A Lancaster County jury found a 32-year-old woman not guilty of assaulting a Lincoln police officer who accused her of kicking him when he stopped her from going back into a downtown hotel after a Husker football game.
At a one-day trial Tuesday, Elli Palmer of Lincoln denied she kicked Police Sgt. William Koepke.
Koepke and a second officer working with him at the hotel the night of Oct. 27, 2012, both testified that she did. The officers were off-duty, being paid by the hotel and were in uniform.
The jury got the case Tuesday at 4:36 p.m., and came back to the courtroom 31 minutes later with the verdict.
In a case the defendant’s attorney says is motivated by the proximity of a March 18 primary election in which his client is a contender, Luke Lamb has been charged with unlawful communication with a juror for sharing a link to the FIJA website and making comments about jury nullification to someone who apparently requested the information.
A member of the Greene County county board who is running for sheriff is facing accusations of tampering with a jury trial.
The felony charge against Luke Lamb — unlawful communication with a juror — claims he made a post to a Facebook page in an attempt to get a juror in a case to vote not guilty. The case involved a speeding in a school zone charge and the person was subsequently acquitted.
Lamb supposedly posted a comment on a Facebook page in response to a request for information and posted a link to the website Fully Informed Jury Association. He also made a comment about nullification and later commented the person should only hang the jury if necessary.
Lamb’s attorney, Patrick A. Watts of St. Louis, maintains Lamb made the first comment in jest and that the wording on the subsequent post demonstrated “that he was leaving any decision about the individual case up to the juror.
“The juror was already intending to investigate the issue of jury nullification on his own and Mr. Lamb knew this. Thus, Mr. Lamb had no intent to influence because the juror was already ‘influenced’ prior to his selection as a juror,” Watts said.
This letter from Ray Jasper, scheduled to be executed on March 19, is a part of a series entitled Letters from Death Row. Here we excerpt a short passage that is particularly informative for jurors, who should be aware as they deliberate the fate of a person accused of a crime the seriousness and severity of the punishment their Guilty verdict may help inflict on that person. In a world where we have thousands of people serving life without parole for non-violent—and sometimes entirely victimless—offenses, where we have a woman facing a mandatory minimum of 60 years for actions that did not harm another human being, jurors need to be skeptical of delivering Guilty verdicts to which they are led by a punitive system tilted in favor of prosecution for profit.
Under the 13th Amendment of the U.S. Constitution all prisoners in America are considered slaves. We look at slavery like its a thing of the past, but you can go to any penitentiary in this nation and you will see slavery. That was the reason for the protests by prisoners in Georgia in 2010. They said they were tired of being treated like slaves. People need to know that when they sit on trial juries and sentence people to prison time that they are sentencing them to slavery.
If a prisoner refuses to work and be a slave, they will do their time in isolation as a punishment. You have thousands of people with a lot of prison time that have no choice but to make money for the government or live in isolation. The affects of prison isolation literally drive people crazy. Who can be isolated from human contact and not lose their mind? That was the reason California had an uproar last year behind Pelican Bay. 33,000 inmates across California protested refusing to work or refusing to eat on hunger-strikes because of those being tortured in isolation in Pelican Bay.
I think prison sentences have gotten way out of hand. People are getting life sentences for aggravated crimes where no violence had occurred. I know a man who was 24 years old and received 160 years in prison for two aggravated robberies where less that $500 was stole and no violence took place. There are guys walking around with 200 year sentences and they’re not even 30 years old. Its outrageous. Giving a first time felon a sentence beyond their life span is pure oppression. Multitudes of young people have been thrown away in this generation.
The other side of the coin is there are those in the corporate world making money off prisoners, so the longer they’re in prison, the more money is being made. It’s not about crime & punishment, it’s about crime & profit. Prison is a billion dollar industry. In 1996, there were 122 prisons opened across America. Companies were holding expos in small towns showing how more prisons would boost the economy by providing more jobs.
How can those that invest in prisons make money if people have sentences that will allow them to return to free society? If people were being rehabilitated and sent back into the cities, who would work for these corporations? That would be a bad investment. In order for them to make money, people have to stay in prison and keep working. So the political move is to tell the people they’re tough on crime and give people longer sentences.
Last March, Sulaiman Abu Ghaith, son-in-law of Osama bin Laden, pleaded Not Guilty in a civilian court to conspiring to kill United States nationals. Additional charges were added to the indictment this past December of providing material support and resources to terrorists, and conspiracy to provide such support and resources. As the trial finally gets under way, federal prosecutors are now asking the judge to bar what they consider potentially inflammatory topics being mentioned by the defense, including discussion of certain U.S. military locations and activities, as well as arguing that the defendant’s speech was protected under the First Amendment to the United States Constitution. Consider that permitting this kind of filtering of defense language and arguments before they ever go before a jury has implications not only for this case in particular, but more widely for other cases.
