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5th Cir: This Guy is Guilty, But Judge Still Has to Let Jury Say So

By William Peacock, Esq. on May 20, 2014 | Last updated on March 21, 2019

Juan Salazar was guilty. He was charged with a long list of crimes, including drug-related conspiracies. Prosecutors presented "overwhelming evidence of guilt." He even got on the stand (against his counsel's advice) and, on cross-examination, confessed to everything. Though his attorney was planning on arguing that Salazar withdrew from the conspiracy in a timely manner, by the time Salazar finished crucifying himself testifying, his stumped attorney noted, "Well, what am I going to argue? That he wasn't there? That he didn't complete the conspiracy?"

So, why was his conviction reversed? Because, as obvious as his guilt may have been, a judge telling the jury to "to go back and find the Defendant guilty" is an obvious violation of the Sixth Amendment right to trial by jury.

An Untimely Withdrawal

The ATF received a tip from a confidential informant that Salazar and two co-conspirators were planning a home-invasion-style armed robbery of a drug stash house.

Alas, after months of planning Salazar got cold feet when the crew arrived on scene, locked and loaded, when he was introduced to the undercover agent, who he felt was not "transparent." (Good instincts.)

Of course, as any first-year law student will tell you, at this point, there's already been an (a) agreement and (b) overt acts in furtherance of the conspiracy, including planning, gathering firearms, etc. When Salazar took the stand and admitted everything, he made the already strong case obvious. (Bad instincts.)

As the Fifth Circuit noted, this tardy withdrawal may have been enough to absolve him of liability for further actions of the co-conspirators (there were none -- the plan fell apart when Salazar withdrew), it definitely was not sufficiently timely to absolve him from liability on the conspiracies.

Not Quite a Directed Verdict, But Close Enough

The judge, thinking the same thing we're all thinking, told the jury "to go back and find the Defendant guilty," a set of jury instructions that would make any defense attorney quiver.

It's also reversible error, as "[A] judge ... may not direct a verdict for the State, no matter how overwhelming the evidence." And no, it doesn't make a difference that the judge ordered the jury to enter the verdict, rather than directing it directly.

A Win For Jury Nullification

As the American Jury Institute notes, the court's opinion is an implicit affirmation of the right to nullification:

"The Sixth Amendment permits a jury to disregard a defendant's confession and still find him not guilty. This conclusion does not depend on when the confession occurs -- on the stand or pre-trial -- or how much the defendant confesses -- to one element or to every crime. A defendant's confession merely amounts to more, albeit compelling, evidence against him. But no amount of compelling evidence can override the right to have a jury determine his guilt."

And if the court wants to save time, instead of directing a verdict, it could try asking the defendant to change his plea:

"It is true that a defendant may waive his right to a jury trial by pleading guilty. And he can, at least in theory, waive this right in the midst of trial. We have never held, however, that he changes his plea from not guilty to guilty just by confessing on the stand; certainly none of the cases cited by the government hints as much. And nothing in this record suggests that Salazar, at any point, wished to change his plea to guilty; the court did not ask him, following his confession, whether he wished to do so."

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