Judge Asked to Bar Free Speech Defense in Occupy Trial

Polk County prosecutors are trying stronger tactics in an Occupy Des Moines trespassing trial scheduled to begin Monday, arguing that jurors should be barred from considering “free speech rights.”

Earlier this month, former state Rep. Ed Fallon was acquitted in the first of several trespassing trials when a jury decided that the First Amendment outranks a state Capitol curfew.

Polk County prosecutor Jeff Noble filed paperwork arguing essentially that a jury of “laypeople” could not be trusted to decide in favor of the inferior law over the superior law:

The documents cite a Des Moines Register story that quoted a juror in the Fallon trial explaining the verdict by saying that “the Constitution supersedes all state laws and regulations.”

Because jurors believe such things, “using instructions which characterize the defendant’s actions as an exercise of constitutional rights effectively wraps the defendant in the flag and dictates the outcome of the trial,” according to Noble’s motion. “Other jurors in future cases may not use the same problematic logic as the jurors quoted above. But the mere potential for the jury nullification discussed above is the exact reason why it is the court’s role — not the jury’s — to determine questions of constitutional law.”

These are the kind of statements that would normally be cause for a high school student to fail a Government 101 course. Based on this ignorance, however, Noble requested that District Associate Judge Romonda Belcher bar any evidence or argument that free speech was a justification for the violation with which the defendants are charged. Click through for the disturbing details of Noble’s power-damaged thought process.

We are pleased to report that on Monday this week, Judge Belcher rejected these arguments.

Testimony starts today in first Occupy trial since Fallon acquittal

In the current case, prosecutors failed Monday to convince District Associate Judge Romonda Belcher that she, and not jurors, should rule on whether protesters can legally trespass in the name of free speech. Belcher instead ruled, as in Fallon’s case, that it’ll be up to jurors to decide.

Belcher has reasoned that state law, as spelled out in a 1976 Iowa Supreme Court decision, allows room for protesters to be found “not guilty” if they can show they were reasonably exercising their constitutional rights to speech at the time of arrest. The question of what’s reasonable rightly belongs to the jury, according to Belcher, because Iowa’s law defines trespassing as entering or remaining on property “without justification.” So the lack of justification is part of the crime that prosecutors have to prove to jurors to win conviction.

Upon having this tactic rebuffed by the judge, Assistant Polk County Attorney Kevin Hathaway then wanted to change the charges. The trespassing statute under which the defendants were charged specifically states that their presence was only trespassing if done “without justification”. When Judge Belcher refused to take exercise of First Amendment rights off the table as a potential justification for the jury to consider and essentially hand prosecutors the case for free, Hathaway wanted to amend the charges so that the defendants would be tried under a different rule that does not mention the potential defense of justification. The defendants may not have been charged under this alternate statute because it includes another troublesome element that the prosecution must prove- intent to harm the property upon which the alleged trespass occurred.

Drake University law professor and defense attorney Sally Frank called him out on his shenanigans and Judge Belcher agreed:

“It would be like saying a speeding ticket and a stop sign (violation) are the same general thing because they’re both in the traffic code,” Frank said. “This isn’t an error or omission (in the charging documents). This is, ‘We lost an argument, and now we want to get something else.’ ”

As government-paid employees, prosecutors have an incentive to deliver results in favor of government- that is, convictions -rather than to impartially uphold justice. This is particularly evident in this case where prosecutors keep trying to change the game whenever they are ruled against in order to try and get the upper hand in court. They don’t seem to care on what charges the defendants are convicted or whether they are allowed to defend themselves, so long as the prosecution prevails on SOMETHING and can add another win to its record.

Defense attorneys also have an incentive to deliver the results desired by their clients by securing not guilty verdicts on their behalf. Even judges, as paid employees of government whose livelihoods depend on keeping the courts full, have an inherent conflict of interest between their own interests and justice for all.

This is why independent juries are a part of our judicial system. Jurors do not have a financial or other interest in upholding one side or the other. They do not make their living off the system, but they do have to live with the precedent set by their decision. Therefore, they have a strong incentive is to deliver a just verdict, not only to protect the defendant in the case at hand, but to protect themselves as well as their families and neighbors from abusive prosecutorial aggression.

The Hershberger Trial and Jury Nullification

Sometime later this year Loganville, Wisconsin dairy farmer Vernon Hershberger will be tried before a jury in Sauk County Circuit Court on four criminal misdemeanor counts accusing him of violating the state Food and Dairy Code. The case has drawn widespread attention in Wisconsin, with Hershberger’s supporters rallying to his cause.

A question that has been raised about the trial is: can the jury hearing the case legally engage in jury nullification and return a verdict of not guilty on the charges no matter what the facts and the law of the case are? The answer is yes.

