Juror's challenge raises legal issue

Thomas R. Eddlem said he is proud of challenging the legitimacy of a criminal law. (Jim Davis/Globe Staff)

It started with a note from the jury barely an hour into deliberations, an unusual question that went way beyond the scope of the federal drug-trafficking trial.

Given that it took the 18th Amendment of the US Constitution in 1919 to pave the way for Prohibition, a juror wanted to know from the judge, where "is the constitutional grant of authority to ban mere possession of cocaine today?"

To a casual observer, the question in the Boston courtroom might merely have been the musing of a juror with some knowledge of American history. But US District Court Judge William G. Young said the note and others that followed represented something he had never seen in 30 years as a judge: a rogue juror challenging the legitimacy of a criminal law used to prosecute a defendant.

Young was so alarmed by the actions of Thomas R. Eddlem, a 42-year-old technology coordinator at a Catholic high school and former John Birch Society official, that he recently wrote a 43-page memorandum plumbing the history of "jury nullification" and how it threatens democracy.

Nullification refers to a controversial concept that jurors have a duty to disregard a judge's instructions and acquit a criminal defendant - even one guilty under the letter of the law - if they disagree with the law.

Juries in the United States have sometimes exercised this power admirably, particularly in the 18th and 19th centuries, but it has been all but repudiated by the courts. Still, it attracts an eclectic group of advocates who encourage juries on the Internet and elsewhere to acquit defendants if jurors find laws unconscionable, including drug laws, tax laws, and motorcycle helmet laws.

Young, a 68-year-old Harvard-educated jurist whose stern bearing recalls his days as a US Army captain, said he questioned Eddlem in his office and the Taunton man insisted that the drug prosecution was unconstitutional. The judge then replaced him with an alternate juror. Shortly afterward, the reconstituted jury convicted Robert C. Luisi, a reputed Mafia lieutenant, of three cocaine-related charges.

Young wrote that Eddlem's actions in March, which went unreported, marked the first time he "has encountered a juror who has attempted to arrogate to himself the power that our Constitution places in the elected branches of government."

But Eddlem said last week that he opposes jury nullification and that it was the judge who subverted the legal system. Eddlem, a self-described right-winger and research director from 1987 to 2000 for the John Birch Society in Appleton, Wis., said Young distorted the plain language of the Constitution to justify a prosecution that had no basis in federal law.

"I was like Alice talking to Humpty Dumpty in 'Through the Looking Glass,' " he said, referring to his confrontation with the judge.

American history has shining examples of jury nullification, including the acquittals of the publisher John Peter Zenger of seditious libel in 1735 and of defendants who helped slaves escape to freedom in the 19th century. Nullification has also drawn support in recent years from activists on both ends of the political spectrum. In March, the writers of the TV show "The Wire" championed jury nullification in a Time article as a way to protest an ineffectual war on drugs.

But Young wrote in his July 25 memorandum that examples of "benevolent nullification" are bygone "exceptions to an otherwise abhorrent strain of lawlessness." In the civil rights era, he wrote, nullification led to notorious acquittals in the South of white defendants by all-white juries in cases such as the 1955 slaying of Emmett Till.

The trial that prompted Young's memorandum was far less memorable.

Federal prosecutors presented evidence that Luisi orchestrated drug sales in the Boston area. Luisi had been tried and convicted of the same charges in 2002 before another federal judge, but the US Court of Appeals for the First Circuit reversed the conviction and ordered a new trial.

In the retrial, the case went to the jury just before noon on March 11. About 1 p.m. the jury, which had taken an oath to consider only the evidence and to heed the judge's instructions, sent out its first note, Young wrote. Young brought the jurors into the courtroom, told them they could not consider constitutional questions and sent them back to deliberate.

Two hours later, Young wrote, the jury sent two more questions: If a juror denies the constitutionality of the prosecution, "preempting consideration of the facts," can he participate? And can the jury deliberate?

Young brought the jury in, assured them that the laws at issue were constitutional and sent them home for the day, he wrote.

The following day, the jury sent a note saying the problem had persisted. Young then interviewed each juror, one by one, in his office, in the presence of federal prosecutors and Luisi's lawyers. When the judge got to Eddlem, whom Young calls only Juror No. 2, Eddlem said he was the juror in question, Young wrote.

Eddlem told Young that he did not believe the Constitution contained language banning cocaine trafficking within a state, the judge wrote. Young told him that the US Supreme Court had interpreted the Commerce Clause as prohibiting it. But the juror said he saw nothing like that in the clause even though the Constitution is "written to the 11th grade vocabulary level," Young wrote.

After several minutes of wrangling with the juror, Young told the lawyers that Eddlem was "engaged in juror nullification" and threw him off the jury, over the objections of defense lawyer John H. LaChance of Framingham. LaChance said he does not intend to appeal.

Last week Eddlem said he would have voted to convict Luisi in a state court; he simply felt there were no grounds for a federal prosecution. He opposes nullification, he added in an e-mail, but judges who ignore the Constitution pose a far greater threat than a "handful of 'nullification' radicals."

In an interview, Young, who was a state Superior Court judge before his 1985 appointment to the federal bench, said he thinks virtually all judges oppose nullification even if it is well-intentioned.

But his colleague US District Judge Nancy Gertner of Boston said it depends on how one defines nullification. Gertner, who had no comment on the Luisi case, said a juror who informs a judge that he or she will not follow the law as instructed, is engaging in flagrant nullification and should not participate.

Judges recognize, however, that juries sometimes engage in a subtler form of nullification when they acquit in a criminal case, perhaps because of mitigating circumstances, even though the evidence and law support a conviction, Gertner said.

"We say jurors should not nullify, but we tell them to use their common sense, and we allow them in a criminal case to have a general verdict, which is to make a decision without giving a reason," said Gertner. "So we say they shouldn't do it, but we give them the space to do so."

Eddlem, for his part, was unapologetic for his actions. "I think when I look back at my life, it's going to be one of the things I'm most proud of," he said.

Jonathan Saltzman can be reached at jsaltzman@globe.com.