December 5th, 2019

Jury Nullification and the Trump Impeachment

We have criminal trials. We have civil trials. And we have, rarely, impeachment trials.

Today Mark Bower explores the concept of jury nullification in the context of jurors doing whatever they hell they feel like, regardless of the law. I explored jury nullification once before, albeit it briefly, many years ago.

This fuller discussion comes in the wake of news of President Trump wooing Congressmen and Senators with Camp David visits and special lunches.

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A primer on jury nullification:

The United States Constitution guarantees a trial by jury to all persons accused of a crime. That jury is comprised of average citizens from all walks of life with no special training or skills to serve other than being a U.S. citizen who is at least 18 years old, residing in the judicial  district for a set period of time (typically one year), being proficient in English, having no disqualifying mental or physical conditions, and (in most states) not having a pending or previous felony conviction. In fact, more than 32 million people are called for jury service every year, according to the National Center for State Courts.

Serving on a jury is a hallmark of our justice system and a cornerstone of democracy. But did you know that, unlike judges, juries historically have been able to ignore the law in order to achieve justice in individual cases that involve unjust rules or their unjust application? This is known as jury nullification. Below, you will find a discussion of jury nullification, including how it’s defined, its legality, examples, and how this applies to the impeachment of Trump.

Jury Nullification Defined:

Jury nullification might sound like a convoluted concept in an already confusing legal system, but the idea is actually quite simple. It happens when a jury returns a verdict of Not Guilty despite its belief that the defendant is guilty of the violation charged. Why would a jury do this? Don’t jurors swear an oath to uphold the law? Yes, but oftentimes it is a tool juries can use to set aside a law they believe is immoral or wrongly applied to the accused.

For example, in the 1800s the government passed stringent fugitive slave laws that compelled citizens of all states to assist law enforcement with the apprehension of suspected runaway slaves. Known as the Fugitive Slave Act of 1850, the law included large fines for anyone who aided a slave in an escape, even by simply giving the person food or shelter.

Northerners used the jury box to voice their protest by refusing to convict in these cases and thereby “nullifying” the law on moral grounds. A mirror-image may be found in the countless acquittals in the South of whites charged with lynching black men, regardless of clear guilt-in-fact. In other cases, juries nullified prohibition era laws and drug laws that they disagreed with. Put crudely but accurately, the jurors rejected the charges based on personal beliefs that the laws were wrongheaded.

Jury nullification also exists in civil cases but is relatively uncommented-on. Every trial lawyer knows that cases may be won or lost based on intangibles, such as the likeability or unlikeability of the client, that has nothing to do with the merits of the case. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification. A recent rise in hung juries is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves.

Legality of Jury Nullification:

Jury nullification is legal according to the U.S. Supreme Court, but whether or not juries may be instructed on this right is a different matter. Although the power of jury nullification exists, lawyers are generally prohibited from urging a jury to disregard the law. Although no precedent revokes the power of nullification, courts have since the 19th century tended to restrain juries from considering it, and to insist on their deference to court-given law.

The 1895 decision in Sparf v. United States written by Justice John Marshall Harlan, held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5–4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.

A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the power of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect:

“We 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 justified 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 courts must abide by that decision.”

Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:

“…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to ensure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.”

The right to disregard the law if one disagrees with it on moral grounds, also comes from the fact that jurors cannot be punished for the verdict they render, no matter how unpopular it is to the general public or the specific judge presiding over the case. Also, defendants found not guilty, cannot be retried for the same crime, that would violate the double jeopardy concept.

Hence, once a jury finds a defendant not guilty, there is no mechanism for a prosecutor to bring the case against the same defendant again. (See: Bushel’s Case, from the 1670 trial of William Penn.)

Several cases that were speculated to be instances of jury nullification included the prosecution of Washington, D.C.’s former mayor, Marion Barry; the trial of Lorena Bobbitt; the prosecution of the police officers accused of beating Rodney King; the prosecution of two men charged with beating Reginald Denny in the resulting riots; the trial of the surviving Branch Davidian members; the trial of the Menendez brothers for the murder of their parents; and perhaps most famously, the O. J. Simpson murder trial. In the days preceding Jack Kevorkian’s trial for assisted suicide in Michigan, Kevorkian’s lawyer, Geoffrey Fieger, told the press that he would urge the jury to disregard the law. Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger’s statements had already been extensively reported in the media.

In a 1998 article, Vanderbilt University Law Professor Nancy J. King wrote that “recent Looking to the Clinton impeachment trial for guidance on the Chief Justice’s role has been unsatisfying. C.J. William Rehnquist’s low-key role is remembered mainly for two minor things: (1) His decision to adorn his black robe with glittering gold stripes – an idea lifted from Gilbert & Sullivan’s “Iolanthe;” and (2) his ruling preventing the Senators from being referred to as “jurors”. It is not likely that C.J. John Roberts will get much precedent from Rehnquist’s presiding over the Clinton impeachment.

