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HIGH COURT REJECTS 'JURY
By Peter Blumberg
Daily Journal Staff
May 08, 2001
SAN FRANCISCO - For the first time, the California
Supreme Court on Monday affirmed the duty of trial judges to replace jurors who
refuse to apply the law in criminal cases.
In the case of a juror who
told a trial judge he could not in good conscience vote to convict an
18-year-old of committing statutory rape with his 16-year-old girlfriend, the
high court unanimously ruled that the juror violated his oath to uphold the law
and was properly removed from deliberations. People v. Williams,
Although it has long been recognized that a jury effectively has
the ability to disregard, or nullify, the law, Monday's opinion marked the first
time the Supreme Court has directly confronted whether trial judges may remove
jurors who disclose during deliberations that they will not apply the law as
instructed by the court.
"Jury nullification is contrary to our notion of
justice for all and permits both the prosecution's case and the defendant's fate
to depend upon the whims of a particular jury, rather than upon the equal
application of settled rules of law," Chief Justice Ronald George wrote. "A
nullifying jury is essentially a lawless jury."
But in a companion case
also decided Monday, the justices warned trial judges not to be too quick to
replace a juror who disagrees with his peers on the evidence, even if the other
jurors complain that he's not participating in deliberations.
v. Cleveland, S078537, the court unanimously agreed the trial judge in a robbery
case should not have removed a juror who was the lone holdout for acquittal
without stronger evidence of his refusal to deliberate. Monday's decision
overturned the defendant's conviction.
Taken together, the two rulings
made clear that jurors cannot be removed simply for disagreeing over the
evidence but that they must be removed when they are unwilling to follow the
law. Lawyers said they were not surprised by the outcome in Williams because
judges have long denounced jury nullification, which was imported into American
jurisprudence from English law as a means of protesting unjust
Today, debate over jury nullification occasionally crops up in the
context of jurors refusing to impose a life sentence under the 1994 "three
strikes" law on a defendant found guilty of a minor third felony
Prosecutors say Monday's opinion should end any debate over the
legality of nullification. "We view it as an appropriate, unequivocal statement
by the court
that the rule of law will prevail, that jurors must take the law
as given by the trial judge even if they disagree with it," said Deputy Attorney
General Karl Mayer.
California law has consistently condemned any
instruction inviting jurors to reject a guilty verdict if applying the law would
lead to an unjust result. In 1998, the Judicial Council adopted a jury
instruction that requires jurors to notify a trial judge if any jury member
expresses an intention to disregard the law.
Mayer acknowledged that
Monday's opinion won't stop individual jurors from reaching conclusions based on
their own notion of right and wrong, but it does put lawyers and judges on
notice that open defiance of the law will not be tolerated.
take an oath before they consider a case," he said. "If they engage in
nullification, the are effectively violating the oath." Emeryville jury
consultant Howard Varinsky, who specializes in high-profile criminal cases, said
he would never expect an appellate court to approve of jurors disregarding the
law. He said good defense attorneys know not even to use the term "jury
"When we're trying to get a jury to nullify, we do it by
appealing to their sense of fairness and their sense of right and wrong," he
said. "We never address it literally."
One academic expert lamented
Monday's ruling, saying that jury nullification is misunderstood as a threat to
the power of judges when really it should be embraced as "a mercy plea" that
comes into play in only a tiny fraction of cases that involve moral judgments.
"What point does the jury serve if the judge tells them what to decide?" said
Alan Scheflin, a professor at Santa Clara University School of Law. "All the
court did today is say that people should lie to the court, because the fervent
jury nullification proponents are going to keep lying. I don't advocate this,
but it's as true as night turns to day, as long as they are instructed by the
literature to keep their thoughts to themselves."
18-year-old Arasheik Williams was charged with violently raping and beating his
16-year-old girlfriend. His trial lasted more than two weeks.
arguments, the defense attorney made a subtle pitch for nullification in
reference to the additional charge of unlawful sex with a minor, telling jurors
they may decide to "afford a higher justice by refusing to enforce harsh
A few hours into deliberations, the jury foreman sent a note to
the judge saying that one juror was refusing to follow the judge's instructions.
