Brief Bank # B-800c (Re: F 17.41.1 n2 [Challenge To “Juror-Snitch” I. Introduction: Improper Chilling Effect On Deliberations].)
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NOTE: The text of the footnotes appear at the end of the document.
ALERT: Both People v. Williams (2001) 25 C4th 441 [106 CR2d 295] and People v. Cleveland (2001) 25 C4th 466 [106 CR2d 313] were decided subsequent to the writing of this brief.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
RON ROE, and
JOHN DOE,
Defendants and Appellants.
)
APPELLANT DOE’S OPENING BRIEF
II
THE COURT ERRED IN GIVING CALJIC NO. 17.41.1 OVER OBJECTION, BECAUSE THAT INSTRUCTION IMPINGED UPON APPELLANT’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO A UNANIMOUS JURY AND TO HAVE THE JURY FREE TO USE ITS POWER OF JURY NULLIFICATION
A. The Procedural Context
Counsel for both appellants objected to the court’s stated intention to give CALJIC No. 17.41.1 (1998 New) (West, 6th Ed.), but the court overruled their objections, in the following colloquy:
“THE COURT: You had an objection to the integrity of a trial instruction.
“MR GRUBER [counsel for Roe]: Oh, yes. The new instruction, basically the one that directs jurors to report to the Court when one juror or another juror apparently is not deliberating — in other words, not agreeing with the position of another juror — I think is an improper instruction, and I think it impedes upon the duties in fact of the jurors to sit and respect each other’s opinions in the case, and I think that is improper.
“THE COURT: Well, this instruction of course has been introduced because of the impact of the three-strikes cases on jurors who becoming aware of the great penalties that are attached to three-strikes cases tend to find defendants not guilty in order to avoid the impact of that law, and it guards against nullification. There’s been no appellate decision on that particular instruction yet, but I anticipate that there will be very shortly.
“In any event, the Court will give it as phrased now.
“MS KIM [counsel for Doe]: Your Honor, if I may just join briefly. I’m objecting to that instruction also, and I would ask the court not to give it, especially since this is not a three-strikes case and I think that that instruction is coercive. And I join in the objections made by counsel and I think the instruction is inappropriate in this case given the legislative history of the case that the Court is well aware of. I think it doesn’t apply in the case and that it’s not necessary.
“THE COURT: Well, of course in this case penalty has been made a matter of issue with respect to Mr. S particularly, and the jurors might decide the case based on penalty or punishment rather than on proper evidence in the case so I feel that it does have application in this case and the Court will give the instruction.” (20 RT 4188-4189.)
In sum, the court (a) rejected the argument that this instruction has a coercive effect on certain jurors in the sense that a non-conforming juror becomes at risk of being reported to the court for misconduct, and of course the way this plays out in the cases is that a minority juror feels compelled to cave in to the majority or risk being removed from the jury and replaced with an alternate, and (b) intended by giving this instruction affirmatively to direct the jurors that they must not engage in jury nullification.
As will be shown below, the court was wrong on both counts, and the court thus erred in giving the instruction, over objection, as follows:
“The integrity of a trial requires the jurors at all times during their deliberations to conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation.” (10 CT 2902; 21 RT 4446.)
B. This Instruction Impinged Upon Appellant’s Right To A Unanimous Verdict By Twelve Independent Jurors, Each Deciding The Case For Himself Or Herself Free From Improper Pressures Before Voting Individually And Then Determining If Unanimity Has Been Achieved
Our criminal justice system has seen with seemingly increasing frequency cases in which majority jurors, usually in an 11-1 situation favoring guilt, report to the court that the holdout juror is not deliberating, when in fact the holdout juror is merely disagreeing with the majority, followed by the court’s replacing the holdout juror with an alternate, after which a guilty verdict typically is reached.