Will the Trump Impeachment Call for Nullification?

As of this writing, the Trump defense strategy has essentially been to contend that Trump’s pressuring Ukraine to “dig up dirt” on the Bidens, while perhaps unappealing, is too minor a transgression to rise to the “high crimes and misdemeanors” standard for impeachment. So far as I know, no legal commentator has yet called this “jury nullification.”

But conceptually, this is every bit as much “jury nullification” as northern jurors refusing to convict those who helped slaves escape bondage because of their revulsion to slavery, or Southern jurors refusing to convict lynchers. And so, without say so explicitly, the G.O.P. defense strategy is to appeal to the public and Senators to embrace jury nullification and prevent impeachment and conviction.

As the Supreme Court has never rejected jury nullification but won’t allow defense attorneys to explicitly advocate that jurors substitute their personal beliefs for following the law, I expect Chief Justice Roberts will follow that path, not explicitly allowing the Senate to disregard the law while simultaneously allowing them to “vote their consciences.” That will allow the jury nullification strategy that is currently playing out in the media, to play out in the Senate without ever saying so outright.

Will the jury nullification strategy succeed? I can tell you the answer with complete certainty: Maybe. Ask me again in a year, and I will give you an even more certain answer.

* – Mark R. Bower is a former Court TV Commentator and is a board-certified medical malpractice lawyer in NYC. .


 

December 20th, 2018

Trump and the Presidential Veto

Photo credit Evan Vucci / AP

[Cross-posted from Above the Law]

On Thursday morning Donald Trump threatened to veto all legislation over his wall. No such Trump veto will happen. Ever. On any bill.

I don’t get into the realm of political punditry often as it’s not what I do — I usually confine political comments to those issues that deal with tort “reform” — but today we make an exception because this goes, in essence, to all bills sent to the president.

We start this short analysis with the observation that Trump hasn’t vetoed a single bill. He’s the first president since James Garfield to act that way, and Garfield was only in office six and a half months before being shot dead.

Before that was Millard Fillmore who left office in 1853, who also served a partial term as he took office upon the death of Zachary Taylor. Taylor didn’t veto anything, but was in office only 16 months. Before that was William Henry Harrison, who died a month into office.

The last president to go a full term without a veto? John Quincy Adams, our sixth president who left office in 1829.

And a few more simple observations: First, Trump loves signing things and makes a big show of displaying his signature, even for executive orders.

Second, he campaigned as a “deal maker.” It matters not one whit if you agree or not, or think he’s good or not. This is the persona he wants the world to believe.

And now, with the House of Representative turning to Democratic control, any bill that passes both the House and Senate that is in any way contentious will be the result of bipartisan compromise. A deal.

So if Congress passes a bill — even one that’s a complete anathema to his other policies — he will sign it and claim “credit.” Even if he had nothing to do with its negotiation.

Envision, for a moment, a bipartisan compromise bill on immigration. Imagine it chock full of things Trump claims to hate and campaigned against.

Will he sign it? No, the contents of the bill don’t matter. Because more important than the contents is that he would be able to claim “credit” for something, even if he campaigned against it. ‘Look at me, the deal maker.’

Will Trump supporters have a feeling of betrayal — one of the most powerful human emotions? Possibly. But that’s a column for another day. Trump’s first instinct has always been to look inward as to what was good for him today.

Why write about this now? Because every so often you will see Republican Senators claim that they won’t pass a bill because the president won’t sign it. Don’t believe it. It’s a diversion.

Trump will sign anything.

 

December 10th, 2018

When you don’t have the facts…

Rudy Giuliani

Most folks are familiar with the old Carl Sandburg quote, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”

There’s much truth to that, because if we have something important to say on facts or law, any competent lawyer will put that up front.

This idea came home to roost on Friday when Rudy Giuliani spoke on behalf of Donald Trump. Or at least he tweeted, which apparently is good enough for legal representation these days.

The tweet came on the heels of Trump claiming he answered the questions of Special Prosecutor Robert Muller “very easily.

But Giuliani went off message as he completely contradicted his client, saying: “Answering those questions was a nightmare. It took him about three weeks to do what would normally take two days.” 

So what to do? Well, this is where the Sandburg quote comes in…notice how this Giuliani tweet is utterly devoid of facts and law on the issue at hand…

Some in the media are distorting my statement that answering the questions was a nightmare. That is because as President he was interrupted so often with critical and more important matters. It illustrates why Mueller should end this now and media should be fair.

Giuliani starts in one place, trying to reconcile his comment with his client’s. But then goes wildly off course, in the space of one measly tweet, and Mr. Law and Order asks for immunity.

Now lawyers see similar stuff all the time in legal arguments. Lawyer 1 says the evidence shows red light, and Lawyer 2 argues that his client’s pants are purple.  

