United States v. Edwards (266 F. Supp. 3d 1290, 2017)

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the United States’ Motion In Limine to Prohibit Discussion of Sentencing or Punishment at Trial, filed May 26, 2017 (Doc. 44)(“Motion in Limine”). The Court held a hearing regarding this motion, and other similar motions, on June 22, 2017. See Transcript of Hearing (taken June 22, 2017)(“2017 Tr.”). The primary issue is whether the Court should allow Defendant James Edwards to discuss sentence-related issues in front of the jury during trial, inviting the possibility of jury nullification. The Court will grant the Motion in Limine. The Supreme Court of the United States’ recent decisions about the Sixth Amendment to the Constitution of the United States of America’s right to' a jury trial suggest that the Supreme Court is willing to reconsider precedent. by addressing whether a particular practice is necessary to the jury trial right as it existed at the time that the States ratified the Sixth Amendment. Historical sources and precedent show that the common-law jury at the Founders’ time knew the ramifications of a guilty verdict and used that knowledge in reaching a verdict, frequently choosing a verdict because it would mitigate a defendant’s punishment. Moreover, although courts at the Founders’ time instructed the jury that the court’s role is to provide the jury the law and that the jury’s role is to apply that law to the facts as the jury finds them, the courts also instructed the jury that its role included ultimately deciding both the facts , and the law. Additionally, courts at the Founders’ time allowed lawyers to argue openly to the jury that it should exercise its ability to decide the law in the case and nullify the law that the court gives. Accordingly, the common-law jury in the . Framers’ era knew about and exercised its power to acquit even when the government proved beyond a reasonable doubt that the defendant was guilty, or to mitigate the defendant’s, sentence, regardless whether application of the law given by.the court to the facts which the jury found provided otherwise. The Court concludes that Supreme Court and Tenth Circuit precedent allowing the jury to know about sentencing ramifications only if its participation in sentencing is required, and precedent preventing the jury from learning about its nullification right, are inconsistent with trial practices at the Founders’ time, and that these practices have eroded the Sixth Amendment jury trial right as the Framers understood that right. Nevertheless, because, as a district court, the Court must faithfully apply controlling Supreme Court and Tenth Circuit precedent, the Court will grant the United States’ motion to prevent Edwards from discussing sentencing-related issues in front of the jury during trial,

FACTUAL BACKGROUND

Edwards is a medicine man from the Acoma Pueblo, in Cibola County, in the District of New Mexico. See Indictment at ¶ 1 at 1 filed July 12, 2016 (DoC. 2). See also 2017 Tr. at 42:17-18 (Ray). The alleged victim went to Edwards for a traditional healing rub. See 2017 Tr. at 27:25-28:3 (Marshall, Ray). The victim offered Edwards a traditional gift of com meal, which he denied, because, according to Edwards, it was not needed for the procedure that was to occur on that day. See Transcript of Appeal of Detention Proceedings at 34:18-20 (taken December 8, 2016), filed March 21, 2017 (Doc. 41)(“2016 Tr.”)(To-ersbijns). Edwards, during the rub, approached the victim’s vaginal area, and his mouth contacted her genitalia. See 2016 Tr. at 35:10-13 (Toersbijns), The victim then ended the rub and left Edward’s home. See 2017 Tr. at 28:15-17 (Marshall).

The Indictment alleges, based on the events above, that on or about December 25, 2014, and continuing through January 31, 2015, Edwards unlawfully and know--ingly engaged in and attempted to engage in a sexual act with Jane Doe by force. See Indictment ¶1, at 1. The alleged sexual act, specifically, was the contact between Edward’s mouth and Jane'Doe’s vulva. See Indictment ¶ 1, at 1. The Indictment charged Edwards with violating 18 U.S.C. §§ 1153 and 2241(a), and 224(2)(B), See Indictment ¶ 1, at 1. The Indictment also established that both Edwards and Jane Doe are Indians. See indictment ¶ 1, at 1.

PROCEDURAL HISTORY

A federal grand jury indicted Edwards for unlawfully and intentionally engaging in and attempting to engage in a sexual act by force with Jane Doe on or about December 25, 2014, and continuing through January 31, 2015. See Indictment at'f 1, at 1. Both parties throughout the pre-trial process filed numerous “Motions in Li-mine.” The United States begins the Motion in Limine by asking that the Court prohibit “defense-counsel from mentioning to the jury, on direct or cross-examination or in argument, that Defendant James Edwards faces -up to lifetime incarceration, or that if convicted Defendant will be required to register as a sex offender.” See Motion in Limine at 1. The United States next asserts that allowing, the jury to consider punishment in deliberations would open the door for jury nullification. See Motion in Limine at 1. The United States claims the Tenth Circuit has held that there is no right to jury nullification. See Motion in Limine at 1 (citing Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir. 1999); United States v. Greer, 620 F.2d 1383, 1385 (10th Cir. 1980)). The United States goes so far as saying: “The Tenth Circuit has thus fashioned a bright line rule that ‘[ujnless a statute specifically requires jury participation in determining punishment, the jury shall not be informed of the possible penalties.’ ” Motion in Limine at 2 (quoting United States v. Parrish, 925 F.2d 1293, 1299 (10th Cir. 1991))(internal quotations omitted). The United States then compares the Tenth Circuit’s position to other circuits’ positions. See Motion in Limine at 2. The United States asserts that the United States Court of Appeals for the Sixth Circuit stated:

When a jury has no sentencing role, providing sentencing information -invites jurors to ponder matters .that are not within their province, distracts them from their fact-finding responsibilities, and creates a strong possibility of confusion. Indeed, the only possible purpose that would be served by informing jurors of the mandatory sentence would be to invite jury nullification of the law.

