Brief Bank # B-800e (Re: F 17.41.1 n2 [Challenge To “Juror-Snitch” Instruction].)
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VII. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY WITH CALJIC NO. 17.41.1 BECAUSE THE INSTRUCTION MISINFORMS THE JURY AS TO THE JURY’S AND THE COURT’S POWERS AND INFRINGES UPON APPELLANT’S AND THE JURORS’ RIGHT TO NULLIFICATION AND APPELLANT’S RIGHT TO REMAIN FREE FROM CONVICTION ABSENT THE CONCURRENCE OF TWELVE JURORS EXERCISING INDEPENDENT JUDGMENT, MANDATING REVERSAL.
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.
(RT 224-225; CT 61, emphasis added.)
The premises of the instruction are not only that 1) jurors have the duty to deliberate, but also that 2) the trial court may inquire into the thought processes of the jury and prevent it from engaging in nullification; 3) the juror’s oath gives the jurors a duty to “snitch” on each other; 4) the court has a right to be advised of and evaluate what occurs in the jury room before actual misconduct takes place; and 5) the court must then take remedial action by either removing the offending juror(s) or forcing them into acceding to the court’s or other jurors’ wishes.
These premises, other than the first-the jurors’ duty to deliberate, which is already covered in CALJIC No. 17.40 [Footnote1] -are incorrect and troubling for a number of reasons. First, the instruction infringes the defendant’s and the jury’s constitutional right to nullify. Second, even if there is no right to nullify, the instruction misadvises the jury as to its powers and as to the trial court’s power to inquire into deliberation and to punish jurors for their deliberations. Third, 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 defendants’ right to twelve independent jurors.
Thus, CALJIC No. 17.41.1, which was developed for no apparent reason, is rife with error, both constitutional and nonconstitutional. And giving the erroneous instruction was reversible per se, or, in the alternative, was not harmless beyond a reasonable doubt.
This Court should reverse the judgment.
B. The instruction violated appellant’s and the jurors’ constitutional rights to nullification.
Appellant submits that both criminal defendants and jurors possess the constitutional right to nullify a verdict and thus that giving CALJIC No. 17.41.1 violated this right.
The Sixth and Fourteenth Amendments, as well as the California Constitution, should be read to bestow upon a defendant the right to jury nullification, which is integral to the concept of a fair jury trial. (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].)
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. I, § 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, and subsequent release of the jurors on a writ of habeas corpus after the state incarcerated them and denied food and water because of this acquittal, to Peter Zenger’s acquittal on freedom of speech principles (Trial of John Peter Zenger (1735) 17 Howell State Trials 675). (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 a juror’s 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].) Again, looking to historical precedent, 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 court’s direction. (Howe, Juries and Judges of Criminal 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 her conscience and vote for acquittal. Mr. Laughlin 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 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 is 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 referred 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]; see also Morrisette v. United States (1952) 342 U.S. 246, 276 [96 L.Ed. 288, 72 S.Ct. 240] [“[J]uries are not bound by what seems inescapable logic to judges. . . . They might have refused to brand Morrissette as a thief. Had they done so, that too would have been the end of the matter.”].)
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. Cline (Fourth Dist., Div. Two 1998) 60 Cal.App.4th 1327, 1335 [defendant has no right to nullification]; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1438 [the court need not affirmatively instruct the jurors that they have the power to nullify]; 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, supra, 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. opn. of Kaus, J.); but see Sparf v. United States (1895) 156 U.S. 51, 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].)
Accordingly, by implicitly stating that jurors may not nullify, CALJIC No. 17.41.1 violates defendants’ and/or jurors’ right to nullification, constituting error of constitutional magnitude.
C. Giving the instruction constitutes error because it misadvises the jurors as to their and the trial court’s power by affirmatively suggesting that the jurors have no power to nullify and that the court may interfere with deliberations and punish jurors for their views.
Because CALJIC No. 17.41.1 affirmatively suggests to the jurors that there is no right or power to nullify and because it implicitly threatens sanctions if one or more jurors tries to nullify, it misadvises the jury as to these legal principles. Giving the instruction was error.
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 (1977) 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 retrial].) CALJIC No. 17.41.1 affirmatively conceals the truth that the jurors’ power to nullify even exists. And, as discussed above in subsection B, the jurors’ power to nullify is firmly established, even if their right to nullify is not as clearly established.
Even more troubling, the instruction tells the jurors that if they disregard the law and are found out, that they are in trouble. (See People v. Dillon, supra, 34 Cal.3d 441, 490 (conc. opn. of Kaus, J.) [“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]; People v. Perry (1904) 144 Cal. 748 [the juror oath requires acting on own judgment and protects juror from interference on that regard, whether by the court or by fellow jurors].) The instruction fails to state what will happen to the jurors if the judge finds out they wish to nullify, leaving the sanctions limited only by the jurors’ imaginations.