Lawyers aren’t fooled. We know distraction when we see it, and the job of Lawyer 1 is to make sure that the judge sees that Lawyer 2 never addressed the issue. The only thing the purple pants arguing  lawyer did was destroy his own credibility on the next issue, whatever the next issue may be.

Here, the issue was whether Trump was answering the questions and Giuliani simply makes an argument that presidents are busy, so Mueller should stop asking questions.

The nonsense from Giuliani didn’t stop there, however, as he continued with another inane tweet of defense, this time to the campaign finance laws he appears to have broken. The best Giuliani could do was claim that because John Edwards wasn’t convicted for a payment to cover up an affair/child, that Trump is innocent.

It’s as if Giuliani said that because one bank robbery defendant was found not guilty all must be. As if all factual scenarios are the same. Here’s the humdinger of a tweet:

The President is not implicated in campaign finance violations because based on Edwards case and others the payments are not campaign contributions. No responsible prosecutor would premise a criminal case on a questionable interpretation of the law.

Sometimes, the things to look for are not the distortion of facts in a case but the distractions of opposing counsel. Trump does this all the time, of course. You can ask him about campaign contribution violations and he’ll answer something having to do with Hillary Clinton.

But when lawyers do it, it really brings home the point that there’s trouble in the house and the lawyers don’t have the tools to deal with it.

 

February 14th, 2018

Trump’s Lawyer, the Porn Actress, the 130G Payoff and Attorney Ethics

Stephanie Clifford (aka Stormy Daniels)

Yesterday news broke that longtime Donald Trump attorney, Michael D. Cohen, was responsible for paying $130,000 to porn actress Stephanie Clifford (aka Stormy Daniels) on behalf of Trump in 2016, before the election.

“In a private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford,” Michael Cohen said in a statement. “Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.”

When the underlying stories of they payoff started in January, many folks immediately started looking to see if such a payment violated campaign finance laws. And indeed, that is what most of his statement addressed yesterday.

But I’m looking at the New York Rules of Professional Conduct. Those of us in the personal injury bar know, for example, that advancing funds to clients is a big fat no-no. Does the same provision apply here?

The relevant rule reads as follows:

RULE 1.8:

CURRENT CLIENTS:
SPECIFIC CONFLICT OF INTEREST RULES

(e) While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client…

OK, you see that ellipses and you want to know what comes after, right? There are three exceptions, each of which invite an investigation to see if they apply:

(1) the transaction is fair and reasonable to the client and the terms of the transaction are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

The full statement is below and you can decide for yourself if you think it looks like an advance or guarantee of financial assistance (not because Trump needs it, but to hide it). (Edit: Whether there was litigation involved — matrimonial or contract? — is impossible for us to know from here.) Another problem may be that, from Trump’s perspective, this isn’t a transaction if he claims not to be repaying the money.

At the very least, it seems that Cohen has invited an investigation from the Disciplinary Committee. I’ve long said that Trump is a one-man bar exam with never-ending legal issues unlike any other person. That pattern continues today.

The statement:


 

 

May 25th, 2017

Some Advice for Trump’s New Lawyer

Marc Kasowitz

As the rapidly burgeoning #TrumpRussia scandal moves forward, with evidence piling up that Trump is trying to obstruct congressional investigations into collusion between his campaign and Russia, Donald Trump has picked some personal counsel.

Trump, of course, has picked many attorneys before, he being involved in over 3,500 lawsuits. And today’s “winner” of the competition for the job is Marc Kasowitz, of Kasowitz Benson Torres.

This is the same firm that employs former Senator Joseph Lieberman, who was rumored to be in line to be FBI chief. Whether it was an obvious conflict of interest to keep considering Lieberman, or Lieberman thought the 10-year gig might not actually provide the job security it once did, nobody has (yet) leaked.

But rather than go down that rabbit hole, I wanted to focus on this tidbit from one of Trump’s former  lawyers, Patrick “Paddy” McGahn. Mcgann had represented Trump many,  many times, and testified when Trump’s Taj Mahal casino went belly-up.

If the McGahn name sounds familiar, it’s because his nephew Donald McGahn is now White House Counsel. That’s another Trumpian rabbit hole I’ll try to avoid.

No, the place I’m going is this little piece of deposition testimony from Paddy McGahn over the Taj bankruptcy proceedings: It seems that the lawyers decided they could never meet with Trump one-on-one. The rule was that there always had to be a second lawyer in the room.

Why a second lawyer? To run up the bills? Hell no, to protect themselves.

Trump, Paddy McGahn testified, always had a practice of having two lawyers present when meeting with Trump to avoid problems with his lying. He and another attorney would meet together with Trump because “Donald says certain things and then has a lack of memory.”

So the lesson for Kasowitz is this: Make damn sure there are no one-on-one meetings with Trump. Record anything that can be recorded and have someone take explicit notes while it happens.

This is the only way to protect yourself when making representations about Trump, as he has a penchant for tweeting or saying something completely opposite later on. It’s a a habit.

#ProtectYourReputation