A federal judge on Thursday ordered the dismissal of an indictment against the professor, Julian P. Heicklen, who had been charged with jury tampering for advocating the controversial position known as jury nullification while outside the courthouse.

Mr. Heicklen had repeatedly stood with a “Jury Info” sign and handed out brochures supporting nullification, the view that jurors who disagree with a law may ignore their oaths and vote to acquit a defendant accused of violating it.

Prosecutors said such advocacy, “directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.”

But the judge, Kimba M. Wood of Federal District Court, wrote that a person violated the jury tampering statute only when he or she knowingly tried to influence a juror’s decision through a written communication “made in relation to a specific case pending before that juror.”

Judge Wood added that she would not “stretch the interpretation” of the statute to cover speech that was “not meant to influence” a juror’s actions in a specific case.

Note that FIJA’s guidelines for activists (.pdf) include this important point- activists should conduct general outreach activity and avoid even the appearance of being associated with a particular case. If you would like to read the entire Opinion and Order from Judge Wood, please click here.

Date and Time:
Thursday, 19 April 2012 at 6:30 pm
Location:
The University of Montana in Missouala, MT
University Center Room 326

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.

To help you kick off your activities, we are offering a Spring Activist Special on our FIJA T-Shirts. With the 20% discount, our white “Know Your Rights” t-shirt is just $16 for sizes M, L and XL, and $18 for XXL, and our yellow “We Are Everywhere” shirt is just $12 for sizes M, L and XL, and $14 for XXL. We are also throwing in 25 free copies of our newest full color brochure, Fresh Air for Justice, to help you get started.

We don’t carry small size t-shirts in our current offerings because they are so rarely ordered. However, if you need a size small t-shirt, please call us in the office at (406) 442-7800 and ask for Kirsten. We do have a few of our older t-shirts in designs we no longer offer on the catalog available, and we may be able to find a size small t-shirt for you among them.

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.

Forchion intends to utilize jury nullification defenses in court and to openly question the law to jurors. He points out that one venue for major social change in this country is our courtrooms. Forchion believes that marijuana should be legal, and he believes at least 6 of his jurors will think so as well. His goal at trial is to convince one of them to say “NOT GUILTY”.

You can help get the word out about Forchion’s case and activism by distributing the link to this blog post to your friends, family, and other contacts via e-mail, Facebook, Twitter, etc.

We have been asked to provide an outreach table and possibly a speaker for an event in Salt Lake City in April. If you are interested in serving as a state contact or FIJA speaker for Utah, we would love for you to represent us at this event. However, if you are not able to make that specific event, we are still happy to sign you up and have you volunteer as you are able.

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.

Senate to Take Up Jury Nullification Legislation

The Senate will consider a bill today that would let defense attorneys tell jurors they can acquit a defendant even if there is sufficient evidence proving his guilt.

Yesterday, a day before the Senate would take up the bill, Rep. Susan DeLemus, a Rochester Republican, introduced a similar bill to the House Judiciary Committee… She introduced her bill, she said, because she wasn’t “super clear” if the previous version had actually found support in the Senate. A subcommittee of the Senate has recommended the full Senate pass the proposal.

Click through for the full article.

On January 18th, 2012, two billboards with ads promoting police accountability and Jury Nullification will be displayed in the Richmond area. The initiative is being headed by Nathan Cox, an Army Veteran and activist for the cause of Liberty, during the week of MLK’s birthday.

It was King who stated: “One may well ask How can you advocate breaking some laws and obeying others? The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”

Dr. King understood well that just because one be in a position of power, doesn’t mean that person will act in a moral way. Two organizations that advocate justice and liberty are being promoted by Nathan Cox, who believes that people have the right to be treated fairly and equally by all, whether you wear a badge or a robe.

The second organization Mr. Cox would like to promote is FIJA (fija.org), or the Fully Informed Jury Association. FIJA is a non profit organization whose goal it is to inform citizens of their rights as a juror and that the juror’s mission should be to “protect fellow citizens from tyrannical abuses of power of government.” It has become the belief that the juror’s sole duty is to help decide the innocence or guilt of a fellow citizen as well as pass down punishment upon them. Jury nullification is one right of a juror that FIJA teaches about. The founders thought it was important for the people to have a counter to bad laws and practices, so made it possible for a jury to acquit defendants who are technically guilty. An example of how jury nullification works is during the time of slavery. Some jurors would refuse to convict people who were supposedly guilty of helping to free a slave. Slavery is immoral and therefore the people felt they needed to use jury nullification to work toward justice for slaves and those who helped them.

Click through for the entire press release.

This is great to put on the backs of brochures or on other Jury Nullification handouts!

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.

