What follows is a portion of the brief filed by attorney Nancy Lord, MD, in the case of U.S. v. Yvonne Regas. Regas was accused of jury tampering and related charges for causing FIJA \\\"True or False?\\\" brochures to be placed on automobile windshields around the federal courthouse in Reno, Nevada during the trial of her son and ex-husband on drug charges.

This represents the first time federal criminal charges were filed against a \\\"fully informed jury\\\" activist. The case ended in a dismissal, offered Ms. Regas as a pre-trial diversion, within a few days of this brief being filed. Since that time, a \\\"hands-off\\\" policy seems to be in effect at most federal courthouses around the nation when activists show up to distribute literature. Thus, even though this case never went to trial, and therefore never gave rise to case law, the brief itself appears to have had a positive effect upon judicial appreciation of the First Amendment\\\'s protection of free political speech.

As with any legal materials made available by the Jury Power Page, however, the publishers assume no responsibility for the efficacy of this brief, or for the accuracy or pertinence of its citations, and do not offer these materials as or in lieu of professional legal advice.
IN THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEVADA
United States v. Yvonne Regas
* * *

II. THE SUPPRESSION OF GENERAL INFORMATION REGARDING A JURY\\\'S POWER OF NULLIFICATION IS NOT A COMPELLING GOVERNMENTAL INTEREST.

Defendant\\\'s pamphlets contained truthful information regarding a jury\\\'s power of nullification, and advocating the use of this power when appropriate. The government has no legitimate interest in suppressing truthful information and opinions. The government has no compelling interest in the prevention of jury nullification.

The power of a jury to nullify a verdict in a criminal prosecution has been well established for centuries. Three states, Georgia, Maryland and Indiana, specifically mention that the jury has the power to decide the law as well as the facts of a case in their state constitutions.

The source of this power is derived by legal tradition and by constitutional mandates of trial by jury, by constitutional prohibitions against directed verdicts of guilt in criminal cases, prohibitions against punishing juries for turning in inconsistent verdicts or verdicts unsupported by the law or facts of the case, and from prohibitions against requiring the jury to justify its acquittal.

The power of nullification has been uniformly recognized by courts. See United States v. Boardman, 419 F.2d 110 (1st Cir., 1969); Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981); United States v. Kzyske, 836 F.2d 1013 (6th Cir. 1988); United States v. Dougherty, infra; United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972); United States v. Wiley, 503 F.2d 106 (8th Cir. 1974); United States v. Trujillo, 714 F.2d 102 (11th Cir. 1983); State v. Butler, 153 S.E.2d 70 (N.C. 1967). The right to nullify a verdict is occasionally questioned, the argument made that the jury has a duty to follow the law as instructed by the court (and convict if it finds the defendant guilty beyond a reasonable doubt). However, the fact remains that there is no means to compel a juror to convict a defendant, and no way to punish a juror for refusing to convict. As a result, the duty to apply the law as instructed by the judge is not a legal duty; it is a moral duty.

Most jurisdictions do not permit specific jury instructions regarding the jury\\\'s right of nullification or of its power to decide the applicable law. The general trend has been to inform the jurors that they have a duty to follow the court\\\'s instructions, and leave information regarding the right to jury nullification to informal or unofficial sources. The court in U.S. v. Dougherty, 473 F.2d 1113, 1135 (D.C. Cir.,1972), in considering whether to instruct on the right of jury nullification observed, reasoned that:

    \\\"The way the jury operates may be radically altered if there is alteration in the way it is told to operate. The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. The jury gets its understanding as to the arrangements in the legal system from more than one voice. There is the formal communication from the judge. There is the informal communication from the total culture -- literature (novel, drama, film, and television); current comment (newspapers, magazines and television); conversation; and, of course history and tradition. The totality of input generally convey adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says.\\\" 

Even if a criminal defendant is found to have no right to have a judge instruct the jurors in their right of jury nullification, it does not follow that the government has a right to suppress all information regarding jury nullification. It is one thing to disallow a jury instruction at trial. Judicial instructions are taken very seriously by jurors. The courtroom is a controlled setting where a trial judge is given a great deal of deference and respect and there is a possibility that nullification instructions could be misconstrued to mean that a jury should nullify, (rather than it may nullify). There is the further possibility that other judicial instructions would become diluted or confused.

However, it is quite another thing to say that just because a defendant is not entitled to get a jury nullification instruction at trial, the government may criminally prosecute individuals for issuing pamphlets on jury nullification outside the courtroom in a public parking lot. The power and right of jury nullification in this country exists. It is a truthful proposition to say that it does. It has been discussed in American courts, in law review articles, and in books. To allow the government to punish individuals for publicly discussing laws (outside the courtroom) favorable to persons accused of crimes is to make a mockery of the civil liberties and the system of controls against overreaching governmental conduct guaranteed to us by the Constitution.

