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Logical Impossibility and Burdens of Proof

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In a case decided yesterday by the Tenth Circuit, a jury found a man (“Shippley”) guilty of conspiring to distribute at least 50 grams of methamphetamine, 500 grams of cocaine, or any quantity of ecstasy. But at the same time, the district court also asked the jury (in a set of special interrogatories) which drugs were involved, and the jury found that the government had not proven that Shippley conspired to distribute at least 50 grams of meth, had not proven that he conspired to distribute at least 500 grams of cocaine, and had not proven that he conspired to distribute any quantity of ecstasy.

In Judge Gorsuch’s view, “it wasn’t just logically incongruous to enter the jury’s verdict, it was metaphysically impossible.” He writes that this verdict “involves an inconsistency on the same count and with the same defendant–an inconsistency that simply could not have been given full effect. Something had to give . . . .” The district court apparently agreed because it asked the jury to deliberate again. (Upon reconsideration, the jury found that the man had conspired to distribute at least 500 grams of cocaine.)

I think Judge Gorsuch and the district court are mistaken in believing that the jury’s initial findings were necessarily inconsistent. The jury could have been confident that Shippley had conspired to distribute a large quantity of either meth, cocaine, or ecstasy without being confident which drug it was. For example, imagine that a witness testified there were large crates of drugs, but that the witness couldn’t recall whether it was meth or cocaine that they were hauling that day, though she was sure it was one or the other. In that case, the jury could find that the government proved beyond a reasonable doubt that Shippley committed the offense, while finding that the government did not prove beyond a reasonable doubt that Shippley had specifically conspired to distribute any one of the three drugs. (And yes, I looked up the verdict sheet: each of the special interrogatories asked whether “the government proved beyond a reasonable doubt” the conduct related to the specific drug.)

I’m guessing that these judges made the easy mistake of forgetting that when a jury finds that the government failed to prove X, that is not the same as affirmatively finding that X did not happen. Indeed, Judge Gorsuch wrote that his opinion “is limited to the situation before us, where a jury returns a guilty verdict but indicates in its answers to special interrogatories that the defendant is innocent.” (Emphasis added.) Of course, a finding that the government failed to prove guilt beyond a reasonable doubt is not the same as a finding of actual innocence.

H/T: How Appealing


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