The magnitude of the problem is such that the California Supreme Court has elected to allocate its resources to include dealing with this problem by granting review in at least the following cases which appear to raise this issue: People v. Metters, S069442, People v. Rodriguez, S073219, and People v. Cleveland, S078537 (review granted June 30, 1999, the recency showing this issue is of ongoing interest). [Footnote 1]
The court erred in this case because this instruction invited majority jurors to exercise undue pressure on minority jurors, which can have the following effect. A minority juror, who simply disagrees with the majority on the merits of the case, can be accused of failing to deliberate, and indeed this instruction encourages just this kind of reporting. This initiates a process whereby the majority jurors can manipulate the removal of a holdout juror unless that juror caves in and decides to vote with the majority.
The right to a unanimous jury verdict is abridged when a deliberating juror is dismissed and the record reveals a possibility the dismissal occurred because that juror had doubts about the sufficiency of the government’s evidence. (United States v. Symington, supra; United States v. Thomas (2d. Cir. 1997) 116 F.3d 606, 611-613, 624; United States v. Brown (D.C. Cir. 1987) 823 F.2d 591.)
When such a dismissal is in effect manipulated by majority jurors who are frustrated with a holdout juror, this impermissibly permits the majority jurors to exercise control of the composition of the jury. (See People v. Roberts (1992) 2 Cal.4th 271, 325.)
Mr. Doe exercised his right to trial by jury in this case, pursuant to the Sixth Amendment and California Constitution, article I, section 16, which means he had a right to the verdict of a unanimous jury. (Apodaca v. Oregon (1972) 406 U.S. 404.) That right was abridged in this case because the challenged instruction coerced potential holdout jurors into agreeing with the majority, as described above.
In sum, the court and parties selected a jury, and Mr. Doe had a right to a unanimous verdict by that jury. For the reasons stated, this instruction undermined that right. (See Perez v. Marshall (9th Cir. 1997) 119 F.3d 1422, 1426-1428.)
Moreover, the court’s invitation to majority jurors to “snitch off” a potential holdout juror creates yet another evil, because that process leads to an unconstitutional intrusion into the deliberative process of the jury. When a court inquires into allegations of juror misconduct during deliberations, the court must exercise great care not to intrude into the thought processes of jurors in their deliberations. (See United States v. Symington, supra; see also United States v. Thomas, supra, 116 F.3d 606, 619-621; and Mahoney v. Vandergritt (1st Cir. 1991) 938 F.2d 1490, 1492 [investigations into jury deliberations must focus on external influences on the jury, and an inquiry into the motives of individual jurors during deliberations is not permissible].)
This general rule is consistent with the overriding principle that the sanctity of jury deliberations must be inviolate. Trial courts must have paramount concern “for protecting and preserving the integrity of our jury system.” (Remmer v. United States (1956) 350 U.S. 377, 381.) These “long-recognized and very substantial concerns support the protections of jury deliberations from intrusive inquiry.” (Tanner v. United States (1987) 483 U.S. 107, 127.)
Indeed, “Any jury which has been out for a number of days or perhaps even a number of hours debating whether the government has established guilt beyond a reasonable doubt is going to be a jury within which strong differences have developed, and it is not for us, the judge or the lawyers, to inquire into chapter and verse of those differences, absent very compelling reasons.” (United States v. Calbas (2d Cir. 1987) 821 F.2d 887, 896.)
Thus, the risk of this kind of intrusion into the process had its own chilling effect on jury deliberations, and when this kind of overly-intrusive questioning occurs it impinges upon a defendant’s right to trial by jury under the Sixth Amendment to the United States Constitution and the California Constitution, article I, section 16. The creation of this risk renders this jury instruction fatally defective, and the court erred in giving the instruction in this case.
C. The Court Erred By Affirmatively Instructing The Jury That It Must Not Engage In Jury Nullification [Footnote 2]
1. Jury Nullification Is Implicit In the Sixth Amendment
Jury nullification was a part of the English right of trial by jury. (See Bushell’s Case (C.P. 1670) 124 Eng. Rep 1006 [6 Howell’s 1999] (decision freeing a member of the jury arrested for voting to acquit William Penn when the vote was considered against the law and the evidence); Murphy, Integrating the Constitutional Authority of Civil and Criminal Juries, 61 Geo. Wash. L. Rev. 723, 753 – 754 (1993).)
