The panel of judges was uncomfortable. One judge wondered whether the United States government had brought the very issues it was complaining about upon itself by charging the defendant with crimes carrying crippling mandatory minimum prison sentences. Another judge was quick to defend the Government: wasn’t I asking the Court to endorse jurors’ ignoring the law, a practice known as jury nullification?
I was in the United States Court of Appeals for the Second Circuit, on the 17th floor of the federal courthouse on Foley Square in Manhattan. Three judges were hearing arguments on whether the trial judge in my client’s case should prohibit me from asking the jury to disregard the law and set my client free.
The government filed an emergency motion after a jury was picked in my client’s case, but before the jury was sworn in. It sought this extraordinary relief when it became apparent the judge just might let me tell the jury the whole truth about the case to be tried.
The United States Supreme Court has never ruled that defense counsel cannot argue for nullification of the law. Neither has the Second Circuit. But it is received wisdom that such arguments are prohibited.
My client, a male, was 31 when he had a year-long relationship with a 15 year old, a female. She cannot give consent as a matter of law. In other words, the law deems her incapable of saying yes to sex, ignoring the fact the young people do so all the time. The age of consent was increased dramatically in the 19th century in response to pressure from the Women Christian’s Temperance Union.
If the teen couldn’t consent, was she forced, a judge asked.
No she was not forced.
My client is charge with filming an encounter on his cell phone. The phone traveled across state lines before he used it. Hence, it is a federal offense, carrying a 15-year-mandatory minimum. He also downloaded the film before deleting it. Because that involved transportation of the image to the “cloud,” which is out of state, he transported the images across state lines, another federal offense, this one carrying a mandatory minimum of five years.
No one ever saw the image but the teen, the person who produced it, and law enforcement agents. It was deleted almost immediately.
Why these federal child prosecution charges? Why these obscene sentences? Congress wants to prevent exploitation of children.
This is not child pornography; this is not exploitation of a child.
My client faces mandatory prison time in related state charges for what lawyers call “statutory rape.” The feds are charging him with production and transportation of child pornography.
The trial judge was rightly outraged by the savagery of it all. In pre-trial rulings, he gave me permission to try to introduce evidence of the mandatory minimums and to argue nullification of the law to the jury. In other words, I was given a green light to tell jurors what the consequences of a jury verdict of guilty would be. Such information is normally kept secret, lest it influence the jury.
Simply put, nullification gives a jury, sitting as the conscience of the community, the right to acquit if it believes the government is behaving unjustly. There is a long history of nullification in the United States.
But the panel of New York judges wasn’t buying it, or so it seemed.
Judges worry that nullification will yield chaos.
The judges are wrong.
Years ago, a juror called me after a murder trial. My client, on the cusp of manhood, had been convicted of murder after he senselessly shot another young man in a dispute over a girl. The evidence was overwhelming.
“Why didn’t you tell us what would happen?” the juror wanted to know after reading about the 45-year sentence imposed a couple of months after the verdict. Because the law won’t let me, I said. It was an awkward moment.
Juries should sit in judgment not just of the defendant, but of the government. If the government errs in applying the law, behaving in an unfair, an unjust, or an unconscionable manner, jurors ought to be able to reject the government’s case. Treating jurors as automatons in the Factory of Justice demeans jury service.
It also damages the republic.
Yes, we can vote for lawmakers and presidents. Yes, the president can appoint, and lawmakers can confirm, judges. And we are free to seek reform of the law in legislation.
But the law never rescues unpopular clients from a vindictive government. It just doesn’t happen. Hell, the political process seems hardly to work at all these days on things we all agree we need, such as roads, bridges and railways.
Juries are legitimating institutions. They are the people themselves sitting in judgment over elected and appointed officials. Jurors are a direct referendum on discrete prosecutorial decisions.
Prosecutors often argue that they represent the people. They seek to hold defendants accountable. But prosecutors aren’t “the people;” jurors are selected at random from a community to serve as the eyes and ears of the people. How do you ask jurors to do that important job while hiding from them the consequences of their decisions?
It’s a dishonest shell game that warrants contempt.
Judges ought not to fear nullification; neither should prosecutors. Those entrusted with applying and enforcing the law ought to seek to build bridges of trust between themselves and the communities they serve. Nullification can help build those bridges.
Nothing in our law prohibits other than a policy unsupported by precedent, a mere preference that the people be marginalized while the professionals play spin the bottle with justice.
Nullification was common at the time of the nation’s founding. Indeed, preservation of trial by jury was one reason the colonists gave for seeking independence from Britain. The founders would weep, I suspect, if they saw what became of trial by jury.