Wisconsin courts have recognized that juries “have always had the inherent and fundamental power to return a verdict of not guilty irrespective of the evidence” [1]. They have acknowledged that juries have “nullification” powers “in the sense that they may acquit a defendant in a criminal case on the basis of extraneous considerations, even when the defendant may be objectively guilty in light of the facts of the case and the courts instructions” [2].

In the case of State v. Thomas, a Wisconsin Appellate Court explained the reason jury nullification is necessary:

The purpose of a jury is to guard against the exercise of arbitrary power – to make available the common-sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or . . . biased response of a judge. [3]

Click through for the entire article.

Jury Reaches Verdict In First Occupy Protester Case

Fallon was charged with trespassing on the Statehouse grounds. He was one of the Occupy Iowa protesters who refused to leave the grounds after authorities said they violated an 11 p.m. curfew.

Juror Aimee Mairs told KCCI’s Amanda Lewis that the decision was a matter of putting the U. S. Constitution above a state imposed curfew. She said four jurors were on board right away, but it took some time to convince the other two jurors.

Mairs said the jury decided Fallon was justified in being on the grounds for the purpose of exercising his First Amendment rights.

“We just came to the agreement that Mr. Fallon was exercising his right to peaceably assemble. He wasn’t breaking any other laws. He had a right to be on public grounds,” said Mairs.

Click through for the entire article.

See our previous post on Occupy L.A.: A Case of Jury Nullification for another case in which an Occupy protester was acquitted through a jury’s exercise of the people’s veto.

We remind all our activists that we have an Occupy the Courthouse! Be a Juror! label template available for those who would like to customize our Fresh Air for Justice brochure or other literature for outreach to or by Occupy groups.

Carmen Trutanich vs. Occupy L.A.: A Case of Jury Nullification

The case against Steve Leaderman should have been easy to prove. Leaderman, 38, was one of the Occupy L.A. protesters who refused to leave City Hall Plaza after the LAPD ordered everyone to disperse on Nov. 30.

Leaderman, a veteran of political demonstrations, locked arms in a circle of protesters. He was ultimately carried out by police and charged with failure to disperse, a misdemeanor.

But after a three-day trial last week, a jury of his peers found him not guilty.

How did that happen?

“He’s actually sitting there. He’s not making any attempt to leave,” said Jason Marcus, Leaderman’s public defender. “The only way you can look at the verdict is jury nullification.”

Click through for the entire story.

We remind all our activists that we have an Occupy the Courthouse! Be a Juror! label template available for those who would like to customize our Fresh Air for Justice brochure or other literature for outreach to or by Occupy groups.

We invite you today to distribute the link to this blog post to your friends and family via e-mail, Facebook, Twitter, etc.

Jurors Need to Know That They Can Say No

How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust jurors a lot. I first became interested in nullification when I prosecuted low-level drug crimes in Washington in 1990. Jurors here, who were predominantly African-American, nullified regularly because they were concerned about racially selective enforcement of the law.

Across the country, crime has fallen, but incarceration rates remain at near record levels. Last year, the New York City police made 50,000 arrests just for marijuana possession. Because prosecutors have discretion over whether to charge a suspect, and for what offense, they have more power than judges over the outcome of a case. They tend to throw the book at defendants, to compel them to plead guilty in return for less harsh sentences. In some jurisdictions, like Washington, prosecutors have responded to jurors who are fed up with their draconian tactics by lobbying lawmakers to take away the right to a jury trial in drug cases. That is precisely the kind of power grab that the Constitution’s framers were so concerned about.

Click through for the entire editorial.

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.

Click through for the entire article.

Harris County’s 185th criminal court grand jury, which had been investigating problems with the BAT vans, called Culbertson to testify, along with former Harris County Prosecutor Brent Mayr. Lykos dispatched two members of her flying monkey corps – assistant DAs Carl Hobbs and Steve Morris – to “monitor” the grand jury testimony.

Since Lykos and her office were suspected of covering up the use of tainted evidence and retaliating against a whistleblower, the DA and her underlings were barred from being present in any capacity other than as sworn witnesses. Accordingly, when Lykos’s minions materialized during Culbertson’s testimony, the Grand Jury Foreman ordered them to leave. When that directive was ignored, the Foreman instructed the Baliff to remove them or place them under arrest.

“Today, the grand jury is the total captive of the prosecutor, who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury,” wrote federal District Judge William J. Campbell in a 1973 law journal article calling for formal abolition of the institution on the grounds of redundancy. This isn’t to say that the grand jury is considered useless by the prosecutorial caste: It helps maintain the pretense that prosecutors are servants of the public will.