Criminalizing the publication and distribution of literature outside the courtroom that could have an effect on a trial is not a compelling governmental justification for infringing upon the speech rights of individuals. Indeed, were it so, every public forum would be vulnerable to content-based suppression: radio commentaries on the subject that reached those very same cars in the parking lot, local newspapers and television that discuss the same issues would be chilled. The government has no compelling interest in suppressing public access to political speech.

III. PERMITTING THE GOVERNMENT TO PROSECUTE PEACEFUL PAMPHLETEERS FOR DISTRIBUTING GENERAL INFORMATION AND OPINIONS REGARDING THE RIGHTS OF JURORS IS NOT A NARROWLY TAILORED REMEDY FOR THE PROBLEM OF JURY TAMPERING AND OBSTRUCTION OF JUSTICE.

A more narrowly tailored solution for the problem of jury tampering exists. Prosecutions can be limited (by judicial interpretation) to people who in their literature, address the jurors personally, mention specific pending cases, and request, instruct, or coerce specific favors from the jury. Prosecutions can be limited to persons who make personal contact or physically confront a sworn juror during the course of a pending case and specifically attempt to sway that juror in their decision (out-of-court).

There are also alternate and less intrusive means available for protecting the integrity of a trial -- namely, sequestration, instructions to the jury to disregard publications that discuss the case, and instructions to the jury not to seek out legal research or commentary that may relate to the case on their own. The Court in Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), when confronting the issue of extensive pretrial publicity noted the following less restrictive alternatives to press restrictions: \\\"change of trial venue to a place less exposed to intense publicity\\\"; \\\"postponement of the trial to allow public attention to subside\\\"; searching questioning of prospective jurors [to] screen out those with fixed opinions as to guilt or innocence\\\"; \\\"[the] use of emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court\\\"; \\\"sequestration\\\"; and restricting what the lawyers, the police, and the witnesses may \\\"say to anyone\\\"; and closure \\\"of pretrial proceedings with the consent of the defendant.\\\"

The Court reasoned: \\\"[w]e have noted earlier that pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial;\\\" and that \\\"[plainly,] a whole community cannot be restrained from discussing a subject intimately affecting life within it.\\\"

It should be remembered that this case involves the distribution of handbills that were left on automobiles parked in a public parking lot. These pamphlets were left on all cars in the lot. Defendant had no way to distinguish (nor did she attempt to distinguish) which cars belonged to selected jurors empaneled to hear criminal cases. Presumably, the cars in the lot belonged to judges, attorneys, clerks, court employees, civil litigants, witnesses, friends and family members of litigants, persons called in for jury duty who were not selected to hear a case, jurors selected to sit on civil cases, and to persons doing business in the area of the parking lot. Presumably, it is legal for these people to read Defendant\\\'s pamphlets.

If prosecutors are concerned that a juror in a criminal case will refuse to convict as a result of learning about legal theories unfavorable to the government, a more appropriate remedy would be to request the judge to instruct the jury not to conduct legal research while the trial is pending.

Allowing this prosecution to proceed leaves no acceptable alternative avenue for getting Defendant\\\'s message across. Most people will be asked to serve on a jury at some time in their lives. There are criminal trials pending somewhere every day. If this prosecution is permitted, discussions of jury nullification will become chilled. At some point in time, any potential listener or reader may be called to serve on a criminal case, and the persons engaged in discussions would face liability.

Speech criticizing the criminal justice system, or advocating civil disobedience when a law is unjust would be chilled. Discussions of criminal laws would be chilled. Anyone who discusses the position that the right to jury nullification exists would be in danger of being prosecuted for jury tampering and obstruction of justice; general discussions made in public could be said to influence future jury pools. Taking the government\\\'s position to its rational conclusion would mean that anyone discussing any law outside the courtroom (either statutory or case law) that is favorable to the accused in a pending criminal trial, (and yet deemed by the court to inapplicable, unimportant or irrelevant,) would be engaging in criminal behavior.

IV. DEFENDANT\\\'S PAMPHLETS DO NOT PRESENT A CLEAR AND PRESENT DANGER OF INTERFERENCE WITH THE FAIR ADMINISTRATION OF JUSTICE OR WITH JURY TAMPERING.

Wood v. Georgia, 370 U.S. 375 (1962) held that a state may not punish out-of-court statements critical of judicial actions, absent special circumstances showing an extremely high likelihood of serious interference with the administration of justice. It approved the clear and present danger standard used in Bridges v. California, Pennekamp v. Florida, and Craig v. Harney. Id., at 314 U.S. 252 (1941); 328 U.S. 331 (1946); and 331 U.S. 367 (1947), respectively.

