Federal judges can remove jurors who refused convict.

Federal trial court judges in Connecticut, New York, and Vermont have "a duty to forestall or prevent" jury nullification, according to a recent Second Circuit Court of Appeals decision. In carrying out that duty, judges may question, admonish, and release jurors--even after deliberators have begun--if jurors purposely disregard evidence or refuse to follow instructions. (United States v. Thomas, No. 95-1337, 1997 WL 280000 (2d Cir. May 20, 1997).)

Judge Jose Cabranes, writing for a unanimous three-judge panel, made a strong statement against jury nullification but also placed a heavy burden on judges who invade the secrecy of jury deliberations.

"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 power to prevent," Cabranes wrote.

Nullification occurs when a juror refuses to convict a defendant even though the evidence seems to allow no other conclusion but guilty. It is typically based on a juror's perception that the law is unjust. (Jury Nullification: When Jurors Leave the Law Behind, TRIAL, May 1996, at 12.)

Nullification is increasingly prevalent in cases dealing with divisive social issues such as drug possession, abortion, and domestic violence. When a CBS documentary aired jury deliberations in Arizona cases earlier this year, one of the televised deliberations included a nullification.

In Thomas, deliberating jurors had complained to the trial judge that the only African American juror would not vote to convict "no matter what the evidence was."

After interviewing panel members, the judge removed the obstructive juror, and the 11 remaining jurors voted to convict.

Despite its strong statement against nullification, the appellate court overturned the conviction. The court said the trial judge was right to investigate the juror's motivation but wrong to conclude that the juror disregarded the law. It remained possible, said the court, that the juror was merely unpersuaded by the evidence.

The appellate court noted that nullification has deep roots in American history. It was used, for example, by juries in northern states who refused to return fugitive slaves to their southern owners. Recently, some advocates of nullification have urged African American jurors to acquit African American defendants in nonviolent crimes to protest what they perceive as racism in the criminal justice system.

Cabranes directed judges to proceed with extreme caution when they inquire about a juror's motivations. Before dismissing anyone, the judge must be certain that a juror is not merely unconvinced that prosecutors proved their case--a test that Thomas did not pass.

"A presiding judge faced with anything but unambiguous evidence that a juror refuses to apply the law as instructed need go no further in his investigation of alleged nullification," Cabranes wrote.

Even that cautions directive in controversial. For example, Professor Bennett Gershman of Pace University School of Law writes, "Authority of judges to remove deliberating jurors for good cause traditionally has encompassed jurors who were ill, absent, incapacitated, or subjected to external causes such as threats or exposure to prejudicial information. The notion that a juror's opinion about the case, or unwillingness to convict, could be a ground for removal is a new and disturbing concept." (Bennett L. Gersham, Jurors Who Nullify, N.Y.L.J., June 12, 1997, at 2.)

The guidelines presented in Thomas technically apply only to federal criminal cases within the Second Circuit. However, because of Cabranes's national stature (he has been mentioned as a Supreme Court contender), the guidelines are likely to be widely influential.