Md. high court calls jury nullification ‘not authorized’

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Maryland juries may not acquit a defendant they believe to be guilty because they regard the criminal law to be unjust or because they want to “send a message” about a broader societal issue, the state’s top court said Friday in ruling such “jury nullification” of an otherwise guilty verdict impermissible.

The Court of Appeals rendered its decision in holding that a trial judge properly admonished jurors to stick to the evidence they heard, apply the law as they were told and not engage in jury nullification.

In its 6-1 ruling, the high court reinstated violent crime convictions of three men who invaded a family’s Silver Spring apartment in August 2017. The intermediate Court of Special Appeals had vacated the convictions, saying the judge’s admonition against jury nullification was too strong because the practice, though frowned upon, was not banned.

“Here, we unequivocally hold that, despite the circumstance – and our recognition – that jury nullification sometimes occurs, jury nullification is not authorized in Maryland and a jury does not have the right to engage in jury nullification,” Judge Shirley M. Watts wrote for the high court majority.

“(M)aryland case law makes plain that it is improper for an attorney to argue jury nullification to a jury, and that jury instructions about the law are binding and that trial courts advise juries as much,” Watts added. “If instructions about the law are binding on the jury, and trial counsel may not argue the opposite to a jury and a trial court may not instruct a jury otherwise, it follows that a jury is not free to engage in jury nullification and refuse to apply the law because it disagrees with the law in some respect.”

According to trial testimony and evidence, the three men disguised themselves as maintenance workers and entered the two-bedroom apartment on Aug. 1, 2017, attacked the husband, David Rivera, and bound him, his wife, Aracely Ochoa; and her stepfather, Rolando Callejas.

The armed men – Karon Sayles, Bobby Johnson and Dalik Oxely – tried unsuccessfully several times over the next day to gain entry into the nearby Cash Depot store, where Ochoa worked as a manager.

These attempts included getting the keys and the code for Cash Depot’s safe from Ochoa and then bringing her to the store. The men, however, were thwarted by an alarm, the presence of Ochoa’s boss at the store and then by a crossbar preventing access to the building.

The family’s nightmare ended when Rivera was able to yell for the police, prompting the three men to leave. They were later captured and tried.

During its deliberations, the Montgomery County Circuit Court jury sent a series of three notes asking the judge whether jurors had “the right to use jury nullification of a charge.”

The judge responded the first time that “your verdict must be based solely on the evidence. Your choices, based on the evidence, are Not Guilty or Guilty. Reread your instructions.”

The second time, the judge told them, “No, you can’t have jury nullification” and added that “nullification shouldn’t even be a consideration. It’s not on the verdict sheet. It’s not in the instructions.”

The third time, the judge said that “you may not use, implement or resort to jury nullification. It is improper, it’s contrary to the law (and) would be a violation of your oath to truly try and reach a verdict according to the evidence, which you all took that oath.”

The jury rendered its verdict the following day, Aug. 31, 2018. The jurors found the men guilty of armed robbery, kidnapping, home invasion, assault, false imprisonment, car theft and related conspiracies.

But the Court of Special Appeals overturned the convictions, saying the judge’s strong admonitions against jury nullification denied the men a fair trial.

The state then successfully sought review by the Court of Appeals, which said the judge appropriately warned the jurors against nullification.

“When asked whether a jury may engage in jury nullification, a trial court should respond … by advising the jury that its verdict must be based solely on the evidence, that the jury should reread the instructions previously provided, and that, based on the evidence, the jury should return a verdict of not guilty or guilty,” Watts wrote. “But, if asked specifically whether there is authority or the right to engage in jury nullification in Maryland, a trial court must respond in the negative and advise that jury nullification is not authorized….”

Watts was joined in the opinion by Chief Judge Mary Ellen Barbera and Judges Robert N. McDonald, Joseph M. Getty, Brynja M. Booth and Jonathan Biran.

But Judge Michele D. Hotten, the high court’s sole dissenter, stated that jury nullification – though strongly disfavored – remains “an inherent power” of jurors.

“Our justice system empowers juries to acquit a defendant no matter how apparently convincing the evidence of guilt,” Hotten wrote. “The unadulterated power of juries to reach a verdict, including acquittal in the face of evidence beyond a reasonable doubt, is a constitutionally protected feature of our justice system. Trial courts should not insinuate otherwise in instructing a jury.”

The high court rendered its decision in the consolidated cases, State of Maryland v. Karon Sayles, Bobby Jamar Johnson and Dalik Daniel Oxely, Nos.15,16 and 17 September Term 2020.