guy he killed was black, and they’re flaming racists. But could it happen in real life? Two words: Emmett Till. Jury nullification isn’t necessarily the panacea the fantasy suggests.
But, as Orin argues, is the prosecutor better positioned to exercise discretion than the jurors?
We might disagree with a prosecutor’s decision, of course. But the prosecutor at least has access to the information needed to make the decision.
Jurors usually don’t have that information. Jurors are not told what they would need to know to decide what is just. We keep such information away from jurors to help ensure a fair trial and preserve other values in the criminal justice system.
Jurors don’t have a defendant’s prior criminal history, or evidence that’s been suppressed, or how they fit within the ecosystem of criminality. It’s one thing to acquit a guy who sold a dime bag of weed because you’re generally against the criminalization of marijuana, but would it change your mind if you learned that he had 24 priors, including sale of heroin to minors, and still sold drugs?
Second, jury discretion is less democratically accountable than prosecutorial discretion. Criminal prosecutions are democratically accountable in two ways. First, before the crime occurs, the elected legislature must enact a law saying that, in general, the conduct should be punished. Second, after the crime occurs, elected executive officials and their employees must make a judgment that the specific conduct by the specific individual merits prosecution.
Trust your politicians, because we elected them? Trust your prosecutors because if they fail to do the public’s bidding, their patrons won’t be re-elected? That’s one of those theoretical views that only an academic can love, or say without laughing. The electoral process has proven a remarkably ineffective check on any specific issue, criminal justice included, both because the public is functionally clueless and because people vote their primary personal concern, even if the candidate sucks on 100 peripheral issues.
In other words, the likelihood of any political candidate paying at the polls for terrible prosecutorial discretion is essentially non-existent.
Raising a number of points in reply, Ilya notes:
[P]rosecutors are often rewarded based on conviction rates. That may incentivize them to pursue cases that are morally dubious, but easy to win, because there is little question that the defendant did in fact commit the offense in question. Jurors don’t suffer from this type of perverse incentive. Unchecked discretion by unrepresentative prosecutors is particularly dangerous when the scope of the criminal law is so broad that almost everyone violates it at one time or another.
This harkens back to the title concept of Harvey Silverglate’s Three Felonies a Day, and is not only a reflection of the public ignorance of law and policy that allowed so many of these problems to exist, but a tipping point in criminalization where, when a person is seated on a jury and forced to focus on what democracy hath wrought, the check on power is most needed.
But then there is the trench lawyer’s perspective, which isn’t well reflected in either Orin’s or Ilya’s argument. Prosecutors are people, and some are more worldly while others are insular, some have a working sense of mercy and proportionality, while others are just mean-spirited prigs who would hang anybody they could.
To speak of prosecutorial discretion as a solution is to engage in as much of a fantasy as those who think jury nullification is the answer. The reality in the trenches is that even if all the stars align, a fair-minded prosecutor, a neutral judge, a competent defense lawyer, honest cops, sound evidence and a neutral jury, chances are still a shot in the dark as to whether the outcome will be (and I hesitate to use this meaningless word) just.
Chances are the defendant will still be convicted no matter who is given the discretion to put a stop to a prosecution. We have a system designed to convict people, not to test whether they’re guilty, and most people are good with that. As Michaelson noted, “criminals,” even the innocent ones, don’t play well at the polls. They don’t play well in the courtroom either.
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But isn’t that the problem with anything ??
It’s never perfect. I’ve read cases where it should have been used but wasn’t, & of course, of cases where it was used & was just bewildering as to why it was..
I look at cases, read decisions, & what I see is chaos.. & this overwhelming need to make sense of it. And that’s just never gonna happen..
Nullification is a tool that jurors need to at least know that they’re able to use.. & not just say ‘OK’ to instructions handed to them.. sure at times they’ll get it wrong, but maybe they’ll start to get it right if at least they know about it, which I’m pretty sure if it’s brought up in the courts, there’ll be objections & much gnashing of teeth..
Why ??
Why are people arrested in front of the courts for handing out pamphlets about nullification ??
