Defense counsel cannot argue jury nullification in criminal case

This case was set for trial. The criminal defendant was charged with possession of child pornography. His lawyer wanted to tell the jury that they could engage in "jury nullification," which involves the jury entering a defendants' verdict not because the prosecution cannot prove the charges beyond a reasonable doubt but because they find the prosecution to be unjust. The trial court said defendant's counsel could make such an argument to the jury. The Court of Appeals says the trial court was wrong and defendant's counsel cannot argue jury nullification.

The case is United States v. Manzano, issued on December 18. Defendant was arrested for having relations with a 15-year-old girl. The defendant was 31 years old. The incident was captured on video. According to the Second Circuit, M.M. knew that Manzano was recording the video at the time, and Manzano did not threaten her or force her to engage in the sexual conduct. Nonetheless, M.M. was 15 years old when the video was recorded and therefore was incapable of consenting to sexual conduct as a matter of law. Although Manzano did not distribute the video, he uploaded it, using internet servers located outside of Connecticut, to his personal Google Photos folder." Defendant's lawyer in particular wanted to tell the jury about the sentencing consequences of this charge and suggest that the jury could acquit if it found the prosecution or sentencing consequences to be unjust.

Judge Underwood of the district court noted that he was prohibited from charging the jury that it could do a jury nullification, but the Court of Appeals disagrees, issuing this ruling before the trial started, a rare procedure but necessary since it affects how the trial would unfold. The Second Circuit (Sullivan, Chin and Parker [dissenting in part] says: Our case law is clear: 'it is not the proper role of courts to encourage nullification.' United States v. Polouizzi, 564 F.3d 142, 162–63 (2d Cir. 2009). Rather, 'the power of juries to ‘nullify’ or exercise a power of lenity is just that – a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.' United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997)." What the district got wrong was drawing an "arbitrary distinction between encouraging the jury via jury instructions – which it properly deemed impermissible – and granting defense counsel’s motion to argue nullification. This distinction is unsupported by our case law."

Judge Parker dissents in part, writing:

There is a straightforward solution that could avoid the problems raised by the petition and discussed in this dissent. The petition should be held in abeyance and the case remanded to the District Court, at which time the prosecutors could revisit their charging decision. If they chose not to do so, they could provide information as to why they believed their decision was appropriate. If this approach did not resolve the problem, this Court could then revisit the petition.

Judge Parker adds that Judge Underwood thought a miscarriage of justice would occur if the defendants were required to spend 15 years in prison for his conduct. He writes: "An especially unsettling aspect of this case is that the record the prosecution presented to the District Court and to this Court is barren of anything that would explain, much less justify, the prosecutors’ decision to file the most serious child pornography charges available to them against a man who made a single video
which no one else ever saw and which he then attempted to erase."

Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted. But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so. “[F]ederal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts.”