Moreover, it is unclear whether the court may even remove a holdout juror. The issue of whether removal of a holdout juror violates a 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]; United States v. Brown (D.C.Cir. 1987) 823 F.2d 591; United States v. Thomas (2d Cir. 1997) 116 F.3d 606, 621; see also State v. Cheek (1997) 262 Kan. 91 [936 P.2d 749] [dismissal of lone hold-out juror constituted abuse of discretion]; People v. Rowland (9/22/99) ___ Cal.App.4th ___ [99 Daily Journal D.A.R. 9997] [same].) 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 properly cannot inquire into the reasons the juror has reached the decision reached, especially where the juror’s decision is to acquit. 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, because CALJIC No. 17.41.1 misinforms the jury about its power to nullify and the court’s power to curtail nullification, giving this instruction was error.
D. The instruction given violates appellant’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 (see, e.g., CALJIC No. 17.40 [“The People and the defendant are entitled to the individual opinion of each juror.”]; People v. Gainer, supra, 19 Cal.3d 835, 848, 849.) This right arises from the state and federal constitutional rights 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]; Brown v. Louisiana (1980) 447 U.S. 323, 330 [65 L.Ed.2d 159, 100 S.Ct. 2214] [while the Sixth and Fourteenth Amendments do not require full unanimity, they do prescribe size and unanimity limits preserving the essence of the right to jury trial]; U.S. Const., Amends. VI, 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 jurors if they should disagree with the government. Specifically, 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 and unanimous jury.
The California Supreme Court previously has held that judges may not use instructions to pressure holdout jurors into a unanimous verdict. In Gainer, the California Supreme Court addressed the propriety of an instruction, called a “dynamite” or “Allen” [Footnote 3] charge, which advised a split jury that, inter alia, 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 independently achieved jury unanimity.” (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.)
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, as well as contravening the California Supreme Court’s decision in Gainer.
E. The error is reversible per se and, in the alternative, is not harmless beyond a reasonable doubt.
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.
But even assuming arguendo that a harmless error standard were appropriate, the government could not meet its burden under Chapman to establish that the error is harmless beyond a reasonable doubt.
[Prejudice argument here]
Accordingly, the error was not harmless, and this Court must reverse the judgment.
CALJIC No. 17.41.1 is patently invalid. It invades the province of the jury, interferes with the defendant’s right to a unanimous jury exercising independent judgment, tramples on the defendant’s and jurors’ right to nullification, and blatantly misadvises the jury, directly and indirectly, as to its powers and its rights.
What is especially troubling is that there is no valid reason justifying the existence of CALJIC No. 17.41.1. To the extent a small part of the instruction may be valid-telling the jury about the duty to deliberate and to avoid relying upon punishment-these points are adequately addressed elsewhere in the standard CALJIC instructions. No comment accompanies the instruction, and thus there is no citation to a case, rule, or empirical study that might justify the instruction’s existence. Indeed, this instruction stands alone in the legal system in suggesting that a party in the system may interfere with the jurors or their deliberation process, much less punish the jurors for this process. (See, e.g., CALJIC No. 17.60 [advising the jury it has an absolute right to discuss or not discuss the deliberations or verdict, with unreasonable contact by the parties or counsels punishable by sanctions]; Code of Civ. Proc., §§ 206, subd. (f), 237; [sealing of juror information to prevent contact]; Evid. Code, § 1150 [evidence as to the jurors’ mental processes and the effect of statements or events on jurors is inadmissible].)
Because the trial court’s erroneous instruction with CALJIC No. 17.41.1 was reversible per se (and, at any rate, not harmless beyond a reasonable doubt), this Court must reverse the judgment.
Footnote 1: CALJIC No. 17.40, titled “Individual Opinion Required-Duty to Deliberate,” reads, in relevant part: “Each of you must consider the evidence for the purpose of reaching a verdict if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors.” (CALJIC No. 17.40 (6th ed. 1996); see also CT 59; RT 224.) Additionally, CALJIC No. 17.42, also given here, directs the jury that it must not consider penalty. (CT 62; RT 225 .)
Footnote 2: In People v. Metters (S069442), 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 (S071279), rev. granted August 26, 1998, in which a juror was removed who was believed to be unwilling to follow the law.
Footnote 3: Allen v. United States (1896) 164 U.S. 492 [41 L.Ed. 528, 17 S.Ct. 154].