    \\\"The administration of the law is not the problem of the judge or prosecuting attorney alone, but necessitates the active cooperation of an enlightened public. Nothing is to be gained by an attitude on the part of the citizenry of civic irresponsibility and apathy in voicing their sentiments on community problems. The petitioner\\\'s attack on the charge to the grand jury would have been likely to have an impending influence on the outcome of the investigation only if the charge was so manifestly unjust that it could not stand inspection. In this sense, discussion serves as a corrective force to political, economic and other influences which are inevitably present in matters of grave [importance].\\\" 

Defendant\\\'s pamphlets did advocate the use of jury nullification when the case was unjustly prosecuted, and/or when the law alleged to be broken is unjust, but Defendant did not attempt to define or identify unjust cases or unjust laws. Defendant specifically encouraged this assessment to be made by the juror himself. More importantly, it is not illegal for a juror to nullify a verdict. There is no criminal sanction imposed if a juror simply refuses to convict (in spite of overwhelming and/or uncontroverted evidence of guilt) because of conscientious reasons. As discussed above, a juror cannot be directed or compelled to convict, cannot be questioned about his/her reasons for acquitting, and cannot be faced with criminal sanctions for refusing to convict.

Cox v. Louisiana [Cox II], 379 U.S. 559 (1965), which involved a violation of a state statute forbidding demonstrations in front of courthouses used a different standard of scrutiny in assessing the appellant\\\'s First Amendment claim. This case, however can be distinguished from defendant\\\'s case for the following reasons. It regulated conduct that interfered with ingress to and egress from a courthouse, rather than merely speech. This case is far more akin to Lakewood v. Plain Dealer, 486 U.S. 750 (1988), than it is to Cox in that the defendant\\\'s pamphlets were merely placed upon automobiles in the courthouse parking lot. The defendant did not obstruct ingress to or egress from the courthouse. Here, as in Lakewood, the manner of expression is not basically incompatible with the normal activity of the forum. See Lakewood, 486 U.S. at 763, (...[T]he question is whether \\\'the manner of expression is basically incompatible with the normal activity of a particular place at a particular time,\\\'\\\" citing Grayned v. Rockford, 408 U.S. 104, 116 (1972)). The statute at issue in Cox was more narrowly tailored -- it prohibited specific conduct without respect to the content of the speech; it was a time, place and manner restriction. It expressly prohibited the picketing or parading in front of the courthouse with the intent to interfere or obstruct the administration of justice. \\\"We deal in this case not with free speech alone, but with expression mixed with particular conduct.\\\" Cox, at 564. Defendant on the other hand is being prosecuted solely because of the content of her (pure) speech.

Defendant\\\'s case is also factually very different than the Cox case. Unlike the defendants in Cox, Defendant\\\'s expressions were published. This is an important distinction because written material are passive expressions. A reader can choose whether or not to expose himself to the expression.

Defendant\\\'s activities did not encompass the physical components that the defendants in Cox engaged in. Defendant did not create physical barriers or obstructions to the courthouse. There was no intimidation, which was a concern in Cox. Also the confrontational aspect that was present in Cox is not present in defendant\\\'s case. Defendant\\\'s expressions were anonymous and written. Ohralik v. Ohio State Bar Ass\\\'n., 436 U.S. 447 (1978) distinguishes personal confrontations from written expression (when restricting legal solicitations.)

Lastly, the expression in Cox was directed at particular, named cases unlike defendant\\\'s expressions which were generalized. Defendant did not mention any specific cases, or types of cases in her pamphlet.

In Cox the Court was reluctant to use the clear and present danger standard because it found that the issue as to whether courthouse demonstrations presented a real threat to the fair administration of justice had been specifically addressed by the legislature. \\\"[I]t is one thing to conclude that the mere publication of a newspaper editorial or a telegram to a Secretary of Labor, however critical of a court, present no clear and present danger to the administration of justice and quite another thing to conclude that crowds, such as this, demonstrating before a courthouse may not be prohibited by a legislative determination based upon experience that such conduct inherently threatens the judicial process.\\\" Id., at 566.

In Landmark Communications v. Virginia, 435 U.S. 829 (1979) the Court returned to the use of the Wood-Bridges-Pennekamp-Craig clear and present danger test when analyzing whether restrictions on court-related expressions are justified in light of the First Amendment. The use of the standard has since been affirmed by the Court in Gentile v. Nevada Bar Association, infra.

