Sunday, September 30, 2018

Case o' The Week: The Forbidden Power - Lynch and Jury Nullification

   Nullification: A critical power of the jury, and a violation of a juror's oath.
United States v. Lynch, 2018 WL 4354373 (9th Cir. Sept. 13, 2018), decision available here.

Players: Decision by visiting Judge Rogers, joined by Judge Bybee. Compelling dissent by Judge Watford. 
   Hard-fought appeal by AFPD Alexandra Yates, C.D. Cal. Federal Public Defender.

Facts: In 2007, the Feds charged Lynch with (openly) running a medical marijuana dispensary. Id. at *2. He went to trial.
   During voir dire the district court warned the jury, “nullification is by definition a violation of the juror’s oath.” Id. at *3. The court then asked each juror if they could abide by an oath that “they could not substitute your sense of justice, whatever it may be, for your duty to follow the law, whether you agree with the law or not.” Id. at *12.
  Lynch testified, and explained that an (unidentified) DEA employee told him that the Feds were going to let the counties and state handle marijuana dispensaries. Id. at *3. Lynch was convicted.
  At sentencing, the court found Lynch eligible for Safety Valve on a 5-year mand-min, and sentenced him to a year and a day. Id. at *4.
Issue(s): “Lynch assigns error to a warning against nullification given . . . at voir dire.” Id. at *12.

Held: “This warning was permissible . . . because it was an appropriate exercise of a district court’s duty to ensure that a jury follows the law, and it was additionally justifiable given that the need for the warning was a risk that Lynch’s counsel had himself invited.” Id. “The district court’s caution to the jurors that they should not substitute their own sense of justice for their duty to find facts pursuant to the law was entirely appropriate as a discharge of the court’s own duty to forestall lawless conduct.” Id.

Of Note: The Lynch nullification instruction traces back to the misguided Rosenthal marijuana prosecution, in the Northern District of California. See id. at *12 (citing Rosenthal favorably). Lynch argued that the instruction in his case violated the Ninth’s later Kleinman decision, that prohibited a court from threatening to punish a jury that nullified, or a suggestion that a nullified verdict is unlawful. Id. at *13; see also Kleinman blog entry here. In Lynch, Judge Rogers disagrees and tries to distinguish Kleinman. Id.
The Hon. Judge Paul Watford
   Dissenting Judge Watford has the better argument. Id. at *19. Judge Watford correctly frames the true issue in the case: “May the court instruct jurors that they are forbidden to engage in nullification, and if so, how forcefully may the court deliver the message?” Id. at *20. The dissent is a thoughtful opinion, carefully describing the historical importance of nullification and explaining why the court in Lynch crossed the line. For those who care about the power (not the “right”) of the American jury, this dissent is a must-read.
   Interestingly, jury nullification is an issue that crosses partisan lines -- good Federalists care deeply about the power of a jury to act as “the conscious of the community.” Id. at *19. Hopefully Judge Watford’s dissent catches the eye of some en banc allies on the Ninth.

How to Use: Déjà vu, all over again. Eight years ago, NorCal suffered under a USAO’s policy that demanded indiscriminate filing of priors – a policy that triggered mandatory minimums when a defendant had the temerity to seek pretrial release. See blog entry on “Priors Policy” here. 
  Some worry this ill-considered “priors policy” may be resurrected in the Northern District. If the “priors policy returns,” read Lynch.
  In Lynch, visiting Sixth Circuit Senior. Judge Rogers eviscerates courageous mand-mins efforts: an attempt to inform the jury of the sentencing exposure in the case, and an attempt by a frustrated D.J. to use Safety Valve to avoid the injustice of a five-year mandatory minimum. (Ironically, an act of judicial nullification in a jury nullification case).
  Lynch is an aggravating, but essential, read for anyone fighting mandatory minimums in federal court.
For Further Reading: Lynch perpetuates “the world’s silliest legal dichotomy: Juries can nullify, but lawyers and courts can’t, or won’t, tell them that they can. Advocates for nullification call it a right; opponents call it a power.” 
  For a compelling piece supporting Judge Watford’s dissenting views, see History is clear: Juries were supposed to be able to overturn laws,” available here 

Image of the Honorable Judge Paul Watford from  

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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