Questioned by Santa Clara County Superior Court Judge Paul Teilh, juror David
Kelly said, "I simply cannot see staining a man, a young man, for the rest of
his life for what I believe to be the wrong reason." "So you're not willing then
to follow your oath?" Teilh asked. "That is correct," Kelly said. The judge then
replaced Kelly with an alternate, and the jury convicted Williams.
unpublished opinion, the San Jose-based 6th District Court of Appeal upheld the
conviction. The Supreme Court on Monday agreed the trial judge had good cause to
dismiss Kelly from the jury, rejecting the defendant's argument that Kelly was
exercising his right to engage in jury nullification. George wrote that
just because jurors have the raw power to disregard the law doesn't mean that
courts should in any way condone it. "The circumstance that, as a practical
matter, the jury in a criminal case may have the ability to disregard the
court's instructions in the defendant's favor without recourse by the
prosecution does not diminish the trial court's authority to discharge a juror
who, the court learns, is unable or unwilling to follow the court's
instructions," he wrote.
In a concurring opinion, Justice Joyce L.
Kennard cautioned trial judges not to compromise the secrecy of jury
deliberations by asking overly intrusive questions in an effort to determine
whether a juror is refusing to follow the court's instructions on the
In Cleveland, the other case decided Monday, Los Angeles County
Superior Court Judge Richard Romero halted deliberations when he got a note from
the jury saying that Juror No. 1 "does not show a willingness to apply the law."
The judge questioned each of the 12 jurors privately. The holdout juror
insisted he had simply made up his mind to acquit and didn't want to hear
details of the case. Romero concluded that Juror No. 1 was "not functionally
deliberating" because he would not respond to questions from other jurors about
specific facts and details.
The Los Angeles-based 2nd District Court of
Appeal reversed, ruling that the trial judge prematurely dismissed the holdout
juror without showing beyond a doubt that he was failing to deliberate. The
Supreme Court agreed. "It is possible that Juror No. 1 employed faulty logic and
reached an 'incorrect' result, but it cannot properly be said that he refused to
deliberate," George wrote. "Juror No. 1 participated in deliberations,
attempting to explain, however inarticulately, the basis for his conclusion that
the evidence was insufficient to prove an attempted robbery, and he listened,
even if less than sympathetically,
to the contrary views of his fellow
Cleveland's appellate attorney, James B. Bostwick Jr. of Pomona,
said the court has provided solid guidance on how trial judges should handle
"I've had four or five of these cases in just the last two
years," he said. "One juror complains about another and then it gets in front of
the trial judge and as soon as there's a hint of a holdout, the prosecutor says,
'We ought to get rid of this guy because he's committing misconduct.' I think
it's something that needs to be checked and that's why the Supreme Court took
The deputy attorney general representing the prosecution in
Cleveland was not available for comment.
We have on our website an
excellent article about J.A.I.L. dated August 13, 1999, written by Peter
Blumberg (author of the above
<Click Here> http://www.jail4judges.org/index/daily.htm
(See comments of J.A.I.L. after the below
of prominent statesmen:
"I consider trial by jury as the only anchor yet
imagined by man by which government can be held to the principles of its
constitution." Thomas Jefferson
"The jury has a right to judge both the
law as well as the fact in controversy." First U.S. Supreme Court Chief Justice,
John Jay (1789).
"The jury has the right to determine both the law and
the facts." U.S. Supreme Court Justice Samuel Chase (1796), and signer of the
Declaration of Independence.
"The people are the masters of both Congress
and Courts, not to overthrow the Constitution, but to overthrow the men who
pervert it!" President Abraham Lincoln.
"The jury has the power to bring
a verdict in the teeth of both law and facts." U.S. Supreme Court Justice Oliver
Wendell Holmes, Horning v. District of Columbia, (1920) 254 U.S.
"The law itself is on trial quite as much as the cause which is to
be decided." Twelfth U.S. Supreme Court Chief Justice, Harlan F. Stone
Essay on Trial by Jury (book):
"Government is established for
the protection of the weak against the strong. This is the principle, if not the
sole motive, for the establishment of an all legitimate government. It is only
the weaker party that lose their liberties, when a government becomes
oppressive. The stronger party, in all governments, are free by virtue of their
superior strength. They never oppress themselves. Legislation is the work of
this stronger party; and if, in addition to the sole power of legislation, they
have the sole power of determining what legislation shall be enforced, they have
all power in their hands, and the weaker party are the subject of an absolute
government. Unless the weaker party have a veto, they have no power whatever in
the government... ." Lysander Spooner
United States v.
