Brief Bank # B-800d (Re: F 17.41.1 n2 [Challenge To “Juror-Snitch” Instruction: Improper Chilling Effect On Deliberations].)
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I. The trial court erred by instructing the jury with CALJIC No. 17.41.1 because the instruction intrudes upon the jury’s decision making process and infringes defendant’s constitutional right to the independent judgment of each juror, as well as the jury’s and defendant’s constitutional right to juror nullification.
The trial court instructed the jury with CALJIC No. 17.41.1, Sixth edition 1998 pocket part, which states,
The integrity of a trial requires that jurors, at all times during their deliberations, 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.
(II RT 348; CT 99 [emphasis added].)
This instruction, particularly the underscored portions, is troubling for a number of reasons. First, the instruction infringes the defendant’s and the jury’s constitutional right to nullify, misadvising the jury as to this right and creating a chilling effect. Second, the instruction tends to improperly undermine the independence of the jurors by assisting the majority jurors in imposing their will upon a “hold-out” juror or jurors, violating the defendant’s right to twelve independent jurors. Moreover, the instruction tends to unduly involve the court in the deliberative process of the jurors, implicating fundamental concerns about the protection of the secrecy and sanctity of jury deliberations, as well as the right of jurors to decide the case entrusted to them without having to explain or justify their verdicts outside the jury room.
For each and all of these reasons, giving CALJIC No. 17.41.1 was reversible error.
B. The instruction violated Mr. L’s and the jurors’ constitutional rights by misinforming the jury as to the right and power to nullify, mandating reversal.
Mr. L submits that both criminal defendants and jurors possess the constitutional right to nullify a verdict. Because CALJIC No. 17,41.1 affirmatively suggests to the jurors that there is no right to nullify and because it threatens sanctions if one or more jurors tries to nullify, the instruction violates the defendant’s and the jurors’ right to nullify, requiring reversal.
Mr. L submits that the Sixth and Fourteenth Amendments, as well as the California Constitution, bestow upon a defendant the right to jury nullification, which is integral to the concept of a fair jurytrial. (People v. Dillon (1983) 34 Cal.3d 441, 490-493 (conc. opn. of Kaus, J.), 493 (conc. opn. of Kingsley, J.); see United States V. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1136 [noting approval of nullification’s existence as a necessary check against judges and prosecutors but holding the jury need not be affirmatively informed of the power to nullify].)
The federal and state constitutions both provide for the right to a jury trial in a criminal case. (U.S. Const., amends, VI, XIV; Duncan v. Louisiana (1968) 391 U.S. 145, 156 [20 L.Ed.2d 491, 88 S.Ct. 1444]); Cal. Const., art. 1, § 16.) “A right to a jury trial is granted to criminal defendants in order to prevent oppression by the Government.” (Duncan v. Louisiana, supra, 391 U.S. at p. 155.) Indeed, the availability of jury nullification appears to be one reason why the founders of this country insisted on including the right to jury trial in the Bill of Rights. History teaches us of crucial cases in which jury nullification carried the day during American colonial times: from the acquittal of William Penn for preaching to an unlawful assembly in Bushell’s Case (1670) 6 Howell’s State Trials 999, to Peter Zenger’s acquittal on freedom of speech principles. (See People v. Dillon, supra, 34 Cal.3d 441, 490, 491 (conc. opn. of Kaus, J.) Thus, the right to jury nullification underlies the very concept of the right to trial.
Even if a defendant has no right to jury nullification, jurors themselves should be held to possess the right to nullify, and a defendant has standing to assert jurors’ claim of a constitutional violation. (Cf. Powers v. Ohio (1991) 499 U.S. 400, 410-415 [113 L.Ed.2d 411, 111 S.Ct. 1364] [defendant may assert third-party equal protection claim on behalf of juror].)
