Some Jury Thoughts

A couple of interesting jury issues popped up on in the blogosphere today that I thought I'd pass along.

First, via Volokh, the Cato blog has the story of a juror whose drive to nullify forced a federal judge to kick him off the jury and write a 40-page opinion about it. It was a routine drug case, of the kind that pepper the federal courts:

The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where 'is the constitutional grant of authority to ban mere possession of cocaine today?'

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Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the 'problem juror.' Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

I've written before about jury nullification, so I won't repeat my thoughts. But I'll note that defense counsel apparently objected to the juror's discharge, so it will be interesting to see if the incident requires a higher court to address the topic head on.

Second, over at the Freaknomics blog at the New York Times, Ethan Lieb questions the wisdom of requiring unanimous jury verdicts in American courts. As he points out, we don't require unanimity in other important decisions, so why stick to it with juries? Of course, the defense attorney in my clings to the idea of the lone holdout turning the tide for an acquittal. It would certainly render 12 Angry Men much less interesting.