Obscure jury power argued in cigarette case

WOODSTOCK – The words “jury nullification” are rarely uttered in open court, but they were bandied about recently as Shenandoah County Deputy Commonwealth’s Attorney Louis Campola and defense attorney David Downes continued their long-running string of clashes over a cigarette smuggling case set for trial on Aug. 31.

Campola prevailed on a motion that would forbid Downes from making arguments to the jury that, Campola insisted, would amount to jury nullification. Hupp granted the motion, although he also said he had some reservations about ruling on arguments before the trial begins.

The arguments represented another twist in a case that has seen more than its share of them as Downes and Campola have sparred over what evidence and arguments the jury should be permitted to hear.

Jury nullification, a concept little known or discussed outside the legal profession, allows jurors to disregard facts presented at trial that prove a defendant’s guilt beyond a reasonable doubt. Instead, jurors can choose to acquit a defendant because they disagree with the law or believe it shouldn’t apply to the case before them.

Some of the better-known examples of jury nullifications date back to colonial times. Newspaper publisher John Peter Zenger was acquitted by jurors who disagreed with his arrest for publishing remarks criticizing a royal governor.

Downes invoked Zenger’s case approvingly in defending the traditions of jury nullification.

Modern judges have tended to frown on jury nullification, although it remains a legal right for jurors who choose to exercise it. A U.S. Supreme Court ruling in 1895 upheld the right of jury nullification but also stated judges have no obligation to inform juries about it.

Campola cited a Virginia appellate court decision that forbids lawyers from making arguments that encourage the jury to exercise what Campola called “powers beyond their appropriate role of fact finder.”

Downes is representing John Taveras, a New York City resident facing a long list of counts charging him with cigarette trafficking and money laundering.

Campola’s motion cited eight examples of arguments Downes has been making throughout the pre-trial hearings that would constitute appeals for jury nullification. They are:

• Law enforcement has wasted the taxpayers’ money in conducting investigations into cigarette trafficking.

• Taveras’ crimes are victimless.

• The Shenandoah County Sheriff’s Office is wasting time by focusing on cigarette smugglers instead of drug dealers.

• Sting operations conducted by the Sheriff’s Office against cigarette smugglers have used untaxed cigarettes, which puts law enforcement officers in violation of the same laws they are trying to enforce.

• A law enforcement officer who buys and sells untaxed cigarettes in a sting operation is no different from an ordinary citizen who buys and sells untaxed cigarettes for his own purposes.

• Cigarette smuggling defendants are being arrested only to obtain money made available to local law enforcement agencies through federal and state asset forfeiture programs.

• The sheriff’s office is using its sting operation against cigarette smugglers only as a money-making venture.

• The arrests of cigarette smuggling suspects are motivated by Sheriff Timothy C. Carter’s desire to obtain asset forfeiture money that he is using to buy new equipment and pay for a new headquarters.

Downes said after the hearing he had no intention of advocating for jury nullification during the upcoming trial, but he hedged when asked if he was planning to speak about any of the specific issues cited in Campola’s motion.

“I think it’s important that I confine myself to the rules of evidence and, at the same time, zealously represent my client,” Downes said.

He added: “I think I can still, with those limitations, represent my client within the boundaries of the law.”

Contact staff writer Joe Beck at 540-465-5137 ext. 142, or jbeck@nvdaily.com