Fully Informed Jury Association

Are you fully informed about jury nullification?

Function of Juries & Jury Nullification & Sixth Amendment | 26 Nov 2014

-What If Every Accused Person Demanded Trial by Jury?

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Jury BoxMichelle Alexander, associate professor at Ohio State University’s Moritz College of Law and author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, this weekend in an op-ed for The New York Times shared a conversation she had with Susan Burton, executive director of A New Way of Life in Los Angeles, regarding a question that is near and dear to our hearts here at the Fully Informed Jury Association:
“What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial?” Alexander’s answer can be found in this excerpt of her commentary:

Go to Trial: Crash the Justice System

The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

Of course, as Alexander points out, there are significant reasons why accused people far more often opt for a plea bargain than for trial by jury:

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment.

A robust jury system was insisted upon by many involved in the founding of the United States for the protection of certain accused persons from malicious prosecutions and unjust punishments. In many ways, that initial protection has been expanded to better include people from all walks of life, both in the protections of trial by jury available to defendants and as participants in the role of jurors as well. But we have also seen our legal system evolve into one in which prosecutors have de facto power to adjudicate most cases almost entirely without accountability. Prosecutors have the power to drive up the risk of losing a trial by jury through the charges they levy or threaten to levy.

If a defendant will not accept a deal, prosecutors have the ability to stack on extra charges. Simply break the offense down into multiple sub-offenses that can each be charged separately as its own offense, thereby multiplying the maximum penalty, and perhaps also the mandatory minimum penalty, for which the accused is at risk.

Not enough? Look for a weapon! Completely victimless firearms-related charges can trigger mandatory minimums simply for “possession” of a weapon during the commission of another entirely unrelated offense. And “possession” can be defined extremely loosely to mean someone else’s weapon that happened to be present or a weapon being “present” but acres away from the location where the offense took place.

Still not enough? No problem! Maybe you were also “conspiring” to commit the offense for which you have already been charged. Perhaps you were “money laundering” in association with the alleged offense. Or maybe you were “trafficking” something. Or were you “racketeering”? Maybe some relatively low level or even entirely innocuous act you participated in can be twisted into a “terrorism”-related charge. Prosecutors have a large menu of charges to choose from to break defendants’ determination to exercise their Constitutionally-guaranteed right to trial by jury.

We see this prosecutorial abuse by stacking charges to coerce plea bargains time and time again. For example:
-Transform Now Plowshares peace activists Sister Megan Rice, Michael Walli, and Greg Boertje-Obed turned down a plea bargain and saw a high stakes, so-called “terrorism” charge added to their cases punitively increasing the maximum prison term for which they were at risk from 1 year to 20 or more years each.
-Activist Aaron Swartz chose to take his own life after being badgered by prosecutors who offered him four to six months in prison for a guilty plea, while threatening to seek over seven years in prison if he chose to go to trial.
-Two of medical marijuana provider Chris Williams’ business partners, Chris Lindsey and Tom Daubert, each received sentences with no jail time whatsoever. They accepted plea bargains in which they did not go to trial. Williams opted for trial by jury only to see charges stacked up so much that he was at risk for more than 80 years in prison. Post-conviction and pre-sentencing, the prosecutor came back to Williams with additional plea offers to persuade him not to appeal his case.
-And in an egregious abuse of power that ups the stakes dramatically for future defendants, even though Antwuan Ball, Desmond Thurston, and Joseph Jones were acquitted of a whole host of charges brought down on them by overzealous prosecutors, and were each convicted only of a single, victimless drug transaction, they are now serving from fifteen years to nearly two decades in prison, with the Supreme Court turning a blind eye to this unconscionable injustice.

These are very difficult decisions that defendants must make as they are backed into the corner by prosecutors who risk little themselves by their malicious actions. It can be very understandable if a person decides for their own sake they must avoid a jury trial due to the extreme risk involved. But this prosecutorial abuse will only continue if left unchecked. We very deeply appreciate and are encouraged that more and more people are starting to have these kinds of conversations.