Tampering with a Jury ?? .. by informing them ??
whether or not its used correctly is not for anyone to judge but the jury sitting in on that case.. period. And just like in the hundreds of others jury decisions that I like or dislike, I, the prosecutors, & the judges have to live with it..
I’m just thrilled it is being talked about..
You sound as if you’ve been overloaded to the point of head explosion. Tough nuggies. This is reality, and it’s messy. Tolerance for ambiguity is one of the foremost qualities needed to practice criminal law. Not everyone has it.
And whether jury nullification advocates should be prosecuted for tampering isn’t the subject of this post. Focus.
if I may,..
Yes, my head explodes when My Lawyer can’t even mention Nullification in a court.. or mention the fact that juries can vote their conscious & not based on the instructions given.. (which means they can ‘Disobey’ a judges orders to the jury..) No one is even allowed to talk about it.. & yet it’s a known aspect of any trial.. it can happen.. but yet, mention in defense of a client in front of a judge..
but of course, when the jurors follow instructions, they always get it right .. (Snicker!..Guffaaw!!)..
Here’s a dirty little secret. When you talk to the jurors after a verdict, it’s almost (not always, but almost) always the case that they reached their verdict for the wrong reason. It’s almost always with gravity and sincerity, but they almost always missed the critical issue or evidence in the case.
And you want to talk about heads exploding?
No question you have enough anecdotes for them to start stacking up into real data, which trumps my paltry collection. Nonetheless..
As a juror on a murder trial, I heard a lot of evidence about how the business that was co-owned by the deceased and the defendant was struggling and it was very stressful all around. But when we were in the room talking to the lawyers and judge after the trial, I asked the prosecutor why he didn’t bring up the buy-sell life insurance agreement between the deceased and the defendant. He just blinked at me and said he didn’t notice it in all the evidence…
Well, at least there weren’t any Brady problems with that little tidbit.
Heh. How would a prosecutor know of such things? It’s not like he’s ever run a business, or done anything but prosecutor. And judges too. Yeah, I got stories.
well.. what the hell do I say to that..
I’ve seen that in a few documentaries about people convicted & then exonerated.. & why the jury chose to convict..
I can only imagine.. & yet I can’t..
you guys have to live this.. and no I can’t imagine having to live with that.. wow
So No, I can’t really put myself in your shoes.. I can try, but, it just doesn’t work..
No fair! It should be against the rules to talk about jury nullification, prosecutorial misconduct, and a system designed to convict all in one post until someone out there in never-never land writes the mother of all grand jury posts or better yet a book.
Citizens “actively”, asking a few educated questions of their friendly neighborhood prosecutor is the definition of participating in their civic duty, or whatever the heck people call it these days, wouldn’t-ya- think?
Not preventing a few billion of these rather depressingly operatic trials and pleas deals to get off the ground in the first place is a travesty in and of itself. Never mind…dammit all anyway!
P.S. Cute title. Not very creative but cute nonetheless.
Cute? That’s pretty mean-spirited of you.
Well, I did think your reference to posting a few thousand times here about prosecutorial misconduct, although understated, was pretty good.
Cute wasn’t the thought that came to mind, but it’s like that song you can’t get out of your head.. I’m stuck with it..
I have been prescribed some drugs a time or two that can take that feeling you are having to some pretty interesting places Wrongway, and some others that will bury it so deep that you might have a tough time remembering anything about your entire day.
Just saying….But a “cute” title from an SJ post rolling around in your brain can have some pretty serious consequences. You better take that shit seriously if it doesn’t go away by lunchtime I would consult your physician.
I called the Doctor..
he said, “I’m Doomed”..
“It’s one thing to acquit a guy who sold a dime bag of weed because you’re generally against the criminalization of marijuana, but would it change your mind if you learned that he had 24 priors, including sale of heroin to minors, and still sold drugs?”
Would that knowledge change my mind on convicting him of selling $10 of pot? No. Should it? His past conduct doesn’t change what he’s currently being tried for.
Too bad you never had a chance to meet my mother Stephen!
Your mother is named Stephen? That explains a lot.
