People v. Douglas

• Decision Date: 25 August 1998
• Citation: 178 Misc.2d 918,680 N.Y.S.2d 145
• Parties: , 1998 N.Y. Slip Op. 98,572 The PEOPLE of the State of New York, Plaintiff, v. O.B. DOUGLAS, Defendant. * Supreme Court, Bronx County
• Court: New York Supreme Court

Page 145

680 N.Y.S.2d 145

178 Misc.2d 918, 1998 N.Y. Slip Op. 98,572

The PEOPLE of the State of New York, Plaintiff, v. O.B. DOUGLAS, Defendant. ^* Supreme Court, Bronx County.

Aug. 25, 1998.

Legal Aid Society (Dennis Murphy and Michael Raskin, New York City, of counsel), for defendant.

Robert T. Johnson, District Attorney of Bronx County (Lisa Deldin, of counsel), for plaintiff.

DOMINIC R. MASSARO, Justice.

The issue presented on this application--the spectre of race-based jury nullification having arisen at trial--is whether the People are entitled to a jury instruction which affirmatively states that the propriety of search and seizure is beyond the jury's province to decide. The Court is duty bound to uphold the law, and the law requires such appropriate instruction.

Factual Settings

O.B. Douglas was arrested and indicted for the crimes of criminal possession of a weapon in the third (Penal Law, Sec. 265.02[41] ) and fourth (Penal Law, Sec. 265.01[1] ) degrees, and criminal possession of handcuffs (N.Y.Admin.Code, Sec.10-147). Seeking to preclude the introduction of the weapon and handcuffs at trial, Mr. Douglas moved for and was granted a suppression hearing. The hearing testimony indicated that the police, upon observing the vehicle in which Mr. Douglas was a passenger, stopped it for a traffic violation. It was noted that Defendant and the driver were black men, and that the police officers were white. Responding to a request for identification, Mr. Douglas reached into a waist bag he was wearing, exposing a gun; it was seized and Defendant was asked to step out from the vehicle; the handcuffs were recovered upon his being searched.

After scrutinizing the stop for a Vehicle and Traffic Law violation for which a summons was issued (see, People v. Bernier, 245 A.D.2d 137, 666 N.Y.S.2d 161 [1st Dept., 1997]; People v. Watson, 157 A.D.2d 476, 549 N.Y.S.2d 27 [1st Dept., 1990] ), the Court determined that it was not pretextual, as claimed by Defendant, and that the police had not exceeded the scope of proper conduct in halting the vehicle and questioning its occupants (see People v. Spencer, 84 N.Y.2d 749, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995]; People v. Martinez, 246 A.D.2d 456, 667 N.Y.S.2d 247 [1st Dept., 1998]; People v. Washington, 238 A.D.2d 43, 671 N.Y.S.2d 439 [1st Dept., 1998]; cf. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 [1996] ). Hence, Mr. Douglas' suppression motion was denied and the gun and handcuffs admitted into evidence at trial.

During trial, Defendant attempted to focus the jury's attention on the circumstances surrounding the viewing of the gun by the police. His strategy was to elicit testimony designed to discredit the testifying officer's recounting of its discovery. Surely this is permissible. The driver of the vehicle then testified for the defense; it was he who brought forth the "race card" vis-a-vis the stop. Thereafter, Mr. Douglas argued for permission to summarize his case by questioning "why they [the police] stopped the car." ¹ The Court would not condone it. Defendant's attempt to discredit the People's witnesses through non-relevant prejudicial inference, the Court ruled, would go beyond the realm of permissibility and contravene the Court's authority to instruct the jury on the law. Despite caution, Defendant's summation nonetheless posited that Mr. Douglas was "set up" and "they [the police] stopped the car [because] they just did not like something about the people in the car." ²

In essence, Mr. Douglas invited the jury, comprised largely of African-Americans, directly or indirectly as the case may be, to acquit him solely on the basis that the seizure of the weapon and handcuffs from his person was unlawful and arose out of an impermissible pretextual stop based on racial bias. Invitations such as the instant one have the effect of nullifying any finding that the People have proven beyond a reasonable doubt the elements of a crime(s) submitted to a jury for consideration. It is for this reason that the Court, over Mr. Douglas' objection, granted the People's request for a jury instruction which affirmatively stated that the Fourth Amendment issue of search and seizure was beyond their province (see People v. Hamlin, 71 N.Y.2d 750, 530 N.Y.S.2d 74, 525 N.E.2d 719 [1988] ). ³