Letter: Are jurors aware of this power?, by Neal Weeks

After years of dissatisfaction of our court system and wondering how a judge could overturn a jury decision, or why juries seemed to have no room for personal judgment of the case they are deciding, I came across a term I had never heard before: jury nullification.

This is a powerful term which apparently is never discussed or admitted to prospective jurors or sitting jurors.

Click through for the entire letter to the editor.

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 festival is FREE, but organizers suggest a modest $10 donation (or whatever you deem fit) at the gate that comes with a give-a-way for your donation for you to remember the event by. Mitch will also host an outreach table starting around 11:00 am and will be there until about 6:00-7:00 pm. Volunteers are welcome to join him at the table.

Left to right: Jordan Elliot, Jessica Perkins, Mike Angelos, and Michael D. Elliot.

The Illinois Liberty Alliance entry rolled through the parade with 11 volunteers, a white Ron Paul 2012 decorated van playing Ron Paul supporting music, two FIJA banners which read, “Called for Jury Duty? Know your Rights. FIJA.ORG”, over 3,500 pieces of literature, and bags of candy and balloons. The literature included Ron Paul newspapers made by an Iowa grassroots group and Jury Rights Day cards created by the Fully Informed Jury Association (FIJA).

Nancy Brandt of Henry County was the coordinator of this event. “We spent 5 1/2 hours stamping the literature with “Illinois Liberty Alliance. Find us at: SuperLiberty.com”. We enjoyed walking with the banners, and we distributed 1600-1700 Jury Rights Day cards at East Moline, Illinois’ Labor Day Parade. One man I gave a card to said, ‘I better look at this. I’ve got jury duty coming up.’ I told him to go to the FIJA website.” Nancy expects the cards to be good advertising tools for their local group.

Rafe Thrasher, a Ron Paul supporter in Illinois said, “Ron Paul is a huge promoter and educator of jury rights, so it makes sense that we join forces with the local Fully Informed Jury Association (FIJA) and help them promote Jury Rights Day in a Labor Day parade.”

The outreach table featured FIJA outreach literature, including our brand new Fresh Air for Justice brochure, freely available for anyone to take. One of our brand new 6′ wide by 3′ high FIJA banners hung on the wall next to the table was easily visible all the way across the building. The banner was also carried in the Fair Parade kicking off the event.

Volunteers at the table were available to offer literature to passersby and to invite them to sign petitions for state initiatives, including a fully informed jury initiative. While FIJA National is a strictly educational organization that does not engage in political activities, state level groups and individuals not covered under our 501(c)3 status may do so at their discretion.

David and Leona Merrick reported that most responses to juror education outreach efforts were positive. “If they’re not in favor of jury nullification and they think that we’re kind of going against the grain, we just thank them for stopping by and for listening to our pitch. We try to give them, if they will take it, some further information on what the fully informed jury means,” David said.

“There are probably about a thousand or so, I’d guess, that we have talked to,” David estimated over the course of 4 days of outreach. He noted that they have distributed FIJA literature every year for the last few years at the fair. Several people who visited the table recognized the outreach effort from previous years.

Leona also credited FIJA’s eye-catching, yellow “We Are Everywhere” t-shirts for attracting people to the table to learn more. “I think we have passed out the most literature ever this year,” she said.

Freedom by Jury

We should be celebrating September 5 with at least as much exuberance and respect as we celebrate July 4 or Thanksgiving. It’s Jury Rights Day.

Little is made of the date. Most people are completely unaware of its historic significance and have never heard that jurors have rights. Yet it was on that date in 1670 when a group of jurors in London used their right and power to invalidate an unjust law.

We can draw a direct link between several of our First Amendment guarantees to jurors who decided that some laws are so bad that they would refuse to convict defendants prosecuted under those laws, even when directed to do so by a presiding judge.

It’s jury nullification. Some jurors risked their own freedom to exercise that right.

Click through to read the entire article.

She will be talking about Jury Rights Day and the growing need for informed jurors across the nation as government employees and politicians stray further away from the Constitution and Bill of Rights. Jurors are the primary protection of our human rights against corrupt government.

She will be commenting on the present case in Northern Idaho, regarding father who is being persecuted for protecting his children from a bear in the backyard. She will also discuss the protection that comes from our neighbors who form our juries—to protect us from the predatory, vicious actions of government, whether government is a king, a politician, a paid lackey, or a local bureaucrat who lives on your taxes.

Dick Marple, FIJA State Contact for New Hampshire, sends us this proclamation from New Hampshire Governor John H. Lynch, declaring today Jury Appreciation Day in the State of New Hampshire:

We will be featuring news of more Jury Rights Day celebrations and outreach as reports come in. To let us know about YOUR event, please e-mail us details to aji(AT)fija(DOT)org.