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"Return to the Court With a Verdict of Guilty":

That's what a Canadian judge told the jury in a marijuana possession case, where the defendant claimed he possessed the marijuana for medical reasons (though he apparently didn't qualify for some reason for Canada's medical marijuana exemption): The judge instructed the jurors "to retire to the jury room to consider what I have said, appoint one of yourselves to be your foreperson, and then to return to the court with a verdict of guilty."

Yesterday, the Supreme Court of Canada reversed the conviction (R. v. Krieger), concluding -- as do American courts -- that the right to criminal jury trial means that the judge may not categorically direct the jury to render a guilty verdict, even if the judge believes that the factual evidence against the defendant is overwhelming.

Thanks to R.G. Newbury for the pointer.

Christopher M (mail):
The best part is where one juror tries to get out from under the judge's direct order to convict, stammering, "Here in the — in our — in our group, we — there are only two choices to — yes or no, or to be guilty or not guilty. So..."

And the judge helpfully clarifies: "Actually there is one choice and that is guilt."
10.28.2006 4:16am
Alan K. Henderson (mail) (www):
Man, that could be a Monty Python or Saturday Night Live sketch.
10.28.2006 7:10am
Wikstrom (mail):
...the modern American system has largely overcome such problems with uncooperative juries -- most criminal cases are simply prosecuted without jury trials at all.
10.28.2006 7:58am
Brett Bellmore:
Or by simply arranging for the jury to be unaware of the fact that it's a medical marijuana case. In the US, the right to trial by jury is, thanks to the judiciary, the right to a jury of "mushrooms".
10.28.2006 9:03am
lucia (mail) (www):
Gosh! As a juror, I might just get so pissed off, I'd refuse and see what happened. Sheesh.
10.28.2006 9:22am
percuriam:
No harmless error review in Canada?
10.28.2006 10:11am
Sean M.:
Per Curiam,

There is harmless error review in Canada, but as the decision makes clear, two jurors wanted to acquit but the judge basically told them "no."

It's even worse than the one quote makes it out to be.
10.28.2006 11:25am
AppSocRes (mail):
Just as bothersome to me are the small, but not insignificant, number of cases in this country where the judge overrules a jury's guilty verdict and sets a defendant free. It's my understanding -- someone please correct me if I'm wrong -- that in such situations double jeopardy protects the judge-freed felon from further prosecution, even though a jury of his peers found him guilty and deserving of punishment.

Then there are the judges who while acknowledging the jury's guilty verdict effectively annul it with a piffling sentence for a serious crime. In Massachusetts, we recently got rid of a female judge who throughout a trial openly flirted with a child rapist and ultimately let him off with such a lenient sentence that she was referred to the Commonwealth's judicial discipline board. She's gone on to be a phony tv judge, where hopefully she can do less harm.
10.28.2006 11:43am
Peter Wimsey:
I don't think that this kind of error would ever be considered harmless.
10.28.2006 11:46am
JB:
They can do that?
10.28.2006 12:06pm
Bruce Hayden (mail) (www):
I think that part of why it would probably never be considered harmless is that to some extent we do have jury nullification. Yes, the defense can't argue it (at least that is my understanding), but it is still in effect and has its place in our jurisprudence - though not all of its history here has been that honorable (I am thinking of some of the trials in the segregated South where Whites were acquited of murdering Blacks on racial grounds).

I was initially asking myself, why not just a directed verdict? But presumably, that is not available, even at a beyond-a-reasonable-doubt level in criminal cases a good part because of the jury nullification issue.

And, yes, I agree that in many, if not most, cases these days, the prosecution nicely steps around this via bench trials.
10.28.2006 12:11pm
Truth Seeker:
And, yes, I agree that in many, if not most, cases these days, the prosecution nicely steps around this via bench trials.

Doesn't the defendant decide if he wants a bench trial or jury trial?
10.28.2006 1:40pm
lee (mail):
So will anything happen to this judge? Seems if he is so ignorant of the law, much less justice, he should be removed from the bench--but I won't hold my breath.
10.28.2006 1:50pm
chrismn (mail):
Hmmm. Let me get this straight. It's not ok for a judge to tell a jury "Come back with this verdict" but it is ok for a judge to tell a legislature "come back with this law."
10.28.2006 3:16pm
Geoff (mail) (www):
The whole point of the jury system is to protect citizens from unjust laws or an overzealous government. Accordingly, it is an abomination when judges refuse to allow defense counsel to argue for jury nullification.
10.28.2006 4:25pm
Owen Hutchins (mail):
Chrismn- yes.
10.28.2006 4:42pm
whit:
I think it's a tough question as to whether defense attorney should be allowed to ARGUE for jury nullification.