What is happening in Harris County is not an example of a grand jury going “rogue,” but rather one behaving exactly as it should. It is interposing itself on behalf of the public by investigating a federally subsidized revenue-collection racket, and the abusive prosecutor who presides over it. Hopefully its example will prove to be contagious.

Click through for the full article.

The Sentence: A Take on the DeChristopher Case

I’m not suggesting that Benson wears jackboots, but the treatment DeChristopher got wasn’t much better than what he’d have received in a Third Reich tribunal. He was prevented from testifying—to any significant degree, anyway—that his motivation was to halt crimes against the environment, to thwart a land grab in which public-land leases were being sold at a fraction of their value (there are no “minimum bids,” and a good-old-boy system may exist among drillers), that he was prevented from later buying the properties he’d won, or that the Interior Department later invalidated most of the leases because environmental-impact studies had not been done and some parcels were within eyeshot of prized national parks.

Another example of unfairness was that the prosecution’s key witnesses said he’d been sent and read a regular flow of press clippings about DeChristopher and his group Peaceful Uprising. The content of those items, however, was never made available to the jury.

I attended the July 26 sentencing hearing expecting more of the same. I was pleasantly surprised, however, that DeChristopher and his attorneys were finally allowed to say what they would have been able to present at trial if we didn’t live in an age when judges can pre-censor exactly what a jury hears and deprive it of material facts needed to come to a fair verdict. The jurors’ historical options should have included the power to void the charges altogether due to the unfairness of the law itself … a basic principle of Common Law called jury nullification.

I won’t go into the details of DeChristopher’s eloquent address, but I thought it had fallen on completely deaf ears since Benson’s remarks that followed were a sermon on the necessity for all citizens to bend to the rule of law and operate only within the system to work for change.

Is the tampering of Nevada’s Federal Grand jury rooted in psychological disorders? That is a question being asked by Network CEO Phil Stimac after a recent ruling by U.S. District Judge Robert Jones that he and not the grand jury has the right to weigh and act upon grand jury evidence.

Click through for entire article.

An indication of the sad state of journalism is how often when people show support for the Casey Anthony verdict they are labeled as Casey Anthony supporters. But they could very well be supporting just one thing. That would be to accept the “not guilty” verdict. It is, after all, the result of an arguably elaborate jury trial in what is supposedly an entirely legitimate court of law. Once the jury reached its verdict, Anthony and any other accused person must be regarded not guilty as charged, in her instance primarily of murder. She wasn’t judged innocent, which would require omniscience on the jury’s part. Like her or not, believe what you will, the process that one must go through in this kind of situation resulted in “not guilty.”

It is odd that standing up for the result once it is reached is considered supporting Casey Anthony. Only in one respect is it a kind of “support.” That is, that within the framework of the criminal law, the case against the accused wasn’t made successfully. She wasn’t shown guilty beyond a reasonable doubt.

Click through for the full article.

The primary purpose of the jury is not to dispense punishment or uncritically to rubber stamp allegations made by the government against the accused. Rather, the jury serves as a body of independent individuals with no vested interest in a particular outcome of the case, responsible above all for delivering justice. We are all protected when juries consistently refuse to convict defendants in cases where the prosecution fails to convince them of the defendant’s guilt.

William L. Anderson explains how the jurors in the Casey Anthony case upheld this high standard which protects us all from malicious prosecution and abuse by government employees looking to score wins in the courtroom rather than to deliver justice. (Click through for the entire article.)

The Casey Anthony Verdict: Jurors Did the Right Thing

Yet, what I see is a jury that did its job. Prosecutors demanded that jurors engage in speculation, and the jurors refused to do that, and I applaud them for their integrity. Maybe Casey Anthony did murder her daughter, but the prosecution never proved it, and jurors are supposed to acquit when that happens. And it happened.

We thank these jurors for their integrity, service, and cool-headedness under substantial pressure both in the courthouse and following the trial.

Jury can send message on medical marijuana law

Being on a jury can be one of the greatest experiences of citizenship. It is a duty that you should not take lightly or try to dismiss. As a juror, you have the power to send a message regarding unjust laws. The name for this is jury nullification.

Click through to read the entire letter.

Jurors discuss Springer trial, decision – Part of Michigan Pilot Jury Program

The ability of jurors to question witnesses is part of a pilot program in Michigan that’s been under way since 2008.

Under the experimental program, the 14-member Springer jury receives copies of reports and other evidence as it is introduced.

Jurors may discuss evidence in the jury room while the trial is in progress as long as all members are present.

