We Could Have Stayed There For Another Week

A scene from “Marijuana Inc.: Inside America’s Pot Industry” included a mini-tour of Oaksterdam University, which promotes itself as the first cannabis college, providing entrepreneurs with the “highest quality training” to enter California’s burgeoning marijuana dispensary business. On several walls were large red signs with yellow letters proclaiming:

Jurors Can Not Be Punished For Their Verdicts

An advertisement for jury nullification, albeit when considering the location, most likely preaching to the choir, or viewed more cynically, meant to assuage students’ doubts about the likelihood of a successful federal prosecution.

Are jurors likely to nullify? To insist on voting “not guilty” when they believe the state or federal government has proven its case beyond a reasonable doubt, but instead to base their verdict on personal, moral, ethical objections to convicting or imprisoning marijuana users and their suppliers. It’s a nice thought.

But see this week’s opinion in U.S. v. Villar, courtesy of the First Circuit Court of Appeals. Merely hours after the appellant was convicted of bank robbery, the defense lawyer received the following email, from a juror who was not convinced of the government’s case apologizing for the guilty verdict:

We finally decided to not prolong that young man’s hope any longer. We could have stayed there for another week. Their minds were made up from the first day. Here’s one example, A man said “I guess we’re profiling but they cause all the trouble.”

[Full contents of email available in the first comment to this post. Also, it’s an interesting opinion. The 606(b) vs. Fourteenth Amendment issues could make for several blog posts, and the court ends up reversing, but I will return to my intended topic: weak minded jurors.]

From the recitation of facts, seems that identity was the sole issue at trial, and now a juror comes forward claiming that racial bias influenced at least some of the jurors. But why did he cave in and vote guilty?

You know if I thought he would have gotten a different kind of jury the next time I think [I] would have kept them there.

These people are the salt of the earth and there is no gray in their lives. I really hope they never get into the scales of blind justice because she isn’t.

You thought he was factually innocent, or you thought he might have done it but weren’t convinced beyond a reasonable doubt; either way you “wanted” to vote not guilty. But you decided that 9 out of 12 (read the full email, there were 3 holdouts) was good enough to send him to prison for years?

It’s the same rule as “crying in baseball”; there’s no "apologizing for a guilty verdict" after the fact. If you feel the need to explain why you did the wrong thing, then it was the wrong thing, end of story.  Does it really take courage to stick to your guns?

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Comments (3) Read through and enter the discussion with the form at the end
Jamie - November 14, 2009 7:27 PM

[Here's the full text of the email]

I felt compelled to send this to you. I don’t know if I should even be doing this but I don’t care. I know it’s late but I want you to know that there were at least 3 people on that jury who actually listened to the testimony with an open mind.

We tried to make the rest pay attention. We made them go through every piece of evidence and every witness. Between us we pointed out every discr[e]p[a]ncy. They made up some story to explain it away. I want you to know that I will go to jail before I ever serve on another jury. It was awful. I’m sorry we couldn’t do anything.

We finally decided to not prolong that young man’s hope any longer. We could have stayed there for another week. Their minds were made up from the first day. Here’s one example, A man said “I guess we’re profiling but they cause all the trouble.”

Well I won’t keep you longer. Again I am sorry we couldn’t do more. You know if I thought he would have gotten a different kind of jury the next time I think [I] would have kept them there.

These people are the salt of the earth and there is no gray in their lives. I really hope they never get into the scales of blind justice because she isn’t. God bless you and Mary keep you safe.

D.A. Confidential - November 19, 2009 5:18 AM

That does seem disturbing and I agree that sometimes it takes a lone hold-out to ensure that justice gets done. Do you see this as an inherent failure of the jury system, or an outlier example of how it sometimes doesn't work as it should?
Coming from the other side of the aisle, I know that in voir dire defense lawyers sometimes look to remind jurors that they have a right to go against the grain. I sometimes tell them that while this is true, they deliberate and talk about the case for a reason, and that changing their minds is okay.
If, of course, done for the right reason. :)

Jamie - November 19, 2009 10:41 AM

D.A.C.:

I don't think there's any reliable way to know. At least if we're talking about "jurors changing their mind, because majority rules".

Not sure how that would be measured. Except, in the extraordinary cases like this one where a juror goes out of his or her way to volunteer the information.

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