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Function of Juries & Jury Nullification | 25 Nov 2014

-3 Ways the Ferguson Grand Jury Illustrates a Two-Tiered Legal System

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LawBooksLast night, after more than 3 months during which it met 25 times and heard 60 witnesses, a grand jury in Ferguson, Missouri declined to indict Officer Darren Wilson on any of the five charges put forth by the prosecution ranging from second-degree involuntary manslaughter to first-degree murder in association with the death of unarmed, 18-year-old Michael Brown, who Officer Wilson shot multiple times.

Why did the Ferguson grand jury take so long to come to a conclusion? Why is it that indicting ordinary citizens is both so common and quick that we joke about grand juries’ ability to indict a ham sandwich, whereas law enforcement officers much more frequently are No Billed (not indicted)? What was different about the Ferguson grand jury process from what an ordinary citizen would experience?


Susan McGraugh, defense attorney and Associate Professor with St. Louis University School of Law, and Jerryl T. Christmas, defense attorney and former prosecutor for the city of St. Louis, explained in a short video entitled “No True Bill” how Missouri grand juries usually work and how the Ferguson grand jury was different. McGraugh and Christmas detail several ways in which Wilson’s experience was far more generous to him than what most ordinary citizens experience if they have a run-in with the law.

1. Role of the grand jury in indictment.
Three out of the first ten amendments to the United States Constitution that make up the Bill of Rights deal with juries. Grand juries are explicitly covered by the Fifth Amendment, which begins:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…

While this right has not been recognized by the Supreme Court as being incorporated against the states, many states including Missouri do provide for grand juries in one form or another. This is not to say that indictment in such states is guaranteed to be done by way of a grand jury. To the contrary, in Missouri, for examples, prosecutors have more than one way to bring charges against the accused and, in fact, usually use a different method to charge those they accuse.

“Under normal circumstances, people are charged by information,” explained former city of St. Louis prosecutor Jerryl T. Christmas, “and then the case is sent to the grand jury for confirmation, which means that the person is normally already in custody, has been charged, and generally given a high bond before the case is sent to the grand jury.”

Defense attorney Susan McGraugh agreed that Wilson’s indictment process was out of the ordinary. “It is very unusual that instead of charging someone and then taking the case to grand jury, Bob McCulloch, by his own admission, for the first time is saying, well let’s have a grand jury look at everything instead,” McGraugh explained.

A ordinary person would typically bear the cost of getting out of jail and, if unable to afford to do so, could find themselves stuck in jail even though they have yet to be convicted of any offense. The consequences could be dire: loss of employment, loss of housing, loss of children, and so on, not to mention the inherent danger of being in jail for just one day that could even lead to loss of life. Officer Wilson, on the other hand, not only remained free for the duration of his legal proceedings, but also on paid leave from his job and was even able to get married in the meantime.

2. Evidence heard by the grand jury.
While prosecutors usually ignore the intended protective role of an independent grand jury for those accused, they do typically embrace the notion that a grand jury is not tasked with proving guilt or innocence, but rather serves only to establish whether there is probable cause to move forward to trial. There is a much lower burden for the prosecutor to get a case past a grand jury than for convicting in a trial by jury, and prosecutors are usually perfectly happy to use this to their advantage.

Being under no legal obligation to make a case on behalf of the defense or to allow the defense to make its own case before the grand jury, in most cases brought against ordinary citizens, prosecutors will selectively present evidence only toward establishing guilt, which is all that is needed for their goal of securing indictments.

“The grand jury doesn’t need to hear all the evidence and normally we don’t do that… At the grand jury level, it’s just a probable cause hearing. It’s not a determination of guilt or innocence, so all you’re doing is just presenting enough evidence to say that you have probable cause to move forward,” explained Christmas.