The program is being tried in several circuit courts and district courts. At the end of the experiment this year, the state Supreme Court will decide if any changes could be implemented in courts statewide.

Click through for more details of the case.

FIJA spoke with Mocek regarding his jury’s role in protecting him from government agents who perjured themselves on the stand after deleting evidence from his video camera contradicting their stories. Thankfully, Phil was able to recover the evidence, and his jury did a great job of protecting all of our rights in the process of protecting Phil’s. Please take a few minutes today to pass this along to family and friends!

If you would like to recommend a jury-related video for Freedom Friday, let us know in the FIJA forum or by sending an e-mail to us at aji(at)fija.org/aie653l. And don’t forget that you can win cash and other prizes and have your own video featured on Freedom Friday by entering our Justice Through Jurors video contest. Details are right here.

This week: A drug court program that we believe is run differently from every other drug court in the country, doing some things that are contrary to the very philosophy of drug court. The result? People with offenses that would get minimal or no sentences elsewhere sometimes end up in the system five to ten years.

This program documents abuses committed by a judge whose power is unchecked by a jury or any opportunity for her victims to appeal to another judge. These victims serve sentences that far exceed the norm for their crimes and are treated in ways which are well outside the bounds of national drug court standards.

One victim attempted to commit suicide while incarcerated in solitary confinement for months while serving an “indefinite sentence” based on Williams’ whim. Her offense? She forged two checks worth a total of $100.

Another victim wound up in Williams’ drug court through financial and legal coercion and misleading information from the court about her options. When she was kicked out of the program by Judge Williams, she ended up serving 2 years in a prison for an offense for which she normally would have been given probation? Her offense? After having a medical procedure to remove precancerous cells, she was issued a prescription for pain medication. Because she had no health insurance, she did not get the prescription filled. Instead, her mother gave her two pills from her own prescription which she never used. The pills were found in her purse when she consented to its search by a police officer who pulled over the vehicle in which she was a passenger.

A third victim was a proponent of drug court until, 22 months into the program and with 3 months left until he graduated, he falsely tested positive for drug use. Twenty minutes after the false positive, the victim was retested, and the retest came back negative. A second retest subsequently came back negative as well. Judge Williams disregarded the retests and sentenced him to 17 days in jail- 3 days for the positive test result, and 14 days for questioning her in court.

A web-only feature documents a story not in the audio version. A fourth victim successfully graduated the drug court program. After signing a contract when she entered drug court agreeing to pay certain fees, she was pressured during the course of the program to agree to higher fees contradictory to the original contract. She never fully paid the additional fees, and public documents seem to indicate that the amount in question was around $1500. She was summoned to court over this amount, didn’t show up, and was subsequently arrested. She spent 11 months in jail- denied bond- before she went before Judge Williams over the matter. Even though she had successfully completed the program, Williams kicked her out of drug court and forced her to serve the sentence for her original offense- a year, with credit for the 11 months served.

Click through for the transcript and audio. The audio can be downloaded free through Saturday this week.

This episode reminds us all of the importance of exercising our rights to remain silent, refuse warrantless searches, and to go before a jury of our peers rather than putting our lives into the hands of a single judge whose power is unchecked by any other authority.

Kirsten Tynan, of the Fully Informed Jury Association, discusses jury nullification, the power by which everyday Americans can end the war against cannabis.

It is worth noting that the jury in this case was reportedly misinformed repeatedly by the judge and prosecutor during the trial as to their authority and responsibility to judge both the law and the facts in this case. According to an observer in court:

Co Counsel for the Prosecution, Craig Randall, gave the opening statement. …

He reiterated the Judges opening jury instruction that the Jury had to follow the law regardless of whether they felt the law was right or wrong. Their job was to determine the facts and apply the law to them as it was given to them. By repeating this issue the prosecution in the jury’s eyes may look like they are trying to enforce a law that is bad. It was repeated several times, “You must apply the law to the facts whether you agree with the law or not”. This is not a true statement as jury nullification is a deeply rooted tradition in the development of American Law. Anyone can go to the Fully Informed Jury website to learn more about this very important aspect of our justice system. www.fija.org/aie653l

At this point Judge Voorhees did repeat the jury instruction regarding the law stating that the jury would be hearing many things said during the course of the trial about what was legal but he would give them the law to apply at the end of the case.

This illustrates why FIJA’s mission is so important. We must educate potential jurors as to their rights and responsibilities in the jury box before they ever step foot in a courtroom. Judges and prosecutors may actively misinform them during the course of the trial, so it is important that they get the information they need elsewhere in order that they are able to render a just verdict.