In the terrorism trial of Sulaiman Abu Ghaith, a former top adviser to Osama bin Laden, the specter of the Sept. 11 attacks has naturally loomed heavily during jury selection, which resumed on Tuesday morning.
But even the United States’ intelligence efforts after the attacks have now become an issue, as federal prosecutors moved to try to keep what it called “potentially inflammatory topics” out of the case.
The government, in a recent court filing, asked the judge to bar the defense from referring to topics such as the United States military prison at Guantánamo Bay, Cuba; secret “black sites” run by the Central Intelligence Agency; National Security Agency surveillance; and drones.
Referring to “irrelevant concerns or controversies touching on national security would serve only to inflame the jury’s passion and prejudice it against the government,” the government said, adding that it would be a form of impermissible jury nullification.
In its filing, the government also asked that the defense be prohibited from arguing before the jury that Mr. Abu Ghaith’s speeches after Sept. 11, 2001, in which he endorsed the attacks and promised more of them, were protected under the First Amendment. Prosecutors say that also would be jury nullification, in which jurors ignore the law if they disagree with it and render a verdict based on their personal views.
In less than 90 minutes, a Minnesota jury acquitted Andrew Henderson of filming police and an ambulance crew. When Henderson refused to identify himself to a sheriff’s deputy, the deputy confiscated his camera. While the camera was in police custody, the video footage that he expected to use as evidence in his defense mysteriously disappeared. This is reminiscent of the case of Phil Mocek, who was able to recover the footage deleted by law enforcement officers. In a strange twist, the prosecution presented it in court, conclusively demonstrating that their own witnesses had perjured themselves on the stand during his trial.
Andrew Henderson said he will continue shooting videos of police after a Ramsey County jury found him not guilty Thursday of criminal charges filed against him after he turned his camera on Ramsey County sheriff’s deputies and an ambulance crew in 2012.
Henderson, 29, was charged with misdemeanor crimes of disorderly conduct and interfering with an ambulance crew.
He thought he would be exonerated by the video he shot, but when he got his camera back from police weeks after the incident, the recording was gone, Henderson said.
A six-person jury found Henderson not guilty Thursday after less than 90 minutes of deliberation at the end of a two-day trial that drew attention of civil liberties advocates. The Minneapolis-based Fredrikson & Byron law firm provided free legal representation to Henderson in association with the American Civil Liberties Union of Minnesota.
Henderson said he could have resolved the case by accepting a prosecution offer to plead guilty to a petty misdemeanor and pay a $50 fine.
But Henderson insisted on a trial.
“It’s the principle of it,” Henderson said. “It’s our First Amendment right to film law enforcement personnel.”
In spite of the court victory, Henderson’s case illustrates how government officials can effectively punish defendants without ever securing a conviction:
Jurors acquit Little Canada man who videotaped deputies, paramedics
Andrew J. Henderson spent a year fighting the criminal charges against him and said he was passed up for about 10 jobs when background checks showed that he was being prosecuted for filming paramedics and sheriff’s deputies outside his apartment complex.
Jurors should remember that by the time a case ever goes to trial, the defendant has ALREADY been through a gauntlet of pre-trial punishment including such things as the physical and psychological trauma of being roughed up by police and jail officials, legal expenses just to be able to get a trial, additional costs such as lost income, lost job opportunities, loss of financial aid if they are in school, the toll this takes on relationships with family and friends, damage to their reputation in their workplace and community even though they have not been convicted, and more. It takes a certain level of fortitude in the face of all this pre-trial punishment for a person accused of a legal offense ever to get to a jury trial. When we serve as jurors, we should be aware of this and take it into consideration as we deliberate over what is the most just verdict we can render.
What is with grand juries these days? A recent article in the Charlotte Observer mathematically analyzed the assembly line style of the Mecklenburg County grand jury- a meaningless process has become typical of today’s grand juries:
During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.
That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.
Two prominent attorneys – and even Mecklenburg’s former top prosecutor – say grand juries now fail to perform their traditional role as a protective wedge between overzealous prosecutors and the public.
“The entire system is a joke,” said Joe Cheshire, a Raleigh attorney who handles high-profile criminal cases across the state. “There is absolutely no living, breathing person with any kind of intellect who believes that a grand jury could consider and vote on 10 complex issues in the period of time that they use to deliberate on hundreds.”
How did we get to this sad state of grand jury affairs? One woman who is serving on a grand jury suggests that we often feel driven to cooperate, even when cooperating means doing injustice to someone accused of a legal offense.
Today, as I am serving jury duty, I am struck by how incredibly cooperative people are. Unfortunately, people are often cooperative with the wrong people and for the wrong reasons.
The jury receives its instructions almost entirely from the prosecutor’s office, the exception being the judge who swore us in. That judge, to his credit, told us that we did not work for the prosecutor’s office and said several times that we were a buffer between the state and the accused. But since that initial moment with the judge, all of our information has favored the prosecution and the jury wants to cooperate.