That’s pretty mean-spirited of you.
is this macro or micro aggression ??
my feelz as a bystander is curious..
Examples like this are used because thoughtful people will recognize that jurors could go either way. On the other hand, pathological narcissists or blithering idiots will react differently, that either their vote is of such grave importance that they feel compelled to announce it in a comment or that it’s inherently the only right view because it’s theirs.
Occasionally, a binary thinker will do the same, wholly unaware of the fact that it’s an exercise in ambiguity, because they have no tolerance for ambiguity. No matter what the reason, it’s a waste of bandwidth because it means nothing to anyone else, except that it raises the question as to the commenter’s reason for enduring the math question to express his or her opinion.
In the Colorado Method, binary thinkers are all 10’s.
I love math jokes.
Stop me if you have heard this one. Three algorithms go into a bar…
How about, there are 10 types of people, those who understand binary and those who don’t.
I heard there are two types of people: those who can extrapolate from incomplete data.
These were math jokes.
Well, YMMV, but I always find it amusing/disconcerting/normal behavior when a marketing guy builds a hockey-stick graph from a single data point. I never touch their equations, because I’m pretty sure where they came from.
An infinite number of mathematicians walk into a bar. The first orders a beer. The second orders half a beer. The third order a quarter of a beer. The bartender pours two beers and says, “You’re all idiots.”
You win. That was great.
I think that I misunderstood your intent in asking the question. I thought you were using that as an example of where knowing about prior convictions would correctly influence jurors since “[i]t’s one thing to acquit a guy who sold a dime bag of weed because you’re generally against the criminalization of marijuana” so it must be another thing to acquit against the backdrop of the 24 priors. That would be sloppy reasoning, hence my comment.
First, jurors aren’t required to engage in logic. Sloppy reasoning is just as permissible in jury nullification as sound reasoning.
Second, it’s not sloppy reasoning at all. A juror may well be inclined to be against the criminalization of marijuana, as a general premise, but recognize that it’s illegal and there is a material difference between a person who sells something they don’t believe to be evil and a person who’s career is devoted to selling illegal substances, whether very dangerous or benign, thinking only of his personal financial gain without any concern for the welfare of others. Pot may not be so awful, but this individual is unworthy of the benefit of the marijuana doubt.
And to avoid this reaction the next time, you would do better to frame your comment as one addressing the issue rather than your personal vote on the issue. The issue matters. Your vote, not so much.
“[P]rosecutors are often rewarded based on conviction rates.”
I know that if I don’t meet my quarterly convictions of 72% on domestic battery, 85% on non-stranger rape, and 98% on driving on suspended license I’m not eligible for the annual asset forfeiture prize distribution (last year’s second prize: 2012 Maserati Ghibli). I’m also relegated to the Second League until I can win a Brady-off to see who can conceal the most exculpatory evidence within ten cases. Somin clearly has us pegged.
Sure, make fun, but think you’re gonna get that Ghibli (it’s not that great a car, by the way. Drives like a truck) is you win only 12% of your trials. Nope. No way.
Sure, make fun, but think you’re gonna get that Ghibli (it’s not that great a car, by the way. Drives like a truck) if you only win 12% of your trials. Nope. No way.
At its heart, Kerr seems to be saying we’ve created this overly complex system, with inconsistent rules that change over time and are even contradicted, such that
“Jurors usually don’t have that information. Jurors are not told what they would need to know to decide what is just. ”
And now that we’ve created this mess, we need to defend it.
To defend that really does seem to admit that the system is bankrupt. That all we can do, and do poorly, is provide due process, and not provide justice.
I see jury nullification akin to fruit of the poisonous tree. It’s can be an ugly stick, but it is a necessary stick to the legal system to incentivize the lawyers, judges, and legislators to create a system that can provide justice.
one + 2
Uncaught ReferenceError: one is not defined
at :2:1
at Object.InjectedScript._evaluateOn (:905:140)
at Object.InjectedScript._evaluateAndWrap (:838:34)
at Object.InjectedScript.evaluate (:694:21)
I don’t think that’s what Orin is saying at all, and you’re no more entitled to create your own fantasy world of what jury nullification means than anyone else. Seriously, your understanding is so grossly simplistic as to be utter gibberish. Sorry, bro. And what’s with the code at the end?