Jury Nullification

It is axiomatic in the American justice system that a jury's role at trial is limited to finding the facts. "Jury nullification occurs when a jury--based on its own sense of justice and fairness--refuses to follow the law and convict in a particular case even though the facts seem to allow no other conclusion but guilt" (Weinstein, "Considering Jury Nullification: When May and Should a Jury Reject the Law to do Justice," 30 Am.Crim.L.Rev. 239 [1993]; see generally, Courselle, Bench Memorandum, "The First Monday in October" Program, Office of Appellate Defender [1997] ). Renewed attention to the doctrine seeks to encourage abdication of the jury's primary function to apply the law, that is, the legal definition of a crime to the evidence and to convict if it is satisfied that each element of said crime has been established beyond a reasonable doubt. The Fully Informed Jury Association, for example, has for a decade kept the issue in the public eye. The Association draws supporters from across the political and social spectrums, including:

[c]onservatives and constitutionalists, liberals and progressives, libertarians, populists, greens, gun owners, peace groups, taxpayer rights groups, home schoolers, alternative medicine practitioners, drug decriminalization groups, criminal trial lawyers, seat belt and helmet law activists, environmental groups, women's groups, anti-nuclear groups, [and] ethnic minorities (Scheflin & Van Dyke, "Merciful Juries: The Resilience of Jury Nullification," 48 Wash. Lee L.Rev. 165, 173 [1991] ).

Anti-abortion activists have more recently encouraged jury nullification in trials of people engaged in protests at abortion and family-planning clinics (see United States v. Lynch, 952 F.Supp. 167 [S.D.N.Y., 1997] [trial judges, like juries, have power to engage in nullification], cert. denied 520 U.S. 1170, 117 S.Ct. 1436, 137 L.Ed.2d 543 [1997] ).

Racial Motivations

Much recent debate has centered around issues of racially-motivated jury nullification (see, e.g., Butler, "Racially Based Jury Nullification: Black Power in the Criminal Justice System," 105 Yale L.J. 677 [1995]; Leipole, "The Dangers of Race-Based Jury Nullification: A Response to Professor Butler," 44 U.C.L.A.L.Rev. 109 [1996]; Butler, "The Evil of American Criminal Justice: A Reply," 44 U.C.L.A.L.Rev. 143 [1996]; see also, Abramson, "After the O.J. Trial: The Quest to Create Color-blind Juries" and Butler, "Jury Nullification: Practice for Blacks is Moral and Legal," Race and Jury at the Crossroads [Franklin H. Williams Judicial Commission on Minorities, 1996] ). Professor Butler provocatively advocates jury nullification as a tool of African-American self-determination, an operational strategy to confront what he perceives to be pervasive racial inequities in the criminal justice system. While conceding that "there is no question jury nullification is subversive of the rule of law," ⁴ he argues that African-American jurors have a moral obligation "to exercise their power in the best interests of the black community" and to acquit in non-violent criminal cases where the defendant, though factually guilty, is black. ⁵ This, he maintains, will diminish the racially disparate impact of the criminal law, help bring about beneficial legal reform and improve the African-American communities that are now crippled by excessive imprisonment of their numbers. ⁶ This position has come under attack, not only because it encourages jurors to disregard the law, but also because it is premised on a rejection of the criminal justice system. ⁷

The rhetoric notwithstanding, it may correctly be stated that nullification advocates follow in the footsteps of a hallowed tradition, one which reaches back to the earliest days of our Colonial experience. Juries at one time explicitly possessed the power to judge the law as well as the facts, and thus to enter a nullification verdict.

Hallowed Tradition

The right of trial by jury was designed "to guard against a spirit of oppression and tyranny on the part of the rulers [and] was from very early times insisted on by our ancestors in the parent country as a great bulwark of their civil and political liberties" (2 Story, Commentaries on the Constitution of the United States, 540-41 [4th ed., 1873]; see also, Blackstone, 4 Commentaries on the Laws of England 342 [1769]; United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 [1995]; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 [1968] ). From the very beginning, however, judges exercised considerable power over the prosecution process as a whole and over juries in particular. Even following a verdict, a judge could force a jury to reconsider, and if its members proved obstinate, fine, imprison or prosecute them on the theory they had violated their oaths (see generally, Lawson, "Lawless Juries?," Twelve Good Men and True: The Criminal Jury Trial in England, 1200-1800 [Cockburn & Green, eds., 1988] ).

Responding to the Crown's increased use of criminal prosecutions as a means of silencing opponents during the political upheavals that rocked England during the 17th Century, religious and political dissenters began asserting the jury's right to judge the legality of the law. This culminated with the ruling in Bushell's Case (125 Eng.Rep. 1006 [P.C., 1670] ), which effectively insulated the jury's decisionmaking from court interference "wherein they resolve both law and fact complicatedly, and not the fact by itself" (at 1013). The opinion, arising from the foreman's habeas corpus petition, held that the jury could not be punished for...