State v. Bjerkaas
163 Wis.2d 949, 472 N.W.2d 615 (1991)
Rule of Law:
While a jury may possess the de facto power to acquit a defendant contrary to the law and evidence (jury nullification), a criminal defendant has no right to have counsel argue for jury nullification or to have the jury instructed on this power.
Facts:
- Kerry Bjerkaas worked as a server at a pizza restaurant.
- Two undercover drug agents, Pat Buckley and Mike Blokhuis, frequented the restaurant, became friendly with Bjerkaas, and often discussed her drug use with her.
- During a social outing, Bjerkaas's co-worker, Mike Creuzinger, told Agent Buckley that he could procure any drugs he wanted.
- Several days later at the restaurant, the agents asked Bjerkaas if she knew where they could buy cocaine.
- Bjerkaas identified Creuzinger as a source and confirmed he could supply the drugs.
- When the agents returned to make the purchase, Creuzinger was busy in the kitchen, so Bjerkaas agreed to act as an intermediary.
- Bjerkaas took $250 from the agents, gave it to Creuzinger, and relayed instructions for the agents to call in a pizza order later, which would allow Creuzinger to deliver the cocaine to them.
- The drug transaction was successfully completed according to the plan Bjerkaas facilitated.
Procedural Posture:
- Kerry Bjerkaas was charged in trial court with aiding and abetting the sale of cocaine.
- At trial, the court denied Bjerkaas's request for a jury instruction on the defense of entrapment.
- The trial court also prohibited defense counsel from making a 'jury nullification' argument during closing statements.
- A jury convicted Bjerkaas of the charged offense.
- Bjerkaas filed motions for post-conviction relief, which the trial court denied.
- Bjerkaas appealed the judgment of conviction and the denial of her post-conviction motions to the Court of Appeals of Wisconsin.
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Issue:
Does a trial court's refusal to permit defense counsel to argue for jury nullification—urging the jury to disregard the law and acquit based on fairness—violate the defendant's right to a fair trial?
Opinions:
Majority - Eich, C.J.
No. A defendant does not have a right for their counsel to argue for jury nullification. The court reasoned that there is a critical distinction between a jury's power to nullify and a defendant's right to it. The power of nullification arises from the Double Jeopardy Clause, which prevents the government from appealing an acquittal, thereby making even a 'lawless' jury verdict final. However, this power does not translate into a right for the defendant to have the jury defy the law or for counsel to encourage them to do so. Citing 'Sparf v. United States,' the court affirmed the principle that it is the jury's duty 'to take the law from the court and apply that law to the facts.' The trial court has sound discretion to control the content of closing arguments, and prohibiting an argument that invites the jury to disregard their oath and the court's instructions is a proper exercise of that discretion.
Analysis:
This decision reinforces the orthodox view of the jury's role within the American legal system, firmly aligning Wisconsin with the majority of jurisdictions that reject a defendant's right to a jury nullification argument. By distinguishing the jury's unreviewable 'power' to acquit against the evidence from any 'right' of the defendant to demand it, the court preserves the principle that legal proceedings must be governed by law, not by whim or passion. This precedent effectively bars defense attorneys from explicitly asking juries to ignore the law, thereby strengthening the trial judge's authority to ensure that jury deliberations are based on the evidence presented and the legal instructions provided.
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