> Seriously, your understanding is so grossly simplistic as to be utter gibberish
I’ve certainly been told that before!
But that is why I try to discuss these things with the people that know more. (And why it is discouraging when the people who do know more will discuss it on twitter, maybe blog about it, but mostly refuse to discuss it with anyone they don’t consider a peer.) (I am not referring to you in any manner here.)
I agree that’s not what Kerr meant. I do think that’s what he said, that’s the message I heard and as a layman, I think it’s a valid interpretation of what he wrote. It could be I am way out there in gibberish land, but I think he is being tone deaf to write “Jurors are not told what they would need to know to decide what is just” and then expect jurors and society not to “see that as damage and route around it.”
Re: the code at the end, I just thought it funny when your anti-spam test asked me what ‘one + 2′ equals. So I fed it to the browser console to find out. I was half afraid it would return “one2’.
Thanks!
A large part of the problem in discussing these things with laypeople is that you not only have to explain the history of the world from day 1, but you also have to undo all the misunderstandings they’ve built into thinking all along. It’s just too much effort.
Back to Orin, here’s the point, and it’s not a bad one (even if I disagree):
We keep certain information from the jury for reasons having nothing to do with guilt or innocence. We don’t tell them about prior crim history because it’s unduly prejudicial. People assume that if someone has committed a crime before, they’re more likely to do so in the future, or they have a propensity to commit the crime. Thus, they may be convicted for their past history rather than the evidence in the case before the jury.
We don’t tell them about evidence of guilt if it was seized in violation of the Constitution. This is a deterrent for cops, not because the deft isn’t guilty. Yet, the jury won’t know.
We don’t tell the jury what the potential sentence may be, so that they won’t be sympathetic because they feel it’s too harsh or too lenient.
We preclude some testimonial evidence, lay and expert, if it’s not sufficiently material, relevant, reliable or helpful.
There is quite a bit that the jury doesn’t know about the case. Orin see this as putting the prosecutor in a far better position to exercise discretion because he has all this information together with the skills needed to parse it for its significance in exercising discretion. I disagree with his view, but that happens a lot anyway.
Thanks Scott, and actually I did understand those aspects of what Kerr wrote.
I mostly agree with all those things we don’t tell jurors about and why. (I disagree about not telling them of the various potential sentences and other aspects of the sentencing games. Sunlight is the best disinfectant.)
But in the end, we are left with this system of very complex rules that are not applied consistently that due to expense discriminate against class (and racially) within a system that often seems to incentivize prosecutors to win cases more than to produce justice.
Kerr says we need to defend that system. I’m not ready to tear it down, but I support jury nullification to correct against those errors.
Again, I see it similar to fruit of the poisonous tree which defense attorneys appreciate in ways that cops and prosecutors do not, or to how any negative feedback control system works. Bad prosecutor, no donut.
As a layman, but as a citizen, I take heart that Flex Your Rights (which is or was associated with the ACLU) seems to agree with me (and my gibberish).
[Ed. Note: Link deleted per rules.]
Gack! My sincere apology for putting a link in the prior comment.
No worries. I fixed it for you.
You started out okay, but then lapsed back into gibberish. What the fruit of the poisonous tree has to do with anything, I dunno. It makes zero sense, but then, so what? As for Flex Your Rights, some of what it does is pretty good. Some is pretty shallow, pandering to the foolish and some bizarre political agendas. And some is very wrong, dangerously so.
But it’s not up to me to tell you what to believe, so go flex your rights with some fruit from the poisonous tree and have a nice day.
Clarke’s Third Law of Prediction: Any sufficiently advanced technology is indistinguishable from magic.
Fubar’s Law of Jury Nullification: Any sufficiently motivated juror can nullify law in a manner indistinguishable from following a judge’s instructions to the jot and tittle.
The key witness told us a fib.
I can tell by the cut of his jib.
He smirked when he spoke.
His account’s a bad joke,
And his story entirely too glib!