Judge nullification (due to mandatory guidelines)?

In the Boston Globe yesterday was this interesting article discussing US District Judge Joseph L. Tauro’s decision to use his power under Federal Rule 29 to acquit a lawyer charged with money laundering after the government had presented seven days of trial testimony linking the lawyer to ill-gotten monies. The formal legal basis for the acquittal, which cannot be appealed and is entirely unreviewable, seemed to be Judge Tauro’s conclusion that there was insufficient evidence showing that the defendant knew he was receiving drug money. But I cannot help but speculate that Judge Tauro might have been more inclined to acquit because he thought an unduly severe sentence would be mandated by the federal sentencing guidelines if the defendant was convicted.

Students of capital sentencing know that an important historical justification for granting capital juries’ sentencing discretion has been to avoid the risks of jury nullification. The concern is that, if a capital conviction mandates a death sentence, juries might be inclined to acquit a guilty but sympathetic defendant rather than condemn such a defendant to an automatic death. Such concerns about nullification in part prompted a legislative move to discretionary death sentencing in the 19th and 20th centuries, and also was integral to the Supreme Court’s decision to declare mandatory death sentencing systems unconstitutional in the 1970s. Against this backdrop, I wonder whether some Rule 29 acquittals in the federal system may reflect a form of “judge nullification” — are federal judges perhaps sometimes more inclined to acquit a guilty but sympathetic defendant rather than condemn such a defendant to the severe mandatory sentences required under the federal guidelines?

Though I cannot nor should not question Judge Tauro’s ruling without more direct information about the case, it was interesting to see a former federal prosecutor in the Globe article raising the notion that harsh federal guidelines could be prompting (inappropriate) Rule 29 acquittals:

Salem lawyer Jeanne Kempthorne, a former federal prosecutor, cited more than a dozen cases between 1996 and 2001 in which federal judges in Massachusetts acquitted defendants during trial. ”It is a system that invites abuse,” she said. A judge may acquit a defendant simply because he doesn’t like the federal sentencing guidelines, which call for long mandatory prison terms for certain crimes, Kempthorne said.

Though covering the basic legal issues effectively, the Globe article did not provide a lot of details about Judge Tauro’s ruling. I am intrigued to know what sort of sentence the lawyer charged with money laundering was likely facing if he had been convicted in the trial before Judge Tauro.

UPDATE: Tom Lincoln discusses this case here and raises a number of excellent points about the realities of federal criminal practice. He also criticizes my speculation about Judge Tauro’s decision being influenced by the harsh mandates of the guidelines, saying the point “would have been better left unsaid.” Though I fully understand Tom’s concerns that this post and speculation about Judge Tauro’s decision could feed “prosecutorial claims of judicial abuse,” my strong commitment to transparency (discussed here) entails that few if any points will be “left unsaid” on this blog.

But Tom’s points help me realize that I ought to have at some point a post entitled “Prosecutor nullification (due to mandatory guidelines)?” This is because, while I am speculating, I am sure there are (many?) instances of a federal prosecutor not bringing or dismissing a charge primarily because he or she “thought an unduly severe sentence would be mandated by the federal sentencing guidelines if the defendant was convicted.”