Appeals court reprimands judge

Federal judge in Connecticut endorsed jury nullification in trial of sex offender

A federal appeals court issued an unusual reprimand Wednesday to a Connecticut judge who had decided to allow an accused sex offender to ask jurors to find him innocent by arguing that the laws he is accused of violating were unjustly applied and the accompanying prison sentences too harsh.

The rebuke of U.S. District Judge Stefan Underhill by a divided appellate court panel turned on his ruling that would have permitted a defense lawyer to argue a concept known as jury nullification. It applies in cases where juries nullify or ignore statutes that would result in likely conviction because jurors are persuaded the laws are somehow unfair.

“We emphatically reject the rule, advanced by Judge Underhill … that district courts are free to permit jury nullification arguments whenever they feel justice so requires — in other words, in any case in which the court strongly disagrees with the government’s charging decisions and the attendant sentencing consequences,” the appeals court said.

The case before the U.S. Court of Appeals for the Second Circuit involved a 31-year old man, a landlord, who recorded a sexually explicit video of a15-year old girl, a tenant with whom he was sexually involved. The girl was aware she was being recorded and was not threatened or forced, but as a minor, she was legally incapable of consent.

The man, Yehudi Manzano, did not distribute the recording, but uploaded it through various servers to a computer photo file. Only he saw the video. Police searched Manzano’s telephone and found the video after learning the girl had been

involved in a sexual relationship. He was charged with the federal crimes of production of child pornography and transportation of child pornography. If convicted, Manzano faces a combined, mandatory minimum sentence of 15 years in prison.

Manzano’s trial adjourned abruptly the morning it was to have begun so federal prosecutors could appeal. The nullification issue reached the circuit court after federal prosecutors obtained permission from the U.S. solicitor general to petition for a writ of mandamus, an unusual order requiring a lower court to correct an improper exercise of its discretion. The appeals court granted the writ.

Mansano’s lawyer, Norm Pattis, said he will ask to reargue the case before the entire circuit court, rather than a three-judge panel.

Pattis argued to Underhill in the runup to trial that federal prosecutors had filed exaggerated charges after inflating the gravity of the offense. He asked “permission to make the jury aware of the penalty, and to argue that the government’s application of the law to the particular facts of this case is an obscene miscarriage of justice.”

Underhill said he, too, was shocked by the charges, which would give him no discretion when imposing sentence, in the event of conviction. He agreed to allow Pattis to try to persuade the jury to nullify.

“This is a shocking case,” Underhill said, ruling from the bench the morning of trial. “This is a case that calls for jury nullification. … I am absolutely stunned that this case, with a 15-year mandatory minimum, has been brought by the government. … I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct or the lack or seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I’m not sure.”

Underhill also said that, as the case moved forward, he might allow Pattis to tell jurors how much prison time Manzano faces if they convict.

The appellate court said Underhill based the nullification ruling on an “erroneous view” that courts have the authority to “encourage nullification.” Rather, the judges said, “the power of juries to ‘nullify’ or exercise a power of lenity is just that — a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.”

“We have no doubt that in granting Manzano’s motion to argue for jury nullification, Judge Underhill was acting under the sincere belief that his ruling was consistent with, and perhaps mandated by, the ends of justice,” the appellate majority said. “Nevertheless, individual judges, cloaked with the authority granted by Article III of the Constitution, are not at liberty to impose their personal view of a just result in the face of a contrary rule of law.”

The prosecution appeal was heard by a panel of Judges Barrington D. Parker, Denny Chin and Richard J. Sullivan. Underhill took the unusual step of filing an appellate brief supporting his position. Sullivan and Chin granted the petition, ruling for the U.S. Attorney’s office and against Manzano and Underhill. Parker dissented in support of Underhill.

“Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted,” Parker wrote. “But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so.

“Whether Judge Underhill went too far is debatable. But because this case does not come close to meeting the exacting standards for mandamus, I respectfully dissent from the majority’s grant of a writ directing the District Court to allow no arguments for jury nullification. I concur to the extent that the majority denies a writ directing the District Court to exclude at trial evidence of sentencing consequences.”

Parker proposed a compromise. He said the case should be returned to Underhill with a recommendation that the prosecutors reconsider the charges filed in the case. Should they chose not to reconsider, the prosecution — which has sole discretion in charging decisions — would be required to “provide information as to why they believed their decision was appropriate.” In the event of continuing disagreement, the circuit court could revisit the appeal.

Edmund H. Mahony can be reached at emahony@courant.com.

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