D.C. man gets 18 years for $600 drug deal

More than three years ago, a federal jury acquitted Antwaun Ball on racketeering and conspiracy charges that he led a violent drug gang in the Congress Park neighborhood in Southeast Washington, convicting him solely of a $600, half-ounce drug deal.

But at Ball’s long-delayed sentencing Thursday, U.S. District Judge Richard W. Roberts disagreed, saying he saw clear evidence of a drug conspiracy before sentencing Ball, 40, to more than 18 years in prison for his conviction of the 2001 hand-to-hand drug transaction.

The judge’s ruling in federal court in Washington shines a light on a little known practice called acquitted conduct sentencing that lets judges mete out tougher prison terms based on conduct jurors rejected.

Jurors should be aware of this abusive practice by judges who may impose unduly harsh sentences even when the jury acquits the defendant of most of the charges against him or her. Remember, if there is no victim, there is no crime, and you as a juror have the right and responsibility to acquit the defendant of all charges.

Prosecutors will often pile on charges hoping that at least one will stick. Do not compromise when there is no victim by convicting the defendant on minor charges anyway just to make the state happy even if you believe the sentence will be light. This can leave the door open for abuse in the sentencing phase, and the judge may base the defendant’s sentence on conduct of which he or she was acquitted or conduct for which he or she wasn’t even charged.

Jurors are so convinced that a Cleveland teen should not have been charged with assaulting another teen that they’ve gone beyond acquitting him. A few are writing angry letters to police and intend to donate their jury pay to him.

McCloud was charged with leading a gang of teens that beat a Martin Luther King Jr. High School student and threatened him with a gun Oct. 13 a little after 1 p.m. as the student walked home from the Shaker Square rapid station. McCloud had been in jail since that night awaiting trial.

Jurors said the case against McCloud on charges of kidnapping and felonious assault quickly evaporated in the courtroom of Cuyahoga County Common Pleas Judge Michael Astrab.

As they were leaving the courthouse, jurors Ana de Freitas Boe, an English professor at Baldwin-Wallace College; Jeanne Knotek, an obstetrician and gynecologist; and alternate juror Richard Nagin discussed ways to help McCloud.

The three have committed to donating their jury stipend to a fund for McCloud. Boe said the amount is too small to compensate McCloud for his jail time, but the jurors intend it as a “show of support.”

Apparently, this defendant isn’t the first in the area to have suffered malicious and abusive prosecution by government officials:

Last November, The Plain Dealer reported that Cuyahoga County Prosecutor William Mason had pursued criminal charges against hundreds of people over the last 10 years with little or no evidence against them.

Juror nullification happens any time a jury refuses to enforce a misguided prosecution, a bad law, or a misapplied law. Nullification can happen in any instance when jurors exercise their authority to protect someone from any over-reaching government action. We applaud these jurors for not only protecting this defendant from abusive prosecution, but for going the extra mile to restore him at least partially.

Hello Ilo, On my way to talk to the students at USF today, I received a phone call from Anthony Colarossi, Senior Reporter at the Orlando Sentinel. Mr. Colarossi started asking me questions about the recent administrative order, (which is attached) made by Chief Judge Belvin Perry, Jr. on Monday, January 31, 2011. I explained that I did not know about this order, but obviously the educational materials that are handed out have struck a nerve with the judicial system.

The order (click here for the full document in pdf format) states among other things:

NOW THEREFORE, I, Belvin Perry, Jr., in order to facilitate the efficient administration of justice, pursuant to the authority vested in me as Chief Judge of the Ninth Judicial Circuit of Florida under Florida Rule of Judicial Administration 2.215, hereby order the following, effective immediately, and to continue until further order:
1. The dissemination of all leaflets and other materials to summoned jurors containing written or pictorial information tending to influence summoned jurors, as well as approaching a summoned juror for the purpose of displaying a sign to, or engaging in oral protest, education or counseling with information tending to influence summoned jurors on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, shall be prohibited on the Orange County Courthouse complex grounds.
The term “courthouse complex” and any restrictions on expressive conduct contained herein shall apply to the Orange County Courthouse complex grounds, which includes the adjacent courthouse parking garage, the courthouse courtyard, and all other grounds surrounding the courthouse, from the intersection of Orange Avenue and Livingston Street, to the intersection of Livingston Street and Magnolia Avenue, to the intersection of Magnolia Avenue and Amelia Street, to the intersection of Amelia Street and Orange Avenue, to the intersection of Orange Avenue and Livingston Street. The public sidewalks that comprise the boundaries of this designated perimeter are excluded from this designation of the courthouse complex grounds.
2. The dissemination of all leaflets and other materials to summoned jurors containing written or pictorial information tending to influence summoned jurors, as well as approaching a summoned juror for the purpose of displaying a sign to, or engaging in oral protest, education or counseling with information tending to influence summoned jurors on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, shall be prohibited on the Osceola County Courthouse complex grounds.
The term “courthouse complex” and any restrictions on expressive conduct contained herein shall apply to the Osceola County Courthouse complex grounds, which includes the adjacent courthouse parking lot, the courthouse courtyard, and all other grounds surrounding the courthouse, from the intersection of Bryan Street and Rose Avenue, to the intersection of Rose Avenue and Patrick Street, to the intersection of Patrick Street and Bryan Street, to the intersection of Bryan Street and Rose Avenue. The public sidewalks that comprise the boundaries of this designated perimeter are excluded from this designation of the courthouse complex grounds.
3. Regardless of whether the conduct at issue occurs on the courthouse complex grounds, any person who influences the judgment or decision of any grand or petit juror on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, with intent to obstruct the administration of justice, may be in violation of section 918.12, Florida Statutes.
4. Anyone engaging in the type of expressive conduct as contemplated by this Order may be in violation of section 918.12, Florida Statutes, and/or may be found in contempt of court.