Motion in Limine at 2 (quoting United States v. Johnson, 62 F.3d 849, 850-51 (6th Cir. 1995))(internal parenthetical omitted). The United States next provides a string citation to support its contention. See Motion in Limine at 2-3. The United States concludes this section by stating: “The law on this issue is well-situated, and squarely forecloses defendant’s discussion of any possible penalty at trial.” See Motion in Limine at 3. The United States then argues that allowing Edwards to discuss punishment would contradict jury instructions regularly given by the Court. See Motion in Limine at 3. The United States quotes two Tenth Circuit Pattern Jury Instructions:

Tenth Circuit Pattern Jury Instruction 1.04 states that it is the jury’s duty “to base [its] verdict solely upon the evidence, without prejudice or sympathy.” Similarly, Instruction 1.20 instructs the jury that “[i]f [it] find[s] the defendant guilty, it will be [the Court’s] duty to decide what the punishment will be. [It] should not discuss or consider the possible punishment in any way while deciding [its] verdict.”

Motion in Limine at 3. The United States then uses these instructions to assert that the Court should prevent discussion of the United States Sentencing Guidelines. See Motion in Limine at 3. The United States claims: “Such comments have no place in a trial where the guilt or innocence of the Defendant is decided solely on the evidence at trial.” Motion in Limine at 3. The United States next offers a non-exhaustive list of statements and phrases that it feels should not be allowed in trial. The United States claims these statements and phrases “serve only to put before the jury the matter of what sentence or consequences a defendant might receive and, if it occurs, can only be intended to arouse he juicy’s sympathy or prejudice.” Motion in Limine at 3-4. The United States then asserts that Edwards did not object to the motion. See Motion in Limine at 4. The United States concludes the Motion in Limine by reiterating that the Court prevent Edwards from “arguing sentencing-related issues to the jury” including, but not limited to “application of the United States Sentencing Guidelines, the potential for registration as a sex offender, and lifetime incarceration.” Motion in Limine at 4;

The Court held a pre-trial conference and motion hearing on June-22, 2017, in which it heard argument on various motions, including the Motion in Limine. See 2017 Tr. The parties’ discussion of the Motion in Limine was limited, but the Court indicated that it was .inclined to grant the motion based on Supreme Court and Tenth Circuit precedent. See 2017 Tr. at 154:21-25,155:10-11 (Court). The Court explained its belief that jury nullification and punishment were topics that were openly discussed in front of colonial juries, but that the Court had no discretion to depart. from established precedent. See 2017 Tr. at 155:2-7 (Court). The Court, in describing its inclination to grant the motion, explained that it would prohibit the discussion of sentencing or punishment during the trial and anything that is related to sentencing or punishment. See 2017 Tr. at 155:10-13 (Court). The Court added that nothing be said that might call into the jury’s mind that it is doing anything other than determining guilt. See 2017 Tr. at 155:13-16 (Court). Edwards commented that he did not oppose the United States’ motion, but that he had some concerns. See 2017 Tr. at 155:17-20 (Ray). Edwards stated that there can be issues in sex offense trials, specifically during opening and closing statements. See 2017 Tr. at 155:20-23 (Ray). Edwards explained that he has experienced attorneys bring up labeling the defendant as a sex criminal or other things of that nature that do not discuss punishment or ask for jury nullification, but get the point across to the jury that the United States has the burden to prove the truth of the matter beyond a reasonable doubt. See 2017 Tr. at 155:24— 156:6 (Ray). Edwards finished his statement by reiterating that he does not oppose the United States motion, but that there can be some ambiguity in conforming to the Court’s ruling. See 2017 Tr. at 156:7-11 (Ray). The Court responded by stating the defense should be careful about mentioning things such as labeling Edwards as a sex offender because that could elicit thoughts of punishment in the jurors’ minds. See 2017 Tr. at 156:12-19 (Court). The Court stated that it tends' to give attorneys latitude when making arguments, but that Edwards needs to be careful to not say anything that may lead the jurors to ponder the ramifications of their verdict. See 2017 Tr. at 156:19-157:1 (Court). The Court finished by stating that it would grant the Motion in Limine. See 2017 Tr. at 157:2-3 (Court).

LAW REGARDING JURY NULLIFICATION

The Sixth Amendment guarantees to a criminal defendant the right to “an impartial jury.” U.S. Const, amend. VI. “That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the, people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” Blakely v. Washington, 542 U.S. 296, 305-06, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The jury trial right as preserved in the Bill of Rights was passed down from the right as enshrined in the Magna Carta. See United States v. Booker, 543 U.S. 220, 239, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (“The Founders presumably carried this concern from England, in which the right to a jury trial had been enshrined since the Magna Carta.”).

1. The Jury’s Role at the Founders’ Time.

“The colonial jury played a vital and celebrated role in American resistance to British tyranny leading up to the revolution. American counsel regularly argued the validity-of laws directly to juries, which often refused to enforce British laws they felt were unjust.” Andrew,J. Parmeter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn,. L.J. 379, 382-83 (2007)(internal footnotes omitted). Judge Weinstein noted that, in 1791, at the time of the Sixth Amendment’s ratification, “[i]t was then understood that the jury had the power to refuse to convict even if the facts and law indicated guilt. In later years this fundamental power of the jury — and the right of the accused — has been termed the power to ‘nullify.’ ” United States v. Polizi, 549 F.Supp.2d 308, 405 (E.D.N.Y. 2008).

The Supreme Court has recognized that the jury trial right that the Sixth Amendment affords to defendants was understood at the Founders’ time to provide essential protections against government tyranny and to safeguard liberty:

[T]he historical foundation for our recognition of these principles extends down centuries into the common law. “[T]o guard against a spirit of oppression and tyranny on the part of "rulers,” and “as the great bulwark of [our] civil and political liberties,” 2 J. Story, Commentaries on the Constitution of the United States 640-541 (4th ed. 1873), trial by jury has been understood to require that “the truth of every accusation, whether preferred in the shape'of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours....” 4 [Sir William Blackstone, Commentaries on the Laws of England: In Four Books 343 (William D. Lewis ed., 2007) ](1769) ....

Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As Alexander Hamilton first noted, this belief in the jury trial right as a safeguard to liberty was widely agreed upon during the constitution-framing era:

The friends and adversaries of the plan of the Convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury. Or if there is any difference between them, it consists in this; the former regard it as a valuable safeguard to liberty, the latter represent it as the very .palladium of free government.

The Federalist No. 83, at 456 (Scott ed. 1894)(Hamilton). The jury trial right was part and parcel of the Framers’ belief that the common person should participate in government, and essential to this participation was ensuring that the judiciary was justly and correctly effectuating the laws, whether the laws were written or natural laws. See Clay S. Conrad, Jury Nullification 45 (1998)(citing Note, The Changing Bole of the Jury in the Nineteenth Centu- & 74 Yale L. J. 170, 172 (1964)). See Diary of John Adams, Feb. 12, 1771, in 2 The Works ' of John Adams' 253 (1850)(quoted in Blakely v. Washington, 542 U.S. at 306, 124 S.Ct. 2531 (“[T]he common people, should have as complete a control ... in every judgment of a court of judicature [as in the legislature;]”)); Letter from Jefferson to L’Abbe Arnold, July 19, 1789, in 3 Works of Thomas Jefferson, 81, 82 (1854)(quoted in Mark D. Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582, 582 (1939))(“Were I called upon to decide, whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of laws is more important than the making of them.”).

The criminal jury’s role at the Founders’ time was primarily that of a factfinder, but also included as a secondary role acting as the community’s conscience to determine whether the law, or the application of law to the facts, was conscionable. See United States v. Courtney, 960 F.Supp.2d 1152, 1164 (D.N.M. 2013)(Browning, J.). Professor Irwin A. Horowitz notes: “While the fact-finder role of the jury is the judicially preferred model of jury functioning, a second, less accepted, but nevertheless viable role of the jury is a purveyor of ‘commonsense justice,’ the application of a rough and ready sense of what is just and what is not.” Irwin A. Horowitz, Jury Nullification: An Empirical Perspective, 28 N. Ill. U, L. Rev. 425, 427 (2007-2008). Similarly, Clay S. Conrad asserts that the Sixth Amendment jury trial right implicitly recognizes criminal juries’ right to determine the law — and thus jury nullification if they believe the law wrong — because, at the Framers’ time, the concept of a jury included the idea that the jury not only decided.the facts of a case, but also the law:

The Sixth Amendment itself implicitly recognizes the right of criminal trial jurors to judge the law. Although it does not mention that power explicitly; it can logically be assumed that the definition of a jury used in that document would be consonant with the prevailing definition in the legal dictionaries of the period. The most common legal dictionary in Colonial Virginia was the British Jacob’s Law Dictionary [(1782)]; and within the encyclopedic definition given in Jacob’s, the word ‘jury’ is defined as:

Jury ... Signifies a certain number of men sworn to inquire and try the matter of fact, and declare the truth upon such evidence as shall be delivered them in a cause: and they are 'sworn judges upon evidence in matter of fact.;.. Juries are ... .■ not finable [sic] for giving their verdict contrary to the evidence, or against the direction of the court; for the law supposes the jury may have some other evidence than what is given in court, and they may not only find things of their own knowledge, but they go according to their consciences. ...

The right of jurors to judge “according to conscience,” then, was implicit within the word “jury” as the drafters of the Bill of Rights understood it. This was the trial by jury the founders knew, and this was the trial by jury they intended to pass on to their progény.

Clay S. Conrad, supra, at 46-47 (internal footnotes omitted). The assertion that criminal juries embraced decisions of law as well as fact finds support in precedent case law from the Founders’ era. ;

In Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 1 L.Ed. 483 (1794), a civil case, the Supreme Court noted that the role of the jury is to be the ultimate finder both of the facts and of the law. See 3 U.S. at 4. A jury decided the case even though the Supreme Court had original jurisdiction, because the State of Georgia was a party to the case. Chief Justice John Day charged the jury:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact,' it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to .judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.

Georgia v. Brailsford, 3 U.S. at 4. A case from the Founders’ era in which the jury’s role was limited to the factfinder, or as embracing the role of determining the law, is front and center in People v. Croswell, 3 Johns.Cas. 337 (N.Y. Sup. Ct. 1804), in which Hamilton was counsel for the defendant, indicted for libel against then-President Thomas Jefferson. The trial court in the case instructed the jury that they were to enter a special, as opposed to general, verdict limited to finding only two issues: (i) whether the article was published; and (ii) whether the article’s innuendos were true or false. See 3 Johns.Cas. at 342. The jury was instructed that the defendant’s intent — the element requiring that the defendant intended the statements to libelous — was a matter of law exclusively for the court. See 3 Johns.Cas. at 341-42. Hamilton argued:

The Chief Justice misdirected the jury, in saying they had no right to judge of the intent and of the law. In criminal cases, the defendant does not spread upon the record the merits of the defence, but consolidates the whole in the plea of not guilty. This plea embraces the whole matter of law and fact involved in the charge, and the jury have an undoubted right to give a general verdict, which decides both the law and the fact.... All the cases agree that the jury have the power to decide the law as well as the fact; and if the law gives them the power, it gives them the right also. Power and right are convertible terms, when the law authorizes the doing of an act which shall be final, and for the doing of which the agent is not responsible.

The intent constitutes crime. To deny, then, to the jury the right to judge of the intent, and yet to require them to find a general verdict of guilty, is requiring them to commit perjury. The particular intent constitutes the crime, in cases of libel, beca[us]e the act is not, of itself, unlawful; and where the particular intent alone constitutes the guilt, the court cannot judge of that intent, and the jury must find it. ...

It is admitted to be the duty of the court to direct the jury as to the law, and it is advisable for the jury in most cases, to receive the law from the court; and in all cases, they ought to pay respectful attention to the opinion of the court. But, it is also their duty to exercise their judgments upon the law, as well as the fact; and if they have a clear conviction that the law is different from what it is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions. It is essential to the security of personal rights and public liberty, that the jury should have and exercise the power to judge both of the law and of the criminal intent.