Jury nullification was acknowledged in the early days of American history as well. Alexander Hamilton argued for jury nullification in the trial for seditious libel of John Peter Zenger, perhaps one of the most famous examples of the application of this concept in the history of this country. In that regard, John Adams wrote that the jury’s power to nullify stems from the nature of the general verdict, and that each juror must find the verdict according to his or her own understanding, judgment, and conscience. (See Scheflin, Jury Nullificiation: The Right To Say No, 45 S. Cal. L. Rev. 168, 173 (1972).)
The United States Supreme Court has found that “historical practice is relevant to what the Constitution means by such concepts as trial by jury.” (United States v. Gaudin (1995) 515 U.S. 506, 515.)
Thus, since jury nullification was an accepted tenet of Anglo-American law at the time the Sixth Amendment was adopted, the idea of jury nullification was implicitly included in the framers’ concept of a right to trial by jury upon adoption of the Sixth Amendment.
2. Although The Concept Is Not Universally Embraced, Many Courts Have Acknowledged That While Juries May Not Have The Right To Nullify, They Have The Power To Do So
The Supreme Court has recognized that the jury retains the power to render a not guilty verdict even where acquittal is inconsistent with the law given by the court. (See Dunn v. United States (1932) 284 U.S. 390, 393-394.) [Footnote 3]
The Supreme Court later commented upon the purpose served by the jury as follows:
Those who wrote our constitution knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority . . . Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge . . .
(Duncan v. Louisiana (1968) 391 U.S. 145, 155-156.) The court also noted that when a jury renders a verdict that is at odds with the verdict the trial court would have rendered, it is usually because the jurors are serving the very purpose for which they were created. (Id., at 157.)
These declarations from Duncan have been interpreted as standing for the court’s recognition that, “the jury’s fundamental function is not only to guard against official departures from the rules of law, but on proper occasions themselves to depart from unjust rules or their application.” (Kadish & Kadish, Discretion to Disobey: A Study of Lawful Departures From Legal Rules, p. 53 (1973).)
Many circuits of the federal courts of appeals have acknowledged the power of the jury to nullify. For example, the D.C. Circuit observed in United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1130, “[t]he pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge”; and the Ninth Circuit stated, “[t]he jury has the inherent power to pardon one no matter how guilty” in United States v. Schmitz (9th Cir. 1975) 525 F.2d 793, 794.
In addition, some circuits’ practice of refusing to require the jury to return any form of verdict other than a general verdict of guilty or not guilty impliedly recognizes the jury’s right to vote its conscience. (See United States v. Spock (1st Cir. 1969) 416 F.2d 165; United States v. McCracken (5th Cir. 1974) 488 F.2d 406, 418-419 (collecting cases).
In sum, even if the court was correct in United States v. Thomas, supra, 116 F.3d 606, that the jury has no “right” to return a nullification verdict, the overwhelming weight of federal authority makes clear that the jury has the “power” to return a nullification verdict.
California courts have not spoken with a uniform voice on this subject, although, as noted above, clarification may soon come from the California Supreme Court. In People v. Dillon (1983) 34 Cal.3d 441, the plurality opinion did not directly address the issue of whether the jurors should have been instructed on their nullification power, since the case was reversed on other grounds. However, in a concurring opinion, Justice Kaus placed his imprimatur on the notion that jury nullification was a viable part of the legal system.
The courts of appeal in this state have generally followed the view that jury nullification is a part of the legal landscape that must be accepted, if not totally endorsed. (See, e.g., People v. Nichols (1997) 54 Cal.App.4th 21 (when the jury asked the judge if this was a three-strikes case, the judge declined to answer due to a concern that would invite the jury to exercise its power of jury nullification); People v. Baca (1996) 48 Cal.App.4th 1703, 1707 (acknowledging the jury’s undisputed power to acquit notwithstanding the strength of evidence of guilt); People v. Fernandez (1994) 26 Cal.App.4th 710, 714 (the court replied in the negative when jurors asked if they could find the defendant guilty of a lesser charge even though they agreed a greater charge was established by the evidence).) Thus, California case law does not directly contradict Mr. Doe’s position on this issue.