People are mostly inclined to go along. They are inclined to follow the rules (maybe especially in a place like DC where so many work for government or nonprofits or were class valedictorian). But it isn’t just that they acquiesce to authority, it is that they also don’t want conflict. And this is how you have relatively decent people who have some doubts about the process, or at least feel uncomfortable with the system, going along with it.
People want to cooperate. They don’t want to be hated. They don’t want to make the nice lady in the prosecutor’s office job harder. They don’t want to hold everyone up from going to lunch because there is more to discuss. Fighting against the current – whether majority opinion or bureaucratic process – goes against most people’s desire to cooperate.
The only small positive thing I have to say is that every person who is non-cooperative makes it just a little harder for people to go along. The more we can tip the scales, the less it becomes about whether or not to cooperate and the more it becomes about who or what to cooperate with. The more it becomes about the difference between cooperation amongst equals and deference to authority. And then, maybe, we can start having some real talk.
I think this insight is spot on, not only regarding grand juries, but petit juries as well. I can’t tell you how many times we get calls in the FIJA office from people who knew in their hearts that the just verdict was Not Guilty, but they caved in to peer pressure and voted Guilty because everyone else on the jury was doing so. The excuses I hear often have to do with cooperation. They weren’t going to change anyone else’s mind, they’ll say, so they were going to be there “forever”.
No. I guarantee you that there is absolutely no jury in the history of humankind that has been convened “forever”. If someone maintains a Not Guilty vote in spite of the disagreement of fellow jurors, at some point the judge will declare a hung jury and the defendant will not be convicted in that trial. The case may be retried, but a Not Guilty verdict is ALWAYS better for the defendant than to be convicted for a variety of reasons:
-The charges may be dropped against the defendant.
-The charges may be reduced against the defendant.
-The defendant may be offered a more generous plea bargain than was initially offered.
-Even if the case is tried again, the next jury may find the defendant Not Guilty or another hung jury may result, making it less likely still for the defendant to be tried again.
Whatever the discomfort you feel from not going along to get along with your fellow jurors, or with the prosecutor and other government officials, whatever inconvenience you or any of these other people may suffer from you maintaining a Not Guilty verdict when a just verdict requires it-that is virtually NOTHING in comparison to the damage that a Guilty verdict will do to someone who has harmed nobody.
Kirsten Tynan of the Fully Informed Jury Association and Poppy Sidhu, one of the Bellingham 3 charged with medical marijuana violations in Washington who has called for jury nullification, were recently interviewed on the Progressive Radio Network in the second segment of a program called Leid Stories by Utrice Leid. Our segment starts at about 33:56.
Please join FIJA at the FREE HER Rally, hosted by Families for Justice as Healing, on 21 June in Washington, D.C. on the National Mall. As FREE HER Rally participants call for an end to mass incarceration and commutations for those who do not belong in prison, we will be educating everyone about our OWN powers of pardon when we have the opportunity to serve on a jury. We are also working on a jury nullification day of action while we’re out there!
I came across this scholarly paper in the Washington and Lee Law Review as I was looking for information on how many judges come from a prosecutorial background. While it doesn’t answer that question, it does address another important point that we as jury nullification advocates should be making. Often it is claimed that if jurors know about their authority to exercise jury nullification, all kinds of chaos would ensue and the legal system would come crumbling down. But in fact, every other step of the legal process involves nullification power:
1. Law enforcement officers have discretion over whom to arrest or not.
2. Prosecutors have a HUGE variety of nullification powers that we will get to below.
3. If a jury convicts, a judge can overturn that verdict.
4. Assuming a judge lets a jury’s Guilty verdict stand, it can STILL be overturned or softened through an executive’s powers of pardon or commutation.
So why is that when EVERY GOVERNMENT AGENT in the legal process has and is informed about their nullification powers, it is magically going to throw the entire system into disarray if jurors find out that they may conscientiously acquit people by setting aside the law when a just verdict requires it?
Of all of the above agents, prosecutors by FAR have the most extensive nullification power, and it is used HEAVILY in favor of conviction as this paper illustrates:
As demonstrated by some recent high-profile cases and suggested by a seemingly endless litany of misconduct, American prosecutors exercise almost limitless discretion in a series of decisions affecting individuals embroiled in the criminal justice system. They decide whether to accept or decline a case, and on occasion, whether an individual should be arrested in the first place; they select what crimes should be charged and the number of counts; they choose whether to engage in plea negotiations and the terms of an acceptable agreement; they determine all aspects of pretrial and trial strategy; and in many cases, they essentially decide the punishment that will be imposed upon conviction. These and other discretionary judgments are often made without meaningful internal and external review or any effective opposition. In many (if not most) American jurisdictions, the prosecutor is the criminal justice system. For all intents and purposes, he makes the law, enforces it against particular individuals, and adjudicates their guilt and resulting sentences.