People v. Croswell, 3 Johns.Cas. at 345-46 (emphasis omitted). The prosecution countered that the sound administration of court business requires that juries be permitted to determine the facts only:

The jury have, undoubtedly, the power, in criminal cases, to decide the law as well as the fact, if they will take upon themselves the exercise of it; but we must distinguish, in this case, between power and right. It is the right of the jury to decide the fact, and only the fact; and it is the exclusive province of the court to decide the law in all cases, criminal as well as civil. A jury is wholly incompetent, and' necessarily must be, from the nature of their institution, to decide questions of "law; and if they were invested with this right, it would be attended with mischievous and fatal effects. The law, instead 'of being a fixed rule, would become uncertain and capricious, and there would not remain any stability or uniformity of decision, or certainty of principle, in the administration of justice....

If the jury were to judge of the law in the case of libels, why not of the effect of writings in civil cases, and of the law in all cases where the plea is the general issue? Surely the counsel on the other side are not prepared to carry their doctrine to this .extent.

3 Johns.Cas. at 350-51. Hamilton replied:

But it is not only the province of the jury, in all criminal cases, to judge of the intent with which the act was done, as being parcel of the fact; they are also authorized to judge of the law as connected with the fact. In civil cases, the court are the exclusive judges of the.law, and this arose from the nature of pleadings in civil suits; for, anciently, matters of law arising in the defence, were required to be spread upon the record, by a special plea, and the jury were liable to an attaint for finding a verdict contrary to law. But in criminal cases, the law and fact are necessarily blended by the general issue, and a general verdict was always final and conclusive, both upon the law and the fact. Nor were the jury ever exposed to an attaint for a verdict in a criminal case; and this is decisive to prove that they had a concurrent jurisdiction with the court on questions of law; for where the law allows an act to be valid and definitive, it presupposes a legal and rightful authority to do it. This is a sure and infallible test of a legal power.

In England, trial by jury has always been cherished, as the great security of the subject against the oppression' of government; but it never could have been a solid refuge and security, unless the jury had the right to judge of the intent and the law.

The jury ought, undoubtedly, to pay every respectful regard to the opinion of the court; but suppose a trial in a capital case, and the jury are satisfied from the arguments of counsel, the law authorities that are read, and their own judgment, upon the application of the law to the facts, (for the criminal law consists in general of plain principles,) that the law arising in the case is different from that which the court advances, are they not bound by their oaths, by their duty to their creator, and themselves, to pronounce according to their own convictions? To oblige them, in such a case, to follow implicitly the direction of the court, is to make them commit, perjury, and homicide, under the forms of law. Their error is fatal and cannot be corrected. The victim is sacrificed; he is executed; he perishes without redress. Was he a juror, in such a case, he would endure the rack rather than surrender his own convictions on the altar of power, rather than obey the judicial mandate.

People v. Croswell, 3 Johns.Cas. at 355-56 (internal citations omitted).

The Supreme Court of New York was equally split, with two justices agreeing with Hamilton and two justices siding with the prosecution. Justice James Kent wrote in agreement with Hamilton, that “[t]here is nothing peculiar in the law of libels," to withdraw it from the jurisdiction of ,the jury” by requiring a special • verdict, 3 Johns.Cas. at 365-66. He reasoned that, in all other areas of criminal law, the jury is charged with finding intent:

The jury are called to try, in the case of a traitor, not. only whether he committed the act charged, but whether he did it traitorously; and in the case of a felon, not only whether he killed such a one,, or took such a person’s property, but whether he killed with malice prepense, or took the property feloniously. So in the case of a public libeller, the jury are to try, not only whether he published such a writing, but whether he published it seditiously. In all these cases, from the nature of the issue, the jury are to try not only the fact, but the crime, and in doing so, they must judge of the intent, in order to determine whether the charge be true, as set forth in the indictment. The law, and fact aré so involved, that the jury are under an indispensable necessity to decide both, unless they separate them by a special verdict.

3 Johns.Cas. at 366-67 (emphasis omitted). He thus concluded:

[Ujpon every indictment or information for a libel, where the defendant puts himself upon the country, by a plea of not guilty, the jury have a right to judge, not only of the fact of the publication, and the truth of the innuendoes, but of the intent and tendency of the paper, and whether it' be a libel or not; and, in short, of “the whole matter put in issue upon such indictment or information.” That in this, as in other criminal cases, it is the duty of the court, “according to their discretion, to give their opinion and direction to the jury on .the matter in issue;” and it is the duty of the jury to receive the same with respectful deference and attention, and, unless they choose to find a special verdict, they are then to exercise their own judgments on the matter in issue, with .discretion and integrity.

3 Johns.Cas. at 376-77 (internal citation omitted).

Chief Justice Morgan Lewis disagreed with Hamilton and Justice Kent, and concluded that the policies behind not constricting a jury to deciding matters of law are not present in the United States as they were in England:

It has been urged, that to deny a jury the right of deciding on the law and the fact,- in all cases of criminal prosecution, is contrary to the spirit and genius of our government: But how, has not been attempted to be- shown. In England, where the judges are appointed by the crown, and juries form a substantial barrier between the prerogatives of that crown and the liberties of the people, the reasons for extending the powers of the latter are certainly much stronger than with us, where the judges are, in effect, appointed by the people themselves, and amenable to them for any misconduct.

People v. Croswell, 3 Johns.Cas. at 409.

2. Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895).