3. Public Policy Considerations Support Mr. Doe’s Position
Both legal doctrines and philosophy support the view that the value of the role of the jury is its ability to inject into the criminal system a sense of the community’s values. The right of trial by jury is “an insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just.” (Devlin, Trial by Jury, 160 (1956).)
A criminal jury’s verdict reflects the mores of society in assessing the blameworthiness of a specific individual who has been brought to trial for violating a general law. By acquitting a defendant who may seem clearly guilty to others, the jury conveys significant information about community attitudes and provides guidelines for future prosecutorial discretion. (Brown, Jury Nullification Within the Rule of Law, 81 Minn. L. Rev. 1149, 1198-1199 (1997).)
Jury nullification also plays an ameliorating role in situations where the application of the general criminal law may poorly fit an individual defendant’s circumstances, since individual cases do not all fit within a given rule of law equally well. (Ibid. )
The concept of trial by jury is therefore eviscerated if a juror is denied the right to apply the facts of the case to the law in a manner consistent with that juror’s personal sense of morality. As the Ninth Circuit recognized, “the jury must not be reduced to the position of a mere ministerial agent by a direction on their very thought, thereby withholding of a vital right due them.” (Morris v. United States (9th Cir. 1946) 156 F.2d 525, 529.)
In addition, interrogation of jurors for the purposes of determining whether they are exercising nullification powers would have the effect of destroying the sanctity of jury deliberations by stifling the freedom of debate that is inherent in the jury system. As Justice Rosenn of the Third Circuit stated, “We must bear in mind that the confidentiality of the thought processes of jurors, their privileged exchange of views, and the freedom to be candid in their deliberations are the soul of the jury system.” (United States v. Antar (3d Cir. 1994) 38 F.3d 1348, 1367 (conc. opn., Rosenn, J.).) Public policy supports protecting juror privacy so as not to cripple the decision-making process. (Note, Public Disclosures of Jury Deliberations, 96 Harv. L. Rev. 886, 889 (1983).)
Finally, the voir dire process enables both parties and the court to screen those jurors who have a predisposition to ignore the law and apply standards other than those which have been settled upon to guide the jury in determining the defendant’s guilt or innocence. Thus, assuming that jurors answer voir dire questions truthfully, “nullification” jurors are always jurors who began their service on the jury with the intention of following the court’s instructions explicitly. If a juror then develops the sense that there is an overriding principle of justice which transcends mechanical application of the law, he or she will have reached that conclusion by applying the facts of the particular case to the law provided by the court, and will have performed exactly the function expected of jurors. Public policy does not support interrupting this process and interrogating deliberating jurors about their mental processes while arriving at a verdict.
In conclusion, a ruling which sanctions the removal of a deliberating juror who has made the decision to return a nullification verdict would be a decision that removes from the Sixth Amendment the jury’s role as the final barrier between unjust prosecutions and criminal convictions, and would violate the Constitution of the United States. Similarly, the instruction of the jury forbidding any juror from engaging in nullification had the same deleterious effect on these important constitutional rights.
D. The Standard Of Prejudice
As discussed above, this erroneous instruction directly implicated Mr. Doe’s Sixth Amendment right to trial by jury. Based on the foregoing discussion, Mr. Doe submits the error impacted his Fourteenth Amendment right to a fair trial as well. Because this was error of federal constitutional dimension, the minimum standard of prejudice applicable to this case is whether the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18 [17 L.Ed.2d 705].)