“Normally, they would bring in the detective and one or two witnesses and the grand jury would vote. It would be done in a day because, remember, what the prosecutor is trying to do is to get a quick indictment so that they can move on to trial. Now when you say you’re going to give the grand jury all the evidence, that is a tactic that prosecutors use to confuse the grand jury. They’ve been doing this long enough to know that if you overwhelm the grand jury with evidence, it will be difficult for them then to go ahead and make that decision,” Christmas said.

3. Testimony of the accused person heard by the grand jury.
In many grand jury systems, there is no legal recognition that an accused person has the right to testify before a grand jury. When such testimony would not be helpful to securing an indictment, the prosecution often simply opts to keep such information away from the grand jury and instead focuses only on information that tends to indicate guilt and to lead the grand jury in the direction of indictment.

However, in this case, the prosecution allowed Darren Wilson the extremely unusual opportunity to testify before the grand jury for several hours.

Defense attorney and law professor Susan McGraugh noted the stark disparity between the generosity shown by the prosecution toward Wilson as opposed to her own clients (and, in fact, accused people in general): “My first thought was, boy I wish my clients had been given the opportunity to have all the evidence presented at their case to the grand jury, and boy, I wish my clients would be given an opportunity to testify at a grand jury and tell their side of the story.” As a defense attorney whose career has been spent representing poor people, McGraugh said, “I resented the fact that someone was being given opportunities that my client would never be given.”

“It is very rare that you even bring a defendant in at the grand jury level,” said Christmas, speaking from his experience as a prosecutor. “Normally when prosecutors want to get rid of a case, they will bring the defendant in and let them give their side of the story, which then the grand jury is able to hear that and most of the time after that they will make a determination not to True Bill.”


GavelIconAs we approach the 800th anniversary of the signing of the Magna Carta, in which jury protection was explicitly codified in English common law, we should keep in mind why the founders of the United States insisted on explicitly and extensively preserving such protections when forming a new government. They recognized the massive potential for abuse of the citizenry under the oppressive power of government and sought to prevent such abuse through various means, including an extensive role for independent juries in our legal system, composed of ordinary citizens whose role was to stand as a bulwark against malicious prosecutions and unjust punishments.

While the United States is supposed to be a nation of liberty and justice for all, treated equally under the law, grand juries as we know them today are a stark reminder of the power prosecutors wield in swaying the outcome of a case to their liking. “The reality is that the grand jury is just an arm of the prosecution. They do whatever the prosecutor says. If the prosecutor doesn’t like the case, generally the grand jury No True Bills it. If the prosecutor likes the case, it gets True Billed. I mean, it’s not, at this level, a difficult feat to get an indictment if you want an indictment,” said Christmas. In Darren Wilson’s case, Christmas argues, the prosecution simply wasn’t seeking an indictment the way it normally would against ordinary citizens it sought to punish.

At the very least, every single one of us has a right to the exact same legal benefits and standard of justice as Officer Wilson enjoyed, courtesy of the choices of the prosecutor’s office in his case. A two-tiered system of “justice” as we have seen in Missouri, in which government officials benefit from prosecutorial favors not afforded to the rest of us, is not a justice system at all, but only a legal system that can be manipulated to deliver the government’s pre-determined outcomes in any given case.

One of the tools we have available to guarantee for ourselves and our neighbors that equal standard of justice for one another is for each of us to be fully informed about our rights when serving on a jury, whether a grand or petit jury, and to be ready and willing to use those rights to protect one another from malicious prosecutions, prosecutorial bullying, and unjust sentencing schemes.

Whether you are serving on a grand or petit jury, your role is NOT simply to rubber stamp the conclusion to which the prosecution leads you. You have the right and the responsibility to deliver a just verdict. And to do so, you must be aware of the motivations of prosecutors and judges, be wary of the instructions that they give you, and come to your own conclusion in consultation with your conscience.

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FIJA Calendar & Function of Juries & Jury Nullification | 18 Nov 2014

-Support Jury Nullification Education in New York City

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San Diego jury nullification outreachJuror educators around the country are organizing to focus attention on New York City now through January. Wherever you are located, YOU CAN GET INVOLVED!