The clear and present danger standard requires a certain amount of tangible danger of the expressions inciting action. Organization for a Better Austin v. Keefe, infra, invalidated a prior restraint (a civil injunction) which prohibited the petitioner from distributing pamphlets which the respondent claimed were coercive and inciting. The Court found that the pamphlets at issue were intended to influence the reader, but did not rise to the level of coercion or incitement. It observed that \\\"the Appellate Court was apparently of the view that petitioners\\\' purpose in distributing their literature was not to inform the public, but to \\\'force\\\' respondents to sign a no-solicitation agreement. Petitioners plainly intended to influence respondent\\\'s conduct by their activities; this is not fundamentally different from the function of a newspaper.\\\" Id., at 419.

In sum, Defendant\\\'s pamphlets did not present a clear and present danger of imminent lawless action, or with the fair administration of justice. Jury nullification does not present a danger to the fair administration of justice; it is an integral part of the fair administration of justice. See U.S. v. Datcher, infra. Defendant did not approach jurors. Her pamphlets were mass distributed. No specific cases were mentioned, no specific instructions were given. Being printed, and not individually addressed, they could be easily ignored, especially by a juror instructed to disregard information concerning the case not formally presented to him/her in court.

Lastly, this case can be distinguished from United States v. Ogle, 613 F.2d 233 (10th Cir.1979), a case which involved a defendant who was convicted for, among other things, distributing literature concerning jury nullification. The jurors in Ogle were targeted and personally confronted. The defendant in Ogle advocated tax evasion, and provided untruthful information to the jurors concerning the legality of failing to file income tax returns, and provided a sample affidavit (which was misleading). He claimed the Sixteenth Amendment was illegal and that \\\"tax crimes are not true crimes.\\\" The defendant in Ogle approached jurors who were his coworkers and encouraged them to approach the other empaneled jurors. There were telephone calls made to jurors, as well as literature distributed. Most importantly, the jurors were instructed by the defendant to use the literature in their deliberations of the pending case. The defendant used the jury nullification literature to lend credibility to his clearly erroneous views on tax laws.

As discussed, Defendant\\\'s speech was generalized and non-confrontational. The jurors were not addressed, and there was no suggestion in the literature that the principals should be connected to any particular case. There was no real danger of a juror becoming unduly influenced in any way. The timing and place of the distribution was sensible in light of the subject. Defendant does not have unlimited resources, and hand distribution is much less expensive than mass media broadcasts.

Applied to the Defendant, the law is a content-based restriction of her speech. The application of jury tampering and obstruction of justice laws to political speech in a public forum cannot be justified as a time, place, and manner regulation even were it content-neutral because \\\"[a] government regulation that allows arbitrary application is \\\'inherently inconsistent with a valid time, place, and manner regulation\\\" due to the fact that \\\"such discretion has the potential for becoming a means of suppressing a particular point of view.\\\" Forsyth County, Ga. v. Nationalist Movement, 112 S.Ct. 2395, 2401 (1992), citing Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981). Moreover, there is considerable doubt concerning whether political speech, such as that in issue here, is ever subject to the secondary effects analysis of the time, place, and manner regulation. Rappa v. New Castle County, 18 F.3d 1043, 1069 (3rd Cir. 1994), citing Boos, 485 U.S. at 320-21.

Yet, even were the Court to analyze the law as applied to defendant under the tripartite test for content-neutral time, place, and manner regulations, it must fail. To pass muster, a content-neutral speech regulation must be \\\"\\\'narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.\\\'\\\" Ward, 491 U.S. at 791 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). The test in Ward requires the state to prove (1) that the restriction is content-neutral; (2) that it is narrowly tailored to serve a significant governmental interest; and (3) that it leaves open ample alternative channels of communication. Id.

To be considered narrowly tailored, the regulation \\\"need not be the least-restrictive or least-intrusive means\\\" of achieving the government\\\'s goal but must \\\"promote[] a substantial government interest that would be achieved less effectively absent the regulation.\\\" Ward, 491 U.S. at 789. A regulation that \\\"burden[s] substantially more speech than is necessary to further the government\\\'s legitimate interests\\\" is not narrowly tailored. Id. If there are numerous less restrictive alternatives, the Court will strike the law. See, e.g., Discovery Network, 113 S.Ct. at 1510.

As explained supra, the government lacks a significant interest in banning political speech on the rights of jurors from a public courthouse parking lot. It has not articulated such an interest in applying the laws to the defendant nor could such an interest be plausible given the paramount First Amendment right of free speech in public places. Moreover, numerous less restrictive alternatives exist, as set forth supra. For example, the court could sequester the jurors or could instruct them to ignore outside statements whether by the pres