That’s right. In many cases, American prosecutors now act as judge, jury, and executioner, with little check on their power. This is why we are seeing more and more a HUGE disparity between the sentence offered in a plea bargain vs. the MUCH HARSHER sentence that will be enforced upon a defendant if convicted, often due to mandatory minimum sentencing schemes. The authors use the tragic case of Weldon Angelos, a 23-year-old, first-time offender, arrested for dealing marijuana and possessing firearms, which were never brandished or used while he was selling small amounts of pot to help pay the bills after the birth of his second son:
Instead of bringing state charges, officials decided to prosecute the case in federal court employing an infamously harsh law that carries mandatory minimum punishment. That statute, 18 U.S.C. § 924(c) , provides an obligatory five-year sentence for possessing a firearm during a drug transaction and a twenty-five-year sentence for each subsequent transaction. Multiple charges can be brought under § 924(c) in one case, and the mandatory sentences must be served consecutively, that is, one after the other rather than simultaneously! As a result, the prosecution can slice a drug dealer’s actions into as many transactions as it likes (or wishes to corroborate) and bring them in a single case, where the mandatory sentences can be stacked on top of each other in twenty-five-year increments. A defendant does not need a criminal record to trigger § 924(c). What is more, the firearm does not even have to be brandished or used, nor does the law require that any violence or injury be caused or threatened. When Angelos was convicted of three § 924(c) counts in December of 2003, the punishment was predetermined: a mandatory sentence of fifty-five years.
The authors continue, explaining how the prosecution tried to leverage its nullification power (aka plea bargain) to force Angelos into an unreasonable prison sentence in exchange for dropping charges:
Angelos’s case also reveals the rough play of American adversarialism and the extent of prosecutorial power in plea bargaining. The prosecution initially said that if Angelos pled guilty to a charge of drug distribution and one count of § 924(c), it would recommend a prison term of fifteen years- a steep sentence given the nature of the offense and the background of the offender. If the offer was not accepted, however, the prosecution threatened to obtain a new indictment that carried more than 100 years of mandatory imprisonment via multiple §924(c) counts. When the plea bargain was declined, the prosecution followed through on its promise, charging crimes with the potential for 105 years of mandatory incarceration. And when Angelos was convicted on three § 924(c) counts, the prosecution only obtained an obligatory sentence of fifty-five years.
Of course, some might say that Angelos should have taken the deal, with any disproportionality between crime and punishment the result of his own intransigence rather than the government’s vindictiveness. He is the author of his own demise, or so it might be argued. The counterargument seems just as strong, however. If this defendant is so extremely dangerous or the public interest is so important as to merit a 105-year mandatory sentence, how could the prosecution put the citizenry at risk by permitting Angelos to serve a fraction (1/7) of that amount? Surely, prosecutors would not offer a serial rapist, mass murderer, or violent terrorist a fifteen-year deal when justice demands a century of incarceration.
This is what prosecutorial nullification has come to-it is nothing more than a tool to bully and intimidate defendants into taking unjustly harsh plea bargains to guarantee avoiding unconscionably abusive mandatory minimum sentences as prosecutors stack up charges against them. If the system has fallen into disarray, it is NOT because jurors have too much power as the Angelos case demonstrates:
For Angelos, it did not matter that few U.S. Attorneys would have prosecuted the case in such a heavy-handed manner. Nor did it matter that the sentence was longer than those prescribed for far more serious crimes (e.g., aircraft hijackers, terrorists, second-degree murderers, and rapists). Moreover, it was irrelevant that jurors who heard his case would have recommended a sentence decades less than that demanded by the prosecution, and that his punishment was opposed by twelve dozen former federal judges and prosecutors, including four former U.S. Attorneys General. Most of all, it did not matter that the sentencing judge himself believed that the punishment was “unjust, cruel, and irrational.” By charging the case as it did and obtaining the relevant convictions, the prosecution was the adjudicator of the sentence, with the court relegated to the role of an unwilling rubber stamp.
With the prosecution operating with drastically unchecked power to determine the outcome of the case, the injustice and chaos in this legal system, which gave a man a de facto life sentence for completely victimless activity, stems not from juries having too much power, but from FAILING to exercise their rightful power of jury nullification conscientiously to deliver a just verdict. Angelos never needed to be sentenced to a day in prison, let alone a de facto life sentence, had one single juror asked “Who has he harmed?”, answered “Nobody”, and then voted Not Guilty on every single charge against him.
Erik Luna and Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413 (2010), http://scholarlycommons.law.wlu.edu/wlulr/vol67/iss4/6
William Grigg reports on this gross miscarriage of justice, with the first ruling coming from a judge in a bench trial and the second ruling backing him up coming from another judge of the Arizona Appeals Court.
Phyllis Bear, a convenience store clerk from Arizona, called the police after a customer threatened her. The disgruntled patron, seeking to purchase a money order, handed Bear several bills that were rejected by the store’s automated safe. Suspecting that the cash was counterfeit, Bear told him to come back later to speak with a manager.