Otoh, I think it is the duty of any juror to USE jury nullification in cases they see fit.
10.28.2006 6:04pm
R. G. Newbury (mail):
Truth Seeker:
The Crown attorney was hoist by his own petard. I don't do crim law, but IIRC when its an indictable offence (aka felony) the defendant has the choice. When its charged as a summary conviction offence (aka misdemenour) then no jury right.
Lee:
Good thing you are not holding your breath. Highly unlikely that anything will happen to the judge. If you followed the link and read the report, you will note that the Court of Appeal UPHELD the conviction. Also note that SCoCAN ordered a new trial.
Bruce:
SCoCAN made it clear that the only directed verdict a judge can give is an acquital (on the basis that there is insufficient evidence upon which a conviction could be upheld).
Regarding harmless error review: SCoCAN made it quite clear that the underlying problem was that even if thris is treated as a 'harmless error', it is impossible to tell that the error was harmless, especially since 2 jurors tried to get off the jury! And length of deliberation means nothing either way.. 2minutes means that they followed the judge's order and 6 hours just as likely means they were arguing about how dangerous it would be to refuse to follow his order.

I have often wondered how D.A.'s argue to deny the defence the right to raise jury nullification. The concept is clearly part of the common law which IIRC is the adopted basis for the law of the USA (note the historical references in the decision). Surely, it would be available to a defence attorney to argue that the denial of the right to make the argument is denial of the right to make a full defence, and that the actions of the D.A. are in fact, breaches of Federal civil rights law. Hell...make it a conspiracy of D.A.'s and argue RICO. Seriously, denial of the right to make an argument is clearly a denial of the right to full answer and defence and a denial of justice.
10.28.2006 6:09pm
arbitraryaardvark (mail) (www):
I'm lucky to live in one of the 4 states where jury nullification is an explicit right in the state constitution.
www.fija.org collects cases and articles.
10.28.2006 6:35pm
Flavio Rose (mail):
There is a British tradition that the judge summarizes the evidence for the jury. It appears from the opinion of the Supreme Court of Canada that this tradition is operative in Canada. Note the principal case relied on, R. v. Wang, is British. The principal persuasive authority is Lord Devlin's extrajudicial writing.

I believe the British tradition of summarizing the evidence does not exist in America. A federal district judge told me that he felt making such a summary would result in automatic reversal. Thus, it seems to me that the decision of the Supreme Court of Canada has little relevance to American practice.

The following is from Lord Devlin's opinion in Chandler v. Director of Public Prosecutions [1964] AC 763, quoted in Regina v. Wang:

"A judge may, of course, give his opinion to the jury on a question of fact and express it as strongly as the circumstances permit, so long as he gives it as advice and not as direction. The trial judge indicated a fairly strong opinion in the present case, particularly at the end of his summing-up, when he hinted to the jury that there was only one verdict that they could in conscience return. But this was not improper, for even in relation to the limited facts which he left for their consideration, he told them clearly several times that the question was for them to answer...."

This is a world away from American practice.
10.28.2006 7:57pm
Le Messurier (mail):
How does a judge or the attorneys in a case know when jury nullification has occured?

Suppose I'm on a jury and the judge tells me (the jury) that a corporation has a potential liability in a tort case when a fatal accident was caused by an employee running an errand for the company, in his/her own car. And I/we say "the corporation wasn't driving that car and they're in the case because the plaintiff thinks they have deep pockets; the girl was driving; we find the girl liable and the corporation can walk. Isn't that jury nullification? And who would know that it was nullification? Or am I missing the definition and or the point?
10.28.2006 8:21pm
Visitor Again:
My memory is that California law permits the judge to comment to the jury on the state of the evidence. But judges very rarely make such comments. And I believe there is case law circumscribing what they may properly say. Sorry this is from memory, but I don't have time to look it up.
10.28.2006 8:49pm
Edward A. Hoffman (mail):
It seems to me that, in the U.S., this would be "structural error" -- an error in the trial mechanism itself rather than in the mechanism's operation. There are various types of structural error, but taking the ultimate decision of guilt or innocence away from the designated finders of fact (the jury) would have to qualify. Structural errors are reversible per se, and thus are not subject to harmless error analysis. There is no such thing as a harmless structural error.
10.28.2006 11:00pm
ReaderY:
In North Carolina, the Judge was required to summarize the evidence until about 20 years ago.
10.29.2006 1:36am
Beerslurpy (mail) (www):
Is it no longer fashionable for judges to attend law school in Canada?
10.29.2006 5:55pm
Anderson (mail) (www):
most criminal cases are simply prosecuted without jury trials at all

Say what???
10.29.2006 6:46pm
Le Messurier (mail):
Anderson

Here in Arizona 90% of ciminal cases are plea bargined = no jury trial. I didn't make that 90% up either. Thats a published fact.
10.29.2006 9:14pm
logicnazi (mail) (www):
AppSocRes,

Yes, the criminal justice system is designed to favor the defendant. Rather let 10 guilty men go free than convict one innocent man and all that.

Yes, judges do sometimes unreasonably set free guilty men but I suspect it is quite rare. Conversely though juries will occasionally convict an innocent man. For instance suppose somehow the jury is exposed to suggestive evidence the man is a child molester (this information is somehow at the heart of the indictment, e.g., he is being arrested for murdering the lead witness in that case) or other politically hot category. It is necessary to let the judge set aside verdicts like this.

If you don't believe this just look at some of the civil cigarette awards. Do you really think that similar things never happen in criminal trials.

Yet this means the system is, or should be, biased towards the defendant but that is the idea. If we really want to get into the question of fairness we should first address the fact that prosecutors are far better funded than public defenders.
10.29.2006 10:12pm