"There has evolved in the Anglo-American system an undoubted jury
prerogative-in-fact, derived from its power to bring in a general verdict of not
guilty in a criminal case, that is not reversible by the court. The power of the
courts to punish jurors for corrupt or incorrect verdicts, which persisted after
the medieval system of attaint by another jury became obsolete, was repudiated
in 1670 when Bushell's Case, 124 Eng. Rep. 1006 (C.P. 1670) discharged the
jurors who had acquitted William Penn of unlawful assembly.... The pages
of history shine on instances of the jury's exercise of its prerogative to
disregard uncontradicted evidence and instructions of the judge. Most often
commended are the 18th century acquittal of Peter Zenger of seditious libel, on
the plea of Andrew Hamilton, and the 19th century acquittals in the prosecutions
under the fugitive slave law.... Even the notable Dean Pound commented in 1910
on positive aspects of 'such jury lawlessness' [n.32 C.R. Pound, Law in Books
and Law in Action, 44 Am.L.Rev. 12, 18 (1910): 'Jury lawlessness is the greatest
corrective of law in its actual administration. The will of the state at large
imposed on a reluctant community, the will of the majority imposed on a vigorous
and determined minority, find the same obstacle in the local jury that formerly
confronted kings and ministers.'].... We are aware of a number and variety of
expressions at that time from respected sources-- John Adams; Alexander
Hamilton; prominent judges-- that jurors had a duty to find a verdict according
to their own conscience though in opposition to the direction of the court....
The jury knows well enough that its prerogative is not limited to the choices
articulated in the formal instructions of the court. [n.48 See Judge Rifkind's
comments in Follow-Up/The Jury, Center Magazine, 64-65 (July 1970).].... The
totality of input generally convey adequately enough the idea of prerogative, of
freedom in an occasional case to depart from what the judge says." United States
v. Dougherty (D.C. Cir.1972) 473 F.2d 1113, 1130, 1132, 1135. (The court uses
such terms as "jury revolt" and "the historic role of the jury as a bulwark
against official tyranny." See id.1131)
United States v. Moylan:
recognize, as appellants urge, the undisputed power of the jury to acquit, even
if its verdict is contrary to the law as given by the judge and contrary to the
evidence. This is a power that must exist as long as we adhere to the general
verdict in criminal cases, for the courts cannot search the minds of the jurors
to find the basis upon which they judge. If the jury feels that the law under
which the defendant is accused is unjust, or that exigent circumstances justify
the actions of the accused, or for any reason which appeals to their logic or
passion, the jury has the power to acquit, and the court must abide by that
decision." United States v. Moylan (4th Cir.1969) 417 F2d 1002,
Declaration of Independence (excerpts):
instituted among men, deriving their just powers from the consent of the
governed .... But when a long train of abuses and usurpations, pursuing
invariably the same object evinces a design to reduce them under absolute
despotism, it is their right, it is their duty, to throw off such government,
and to provide new guards for their future security."
We highly recommend the pamphlet "True or False" by the
Fully Informed Jury Association (FIJA) P.O. Box 59, Helmville MT 59843,
1-800-Tel-Jury, or (406) 793-5550. In California, contact JAILer Peymon
Mottahedeh, Freedom Law School (714) 838-2896.
Here is a good reason for
the immediate passage of J.A.I.L. and an uprising public revolt and a call for
the removal from the bench of all seven justices of the California Supreme
Court. This decision in the Williams case above is null and void, and any
affirmance of a void decision is equally void, and may be ignored. An obvious
Constitutional concern that this case pretends to shatter is the First Amendment
right of any juror to protest any law placed on the books. Such right is
fundamental to the founding precepts of our country. It also assails the
"consent of the governed," clause, and the principle of a "government of the
People. Let's start that revolt with J.A.I.L. -Ron Branson.
is an acronym for Judicial Accountability Initiative Law
informative website is found at www.jail4judges.org
JAIL proposes a
unique new addition to our form of government.
JAIL is powerful! JAIL is
dynamic! JAIL is America's ONLY hope!
JAIL's is spreading across America like
a fast moving wildfire!
JAIL is making inroads into Congress for federal
JAIL may be supported at P.O. Box 207, N. Hollywood, CA
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"..it does not require a majority to prevail, but rather an irate,
tireless minority keen to set brush fires in people's minds.." - Samuel
"There are a thousand hacking at the branches of evil to one who
striking at the
-- Henry David Thoreau <><