This appears to be an intimidation tactic by a bully issued under color of law to circumvent the First, Fifth, and Seventh Amendments to the United States Constitution. While it may be more convenient for the court to have a jury that is easily steered by orders from the bench and selective filtering of the information it is permitted access to, it is NOT the purpose of a jury merely to rubber stamp the decision it is led to by the government. Were this the case, a jury would not be needed at all.

Rather, it is the primary function of the independent juror to protect his or her fellow citizens- both the defendant and the rest of us who will be affected by the outcome of the case and the legal precedent it will set- from abuse by government. As the only people (aside from the defendant) involved in the court proceedings who are not making a living by perpetuating the system as dictated by government officials, jurors have not only a right, but a responsibility, to act independently- to think for themselves, to consult their consciences in deliberations, to judging the fairness and applicability of the law as well as the facts of the case , and to deliver justice when rendering a verdict.

FIJA is an educational organization that seeks to inform jurors of their right and responsibility to deliver justice in all cases where they sit in judgment of another human being. FIJA does not seek to influence jurors in any particular case. Our campaign in Florida, as everywhere else, has been a general educational outreach effort to ALL potential jurors including distributing brochures near courthouses and on college campuses, speaking with community groups around the state, and so on to reach all members of the community. FIJA Director Iloilo Jones invites the judge to review any and all of the FIJA literature (available in our Library) and to point out any instance of such influence or of undue disregard for the functions of the court.

Although we just received word of this late last night, FIJA staff has been hard at work this morning:
1. Roger Roots, a member of our Advisory Board, is reviewing the document and our legal options for challenging this unlawful order.
2. We have begun fundraising efforts to support a legal challenge to the order. If you would like to contribute to FIJA’s efforts, information on making a contribution via our website, my telephone, or by mail is located here.
3. We are asking ALL FIJA activists in Florida to suspend ALL educational activity in the immediate vicinity of the courthouse which this order covers, until this administrative order, which is a heinous, unlawful, corrupt violation of human rights, can be challenged and set aside.
4. Instead, we are requesting that all FIJA activists, in Florida and elsewhere, distribute the brochure located here. Note: The point of this flyer is NOT educational outreach material. This flyer does not address jurors, nor does it discuss the issue of jury nullification. Rather, this flyer is directed to Judge Belvin Perry, Jr. and challenges the legality of his administrative order. We also ask that everyone, everywhere continue to distribute all other FIJA literature, except near the courthouse which is under this draconian order.

Our goal is always, in whatever we do, NOT to give the government the pleasure and satisfaction of arresting peaceful people. Our goal is to embarrass them by pointing out the contradictions of their own actions.

As they transpire, we will post further developments in our efforts to get this draconian order rescinded. If you would like to discuss this situation, we invite you to join us on our Discussion Forum.

Legislation would empower jurors
by Bob Constantine, Grafton

Presently, judges have a great deal of unchecked discretion, some would say too much discretion, when considering whether they will allow jury nullification information and arguments to be brought up in “their” courtroom. If it’s a juror’s right to nullify, why shouldn’t jurors be informed? Why don’t they want you to know?

Too often the “impartial” judge seems to favor the state and its prosecutors. Some would say judges have leaned toward aiding the state in obtaining a guilty finding when no victim or no identifiable harm occurred.

Should HB 146 pass, the power and the knowledge of that power of our right to judge our peers will return to where it rightfully belongs: you, the juror.

Click through to read the entire letter and add your comment at the bottom if you would like.