The man had left by the time the cops arrived, and Bear was swamped at the register. Offended that she was serving paying customers rather than rendering proper deference to an emissary of the State, one of the officers arrested Bear for “obstructing government operations,” handcuffed her, and stuffed her in the back of his cruiser.
A few minutes later, while the officer was on the radio reporting the abduction, his small-boned captive took the opportunity to extract one of her hands from the cuffs, reach through the window, and start opening the back door from the outside. The infuriated captor yanked the door open and demanded that the victim extend her hands to be re-shackled. When Bear refused to comply, the officer reached into the back seat and ripped her from the vehicle, causing her to lose her balance and stumble into the second officer.
Bear, who had called the police in the tragically mistaken belief that they would help her, was charged with three felonies: “obstruction” – refusal to stiff-arm customers in order to attend to an impatient cop; “escape” – daring to pull her hand out of the shackles that had been placed upon her without lawful cause; and “aggravated assault” – impermissible contact with the sanctified personage of a police officer as a result of being violently dragged out of the car by the “victim’s” comrade.
The first two charges were quickly dropped. During a bench trial, the prosecution admitted that the arrest was illegal. Yet the judge ruled that Bear – who had no prior criminal history — was guilty of “escape” and imposed one year of unsupervised probation. That conviction was upheld by the Arizona Court of Appeals, which ruled that although the arrest was unwarranted and illegal, Bear had engaged in an illegal act of “self-help” by refusing to submit to abduction with appropriate meekness.
That’s right. A woman called police to HELP her, they became impatient that she wasn’t prioritizing them above her customers and took illegal action against her, yet SHE was punished by a judge for failing to comply with their ILLEGAL actions against her.
In our society, we are conditioned to think of a judge in a courtroom as an impartial arbiter of the law, the middle ground between prosecution and defense, but that is just an illusion. In our legal system, judges’ and prosecutors’ paychecks come from the same place, automatically biasing them similarly. Those who attain judgeships are very often former prosecutors, less often have worked defending people, and very rarely have a background in civil rights. Whether judges are elected or appointed, there is an inherent political bias built into their selection, often favoring those perceived as “tough on crime”, which translates into favoring prosecution.
This is why juries are so important in our legal system. Jurors are not beholden to the legal system to make their daily living. They are often paid hardly enough to cover their parking and lunch that day, let alone make up for regular income they may be giving up. They do not have a vested interest in favoring one side or the other in order to keep their jobs and their paychecks. They do not hear case after case after case, so they do not have the opportunity to leave the imprint of their personal biases on a huge pool of adjudications. Of all the people in a courtroom, jurors have the least to gain or lose from any particular outcome and so are the most independent people in the room. It is this jury independence that is crucial to fair trials for everyone.
will speak on the power of the individual juror
March 18, 2014 at 11:00 am
for the Kiwanis Club at Culvers
4004 Silver Lake Rd.
St. Anthony, MN
Many thanks to Derek, who is driving quite a ways to give this talk about the power of the individual juror to judge the LAW, as well as the facts.
Patrick Skrabec, who spent six days in jail over the Christmas holiday after his arrest, was found innocent of threatening to commit a crime and disturbing a school assembly after a two-day trial.
He was 17 when he was arrested Dec. 21, 2012, by North Attleboro police after an investigation into statements Skrabec made about shooting up the school while in math class three days earlier. Skrabec claimed he was only joking with a friend.
In December of 2012, then 17-year-old high school student Patrick Skrabec was held in jail for 6 days over an alleged threat he made to shoot up his school, just days after the mass murder at Sandy Hook Elementary in Newtown, Connecticut. Skrabec said that his comment during his math class was just a private joke between friends. During a dangerousness hearing in court, the teen’s lawyer pointed out that Skrabec had no access to guns, no prior criminal record, and no disciplinary problems. He was subsequently released on $10,000 bail.
Skrabec was initially charged with making a false report of a firearm capable of causing damage-a felony punishable by a minimum 3-year prison sentence. He pleaded not guilty to this charge, and two months later the felony charge was dropped and replaced by two lesser charges of threatening to commit a crime and disturbing a school assembly. A possible deal was at one point on the table to avoid a trial, with the prosecution recommending two years of probation plus mental health counseling and the defense recommending three months probation. The judge in the case rejected both offers, instead offering a sentence of (a) two years probation, with the possibility of excusing the second year if the first year was completed successfully, and (b) mental health counseling unless the probation department was informed counseling was no longer necessary. Skrabec opted instead for a jury trial.
While awaiting his trial, this young man who was supposedly dangerous enough to be imprisoned for 3 years was allowed to return to school and complete his junior year after serving a suspension. He is now a senior and expects to graduate this spring.