If you are a New York City local:
Please join us NOW in handing out FIJA’s educational literature near the U.S. District Court for the Southern District of New York. We have a training and strategy session on Skype scheduled for Wednesday, 19 November, at 7:30 pm EST, and we will be adding others. Click here for details. If you don’t see a session that you are able to participate in, please contact us at aji@fija.org or 406-442-7800 and we will organize a session to meet your needs.

If you are not local but can travel:
Consider planning to join juror education outreach in New York City during the week of 5-9 January 2015. Juror educators are planning to converge in New York City for juror rights education at a very publicly visible time in this location. PLEASE NOTE: When planning to travel, take into account that these dates may change depending on locally scheduled events.

Those wishing to participate in this week of educational outreach are encouraged to attend an online training and strategy session beforehand. We currently have a session on Skype scheduled for Wednesday, 19 November, at 7:30 pm EST, and we will be adding others. Click here for details. If you don’t see a session that you are able to participate in, please contact us at aji@fija.org or 406-442-7800 and we will organize a session to meet your needs.

DCMetroAdIf you can’t make it to New York City:
Consider helping to fund advertising near the courthouse at 500 Pearl St. educating everyone of jurors’ right to consult their conscience and vote Not Guilty as they see fit. This is a private fundraising effort organized by Jim Babb and is not a donation to FIJA, so you will not receive a tax receipt from FIJA. Click here to contribute to jury nullification advertising in New York.

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Function of Juries & Jury Nullification | 24 Oct 2014

-Jury Nullification Advocate Luke Lamb Found NOT GUILTY

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Jury BoxYesterday, a jury unanimously stood in defense of juror educators’ right to share general education information about jury nullification and the Fully Informed Jury Association on Facebook, in delivering a Not Guilty verdict in the case of Luke Lamb. Greene County, Illinois board member Lamb was charged with unlawful communication with a juror after his opponent in the local political race for sheriff sent a Facebook conversation of his to the State’s Attorney’s office for review.

Local Greene County Radio Station WLDS 1180 AM reported yesterday on Lamb’s big court victory:
BREAKING: “Not guilty” in Lamb case

On the final day of a two-day trial, jurors discussed the case for several hours before reaching a verdict. The Class Four felony charged against Lamb stemmed from an allegation that Lamb tried to get jury member Mark Boston to “vote not guilty” and “hang the jury if necessary” on a Greene County Court case.

Greene County Sheriff Rob McMillen was one of several people called to the stand yesterday. After the conclusion of the trial, Lamb’s attorney Patrick Watts had some strong feelings against the way McMillen handled the case.

“You have a sheriff who tried to execute a political hit- there’s really no other way to describe it- on his political opponent. This is the worst type of small-town policing that exists,” Watts claims. “And I tell you what- they’re not going go to do it again.”

In an interview on the Liberty Round Table podcast, Lamb’s attorney Patrick Watts commented on the case. (The interview starts about 5 minutes into the program.)

Underlying this and argued to the jury was all the underlying political motive, and just the common sense ridiculousness of someone being prosecuted for a public Facebook post during their campaign when they’re not even talking about a case and they’re not motivated to do anything or to sway anybody in a case. It’s absurd. I mean this is all political commentary, Sam. And the jury saw it…

That really tied into Luke’s broader message about the jury system. Hey, let’s stop wasting everybody’s time and money sitting jurors for ridiculous political hits, ridiculous victimless crimes. Why are we doing that?

The Sheriff’s motive or the opportunity for motive seems very obvious… I don’t know motive. Maybe it was just an error, but it’s hard to believe in ‘just errors’ when it’s so political and you’re trying to strike down a board member. You realize that the result of Mr. Lamb being convicted in this case would be that he could never sit on the Greene County board again, which he’s currently a board member, and he could never run for public office in the United States again in his life. That’s what they were trying to win with this trial.

