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Function of Juries & Jury Nullification | 19 May 2014

-Right to Trial by Jury Is Undermined by Incarceration During Appeal

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Fence_of_Prison-BPOThis morning Judge Ronald Zweibel sentenced Cecily McMillan, convicted of assaulting a police officer when she instinctively defended herself against her breast being grabbed, to 3 months incarceration.

Occupy Wall Street Protester Cecily McMillan Sentenced To Three Months In Jail

A New York City judge sentenced Occupy Wall Street protester Cecily McMillan on Monday to three months in jail and five years of probation for elbowing a police officer while he was clearing out a protest in Zuccotti Park.

Judge Ronald Zweibel’s decision comes at the end of a trial that sparked widespread anger among Occupy supporters for the circumstances under which McMillan was convicted of second-degree assault. They said McMillan, a graduate student who’s now 25 years old, was simply reacting to an unknown hand grabbing her breast while visiting a March 2012 protest. Officer Grantley Bovell, not McMillan, they said, should have been on trial.

McMillan’s defense attorney, Martin Stolar, has already indicated that he will appeal McMillan’s conviction.

Thankfully, this is much shorter than the maximum seven years incarceration that she faced, but it is much more than her remorseful jurors expected or intended. Nine of her twelve jurors sent a letter to the judge requesting on her behalf that she serve NO jail time whatsoever. It is not clear yet if the sentence will be put on hold until her appeal can be heard. However, since she has been imprisoned at Riker’s Island for the past couple of weeks while awaiting sentencing without any bail opportunity, it seems quite possible, perhaps even likely, that she will serve the entire incarceration element of her sentence before her appeal can even be heard.

Recall that this was precisely what happened to Rich Paul, convicted of five victimless drug-related charges. Paul was lured into deals and charged apparently in an attempt by the FBI to strong arm him into spying for them on a local political group in exchange for dropping the charges. He made clear his intention to appeal and had raised sufficient funds to go forward with it in June 2013, yet he was still incarcerated and served many months in jail before being released. His appeal will be heard by the New Hampshire Supreme Court on 18 June 2014, but even a win at this level will not undo the psychological and physical harm he has suffered, the damage to his relationships that has been done, nor will it give back the months of his life that have been stolen from him.

He was aware at the time that he would have served his entire incarceration before the appeal could go forward, but he has chosen to go forward to try and set a precedent against undermining of New Hampshire’s jury nullification law (passed in 2012 to make sure defendants could fully inform their jurors of their right to conscientiously acquit) by way of incorrect jury instructions. In Paul’s case, the judge apparently explicitly told the jury in his instructions to them that they “must” follow the law as he explained it to them, thereby explicitly misinforming them against their right to nullify.

Marissa Alexander, sentenced to a mandatory minimum of 20 years in prison for defensively firing a single warning shot that harmed nobody as she tried to escape an escalating situation with her abusive ex-husband who she says threatened to kill her, is in an even harsher situation. After just twelve minutes of deliberation, her jury convicted her of three counts of aggravated assault with a deadly weapon for her single, defensive shot that harmed nobody. The conviction was thrown out due in part to an egregiously unjust false instruction to the jury that relieved the prosecution of its burden to prove beyond a reasonable doubt that Alexander was NOT acting in self defense and placing it on the defendant to prove that she WAS acting in self defense. Even though she was in the process of appealing, Alexander was not released from jail until just before Thanksgiving, after spending many months incarcerated and separated from her young children.

When a conviction is overturned on appeal, the case may be reheard by a jury who may then outright acquit the defendant or fail to convict due to a lack of a consensus among its members. However, if the defendant is incarcerated during the appeal process, he or she can be punished very harshly at the discretion of a judge alone, often an ex-prosecutor, not only in cases where the defendant is not convicted again, but even if the defendant is later declared Not Guilty by a jury. To punish someone who is not proven guilty beyond a reasonable doubt is not only a gross and irreparable miscarriage of justice, it fundamentally undermines what is supposed to be our Constitutionally-guaranteed right to trial by jury.

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