There is an old legal saying, phrased many different ways: "if you have the facts, argue the facts. If you have the law, argue the law. If you have neither, just argue."

Vince Fumo and Ruth Arnao’s lawyers don’t have the facts. There is no denying that Fumo’s Senate-paid staffers and contractors performed extensive personal services for him or that the Citizens Alliance for Better Neighborhoods, run by Arnao, provided substantial benefits and gifts to Fumo, or that the Independence Seaport Museum allowed Fumo to use their yachts for personal and political purposes free of charge. Those are the facts and there is a mountain of evidence in support.

 Having few facts on their side, Dennis Cogan and Ed Jacobs have primarily argued the law. In their opening statements, both said that much of the conduct alleged by the United States Attorneys was not illegal, and that Fumo and Arnao could, respectively, use Senate employees for personal tasks if that increased the productivity of the office and compensate Fumo for his work on behalf of Citizens Alliance by covering many of his personal expenses.

 There is just one conceptual problem in arguing the law to a jury: the District Court already ruled, more than a year ago in the run-up to this trial (when Judge William H. Yohn, Jr., still had the case), that "using state legislative employees for non-legislative tasks, while compensating them with state money, wrongfully deprives the legislature of its money or property." United States v. Fumo, 100 A.F.T.R.2d (RIA) 6902 * 23 (October 27, 2007).

 There was nothing surprising or unusual about that ruling: just two weeks before Yohn’s opinion, the Pennsylvania Superior Court upheld a conviction of another legislator for "knowingly and intentionally [using] the authority of his office to derive pecuniary gain." Commonwealth v. Habay, No. 1518 WDA 2006, 2007 Pa. Super. 303, 934 A.2d 732 (Pa. Super. Ct. Oct. 10, 2007). Similarly, the District Court also ruled over a year ago that, if Arnao failed to disclose to the board of directors of Citizens Alliance that she had authorized over $1 million of Citizens Alliance’s funds to be used for Fumo’s personal benefit, then she would have been guilty of fraudulently violating the public and charitable purposes for which the Citizens Alliance was created.

 All of which raises a simple question: if the basic facts alleged by the prosecutors are not in dispute, and the law says those basic facts constitute criminal conduct, why bother having a trial at all?

 The first reason Fumo and Arnao are going to trial is quite simple: every crime consists of two elements, actus reus and mens rea, a guilty act and a guilty mind. Here, while Fumo and Arnao may admit many of the criminal acts, neither admits ever having criminal intent. Both vehemently deny intending to rip off the Senate, Citizens Alliance, the Independent Seaport Museum, or the Internal Revenue Service. The burden thus falls on the United States Attorneys to prove, beyond a reasonable doubt, that Fumo and Arnao intended to defraud these entities.

 In some cases, that distinction matters, such as when a fist fight turns deadly and the defendant claims that, while they intended to hit the victim, and are guilty of assault and battery, they did not intend to kill the victim. Other times, the distinction is silly, such as in the tax evasion case brought against Fumo’s investigator Howard J. Cain, who has admitted to not filing any income tax returns for years. Cain could claim he had no intent to evade his taxes, but no one would believe him.

 It’s hard to say where Fumo’s case falls between those two ends of the spectrum, which means it probably falls towards the former. Most of the lawyers with whom I have spoken consider Fumo’s intent to be a no-brainer: of course he knew it was wrong to have Senate employees working on his mansion and of course both Fumo and Arnao knew it was wrong for Citizens Alliance to arbitrarily throw money at Fumo in the form of meals and vacuum cleaners. "They even called it OPM!" the lawyers exclaim, "Fumo’s toast." Most of the non-lawyers with whom I have spoken, however, have recognized the ambiguity in the Senate rules, the absence of any specific restrictions on the roles of Senate employees, and the general principle that a non-profit can usually spend its money however it wants.

 Which brings us to the second reason this case is going on trial: jury nullification. "Nullification occurs when a jury - based on its own sense of justice or fairness - refuses to follow the law and convict in a particular case even though the facts seem to allow no other conclusion but guilt." Honorable Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 Am. Crim. L. Rev. 239, 239 (1993).