The host asked about the possibility that a county sheriff who would target a political opponent would then go after the jurors in this case. Watts responds:

They all know how the system works, and in these small counties that don’t get publicity and don’t have real criminal defenses thrown at them, the police really think that with their big mustaches they can drive around and do whatever they want. They can drive 100 miles an hour through town and pull you over. They can do whatever they want, and they’re watching you. They’re watching you on Facebook. But I’m not going to go that far because there’s a lot of good cops in this county and that was very clear during the case. But the jurors did express concerns that, wait a minute, I’m voting against their fearless leader. Am I going to get pulled over? I mean this was all after the jury trial. Am I going to-are they going to harass me? And the fact that they have to ask that question is a sign and a symptom of that’s a problem.

Congratulations to Luke Lamb on this big win in court!

See previous FIJA coverage of this case:
-Jury Nullification Educator Called for Jury Duty on Date of His Own Trial
-Jury Nullification Educator’s Case Continues
-Lamb Seeks Dismissal of Felony Charge for Jury Nullification Posting on Facebook
-Are Jury Tampering Charges in Lamb Case Politically Motivated?
-Jury Nullification Comments, Link to FIJA on Facebook Prompt Jury Tampering Charge

Other coverage:
Closing arguments made in Luke Lamb case this morning
Closing arguments and verdict take place tomorrow in Lamb trial

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Function of Juries & Jury Nullification | 24 Oct 2014

-New Hampshire Supreme Court Nullifies Jury Nullification Statute

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FIJA Logo with URL24 October 2014

New Hampshire Supreme Court
Nullifies Jury Nullification Statute

FOR IMMEDIATE RELEASE
CONTACT:
(406) 442-7800; aji@fija.org

Helena, MT— The New Hampshire Supreme Court today issued its ruling in the appeal of the case of The State of New Hampshire v. Rich Paul, largely nullifying the law as a jury nullification statute. The court writes in its unanimous ruling that: “although RSA 519:23-a requires the trial court to allow the defendant “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy,” it does not require the court to allow the defendant to inform the jury that it has the right to judge the law or the right to ignore the law. In other words, it is not a jury nullification statute. Further, it is of no moment that the court’s instructions may have contravened or undermined the defendant’s jury nullification argument because the statute gave the defendant no right to make such an argument.”

In 2012, New Hampshire passed and signed into law HB 146, a fully informed jury bill, which guaranteed that the defense be allowed in court “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” The New Hampshire legislature made clear in the text of the bill its intent “to perpetuate and reiterate the rights of the jury, as ordained under common law and recognized in the American jurisprudence.” The measure took effect on 1 January 2013 in New Hampshire’s Revised Statutes as RSA 519:23-a.

“This disappointing—albeit not surprising—ruling underscores the continued importance and relevance of our educational mission here at the Fully Informed Jury Association,” said Kirsten Tynan, executive director of the Fully Informed Jury Association (FIJA). “Government has proven itself throughout history to be reluctant at best, and more often downright hostile, to the notion of informing jurors accurately and completely about their long-standing authority to conscientiously acquit defendants when the law is unjust. Indeed, this is why FIJA exists. We, the people, must educate one another about rights of jurors that government wishes would be forgotten. The New Hampshire Supreme Court has chosen an interpretation of HB 146 that circumvents its spirit, but this ruling has done nothing to diminish the right of jury nullification that jurors in New Hampshire had prior to the passage of the statute and continue to hold still today. Our mission to educate everyone about that right continues to be quite relevant in New Hampshire as government officials obviously cannot be counted on to accomplish this,” said Tynan.

After an early, successful use of this law by defendant Doug Darrell who was acquitted on victimless, marijuana-related charges, marijuana activist Rich Paul attempted to use this in his own defense in April 2013 when he stood trial over five victimless drug-related charges. Whereas the judge in the Darrell case, acting in accordance with the spirit of the law, issued jury instructions consistent with the statute, Judge Kissinger in Rich Paul’s case declined to issue either of the suggested jury nullification instructions to the jury put forth by the defense or the prosecution. Instead, the judge instructed the jurors that they must follow the law as he explained it to them, even though they have the inherent right to set aside the law when a just verdict requires it and to conscientiously acquit the defendant, effectively circumventing the New Hampshire law intended to fully inform jurors of that right.