In arguing for her client, Skrabec’s attorney, Maria Deaton, told the jury, ““Maybe it was in poor taste and maybe it was inappropriate. But that doesn’t mean he is a criminal or had criminal intent.” Assistant District Attorney Anthony Riccio sounded about as reasonable as many other prosecutors intent on winning rather than doing justice, arguing to the jury that, “Just because it was a mistake does not make it excusable. It doesn’t mean it’s not a crime.”
Most teenagers are not adults. Scientific evidence suggests that younger people’s brains are typically not fully developed, and most have not developed to the same same level of judgement, insight, inhibitory control, and decision-making as most adults.
Should it truly be our social policy to criminalize victimless behavior teens engage in, perhaps as a function of their biology? Is our best solution to tactless behavior to destroy a person’s life by sentencing him to years in prison, destroying his relationships and damaging his educational and economic opportunities for the rest of his life? That’s the best we can do? Fortunately, the jury’s answer to that was “No.”
Last fall, Ohio state troopers pulled 30-year-old Norman Gurley over for speeding. Detecting an “overwhelming smell of raw marijuana,” officers spent hours searching the vehicle and found no contraband.
But they did discover an empty secret compartment.
For that, police hauled Gurley, who has no criminal record, off to jail. Gurley became the first person arrested under a new Ohio statute that makes it a crime to “knowingly operate … a vehicle with a hidden compartment … used or intended to be used to facilitate the unlawful concealment … of a controlled substance.”
Lawmakers in Ohio are not alone in enacting or envisioning bans on unauthorized empty space. California, Georgia, Illinois, and Oregon have similar prohibitions on the books. Legislators in Iowa, Maryland, and New Jersey may add them this session. Similar bills have been filed in Delaware, Massachusetts, Pennsylvania, and Virginia in recent years.
While it is difficult to find any benefit to society from wasting money locking harmless people up for having hidden empty spaces in their cars that they may not even know about themselves, it is easy to spot the benefit to law enforcement. George Washington University law professor Jonathan Turley explains:
Ohio Man Arrested For Having Hidden Compartment In The Car . . . Without Drugs Or Guns
Note that prosecutors already have criminal enterprise and conspiracy laws to nail people involved in the drug trade. This crime turns on the dubious distinction of an intention to use the compartment for illegal purposes. Moreover, it allows for the proliferation of charges in cases where drugs are found. Instead of just being charged with the drug possession, intent to distribute, and other conventional charges, the Ohio prosecutors can add a charge for the actual compartment in the car. Such proliferation of counts allows prosecutors to force people to plead guilty to avoid long potential sentences.
This is another on an already looming stack of tactics the government has to bully people into forfeiting their right to trial by jury, and as a result, any hope of jury nullification.
With the introduction of New Hampshire’s HB 1452 in the legislature this year, jury nullification is once again in the news in New Hampshire. Jeff Woodburn discusses it in the March edition of New Hampshire Magazine.
The times are changing. Polls consistently show a growing majority of people support marijuana legalization. The New Hampshire House of Representatives recently made history by becoming the first legislative body in the country to endorse legalizing possession of small amounts of cannabis. Colorado and Washington did the same thing by voter referendum. But don’t light up that joint quite yet. The bill faces another House vote, a tough fight in the Senate and a veto by Gov. Maggie Hassan.
This leaves New Hampshire in a bit of legal quandary. Is growing popular support running headlong into the region’s toughest marijuana prohibition laws? It begs the basic question: Are widely unpopular laws enforceable?
The question is both theoretical and practical. Will growing grassroots support for changing cannabis laws have more influence over politicians or the judiciary? Will a new state law that permits explicit instruction to juries that they have the right to thumb their noses at the evidence if the law itself is unjust render the state’s marijuana possession laws meaningless? And, are these laws going to be heaped on the dump pile of unenforceable, antiquated laws that ban things like adultery?
One notably ridiculous point is made by Deputy Attorney General Ann Rice:
“The NH Legislature, not the jury,” Rice continued, “is responsible for establishing the law … And, once passed, there is a common understanding that the law will apply equally to all.”
This is particularly rich given data from The Sentencing Project indicating that New Hampshire incarcerates more than 9 times as many blacks as white and more than 3 times as many Hispanics as whites despite the fact that its population is less than 2% black or African American and only about 3% Hispanic or Latino.
Marc Mauer of The Sentencing Project explains how the law is not applied equally to all, LONG before questions of law ever reach a jury:
The higher incarceration rate for minorities can stem from a number of factors, such as policy set by legislatures, stepped-up policing in communities and neighborhoods with large minority populations and decisions made by people in the criminal justice system, said Marc Mauer, executive director of the Sentencing Project.
“Broadly speaking, it’s often a mix of things like that,” he said.
Higher incarceration rates often are the results of economic factors rather than race or ethnicity, Mauer said.
For example, someone who committed a crime related to a drug problem, including crimes such as burglary where addiction is the underlying cause, is more likely to avoid jail if he’s enrolled in a drug treatment program. There are few such public programs available, Mauer said.
