Jury nullification, part two

The flickering light of my attention fell this week upon the issue of jury nullification because of the conviction of Kirk Wright, not a very sympathetic figure.

Mr. Wright, it seems clear to meas it seemed clear to the jury, was scamming people out of millions of dollars, purporting to run a hedge fund when all he was running was a lavish lifestyle.

It is, of course, legal to solicit money to invest and then to make bad investments and lose that money. It is even legal to compensate yourself handsomely while the suckers stand for it. Caveat emptor. What isn't legal is lying about what you're doing and how well or poorly you're doing it, which is what Wright did. He sent out professional-looking account statements that persuaded his clients that their money was secure and growing.

Then came the inevitable day when some of those clients started receiving their redemptions in rubber checks....

At the two-week trial this month, Wright's attorneys were prepared to offer an "empty chair defense." What's that? In a classic empty-chair defense, Butch Cassidy is arrested. The Sundance Kid either escapes or, perhaps, has turned state's evidence and entered the witness protection program. Since the prosecution has Butch dead to rights on the merits, a lawyer might seek to play to jury sentiment by putting an empty chair at the defense table, and telling the jury dramatically, "that is where the Sundance Kid ought to be sitting."

The tactic is, precisely, a play on sentiment. Jurors often feel that it is unfair to punish Butch if they can't punish Sundance too. The way to relieve that sense of unfairness: acquit Butch!

To make the "empty chair" argument where it is clear that Butch is guilty is to appeal to the jury to nullify the law, because no law requires all possible defendants in the same crime to be brought to trial if any of them are.

Anyway, this was Kirk Wright's attorneys' plan. I don't think they planned literally to put the empty chair there, but they did want to argue to the jury that Wright had accomplices, with responsibility equal to or greater than his own for the production of the phony statements to clients that were the root of his criminal liability.

The prosecution successfully requested what's known as an order in limine, barring defense counsel from making that argument.

Assume the defense has successfully preserved a basis for appeal on this issue, and that they do argue to an appellate court that they should have been permitted to make the empty-chair/nullification appeal.

Does anybody want to play appellate-judge-for-a-day here and render a decision on that point for my benefit?

Jury nullification, part one

Sometimes a jury will violate its instructions. This is simply a fact.

The judge is supposed to instruct the jurors on the law, the jury is supposed to deliberate on the facts of the case and apply those facts to the instructions in order to reach a verdict, but it doesn't always happen that way.

What you'll decide about the rightness or wrongness of this matter depends upon your broader ethical/political principles. You might fear "runaway juries" as sources of chaos. You might believe that if the laws are made by a process you consider legitimate (a democratically-elected legislature) and the judge's instructions on them are accurate, then any independence a jury shows must by definition by illegitimate.

On the other hand, you might think the jurors themselves a more reliable vox populi than that elected legislature. Consider a drug bust. The police officer testifies, "I found a bag of controlled substance X on the body of the suspect." The suspect testifies, "No, the officer planted the X on me -- I'm innocent." This is a classic dispute over fact, not law. The judge instructs the jury, "If you find that the accused had X when he was first approached by the officer, then you must find him guilty."

Inside the jury room, someone may say, "X isn't really a big deal. I've done some X myself." Someone else, "we really don't need to be sending our community's young men away to prison for matters like this." They're not arguing on the factual question nominally submitted to them -- they're arguing for nullification.

As I say: this happens. It is a fact, not a theory. No informed person disputes that. How often does it happen? That's hard to say.

From a policy point of view, one hotly contested question is: should lawyers for the defendant be allowed to ask the jury to nullify? Should the appeal "yes, our client possessed X, but we ask you to acquit anyway," be permitted by officers of the court?

I'll speak more of that, and of the contemporary litigation that brings it to mind, tomorrow.