However, Mr. Doe submits this error is one which defies assessment of its actual impact on the jury, rendering the error akin to an erroneous instruction on burden of proof rather than an error, such as misinstruction on an element of an offense, which can be analyzed in terms of the strength of the evidence, whether the evidence was truly contested on the point in question, the other related instructions given, and other related findings actually made by the jury. In short, this was structural error. (See Neder v. United States, supra, ___ U.S. ___ [1999 WL 373186, 99 C.D.O.S. 4515, 1999 Daily Journal D.A.R. 5799.)
Thus, Mr. Doe submits this error should be reversible per se. However, in the event the court rejects that argument and engages in harmless error analysis, Mr. Doe will set out in the next section why the error nonetheless requires reversal of the special circumstance finding.
E. The Error Requires Reversal In This Case
As is evident from People v. Dillon, supra, 34 Cal.3d 441, and as is otherwise well known, the felony-murder rules casts a wide net, often resulting in punishment disproportionately harsh given the conduct and background of a particular individual snared within that net. As is also well known, the integrity of the criminal justice system suffers when two or more offenders obtain widely disparate punishment vis-a-vis their relative degrees of culpability in the same, or overlapping, criminal behavior. (See People v. Taylor (1974) 12 Cal.3d 686, 696-698, People v. Woods (1992) 8 Cal.App.4th 1570 (both dealing with relative culpability of direct perpetrator and aider and abettor in same crime).)
Both concerns are reflected in this case, and the jury surely felt them. Indeed, the trial court’s decision to give this instruction was clearly based in part on the court’s concern that the jury might be inclined to engage in nullification by finding untrue the special circumstance allegation as to Mr. Doe, because the jury knew that allegation meant a term of life without possibility of parole whereas the far-more-culpable Mr. S was known to the jury to have been guaranteed a term of only 15 years to life. Thus, this jury might well have engaged in that sort of nullification absent the instructional error, and the error thus should not be found harmless beyond a reasonable doubt.
In this case, in light of the court’s denial of severance, which was discussed in Argument I, the only “defense” available to Mr. Doe was for his counsel to in effect ask the jury to engage in nullification by declining to find true the special circumstance. That is, counsel noted in her jury argument that Mr. Doe had confessed to first degree murder but urged the jury to find the special circumstance allegation not true. (21 RT 4336.) She further argued that the fact the killing was an accident (a point supported by very substantial evidence) was not a defense to first degree murder but could be considered by the jury on the question of the special circumstance allegation. (21 RT 4336-4338.) Counsel closed her argument on the homicide count by asserting the special circumstance was something special, different from the felony-murder rule of first degree murder, and again urged the jury to have a reasonable doubt as to the special circumstance. (21 RT 4358.) The prosecutor then pointed out in rebuttal that defense counsel had given no reason (that is, no law-based reason) the jury could find Mr. Doe guilty of first-degree felony-murder without also finding true the felony-murder special circumstance. (21 RT 4378-4379.) Of course, the prosecutor was right, because mechanical application of the law dictated the result he sought, and defense counsel was in effect urging the jury to nullify.
And, the jury very well might have nullified on the special circumstance in this case except that the court expressly directed they could not do so. Indeed, the prosecutor conceded in rebuttal argument that the jury might be tempted to nullify, without using that word, by noting they might be tempted to evaluate who was the guiltiest or most evil of the people involved in these crimes, but reminded the jury that was not the law. (21 RT 4379.) However, the jury should have been permitted to bring the conscience of the community to bear on the question whether Mr. Doe should have to serve life without possibility of parole while Mr. S would be serving only 15 years to life, for all the reasons given above.
After all, John Doe was, as counsel argued to the jury, barely 17 years old at the time of the homicide, he was an unsophisticated member of the gang, he was reluctant to do the robbery, the killing was an accident, and he was remorseful and cooperated fully with the police in giving his statement. (21 RT 4336-4337, 4353-4355.) Further, there was no evidence Mr. Doe was involved in the criminal activity of BGT, other than the ill-fated robbery attempt on July 29, 1995. Although Mr. Roe and Mr. S continued to do robberies after the homicide, Mr. Doe was not involved in any of them (16 RT 3451.) Further, there was no evidence he was involved in any of the robberies or burglaries which pre-dated the homicide. Indeed, although BGT was too small a gang to have established turf (18 RT 3891), the gang was based in San Jose (14 RT 3105), but Mr. Doe lived in Santa Clara (10 RT 1444-1446, 1449) and had neither a car nor a driver’s license (10 RT 1459-1460), so he likely spent less time with Mr. Roe and Mr. S than the latter two spent with one another.