Although there is no recent case law directly on point as to whether a juror possesses the right to nullify, courts have long recognized the jury’s power to nullify. (See, e.g., People v. Powell (1949) 34 Cal.2d 196, 205 [“It cannot be doubted that a trier of fact has and often exercises the power, because of obvious extralegal factors or for no apparent reason, to find a defendant guilty of a lesser degree or class of crime than that shown by the evidence. (Emphasis in original)]; but see People v. Lem You (1893) 97 Cal. 224, 228 [jury has the “naked power to decide all the questions arising on the general issue of not guilty; but it only has the right to find the facts, and apply to them the law as given by the court.” (Emphasis in original.)].) Moreover, the United States Supreme Court has refused to the act of jury nullification as “discretionary.” (Gregg v. Georgia (1976) 428 U.S. 153, 199, fn. 50 [49 L.Ed.2d 859, 96 S.Ct. 2909].) John Adams and Alexander Hamilton both stated that the jurors had a duty to find a verdict according to their own conscience, even if in opposition to the courts direction. (Howe, Juries and Judges of Critical Law (1939) 52 Har. L. Rev. 582.) Thus, should a juror feel during deliberations of the facts that the law is contrary to the juror’s conscience, that juror has a constitutional right to follow his or her conscience and vote for acquittal. Mr. L submits that this right derives from a penumbra of constitutional provisions, including the juror’s First Amendment right to freedom of political speech, the Sixth Amendment right to a jury trial, and the Fourteenth Amendment right to due process. (Cf Griswold v. Connecticut (1965) 381 U.S. 479, 481-484 [14 L.Ed.2d 510, 85 S.Ct. 1678) [holding that the right of marital privacy finds its source in a penumbra of constitutional provisions].)
Although a number of intermediate appellate decisions recently have addressed the issue of jury nullification, these cases stand for the proposition that the defendant has no right to have the jury affirmatively advised that it may nullify, they do not hold that the jurors have no right to nullify nor that a jury may be told it cannot nullify. (See People v. Nichols (1997) 54 Cal.App.4th 21, 23-25 [trial court could refuse to answer the jury’s question as to whether defendant was subject to the Three-Strikes sentencing scheme]; People v. Baca (1996) 48 Cal.App.4th 1703, 1705-1708 [defendant not entitled to instruction advising the jury of his sentence and inviting the jury to nullify]; People v. Fernandez (1994) 26 Cal.App.4th 710, 713-714 [court need not instruct a jury that it has the power to acquit]; People v. Partner (1986) 180 Cal.App.3d 178, 185-186 [jury asked question that appellant contended should be interpreted as a jury attempt to avoid the felony-murder rule; jury should not be instructed on nullification]; see also United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113 [defense not entitled to a jury instruction that the jury may disregard the law].) CALJIC No. 17.41.1 goes much further than these cases: it not only advises the jury that it must follow the law but implies serious consequences inflicted by the judge should a juror choose to suggest nullification. “That shoving the jury in the direction of nullification is something the trial court need not do does not mean that it is permitted to pressure the jury into stifling a spontaneous urge to nullify.” (People v. Dillon, supra, 34 Cal.3d at p. 492-493 (conc. opa. of Kaus, J.); but see Sparf v. United States (1895) 156 U.S. 41, 74-80 [39 L.Ed. 343, 15 S.Ct. 273] [upholding trial court that told jurors they had the power to nullify but that they should not exercise that power].)
A jury should not be instructed “in a manner that affirmatively conceals” the truth. (People v. Arias (1996) 13 Cal.4th 92, 173; see also People v. Gainer, supra, 19 Cal.3d 835, 851-852 [court may not misinstruct the juries that a hung jury means the case will be retried because hung juries do not always result in re-trial].) CALJIC No. 17.4l.1 not only deprives the defendant and jurors of the right of nullification but affirmatively conceals the truth that the right exists. Moreover, the instruction misinforms the jurors by suggesting that if they disregard the law and are found out, they are in trouble. (See People v. Dillon, supra, 34 Cal.3d 441, 490 [“As far as the average lay juror is concerned, failure to follow the court’s instructions invites legal sanctions of some kind and unless the juror is willing to risk a fine, jail or heaven knows what, he or she feels bound to follow the instructions.”].) But this is not the truth: “Yet the essence of the jury’s power to `nullify’ a rule or result which it considers unjust is precisely that the law cannot touch a juror who joins in a legally unjustified acquittal or guilty verdict on a lesser charge than the one which the proof calls for. [Footnote].” (Ibid.; see also § 1150 [jury’s right to enter a general verdict].)