A middle-class family would be more likely to have the resources to pay for a private treatment center, Mauer said. A poor family without that option is likely to see a family member sent to jail instead, he said.
Perhaps that is why former prosecutor Professor Paul Butler of George Washington University Law School advocates jury nullification:
I learned jury nullification from the jurors of the District of Columbia. It was commonplace that if you had a young, black defendant charged with drug possession, DC jurors were not going to send them to jail. They didn’t want to send another black man to jail. When senior prosecutors first told us rookies about this, they would roll their eyes in exasperation. Like, here we are trying to improve their city, and they don’t have the sense to lock up all these cretins. (In the prosecutor’s office, that’s what we called the defendants: “cretins” and “douche bags.”) When I left the prosecutor’s office and started to teach, it was the thing I was the most interested in studying. From a scholarly perspective, I found that it’s a proud part of our constitutional tradition, that it’s perfectly legal and indeed was embraced by the framers as a way to protect people from too powerful law enforcement and too powerful prosecutors. It says that people from the community, not the government, should have the ultimate authority over what happens to a criminal defendant.
While we’re happy to see a video on jury nullification getting lots of views, it unfortunately contains some incorrect and misleading information, which we will address here:
Well, you CAN do this, and FIJA activists do this regularly, usually without any problems. Advocating jury nullification is, in fact, generally okay. It is HOW you do it that is important, which is why we have guidelines for doing courthouse outreach.
The relevant cases establish that the First Amendment squarely protects speech concerning judicial proceedings and public debate regarding the functioning of the judicial system, so long as that speech does not interfere with the fair and impartial administration of justice. In Wood, the Supreme Court held that even speech to a grand juror may be protected by the First Amendment if it does not present a clear and present danger to the functioning of the courts. 370 U.S. at 395. At the same time, the First Amendment does not create a right to influence juries outside of official proceedings, Pennekamp v. Florida, 328 U.S. 331, 366 (1946) (Frankfurter, J. concurring), because “[d]ue process requires that the accused receive a trial by an impartial jury free from outside influences.” Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). Consistent with this interpetation, the court in Turney found that the narrow category of speech knowingly made to jurors outside of an official proceeding and “with the intent to influence the outcome of a specific case” was not protected by the First Amendment. 400 F.3d at 1201 (emphasis in original).
A broad construction of 18 U.S.C. § 1504 that encompassed speech to a juror on any subject that could be considered by a juror would arguably chill protected speech because it could sweep within its prohibitions speech that was not made with the intent of influencing the outcome of a particular case and that did not pose a clear and present danger to the administration of justice.
Based upon the plain meaning of the text of 18 U.S.C. § 1504, reinforced by relevant judicial interpretations and the doctrine of constitutional avoidance, the Court holds that a person violates the statute only when he knowingly attempts to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror’s duties by means of written communication made in relation to a specific case pending before that juror or in relation to a point in dispute between the parties before that juror.
FIJA literature does not discuss any case in progress, and on the very rare occasions when individuals are arrested handing out literature advocating jury nullification, it has typically either involved being arrested maliciously for something not specifically related to advocating jury nullification (such as for violating a judge’s order instead of challenging it through the civil legal process) or has involved advocating jury nullification in a particular case rather than just doing general juror education outreach. Twice this year I have myself done general juror education at a courthouse in Bellingham with no problems. We had a couple of dozen events across the country last year on Jury Rights Day, mostly at courthouses, with zero arrests. We recommend that people read and follow FIJA’s guidelines for juror education.2. “The go to example of jury nullification is the Fugitive Slave Law when northern juries refused to convict escaped slaves and set them free.”
If you learn just one thing today about jury nullification today, please let is be this: SLAVES were not tried under the Fugitive Slave Act and set free through jury nullification. It was those who AIDED in their rescue who were afforded trials by jury. To say that northern juries set slaves free not only WRONG, but it also reflects dramatic ignorance of the depths of abuse people were subjected to under slavery.
This past weekend was the anniversary of the arrest of Shadrach Minkins, who was arrested in Boston under the Fugitive Slave Act. Shadrach Minkins never had a jury trial, and he never WOULD have had a jury trial. His case would have been decided in a hearing by a judge who had a clear incentive to return him to the person claiming to own him. Everyone standing in Minkins’ corner knew this and so the postponement was requested in order to buy time to find a way to save him. Ultimately, a daring rescue was mounted, the likes of which are barely imaginable today.
3. “And also juries have two options for where their thoughts may differ from their words. Jury nullification usually refers to the not guilty version, but juries can convict without evidence just as easily as they can acquit in spite of it. This is jury nullification, too, and the jurors are protected by the first rule [jurors cannot be punished for their verdicts], though the second [their Not Guilty decision can't be changed] doesn’t apply. And judges do have the ability to overrule the guilty verdict if they think the jurors aren’t the best. And, of course, a guilty defendant can appeal, at least for a little while, which make the guilty form of jury nullification weaker than the not guilty kind. Cold comfort, though.”