Although FIJA takes no position on legislation, we do track any legislation related to juries, whether the legislation is suspension of trial by jury blamed on budget cuts, or bills introduced in any legislative body. This Talking Points Memo is related to a bill being introduced in the Montana legislature.  The memo was sent to us by Roger Roots who is on the FIJA Advisory Board.

TALKING POINTS MEMO ON THE JURY RIGHTS BILL:

FULLY INFORMED JURIES ARE REQUIRED BY THE MONTANA CONSTITUTION
·         This bill is needed to correct an unconstitutional and illegitimate practice in Montana’s courtrooms.  Although the Montana Constitution requires inArticle II, §6  that “[t]he right of trial by jury is secured to all and shall remain inviolate,” juries today are instructed that they may only decide questions of fact.   Judges generally order juries that they must follow the judges’ interpretation of the law and Constitution.
·         Juries in Montana are regularly deceived by judges.   They are falsely told by judges that they do not have right to acquit a criminal defendant if the government proves its case beyond a reasonable doubt.  This defies the original purposes behind trial by jury and even conflicts with a Montana Supreme Court decision that held that “the jury has power to disregard the law as declared and acquit the defendant, however convincing the evidence may be, and that the court or judge has no power to punish them for such conduct.” State v. Koch, 33 Mont. 490; 85 P. 272 (Mont. 1906).  The present practice of deception violates the Constitutional “Right to Know,” which protects the right of every Montanan to know the workings and mechanics of state government.  Why would some lawyers and judges acknowledge that jurors have an absolute right to acquit but then argue that jurors should be deceived into thinking they do not have this right?
·         Today in Montana, criminal defendants are not even allowed to argue to the juries that they are innocent on grounds that the laws they are accused of violating are unconstitutional, tyrannical, or oppressive.   This defies the true intent behind the Constitutional right to trial by jury.  Current jury instruction practices also arguably circumvent the Montana Constitution’s  Article II, § 3, which protects the right of all persons to defend their lives and liberties.
·         Most Montanans are shocked to learn that Montana jurors are sometimes told that they may not even look up the Constitution or the laws that a defendant is accused of violating.
·         All of the most famous Founding Fathers, including John Adams, Alexander Hamilton, Thomas Jefferson, John Jay and James Madison, supported the right of juries to judge both the law and the facts. See www.fija.org/aie653l.
·         Juries are supposed to be independent bodies of citizens who protect their neighbors and members of their community from unfair and oppressive government.  Yet today in Montana jurors are wrongly told that they are mere fact-finders, and that they “must convict” or “should convict” if the government meets its burden of proof.
·         A proper instruction is that juries “must” acquit if the government fails to meet its burden of proof, but that jurors “may” convict if the prosecution meets its burden of proof.  The jury has the eternal right—recognized by all scholarly authorities, including the Montana Supreme Court—to choose not to convict, regardless of the circumstances.
·         The Jury Rights Bill will require that Montana judges fully inform jurors of their absolute right to acquit and of any and all sentencing implications that may arise from their verdicts of guilty.  (This was the common practice in all American courtrooms throughout early American history.)

THE FIJA BILL IS CONSISTENT WITH MONTANA SUPREME COURT PRECEDENT
·         The FIJA Act will codify an existing decision of the Montana Supreme Court regarding trial by jury.  See State v. Koch, 33 Mont. 490; 85 P. 272 (Mont. 1906).  Koch was a murder case in Fergus County in which the defendant admitted under oath in open court that he committed every element of the offense.  Specifically, Koch admitted that he had reentered a bar in Stanford with a rifle and shot the victim after accusing the victim of cheating him in a card game.  (Koch’s defense was that he had no intent to kill).  The trial judge instructed the jury that the jury could find Koch guilty of first degree murder, second degree murder, involuntary manslaughter or voluntary manslaughter, but that the jury could not acquit Koch.  (The jury convicted Koch of voluntary manslaughter.)
·         Upon Koch’s appeal to the Montana Supreme Court, the Attorney General argued that the “admissions of defendant in his testimony are in effect a plea of guilty as to such offense, and the jury could not ignore this evidence.”  The State Supreme Court disagreed, ruling that juries in Montana have an absolute right to acquit a defendant regardless of how insurmountable the evidence of guilt is.
·         Here are the exact words of the Montana Supreme Court:  “It has nevertheless always been recognized in practice in this jurisdiction, that the jury has power to disregard the law as declared and acquit the defendant, however convincing the evidence may be, and that the court or judge has no power to punish them for such conduct.” 33 Mont. 497; 85 P. 274. The FIJA bill closely tracks this language and intent.
·         Rep. Wagner’s FIJA bill will simply codify and elaborate upon the Koch ruling.  This codification should have been done by the Legislature long ago.  Indeed, it is arguable that present statutes in the MCA (which the FIJA Act will repeal and replace) are of suspect constitutionality in light of the Koch decision.[1]