 Jury nullification has represented the best and the worst of American history. In 1735, Alexander Hamilton urged a New York jury to ignore the law of England and to acquit Peter Zenger of criminally libeling the colonial governor of New York. Under the colonial law of England, truth was not a defense to criminal libel. Alexander Hamilton, drawing upon the same ideals that would later be embodied in the First Amendment to the United States Constitution, argued that, regardless of what the law and the judge said, Peter Zenger should be acquitted in the name of justice. He was.

 Jury nullification was also used frequently in the Jim Crow South to thwart the prosecutions of Ku Klux Klan members and other whites who had intimidated, attacked, and murdered blacks. Emmett Till was but one example when an all-white jury completely disregarded largely undisputed facts and clear instructions from the judge to find criminals not guilty.

 Juries tracing back to ancient times have, as they felt the circumstances warranted, exercised lenity against certain defendants by finding them guilty of fewer crimes than the evidence proved or handing out lesser sentences. But the supposed "right" to jury nullification was never truly recognized by English or American courts, and in 1895 the United States Supreme Court specifically prohibited the practice by upholding a trial judge’s instructions to a jury that, even if the jury believed a defendant on trial for murder deserved lenity and should be convicted only of manslaughter, that the jury had an obligation to convict that defendant of murder if the evidence established murder. Sparf v. United States, 156 U.S. 51 (1895).

 Surprisingly, despite constant requests by criminal defense attorneys to argue nullification to juries continuing even to the present (and trial courts’ constant rulings prohibiting such arguments), the United States Supreme Court has not revisited the issue of jury nullification in nearly 100 years, despite an extensive overhaul of most of the legal ideology upon which the Sparf opinion was based.
But make no mistake: criminal defendants have no right to ask the jury for nullification, and defense lawyers who do so risk judicial sanction and even criminal conviction. United States v. Renfroe, 634 F. Supp. 1536 (W.D. Pa. 1986), aff'd without opinion by U.S. v. Renfroe, 806 F.2d 255 (3d Cir. Pa. 1986).

 Yet, here we are today, with Fumo’s and Arnao’s attorneys effectively telling the jury – which is supposed to apply the law given to them by the court to the facts that the jury finds – that the judge has gotten the law all wrong. How can that be?

There are three answers to that question. First, the American legal system recognizes the inherent tension between the judge and the jury, permitting each to intrude upon the other’s domain (the jury intruding upon the law and the judge intruding upon the facts) where necessary to ensure justice is done. It is undeniable that, though a judge may remove a juror from the jury if the juror appears inclined to nullify the law, a judge also may not overturn a jury’s verdict of acquittal and re-try the defendant because of jury nullification. Gregg v. Georgia, 428 U.S. 153, 200 n.50 (1976) ("The suggestion that a jury's verdict of acquittal could be overturned and a defendant retried would run afoul of the Sixth Amendment jury-trial guarantee and the Double Jeopardy Clause of the Fifth Amendment."). These two principles cannot be reconciled. Their presence together represents a delicate balance necessary for a society in which justice is dispensed by the people, not the government, but in a fair and consistent manner across all trials.

 Second, permitting judges to handcuff defense attorneys to only those arguments the judge decided were "factual" would vest extensive power in the judge, at the expense of the jury, power that would likely be exercised in an arbitrary manner no matter how good the judge’s intentions. Rarely can the law be applied to a set of facts with mathematical certainty. It’s thus frequently impossible to fully divorce "legal" arguments from "factual" arguments; attempting to do so would do little more than put a façade of logic and reason on an inherently indeterminable question.

 Third, we simply cannot stop juries from nullifying verdicts. Permitting a judge to restrain defense lawyers’ arguments would thus seriously hinder the defendant’s right to present a defense without actually solving the nullification problem. Indeed, it could make the problem worse, by depriving the jurors, none of whom are lawyers, of any legal arguments at all, leaving them to rely entirely on their own experience to answer questions the lawyers could put in proper context.

 And so we have the Fumo trial, in which twelve non-lawyers deliberately kept from their own research – kept even from discussing the case amongst themselves until deliberations – will decide the legal question of whether Fumo and Arnao’s largely undisputed conduct was criminal.