In the nineteenth century, Justice Joseph Story, riding circuit in Massachusetts, is credited with issuing the first American opinion explicitly limiting the role of jurors in United States v. Battiste, 24 F.Cas. 1042 (C.C.D. Mass. 1835). See C. Conrad, supra, at 65 (noting that 160 years had passed since the introduction of jury nullification, or jurors as deciders of the law, “before Supreme Court Justice Joseph Story, riding circuit in Massachusetts, rendered the first major American court opinion limiting the role of juries ...”); United States v. Polouizzi, 687 F.Supp.2d 133, 190 (E.D.N.Y. 2010), vacated, 393 Fed.Appx. 784 (2d. Cir. 2010)(un-published)(noting that the first of “[t]wo major Supreme Court Justices’ opinions in the nineteenth century .,. restricting the Sixth Amendment’s jury” right to decide the law is “Justice Story’s in ... United States v. Battiste ... ”). In United States v. Battiste, the defendant was on trial for violation of a newly enacted law punishing human trafficking in slaves, and Justice Story was concerned that, because Massachusetts was the first state to abolish slavery and was home to much of the abolitionist movement, the jury would convict him based on their beliefs about slavery rather than on the facts. See C. Conrad, supra, at 66; United States v. Polouizzi, 687 F.Supp.2d at 190-91 (“Justice Story’s statement was made in the context of preventing a conviction unfounded under the statute as he construed it, not to prevent the jury from refusing to convict a person technically guilty ”){emph&ús in original). Justice Story instructed the jury as to his opinion that the jury determining guilt based on the jurors’ own beliefs, rather than on the law as the court told them— jury nullification — is inconsistent with the notion of a fair trial:

Before I proceed to the merits of this case, I wish to sáy a few words upon a point, suggested by the argument of the learned counsel for the prisoner upon which I have had a decided opinion during my whole professional life. It is, that in criminal cases, and especially in capital cases, the jury are the judges of the law, as well as of the fact. My opinion is, that the jury ai’e no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case, tried upon the general issue. In each of these cases, their verdict, when general, is necessarily compounded of law and of fact; and includes both. In each they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law;1 and it is the duty of the jury to follow the law, as it is laid down by the court. This is the right of every citizen; and it is .his only protection. If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views, which different juries might take of it; but in case of error, there would be no remedy or redress by the injured party; for the court would not have any right to review the law as it had been settled by the jury. Indeed, it would be almost impracticable to ascertain, what the law, as settled by the jury, actually was. On the contrary, if the. court should err, in laying down the law- to the jury, there is an adequate remedy for the injured party, by a. motion for a new trial, or a writ of error, as the nature of the jurisdiction of the. particular court may require. Every person accused as a criminal has a right to be tried according to the law of the land, the fixed law of the land; and not by the law as a jury may understand it, or choose, from wantonness, or ignorance, or accidental mistake, to interpret it. If I thought, that the jury were the proper judges of the law in criminal cases, I should hold it my duty to abstain from the responsibility of stating the law to them upon any such trial. But believing, as I do, that every citizen has a right to be tried by the law, and according to the law; that it is his privilege and truest shield against oppression and wrong; I feel it my duty to state my views fully and openly on the present occasion. It is not, indeed, an occasion, on which there is any reason to doubt, that an intelligent jury can understand the principles of law applicable to the subject, as well as the court; for they are the principles of common sense. And as little reason is there, in my view, to suppose, that they can operate injuriously to the real merits of the case of the prisoner.

24 F.Cas. at 1043.

In Pierce v. State, 13 N.H. 536 (1843), the Supreme Court of New Hampshire cited to United States v. Battiste in holding that the right to return a verdict based on a finding that the law is otherwise than the court gives it to the jury is inconsistent with the proposition that the Constitution is the supreme law of the land:

[T]he result at which we have arrived is that the juries have not the right to decide the law in any case; that this accords with the best authorities in the common law, and with other legal rights which must be surrendered if they may decide the law; and that they are bound by the law, as laid down to them by the court....

The constitution of the United States, and the acts of Congress made in pursuance thereof, are the supreme law of the land, and the judges in every state are bound thereby. If juries are not bound also, the question can never be settled whether a law be in pursuance of the constitution, and the courts must suspend their judgments until a sufficient number of verdicts has been returned, one way or the other, to render it probable that juries generally in future will return their verdicts the same way, — for no nearer approach to certainty could be made.

We cannot believe that impartial and reflecting men, of whatever profession they may be, can advocate doctrines which may lead to such results as the right of the jury to decide the law may end in. We cannot think that the people or their representatives would be content with an exposition of the constitution which would cause the constitutionality of the license law to remain an open question, until it could be settled by the verdict of a jury; of a body admirably adapted to the decision of questions of fact, but irresponsible, giving no reasons for their decisions, not subject to impeachment or attaint, without access to the sources of the law, and therefore unfitted for the investigation of legal rights. No reflecting man in the jury box would be willing to take upon himself this responsibility. He would feel that the question could not be examined with the deliberation it required; that the law could not be expounded with quite so much facility as it could be made, — and that there was no such inspiration in the jury box as would enable twelve men to determine, per saltum, grave questions which, elsewhere, require care, and thought, and patient study, and time for undisturbed reflection. And it is the opinion of the court, that it is inconsistent with the spirit of the constitution that questions of law, and still less, questions of constitutional law, should be decided by the verdict of the jury, contrary to the instructions of the court.

13 N.H. at 551-54 (internal citations omitted). Courts around the country began to follow suit and adhere to the proposition that allowing juries to decide the law in a case, and to decide against the law as the court gave it to them, is inconsistent with the constitutional right for a fair trial. See, e.g., Commonwealth v. Porter, 51 Mass. 263, 263 (Mass. Supr. Ct. 1845)(“[I]t is the duty of the court to give instructions to the jury on all questions of law which arise in a cause tried by them; and it is the duty of the jury to receive the law from the court, and to conform their ... decision to such instructions.... ”); State v. Burpee, 65 Vt. 1, 25 A. 964, 973 (1892)(“The doctrine that jurors are judges of the law in criminal cases is repugnant to .... the constitution of Vermont, which guaranty to every person within this state ‘a certain remedy’ for all wrongs, conformably to the laws.... ”).