Because the instruction 1) violated Mr. L’s and the individual jurors’ right to nullify; and 2) misinformed the jury by suggesting there was no such right or power and that any juror seeking to nullify was subject to sanctions, giving the instruction was error.
C. The instruction given violates defendant’s right to an independent, impartial decision of each juror and to a unanimous jury.
There is another, independent basis why CALJIC No. 17.41.1 is erroneous: the right to an independent decision of each juror and the right to be free from conviction absent a unanimous verdict.
A defendant has the right to the independent decision of each juror (CALJIC No 17.40 [”The People and the defendant are entitled to the individual opinion of each juror.”]; People v. Gainer (1977) 19 Cal.3d 835, 848, 849.) This right arises from the constitutional right to be free from conviction absent a unanimous verdict. (Cal.Const., art. I,§ 16; Hicks v. Oklahoma (1980) 447 U.S. 343 [65 L.Ed.2d 175; 100 S.Ct. 2227] [the due process clause entitles a defendant to application of favorable state law]; U.S. Const., amend. XIV.) “Unanimity obviously requires that each juror must vote for and acquiesce in the verdict. Acquiescence simply because the verdict has been reached by the majority is not an independent judgment, and if permitted, would undermine the right to a unanimous verdict.” (People v. Superior Court (Thomas) (1967) 67 Cal.2d. 929, 932.) CALJIC No. 17.41.1 threatens the integrity of the unanimous verdict by intimidating juror if they should disagree with the government.
In Gainer, the California Supreme Court addressed the propriety of an instruction, called a “dynamite” or “Allen” [Footnote 1] charge, that advised a split jury, inter alia, that the dissenters should question their opinions because they are in the minority. (People v. Gainer, supra, 19 Cal.3d. 835.) The court held such an instruction was improper and, as a judicially declared rule, disapproved of it. (Id. At pp. 852, 856-857.) One reason was because it urged the minority jurors to reconsider their views and acquiesce in the majority. (Id. at pp. 848-851.) The Gainer court held, “The open encouragement given by the charge to such acquiescence is manifestly incompatible with the requirement of indepeadently achieved jury unaniinity.” (Id. at p. 849.) The Allen admonition to minority jurors given in Gainer, like the instruction given here, “constitutes just such excessive pressure on the dissenting jurors to acquiesce in a verdict.” (Id. at p. 850.) “[D]issenters, struggling to maintain their position in a protracted debate in the jury room, are led into the courtroom and, before their peers, specifically requested by the judge to reconsider their position.” (Ibid.) Here, the dissenters may be threatened by other jurors to go along with the majority or face a session with the judge. Because the coercive effect of CALJIC No. 17.41.1 is similar to that in Gainer, this Court should hold the instruction to be error under Gainer. Moreover, by coercing the jurors, the instruction violates defendant’s right to due process under the federal and state constitutions. (U.S. Const., amend XIV; Cal. Const., art. I § 17.)