In sum, Mr. Doe was a minor player in the gang, and he had no significant prior criminal history. Further, he was an unwillingly participant in the attempted robbery which led to an accidental killing as he was trying to help Mr. S disengage from Mr. Browne.
Mr. S, by stark contrast, was a one-man crime wave. He ran a BGT burglary ring in 1994, with his mother fencing some of his stolen goods for him, and he even stooped so low as to use his then-8-year-old brother in one of the burglaries. (15 RT 3277, 3293; 18 RT 3896-3897, 3926-3927.) The extensive litany of his 1995 crimes was laid out for the jury in this case. His sense of morality was such that he cheated his own mother out of her share of the proceeds of the forged check as to which Mr. Roe was convicted in this case. (15 RT 3418-3419.) His respect for human life was such that he intentionally fired his gun at people with no regard for their safety and no apparent remorse when he harmed someone. (15 RT 3323.)
Indeed, even the prosecutor conceded Mr. Doe was less morally responsible than Mr. Roe (20 RT 4234) and thus, inferentially, was less morally responsible than Mr. S. The prosecutor conceded that Mr. Doe had participated in this crime because he was sent to do so by Mr. Roe. (20 RT 4239.) He argued that Mr. Roe was a sociopath, trying to get Mr. Doe to take the fall for him. [Footnote 4] (21 RT 4385-4386.)
Thus, had the jury been allowed to apply its sense of fairness and equity, as the conscience of the community, to this case, knowing someone as dangerous and immoral as Mr. S was being sentenced to 15 years to life for his long series of serious crimes, the jury realistically and reasonably could have decided that 25 years to life [Footnote 5] was a plenty stiff sentence for Mr. Doe for his single incident of criminal behavior and thus acquitted him on the special circumstance allegation.
This case cries out for jury nullification on the special circumstance allegation, and this court should not find beyond a reasonable doubt this jury would not have reached that conclusion had they not been precluded from doing so by the court’s instruction pursuant to CALJIC No. 17.41.1. Thus, the special circumstance should be reversed.
Dated: July 19, 1999 Respectfully submitted,
DAVID Y. STANLEY
State Bar Number 67660
11200 Donner Pass Road, # 119
Truckee, CA 96161
Telephone: (530) 550-9519
Attorney for Appellant Doe
(By Appointment of the Court,
Conflict Declared by the Sixth
District Appellate Program,
Independent Case)
FOOTNOTES
Footnote 1: This problem currently exists in the federal system as well. (See United States v. Symington (9th Cir. 1999) ___ F.3d ___ [1999 WL 415345, 99 C.D.O.S. 4890, 1999 Daily Journal D.A.R. 6295.)
Footnote 2: The question of the proper role of jury nullification in the California state court system is presented in People v. Williams, S066106, now pending in the Supreme Court.
Footnote 3: The Supreme Court has not gone so far as to indicate juries should be affirmatively instructed that they have the power to nullify. (See Sparf v. United States (1895) 156 U.S. 51. 106.) Mr. Doe does not here argue that his jury should have been so instructed; rather, the argument is the jury should not have been instructed it was without the power to nullify. (See also People v. Partner (1986) 180 Cal.App.3d 178 (no right to affirmative instruction on existence of power to nullify).)
Footnote 4: The jury doubtless was keenly aware that Mr. Roe was not charged with a special circumstance and thus did not face life without possibility of parole, and their contrast of his culpability with that of Mr. Doe could also have factored into a decision to nullify as to the special circumstance.
Footnote 5: The jury knew the sentence for first degree murder was 25 years to life. (16 RT 3452.)