Sixty years after United States v. Battiste, Justice John Marshall Harlan, writing for the majority in Sparf v. United States, was tasked with deciding whether the district court could find that manslaughter did not apply as a matter of law, and the jury had to follow that instruction, or whether it was wholly the jury’s determination. See United States v. Courtney, 960 F.Supp.2d at 1170. The defendants in Sparf v. United States, tried jointly for murder, asserted on appeal that the court invaded the jury’s province to determine the law and the facts in criminal cases, where the judge instructed the jury on manslaughter and murder, but also instructed the jury:

I do not consider it necessary, gentlemen, to explain [manslaughter] further, for if a felonious homicide has been committed, of which you are to be the judges from the proof, there is nothing in this case to reduce it below the grade of murder. In other words, it may be in the power of the jury, under the indictment by which these defendants are accused and tried, of finding them guilty of a less crime than murder, to wit, manslaughter, or an attempt to commit murder; yet, as I have said in this case, if a felonious homicide has been committed at all, of which I repeat you are the judges, there is nothing to reduce it below the grade of murder.

156 U.S. at 60, 15 S.Ct. 273. The judge additionally instructed them: “[A]s one of the tribunals of the country, a jury' is expected to be governed by law, and the law it should receive from the court.” 156 U.S. at 63, 15 S.Ct. 273. The Supreme Court held that the district court did not err in giving these instructions:

We are of opinion that the court below did not err in saying to the jury that they could not, consistently with the law arising from the evidence, find the defendants guilty of manslaughter,1 or of any offense less than the one charged; that if the defendants were not guilty of the offense charged, the duty of the jury was to return a verdict of not guilty. No instruction was given that questioned the right of the jury to determine whether the witnesses were to be believed or not, nor whether the defendant was guilty or not guilty of the offense charged. On the contrary, the court was careful to . say that the jury were the exclusive judges of the facts, and that they were to determine — applying to the facts the principles of law announced by the court — whether the evidence established the guilt or innocence of the defendants of the charge set out in the indictment.

The trial was thus conducted upon the theory that it was-the duty of the: court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, .as well as the security of private and personal rights.

156 U.S. at 106, 15 S.Ct. 273.

Justice Harlan notes the varied opinions of jurists and court decisions dating back to Georgia v. Brailsford, which had recognized that juries necessarily have the right to determine matters of law in addition to fact, but concludes: “We are of the opinion that the law in England at the date of our separation from that country ,.. falls far short of the contention that the jury, in applying the law to the,facts, may rightfully refuse to act upon the principles of law announced by the court.” Sparf v. United States, 156 U.S. at 90, 15 S.Ct. 273. Justice Harlan-reasoned that the incorrect belief about the jury’s ability to depart from the law which the court gives to it arises from the jury’s ultimate ability to decide guilt or innocence.-in rendering a general verdict: “The contrary view rests, as we think, in large part, upon expressions of certain judges and writers, enforcing the principle that when the question is compounded of law and fact , a general verdict, ex necessitate, disposes of the case in hand, both as to law and fact.” 156 U.S. at 90, 15 S.Ct. 273. He determined, therefore, that, “the general common-law rule in criminal cases” at -the time of the Sixth Amendment’s ratification was:

the right of the court to decide the law, and the duty of the jury to apply the law thus given to the facts, subject to the condition, inseparable from the-jury system, that , the jury, by a general verdict, of necessity determined in the particular case.;both law and fact, as compounded in.the issue submitted to them. . „

156 U.S. at 98, 15 S.Ct. 273. Justice Harlan thus rejected the defendants’ contention that the district court judge’s instructing the jury that it was to follow the law that he gave to them was improper, reasoning:

Wé must hold firmly to'the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence. Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be.

Sparf v. United States, 156 U.S. at 102, 15 S.Ct. 273. Justice Harlan, articulating the policy behind the Supreme Court’s holding, noted that requiring juries to adhere to courts’ instructions ensures that laws, even if they may be unpopular, are enforced:

“As long as the judges of the United States are obliged to express their opinions publicly, to give their reasons for them when called upon in the usual mode, and to stand responsible for them, not only to public opinion, but to a court of impeachment, I can apprehend very little danger of the laws being wrested to purposes of injustice. But, on the other hand, I do consider that this power and corresponding duty of the court authoritatively to declare the law is one of the, highest safeguards of the citizen. The sole end of courts of justice is to enforce the laws uniformly and impartially, without respect of persons or times or the opinions of men. To enforce popular laws is easy. But when an unpopular cause is a just cause; when a law, unpopular in some locality, is to be enforced, — :there then comes the strain upon the administration of justice;- and few unprejudiced men would hesitate as to where that strain would be most firmly borne.”

Sparf v. United States, 156 U.S. at 107, 15 S.Ct. 273 (quoting United States v. Morris, 1 Curt.C.C. 23, 63 (C.C.D. Mass. 1851)).

States .quickly, followed on the heels of the. Supreme Court’s decision in Sparf v. United States to restrict the role of juries. Pennsylvania, for instance, clarified its opposition to jury nullification in the case, of Commonwealth v. Bryson, 276 Pa. 566, 120 A. 552 (1923), where-the defendant challenged the district court’s instruction, providing: “[I]n this sort of case .you are the judges -of the law and the facts, the law as well as the facts, but you are to take the law from the court as the proper source of information.” 120 A. at 554. The Supreme Court of Pennsylvania noted that correctness of the instruction “is now settled in Pennsylvania,” holding: “There is nothing in the instructions of which defendant can justly complain. It is the duty of the jury to take the law from the court, to the same extent in a criminal case as in any other, and a trial judge can properly so instruct.” 120 A. at 554. Further, the Supreme Court of Illinois in 1931 held unconstitutional a statute which provided that juries in criminal cases are the judges of both fact and law, reasoning that the statute “abrogates an essential attribute of the trial of a criminal case by a jury as known to the common law, and results in the deprivation of a right which has been uniformly guaranteed by our successive Constitutions.” People v. Bruner, 343 Ill. 146, 156, 175 N.E. 400 (1931). The Supreme Court of Illinois cites to Sparf v. United States as authority for the proposition that, at common law, it was a jury’s duty to take and apply the law as the judge gave it to the jury. See People v. Bruner, 343 Ill. at 153, 175 N.E. 400 (noting that the Supreme Court in Sparf v. United States, “following the rule and practice at common law, [held that] it was the duty of the jury in every criminal case ... to take the law from the court and to apply the law so received to the facts as they found them from the evidence”).