The instruction additionally infringes upon a defendant’s Sixth Amendment right to an impartial jury. The issue of whether removal of a holdout juror violates defendant’s constitutional right to a unanimous jury apparently is before the California Supreme Court. [Footnote 2]
Other courts, including the Ninth Circuit, have held that removing a holdout juror violates a defendant’s Sixth Amendment right to an impartial jury if there is either “any possibility” or a reasonable possibility” that the juror’s views on the merits of the case contributed to the impetus for removal. (See, e.g., United States v. Symington (9th Cir. June 22, 1999) ____ F.3d ____, ____ [1999 Daily Journal D.A.R. 6295, 6296) [reasonable possibility]; United States v. Brown (D.C. Cir. 1987) 823 F.2d 591 [any possibility]; United States v. Thomas (2d Cir. 1997).116 F.3d 606, 621 [same]; U.S. Const., amends. VI, XIV.) By threatening the holdouts with potential judicial sanctions, the majority jurors may use CALJIC No. 17.41.1 as the impetus to scare holdout jurors into changing their beliefs about the merits, thus violating the Sixth Amendment right to an impartial jury. And if the United States or California Constitution prohibits removal or sanction of a holdout juror, then an instruction suggesting the jurors may be subject to such sanctions misstates reality, thereby constituting error.
The same is true if the Supreme Court should hold that a trial court property cannot inquire into the reasons the juror has reached the decision reached. If the court cannot so inquire, then the jury should not be misled into believing the court can do so. And trial courts should not be allowed to so inquire. Jury deliberations have long been considered sacrosanct. (See, e.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 575 (conc. opn, of Mosk, J.) [discussing the history and role of the jury and the reasons why the deliberations and subjective beliefs of the jurors may not be explored].) Too, in United States v. Brown, supra, 823 F.2d 591, the appellate court recognized the difficulty inherent in reviewing a trial court’s inquiry of a dissenting juror. In Brown, which held the dismissal of a juror was in error because the juror, who stated he did not want to follow the law in question, may have had questions about the sufficiency of the evidence, the court recognized that a trial court “may not delve deeply into a juror’s motivations because it may not intrude on the secrecy of the jury’s deliberations.” (Brown, supra, 823 F.2d at p. 596; see also Symington, supra, ____ F.3d at p. ____ [1999 Daily Journal D.A.R. at p. 6297].) “There are important reasons why a trial judge must not compromise the secrecy of jury deliberations.” (Symington, supra, ____ F.3d at p.____ [1999 Daily Journal D.A.R. at p. 6297.].) Included in these reasons are the risk of inviting the trial court to second-guess and influence the jury’s work and the risk of exposing deliberations to public scrutiny, jeopardizing the integrity of the deliberative process. (Ibid.) Because the instruction suggests that the judge may delve into the reasons for a juror’s position, the instruction again misinforms the jury.
Thus, CALJIC No.17.41.1 violates the California Constitution’s guarantee of a unanimous jury and the United States Constitution’s guarantees of an impartial jury and of due process. The instruction further contravenes the California Supreme Court’s decision in Gainer, supra, and misinforms the jury about its powers and the consequences of standing by one’s conscience. Accordingly, it was error to instruct the jury here with CALJIC No.17.41.1.
D. The error is reversible per se.
Where an error is structural, it is reversible per se. (Sullivan v. Louisiana (1993) 508 U.S. 275 [124 L.Ed.2d 182, 113 S.Ct. 2078].) Giving CALJIC No. 17.41.1 implicated defendant’s fundamental right to twelve jurors exercising their independent opinion and defendant’s and the jurors’ fundamental right to juror nullification, as well as allowing the trial judge to invade the province of the jury. Accordingly, giving CALJIC No. 17.41.1 is structural error, and the judgment must be reversed.
Footnote 1: Allen v. United States (1996) 164 U.S. 492 [41 L.Ed. 528, 17 S.Ct. 154].
Footnote 2: In People v. Metters (SO69442), rev. granted June 10, 1998, formerly at 61 Cal.App.4th 1489, the defendant asserted that removal of a holdout juror violated his right to a unanimous jury. The Supreme Court has issued “grant and hold” orders on several subsequent cases, including People v. Robery (SO71279), rev. granted August 26, 1998, in which a juror was removed who was believed to be unwilling to follow the law.