I could hear Jefferson’s tear drops falling on the floor of the Second Circuit this morning. We’ve gone from a people intent on liberty and jealous to defend it to supine cowardice.
I’ve never worn blackface, but I’ve laughed when I’ve seen actors like Bing Cosby do so. Just like I laughed when I saw three Coors beer cans in hoods surrounding a Budweiser bottle in a noose. In the highly charged world in which the closest thing to holiness is identity, that makes me a racist. I suppose I’m a sexist, too; I think a person crying “rape” years after an event has some explaining to do.
It’s easy to throw words like “racist” and “sexist” around. It’s harder to stand your ground and say things like “proof matters” and “off color humor isn’t a crime.”
In the world of social media, accusations of racism and sexism are easy to come by. Those in search of clickbait score easy points with socially charged name-calling.
But should governments be toppled so easily?
I’m watching the madness in Virginia just now and fearing the new lynch mob.
Calls for the state’s top three Democrats to step down -- Gov. Ralph Northam and Attorney Mark Herring, for wearing, or condoning the wearing of, blackface decades ago; Lt. Gov. Justin E. Fairfax, for “raping” two women decades ago – are a clear and direct threat to the legitimacy of the democratic process. You don’t force an elected official to resign, much less impeach him, because of conduct alleged in a viral tidal wave of scorn.
The conduct of the three men was never hidden. The blackface photographs were in school yearbooks. Where were the racial crusaders when these men ran for office and were elected over and over again? When did being racially insensitive become a capital offense? This is the United States – our history on matters of race is shameful. You don’t right the wrongs of slavery by outlawing juvenile humor.
And the claims of rape against Fairfax?
One accuser, Meredith Watson, demands that Fairfax step down immediately. Why? She claims he raped her – in 1980, while they were students at Duke University. Her claim arose days after Vanessa Tyson, a political science professor, claimed that Fairfax raped her during the 2004 Democratic National Convention in Boston.
Fairfax doesn’t deny libidinal contact; he claims the encounters were consensual. Did these flings become “rapes” as matters of political convenience?
Where were these accusers when Fairfax ran for statewide office? Why weren’t these damning accusations raised when voters were assessing his fitness for office?
Northam, Herring and Fairfax aren’t names I’d ever heard of until this past weekend, but I live in Connecticut, and I’ve never voted in Virginia. I now know their names because of the allegations against them. The same cannot be said of Virginians or the men’s accusers.
There is no mob quite so savage as a self-righteous mob. We no longer lynch people with rope; now we use memes and the toxins spawned by social media. When the viral swill hits the mainstream media, the mob is empowered, and demands blood.
Repeat after me people: Presumption of innocence. Sure, that’s a criminal law concept; we need have no such thing in our politics. We are free to make snap judgments about elected officials. We just can’t make those judgments against people of color, if you are a white male, or women, if you are a male.
Northam and Herring are racists because they wore, or condoned the wearing of, blackface; Fairfax is a sexist because he had sex with women who years later claimed rape. Can you feel the mob flexing its muscle, bearing its teeth – all in the name of sensitivity?
This is race and gender pandering; the accusations aren’t serious claims of wrongdoing. Not after all these years and not in the context of viral politics.
Identity pandering is what passes for politics now. The pros at it are people like Patrick Hope, a Democrat in the Virginia General Assembly who plans today to introduce articles of impeachment against Fairfax. He'll be strutting his stuff on CNN tonight, and loving every self-righteous minute of it. If there’s a politician in Virginia who ought to be bumped from office it is the hopeless Mr. Hope.
I don’t know if Fairfax raped his accusers. Accusations of rape are easy to make years after the event, when murky consent feels like a regretful outrage. And claims of racism are too easy to make. I was surprised when the local NAACP called me a racist for posting the picture of beer bottles on a social media site; I was stunned when a lawyer-blogger at Above the Law, uncritically adopted the accusation. But I expected no less from a lawyer-blogger at a popular website.
In Virginia the stakes are no less than the legitimacy of democratic institutions. Northam, Herring and Fairfax have been vetted by the political process and chosen by the people of their state to lead. The claims for removing them from office aren’t the product of new misconduct, they are the result of allegations hiding for years, even decades, in plain sight. You don’t remove people from office on such grounds. Not if you think elections matter.
But the mob must be sated. #MeToo, it screams. Racist, it roars. Sure, this new two-headed beast now shows some fissures – I mean, isn’t it racist to cry #MeToo against a black male? Is that what is at stake in Virginia, an existential arm-wresting contest to see which identity packs more clout –I mean, slavery is only 400 years old; the oppression of women has gone on forever.
Virginia was inevitable, really. I worry about what comes next.