3. The Jury’s Current Role.

“It is well-established that the court instructs the jury as to the rules of law and that the jury applies the facts as they find them to those rules.” United States v. Grismore, 546 F.2d 844, 849 (10th Cir. 1976)(citing Sparf v. United States, 156 U.S. at 51, 15 S.Ct. 273). “One touchstone of a fair trial is an impartial trier of fact — -‘a jury capable and willing to decide the case solely on the evidence before it.’ ” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984)(quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). A juror meets the constitutional standard for impartiality where the juror “can lay aside his opinion and render a verdict based on the evidence presented in court.” Patton v. Yount, 467 U.S. 1025, 1037 n.12, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). As the Tenth Circuit has explained, a “defendant’s right to an impartial jury does not include a right to a jury composed of persons who will disregard the district court’s instructions.” United States v. James, 203 F.3d 836, No. CR 98-1479, 2000 WL 136816, at *3 (10th Cir. Feb. 7, 2000)(unpublished table decision). Cf. United States v. Fredette, 315 F.3d 1235, 1240-41 (10th Cir. 2003)(“The instructions as a whole need not be flawless, but we must be satisfied that, upon hearing the instructions, the jury understood the issues to be resolved and its duty to resolve them.”)(quoting Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 552 (10th Cir. 1999)).

The Tenth Circuit has held that “there is no right to jury nullification.” Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir. 1999). Jury nullification is defined as a

jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.

Jury Nullification, Black’s Law Dictionary at 936 (9th ed. 2009). “ “While we recognize that a jury may render a verdict at odds with the evidence or the law, neither the court nor counsel should encourage jurors to violate their oath.’” United States v. Gonzalez, 596 F.3d 1228, 1237 (10th Cir. 2010)(quoting United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983)). “[W]e disapprove of the encouragement of jury nullification.” United States v. Gonzalez, 596 F.3d at 1237. The Tenth Circuit in Crease v. McKune cited with approval the United States Court of Appeals for the Second Circuit’s holding in United States v. Thomas, 116 F.3d 606 (2d Cir. 1997), in which the Second Circuit stated that “the powers 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.” 116 F.3d at 615. Moreover, the Tenth Circuit has held that “the law is clear: a criminal defendant is not entitled to have the jury instructed that it can, despite finding the defendant guilty beyond a reasonable doubt, disregard the law.” United States v. Rith, 164 F.3d 1323, 1337 (10th Cir. 1999). See United States v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1992)(holding that criminal defendants are “not entitled to jury nullification instructions”).

In United States v. James, the Tenth Circuit upheld a district court judge’s;sua sponte dismissal of a potential juror who stated his belief that the juror had the power to disregard the judge’s admonition on the law and acquit if the juror felt it just to do so. See 2000 WL 136816, at *4. The district court judge asked the juror, an emeritus professor of law at the University of Denver, whether he was ‘“willing to accept the law from me as I give it in the instructions,” to which the juror responded that his “inclination is to follow the judge’s instructions.” 2000 WL 136816, at *2. The juror noted, however, that he had one “qualm” and that was the- view that “a jury, always has the power to acquit. ... [n]ot withstanding the evidence.” 2000 WL 136816, at *2. The judge then, immediately, sua sponte dismissed the juror and provided the follow explanation to the venire:

Now, we were on the subject of experience with the law. I just excused the professor because he expressed a view that the jury can disregard the- law. I’m surprised to hear that’s being taught, if it is being taught. But at any rate, that’s not the law. AsT have explained patiently and carefully, the jury has to accept the law as it is, and it’s up to the jury to decide on the evidence, you know, whether the evidence meets this high standard of proof, and can certainly decide on an acquittal, as he said, if the evidence doesn’t persuade or convince you beyond a reasonable doubt. But the jury can’t make up the law, and that’s the little exchange that we had there, and I’m sure you followed along with that, but I wanted to make it plain why it was that I excused this teacher.

United States v. James, 2000 WL 136816, at *2. When the defendant appealed, asserting that the judge’s sua sponte dismissal of the juror and instruction to the venire violated his Sixth Amendment jury trial rights, the Tenth Circuit affirmed, holding:'

In light of his responses to questions during voir dire, the district court did not abuse its discretion or commit plain error in sua sponte dismissing [the] prospective juror.... A person who is either unwilling or unable to follow the court's instructions is not qualified to be a juror. Nor did the district court commit any error when it informed the jurors that it is their obligation to follow the law as it instructs. In short, the defendant was not deprived of his right to a fair trial.

2000 WL 136816, at *4.

LAW REGARDING JURY KNOWLEDGE OF SENTENCING RAMIFICATIONS

In criminal cases, the United States and the defendant often work together to keep the jury ignorant of the ramifications of its determination of guilt. The Supreme Court has consistently directed that, “when a jury has no sentencing function, it should be admonished to ‘reach its verdict without regard to what sentence might be imposed.’” Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994)(footnote omitted)(quoting Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975)). It is not clear that this ignorance was present at the time of the Sixth Amendment’s ratification.