In most courts, jurors must come to a unanimous verdict to convict or outright acquit someone. To state that juries can convict just as easily as they can acquit is technically correct; however, it is misleading. Instead of comparing the cases of conviction and outright acquittal, let’s compare the cases of convicting and not convicting. In the case were jurors THINK a defendant is Guilty but VOTE Not Guilty, it takes only 1 juror in most courts to prevent conviction by hanging the jury. In cases where jurors THINK a defendant is Not Guilty but VOTE Guilty anyway, 1 juror or even a simple majority of jurors, is insufficient in every court in the United States to convict. It is clearly much harder for juries to convict than it is to prevent conviction.
Further, it is harder to make a conviction stick than it is to sustain an outright acquittal. An outright acquittal is the end of the case. A judge cannot overturn an acquittal, nor can the prosecution appeal an acquittal in the United States. On the other hand, defendants DO have the right to appeal their convictions, and in some cases, such as capital cases, an appeal is automatic. If they are unsuccessful in their appeals, defendants’ sentences may be softened or overturned through commutation or pardon (an executive’s nullification power).
The system was specifically designed this way, purposefully making conviction of defendants MUCH harder than non-conviction, either through acquittal or a hung jury. As English jurist William Blackstone expressed in his work Commentaries on the Laws of England in the 1760s, which were in print in the English colonies just before the American revolution and which were a strong influence in crafting the American legal system and on later American jurisprudence, “It is better that ten guilty persons escape than that one innocent suffer.”
It is true that jurors can vote whichever way they want without punishment-including guilty, but calling “the guilty kind” a form of jury nullification is questionable at best. Jury nullification is referred to as “nullification” because in NOT enforcing the law, jurors nullify the law. What the video refers to as “the guilty kind” of jury nullification does not involve nullifying the law, but enforcing its penalty on someone even though they have not broken it. This is more like the opposite of nullification-affirming and enforcing a legal penalty on someone and not nullifying it.
4. “Do you have any beliefs that might prevent you from making a decision based strictly on the law? If, after learning about jury nullification you think it’s a good idea, answer yes [during voir dire] and you’ll be rejected. But answer no with the intent to get on the jury to nullify, and you’ve just committed perjury, technically a federal crime, which makes the optimal strategy once on a jury to zip it. But this introduces a problem for jurors who intend to nullify. Telling the other 11 angry men about your position is risky, which makes nullification as a tool for fixing unjust laws nationwide problematic.”
As is the case with any tool, jury nullification is not a universal way to fix everything. That said, empirical evidence shows it to be an extremely powerful and effective tool. Jurors voting Not Guilty undermined the Fugitive Slave Acts and opened the door to Emancipation and the Thirteenth Amendment in the United States. Juror refusing to convict their neighbors under alcohol control laws brought about an end to alcohol prohibition in just 13 years. This past Valentine’s Day, we saw laws against same sex marriage take some major legal blows in two Southern states. But long before now, long before the U.S. Supreme Court’s historic ruling in Lawrence v. Texas, juries were refusing to convict under anti-cohabitation and anti-sodomy laws. In just the past couple of years, we have seen juries refuse to convict
- farmers on licensing violations related to raw milk,
- political activists for offenses related to their right to free speech,
- numerous defendants for marijuana and other victimless drug violations,
- a man who mistakenly had a firearm in his glove box when he traveled to Manhattan and was pulled over for turning right on red,
- a man who admitted to punching a priest who he accused of sexually abusing him and his brother 40 years before,
- and more.
So even very recently, we see that people are successfully getting seated on juries where they successfully protect others through their use of juror veto power. Sometimes this protection comes in the form of outright acquittals; sometimes it is in the form of hung juries. Hung juries, while not as extensive a form of jury nullification as outright acquittal, do at least nullify the law in the trial at hand. This is a much better outcome for a defendant than a conviction. Sometimes prosecutors will not refile charges after a hung jury, believing their odds of securing a conviction the next time to be insufficient. They may offer a much better plea bargain to the defendant than they had previously. Other times judges themselves will not permit a retrial. Even if the defendant is retried, they are likely making their case in court from a much stronger position than they would be if they were appealing a conviction.
But how do you get on a jury if you know about juror veto power? We suggest you browse the brochure Surviving Voir Dire (.pdf). Give careful thought ahead of time to what questions you might be asked and how to answer them. Once on a jury, we do recommend that unless you are very confident in the sympathies of your fellow jurors (or you are in New Hampshire), do not discuss jury nullification with your fellow jurors. While jurors cannot be punished for their verdicts, jurors can be removed from the jury-even as late as deliberations-if they indicate that they are intending to nullify. Jurors cannot, however, be removed for expressing doubt about the defendant being guilty.