In one clip circulating on the Internet, New York District Judge Arthur Engoron told college students that he has a tool for juries who get it wrong as he sees it. He’s the tool, but says the tool is “judgment notwithstanding the verdict.”
“I’ve had situations where I’m like, oh my… heaven’s sake, how could they have thought that? Well, I have a tool that I can deal with that. It’s called… judgment notwithstanding the verdict. I can say there is no possible way that a reasonable jury would have reached that conclusion,” Engoron explained, indicating he has the prerogative to disregard a jury’s findings when he wishes.
As far as I’m aware, the judge in a criminal trial can bypass the jury’s sovereign prerogative in only these ways:
- He can dismiss the charges against the defendant, whether for technical or juridical reasons;
- He can set aside a guilty verdict if he doubts the fairness of the jury’s sentence;
- He can direct a verdict of acquittal before the jury starts to deliberate.
A judge is forbidden to direct a verdict of guilty. The accused’s prerogative of a jury trial makes that explicit. Moreover, once a jury has acquitted a defendant, that defendant may not legally be tried a second time for the same offense. It’s in black and white in the Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
If Judge Engoron believes he has some other privilege of imposing an outcome despite a jury verdict – specifically in a criminal trial, not a civil action for damages – I’m unaware of it. If there are any attorneys among my Gentle Readers, you’re invited to contribute your superior knowledge. As Judge Engoron will preside over the trial of President Donald Trump on a slew of absurd charges, the question has particular force.