1. Jury Knowledge of Sentencing Ramifications at the Founders’ Time.

Colonial and British jurors at the Founders’ time came to the courts from the same vicinity as the defendant, “were well-informed and self-confident property owners, and knew the essentials of the local criminal law and its punishments.” United States v. Polizzi, 549 F.Supp.2d at 406 (internal citations omitted). Professor Jeffrey B. Abramson has noted that jurors at the Founders’ time did not “come to the jury with minute skill in the laws,” but rather the local knowledge jurors would have possessed included knowledge of the laws. Jeffrey B. Abramson, We, The Jury: The Jury System and the Ideal of Democracy 32 (1994). Professor Abramson explains:

Not only was formal legal training unnecessary, but jurors did not even need to rely on a judge’s instructions to know the common law of the land, rooted as it was in fundamental principles of natural justice.... Thus, members of a Massachusetts grand jury in 1759 were told that they “need no Explanation” as to most legal matters because “your . Good Sence & understanding will Direct ye as to them.”

Abramson, supra, at 32. John Adams similarly noted that “in many cases judges gave the jury no instructions on the law.” 1 The Legal Papers of John Adams 230 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965).

Jurors’ knowledge of the law can be seen in a case that the late Professor Julius Goebel, Jr. chronicled, where he notes that, in 1702, a jury verdict was overturned based on the jurors’ lack of knowledge about the laws under which the defendant was convicted:

After being tried in a well-publicized trial and found guilty of treason in 1702, Nicholas Bayard, a former commanding .officer of the New York militia and may- or of New York under British rule, appealed to the British Crown based on irregularities in the jury composition— he., the jurors’ ignorance of the law:

In his petition and “appeal” to Queen Anne, Nicholas Bayard stated among other things that he had been “convicted by an illegal petty jury of Aliens and Dutch unduely returned and very ignorant of the English Laws and Language” .... Among the affidavits taken by John Bridges and Samson Shelton Broughton, under the Queen’s order of reference for the collection of evidence in connection with the Bayard appeal, are statements of some of the petit jurors who had joined in the verdict declaring Bayard guilty of high treason. Thomas Sanders and Isaac Stoutenbergh, two of the trial jurors, made oral statements as follows, confirming the allegations made by Bayard in his petition: these [depend on] their great Ignorance of the Laws of England at that time not knowing what was High Treason ... the Foreman ,.. Did assert it was High Treason ... to disturb the peace good and quiet of this Government and that Colonell Ba-yard had disturbed the peace by the addresses and eight or nine jurors were for clearing ... Bayard but were perswaded by the foreman.”

Julius Goebel, Jr. & T. Raymond Naugh-ton, Law Enforcement in Colonial New York 604 n.7 (1944). Professor Goebel notes that New York jurors in revolutionary times often mitigated crimes based on their knowledge of the potential sentences that the defendants faced if the jurors found them guilty of the greater crime:

We have spoken of the grooves in which the jury- might exercise its charity: the verdict in thefts for amounts under the 12d. boundary between grand and petit larceny, and. the privilege of finding manslaughter, self-defense or accident upon indictments for murder. These prerogatives the juries in New York did not hesitate to assert, and to these old and established powers of mitigation may be added, perhaps, the avoidance in New York of the incidents of felony judgment by the persistent finding of no goods or tenements. Of considerably greater significance than these possible iriterfer-enees of the jury, but connected, therewith in the case of verdicts for crimes of a less degree when murder, burglary, arson, highway robbery and certain others were charged, is the mitigation obtained by benefit of clergy.

Goebel & Naughton, supra, at 751 (footnote omitted)(emphasis added). “[T]he benefit of the clergy,” was a system of mitigation in which a first-time offender convicted of a lesser crime would be branded on the thumb rather than sentenced to death. United States v. Polizzi, 549 F.Supp.2d at 411 (quoting John H. Langbein, The Origins of the Adversary Criminal Trial 193 (2003)); See 1 Sir William Blackstone, Commentaries on the Laws of England:’ In Four Books 1753 (William D. Lewis ed., 2007)(noting that “the benefit of the clergy at present stand[s] ... considerably different from its original institution ... [,] what was at first an unreasonable exemption of particular popish ecclesiastics into a merciful mitigation of the general law with respect to capital punishment”).

Sir Dudley Ryder, who served as a trial judge for the trial judiciary of the Old Bailey from 1754 to 1756, at least in one case, instructed the jury on the possible ramifications of a guilty verdict at trial, and documented his belief that the jury determined the verdict based on availability of the benefit of the clergy:

Ryder sometimes found time to jot down a little of what he was telling the jury. John Taplin was tried before Ryder in October 1754 on an indictment charging theft from a dwelling house of a watch, valued at forty shillings, and of more than twenty guineas in money. The [Old Bailey] report of the outcome is as curt as possible, “Guilty 39s.,i” meaning that the jury convicted him but determined the combined value of what was stolen to be thirty-nine shillings (less than two guineas, hence’ well below the value charged hi the indictment). Ryder’s notes explain why. “The jury found him guilty to the value of 39s., which they did after I told them that 40s.'was necessary to make him guilty of felony that was without benefit- of clergy. It is by Act of 12 Ann.” Ryder thus records his own role in guiding -the jury’s prerogative of ‘valuing1 the loot. Because the statute of 1713 to which Ryder refers withdrew, so-called benefit of clergy from thefts of forty shillings’ value or more when committed. in a dwelling house,,it foreclosed the primary ground upon which a conviet could escape the death penalty for such an offense. The convention of the day, immortalized in Blackstone’s phrase as the jury’s “pious perjury,” was that the jury could “down-value” the goods, in this instance to thirty-nine shillings, in order to consign, the convict to the lesser sanction of transportation for seven years.

John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L. Rev. 1, 22 (1983)(footnotes omitted)(“Ryder Sources”). Professor John H. Lang-bein, Sterling Professor of Law and Legal History at Yale- Law School, concludes from Sir Dudley Ryder’s notebook chronicling many of his trials during his tenure on the Old Bailey bench that the paramount, if not only, purpose of the jury was to determine the sentence:

Only a small fraction of eighteenth-century criminal trials were genuinely contested inquiries into guilt or innocence. In. most cases the accused had been caught in the act or