Friday, December 26, 2014

Cannot dilute jury nullification

Lydia Krebs and Samuel Schirer won in State v. Smith-Parker, No. 105,918 (Kan. Dec. 24, 2014), obtaining a new trial in a Saline County first-degree murder prosecution.  The case actually involves two different incidents that were joined for one trial.  The KSC rejected sufficiency, alternative means and consolidation claims, but agreed with several claims.

First, the KSC held that the district court improperly excluded some defense evidence under the Confrontation Clause, which is pretty straightforward since the Confrontation Clause only protects accused persons.  The KSC also held that the proffered statements were not admitted for the truth of the matter asserted and thus were not hearsay.

Next, the KSC held that the district court erred when a juror was dismissed, ostensibly because of his inability to understand English, and an alternate juror was seated.  Instead of telling the jury to begin deliberations anew, the district court merely told the jury to continue deliberations.

After conviction, the district court received a letter from the dismissed juror stating that he was actually dismissed because he had voted for the defendant in the jury room and that the presiding juror's claim regarding inability to understand English was a pretext.  The KSC agreed that, at least the dismissed juror and the presiding juror should have been recalled:
N.B.'s unsolicited letter contradicted at least the impression left, if not deliberate misinformation imparted, by the presiding juror during trial and in a posttrial affidavit. Although N.B.'s voir dire responses may also have contributed to a context ripe for misunderstanding by the district judge, they did not resolve the contradiction between his later letter and the presiding juror's later representations. Indeed, we see no way the contradiction could have been resolved short of calling N.B. and the presiding juror back into the courtroom to testify live about events during deliberations. Their competing versions of those events could then be fully explored, their credibility fully evaluated, and a factual determination made as to whether any jury misconduct occurred. This was what the defense sought, and it was entitled to it. Failure to recall at least N.B. and the presiding juror was error.
Last, the KSC agreed that a reasonable doubt instruction that told the jury that if it did not have a reasonable doubt, "you will enter a verdict of guilty" improperly stated the law.  While the KSC reiterated that a jury need not be instructed regarding nullification, the court's instruction should not interfere with that right:
Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, the district judge's instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification.  Both the wording of the instruction at issue in Lovelace—"must"—and the wording at issue here—"will"—fly too close to the sun of directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.
The KSC held that together these issues required a new trial:
The State's evidence against Smith-Parker cannot be characterized as overwhelming. The evidence of Smith-Parker's premeditation in the murder of Mack was purely circumstantial. The evidence of exactly how Letourneau came to be shot in the head was conflicting, far from conclusive. The district judge's erroneous exclusion of Yanik-Ducharme's testimony about Letourneau's statement prevented Smith-Parker from presenting one of the few pieces of evidence he had to corroborate at least one of his versions of the events.
In addition, the three other errors we have identified are serious. Each calls into question the fairness of the trial that Smith-Parker received. The instruction error and the failure to tell the jury to begin its deliberations anew with the alternate juror incorrectly informed the jury about how to pursue its deliberations. The failure to recall N.B. and the presiding juror to testify live prevented a full investigation of whether jury misconduct occurred.
This last issue is particularly interesting to me.  Regardless of the evidence, a jury can always acquit.  Instructions (and arguments) that dilute that right must be improper.  This holding may also have some implications with regard to analysis of lesser-included offense instruction requests.

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