Fully Informed Jury Association

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FIJA in the News & Function of Juries | 29 Nov 2011

Prosecution Reveals Ignorance of the Function of the Jury


Oral arguments are scheduled for next month in a malicious prosecution of an activist distributing juror outreach brochures in New York. In a brief filed with the court, the prosecution reveals its ignorance of the function of the jury.

Prosecution Explains Jury Tampering Charge

“His speech is not protected by the First Amendment,” prosecutors wrote.

“No legal system could long survive,” they added, “if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

Perhaps the prosecution is unaware that legal systems have survived just fine for centuries. Jury nullification was, after all, formally recognized in the Magna Carta in 1215.

Christopher Dunn, associate legal director of the New York Civil Liberties Union, also corrects the prosecutor’s ignorance:

“The government is dangerously wrong in claiming it can criminalize sidewalk advocacy supporting jury nullification. Other than the extremely limited situations in which someone seeks to influence a known juror in a case, jury nullification advocacy is squarely protected by the First Amendment.”

The prosecutor is apparently so entirely ignorant of the role of the jury that she is seeking to deny the defendant – who is at risk of six months in jail – his right to a trial by jury:

Mr. Heicklen, who could face a six-month sentence if convicted, has asked for a jury trial. Ms. Mermelstein, opposing that demand, cited as one reason Mr. Heicklen’s ardent stance that juries should nullify. He would probably “urge a jury to do so in a case against him,” she wrote.

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