THE FIJA BILL IS CONSISTENT WITH THE REPUBLICAN AND DEMOCRATIC PARTY PLATFORMS
·         The Montana Republican Party Platform calls for fully informed juries:  “We recognize both the power and the moral obligation vested in juries to secure justice by judging both the facts of a case and application of the law itself.  We support requiring judges to fully inform jurors of their constitutional rights and responsibilities.”
·         The Montana Democratic Party Platform calls for a fair and equal court system with equal access for all.  Present court procedures are unfair and unequal because the government is treated as a privileged litigant.  For example, Montana prosecutors routinely ask juries to “send a message” by convicting a defendant, while defense attorneys who ask juries to “send a message” by acquitting a defendant are sometimes sanctioned for asking the jury to go outside the facts.  See, e.g., State v. Flynn, 346 Mont. 286; 194 P.3d 694 (Mont. 2008)(allowing prosecutors to ask jurors to go outside the facts and “send a message” to the broader community by convicting a defendant).  The FIJA bill will correct this lopsided, unfair and unequal practice in Montana’s courts.

FACT AND LAW ARE IN MANY CASES NOT CLEARLY DELINIATED
·         Current Montana statutes purport to reserve all “questions of law” for judges and to allow juries to decide only “questions of fact.”  But such a false bright line is unrealistic in practice.  “Any attempt to draw a rigid line poses a genuine problem because of the very nature of the two concepts. . . .matters of law grow downward into roots of fact, and matters of fact reach upward, without a break, into matters of law.”[2]  Therefore the false bright line which current MCA sections 25-7-102, 26-1-201, and 46-16-103 suggest is unwieldy and oppressive in its implementation.  In practice, attempts by government lawmakers—including judges—to pronounce the existence of such a false bright line and proclaim for themselves the sole power to “decide the law” invariably lead to a usurpation of power by government actors.  The FIJA bill will provide a more realistic statutory framework for describing the constitutional prerogatives of juries in Montana court practice. [3] Even the judges on the Montana Supreme Court occasionally disagree about what is fact and what is law. See, e.g., Wadsworth v. Stat of Montana, 275 Mont. 287; 911 P.2d 1165 (Mont. 1996) (posting rival opinions regarding what is a question of fact and what is a question of law).

[1] Indeed, the Koch Court virtually suggested that the precursors of MCA Sections 25-7-102, 26-1-201, and 46-16-103 (which falsely indicate that judges are to be sole determiners of the law and jurors are to follow judges’ orders regarding the interpretation of the law) were likely unconstitutional in some applications.  “We are aware that the legislature has declared (Penal Code, section 2105) that upon the trial for any other offense than libel, questions of law are to be decided by the court and questions of fact by the jury, and that, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are, nevertheless, bound to receive as law what is laid down as such by the court.” Koch at 33 Mont. 497; 85 P. 274. “It has nevertheless always been recognized in practice in this jurisdiction, that the jury has power to disregard the law as declared and acquit the defendant, however convincing the evidence may be, and that the court or judge has no power to punish them for such conduct.” Id. 497; 274.

[2] Henry J. Abraham, The Judicial Process (4th ed.) 383 (1981) (quoting John Dickinson, Administrative Justice and the Supremacy of Law 55 (1927).

[3] As Abraham points out, one illustration of the blurry line between law and fact is the U.S. Supreme Court’s 1972 decision in Neil v. Biggers. 409 U.S. 188.  The Cout divided five to three on the question of whether an identification process was constitutionally valid.  The constitutional determination required the justices to bicker over such matters as the time period between the alleged offense and the identification of the defendant, the certainty or lack of certainty of the alleged victim, and the similarity of the defendant to previous descriptions. Id.  One may easily wonder how much “law” and how much “fact” was applied by the rival justices in their ultimate determinations. C.f. Abraham, supra, at 383.  The Supreme Court’s jurisprudence on a wide variety of other issues, such as its convoluted “drug courier profile” Fourth-Amendment cases, so comingle fact with law that the distinction essentially evaporates.

HB146 (2011) Relative to the right of jury nullification.

This bill states that in all criminal proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. The court is also mandated to permit the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

Click through for the entire bill.

Because an unjust law is no law at all, you have the right and responsibility when serving on a jury to refuse to convict a defendant accused to violating an unjust law. Paul Butler, law professor at George Washington University and author of Let’s Get Free: A Hip-Hop Theory of Justice, explains how you can exercise your vote as what he calls “a Martin Luther King juror.”

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