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Judges Shouldn’t Stifle Speculation in Jury Box

(CN) - Affirming a federal drug conviction, the 9th Circuit cautioned trial judges to avoid inadvertently getting in the way of a jury's right and need to "speculate" about a case.

The case involved Michael Ramirez and Andres Bejaran, drug dealers caught up in a government sting in California for selling methamphetamine.

Bejaran pleaded guilty and cooperated with prosecutors while Ramirez went to trial. The prosecution failed to put Bejaran on the stand to testify against his erstwhile partner, and Ramirez's lawyer emphasized this absence during summation, suggesting that it somehow revealed his client's innocence.

Though the jury did not know it, it turns out that the government did not call Bejaran because, "between the time he agreed to testify and the time of the trial, he was jumped by two inmates and hospitalized with permanent brain damage," according to the ruling.

In his instructions to the jury, U.S. District Judge Jeffrey Miller in San Diego said that the jurors "may consider that Bejaran was not called as a witness by the government," but told them not to "speculate as to any reason why Bejaran was not called."

The jury later convicted Ramirez of distribution, possession with intent to distribute and conspiracy to distribute meth.

While a three-judge federal appellate panel affirmed most of Ramirez's convictions from Pasadena on Monday, the court used it as an opportunity to address the role of speculation in jury deliberations.

"By labeling the inference about the reasons for Bejaran's absence as 'speculation' and instructing the jury not to credit it, the judge put off-limits a legitimate inference that could have been helpful to the defense," Chief Judge Alex Kozinksi wrote for the court. "A judge may not preclude the jury from drawing any inferences that it may legitimately draw. The sua sponte instruction, therefore, was error. By instructing the jurors to disregard any uncertainty about why the prosecution didn't call a witness - who might have been the key witness-the court improperly inserted itself into the jury room and interfered with the jury's role as a factfinder."

Kozinski added that "jurors are entitled - nay, required - to draw inferences on matters that are not off-limits to them."

"Without inferences, the government could seldom prove up its case, as it must rely on the common sense and life experience of the jurors to fill in matters that are not provable by direct evidence, such as intent, premeditation or the existence of a conspiracy," he wrote.

Nonetheless, Judge Miller's error was harmless for the most part, as it did not reach the level of a constitutional violation. The panel also found the evidence of Ramirez's guilt overwhelming. It did reverse his conviction for conspiracy, however, after finding that the state had failed to show that Ramirez had been involved in a larger drug-dealing network.

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