Judge May Solicit Jurors’ Assurances of No Jury Nullification

Monday, July 17, 2006

Page 3

Judge May Solicit Jurors’ Assurances of No Jury Nullification—C.A.

By a MetNews Staff Writer

Judges may inform prospective jurors that there is no legal authority for jury nullification and solicit their agreement that, if chosen, they will not engage in such conduct, the Third District Court of Appeal ruled Friday.

The court upheld the jury conviction of Frank R. Estrada for burglary and petty theft.

Quoting from a California Supreme Court case, Justice Arthur G. Scotland, writing for the Third District, said:

“Nullification is, by definition, a violation of a juror’s oath to apply the law as instructed by the court. . . . We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.”

Prosecutors presented evidence that, while in a market, Estrada placed two bags of charcoal and a package of sausage under his coat and left without paying,. Rodolfo Granados Jr., the market’s loss prevention officer, followed Estrada out of the market, and said “Security, Stop.” Estrada turned around and hit Granados in the ear with his fist.

Granados testified that he grabbed Estrada and “[b]oth of us had each other in somewhat of a headlock hold by a light pole that was pinned between us. He said something to the effect of ‘Let me go or I’ll kick your ass.’”

Meanwhile, Estrada’s accomplice dropped a bottle of cognac, threw a can of lighter fluid at a clerk, and escaped out the store, the evidence showed.

Granados testified that he eventually was able to handcuff Estrada, placing him under citizen’s arrest.

Estrada later admitted to police that he and his accomplice intended to steal lighter fluid and charcoal to stay warm. He was charged with attempted robbery, burglary, and petty theft of retail merchandise, and of committing the crimes while released on bail for an unrelated offense.

During voir dire, Yolo Superior Court Judge W. Arvid Johnson lectured the jury on the inappropriateness of jury nullification, saying:

“If you don’t like the law, yours, mine, agree our responsibility is [to] get the law changed, let the legislature [d]o what we can to get change. Our obligation if we live in a society of laws is not just to say, ‘I don’t like it. I’m not going to follow it,’ in particularly in a courtroom such as this.”

Johnson continued:

“I need to have your assurance you will follow the law as I state it to you and not substitute for what you think the law is or what the law should be. Anyone who just feels he or she couldn’t do that? Wonderful.”

At trial, Estrada’s attorney called no witnesses and conceded in his closing argument that Estrada committed petty theft, but argued that the attempted robbery charge was unwarranted, and left the burglary “up to you [the jurors] because it makes sense.”

He told the jury: “Convict [him] of a petty theft. We’re talking sausage. . . . That’s what this case is about, petty theft that just got a little overdrawn.”

The jury acquitted Estrada of the attempted robbery charge, finding him guilty of only burglary and petty theft. Johnson, finding that Estrada was on bail bond status at the time of the offense, sentenced Estrada, in part, to two years in state prison for the burglary.

On appeal, Estrada argued that Johnson erred in soliciting the prospective jurors’ assurances not to engage in jury nullification, which, he argued, “amounted to a[n] impermissible invasion of the province of the jury and a denial of the historic power of nullification held by all criminal juries.”

“By instructing the [prospective jurors] that they were forbidden to engage in nullification,” he argued, “the court removed from the Sixth Amendment the jury’s role” as “the conscience of the community” and “the final barrier [against] unjust prosecutions

and criminal convictions.”

But Scotland noted that the U.S. Supreme Court had held that the exclusion of prospective jurors because they “could not be trusted to ‘abide by existing law’ and ‘to follow conscientiously the instructions’ of the trial judge does not violate a defendant’s rights under the Sixth and Fourteenth Amendments.”

Scotland also said that Estrada was not prejudiced by the court’s remarks, noting that Estrada’s actions “constituted attempted robbery as a matter of law” and that the jury “necessarily” engaged in nullification.

Scotland concluded, “The irony is that, as a practical matter, a jury has the power to nullify an anti-nullification instruction.”

Justices Richard Sims III and Rod Davis concurred with Johnson.

The case is People v. Estrada, 06 S.O.S. 3702.