Even after passage of HB 146, jury nullification educators have continued to be active in the state of New Hampshire. In light of this ruling, they will continue their educational efforts to inform everyone throughout New Hampshire that:
• Jurors cannot be punished for their verdicts.
• Jurors have the right to deliver a general verdict and are not required to explain the reason for their verdict.
• Jurors have the legal authority and the ethical duty to consult their consciences and to render a just verdict, even if it requires setting aside the law to do so.

About the Fully Informed Jury Association
FIJA is a non-profit, educational organization dedicated to informing the public about their rights and responsibilities as jurors in delivering just verdicts. The organization publishes and distributes educational literature, organizes and assists volunteers in local outreach, offers educational programs, and maintains a web site at FIJA.org to inform the general public of their traditional, legal authority to protect human rights by refusing to enforce bad laws. FIJA encourages all jurors to consult their consciences when deliberating over a case and to refuse to enforce any law that violates human rights.

Contact Information:
Kirsten C. Tynan
Fully Informed Jury Association (FIJA)
(406) 442-7800
aji@fija.org
P.O. Box 5570
Helena, MT 59604-5570

###

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Function of Juries & Jury Nullification | 15 Oct 2014

-Bucks County Wanted Jury Nullification Educators Arrested, Cops Refused

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Chris Daley threatens jury nullification educators with arrest

Bucks County official Chris Daley threatens jury nullification educators with arrest.

Thanks to reporter James McGinnis of the Bucks County Courier Times for coverage of local jury nullification educators’ most recent experience in which Bucks County Courthouse official Chris Daley attempted to have them arrested for exercising their First Amendment-protected rights on the public sidewalk adjacent to the courthouse. The public sidewalk has long been held by the Supreme Court to be a public forum for First Amendment activity, and apparently the Central Bucks Regional Police, who Daley called to arrest these educators, recognizes that a county policy manual cannot override the Constitution. (Be sure to check out the article today, as I understand it goes behind a paywall starting tomorrow.)

Bucks County wanted activists arrested, but cops refused

As documented in the five-minute video, Central Bucks Regional Police Sgt. Lance Carlen arrived on the scene to investigate county allegations of “criminal trespass” on public property.
In the video, Carlen shakes hands with Babb and Rumbold. He questions them briefly but refuses to arrest the pair.

It was the right call, Central Bucks Police Chief James Donnelly said Tuesday.

“Clearly, the public sidewalk is public property,” Donnelly told the newspaper. “County policy does not trump the U.S. Constitution.”

The newspaper contacted Daley seeking comment on the incident. Daley said he would only speak to media after consulting with the county’s public information office. Reached later that afternoon, Chris Edwards, county spokesman, said Daley would not be available to speak with the press.

A small correction is warranted regarding this statement in the article:

Babb and Rumbold are members of the group Fully Informed Jury Association, which argues for the increased power of juries. The group’s members argue that juries should be able to dismiss charges for “victimless crimes” such as drug use.

FIJA educates everyone that jurors ALREADY are able to nullify charges by voting Not Guilty whenever a just verdict requires it, even if the law has technically been broken. Such situations include when jurors believe the law is unjust or unjustly applied, if the penalty for the offense is unjustly severe, or if there are other mitigating circumstances that would make strictly enforcing the law unjust in the case at hand. Jurors in every single courtroom in the United States can do this RIGHT NOW, with the power they already have. Jurors need be granted no new power to do this.

We encourage all FIJA activists to learn and understand the strategy here. When public officials try to put us at a disadvantage by attempting to get us out of sight of the courthouse entrance, that is an opportunity we can turn into an advantage that will help us spread FIJA’s message even further. You can reach a certain number of people by handing out brochures, but you can reach FAR MORE people when your outreach gets local media coverage and is reported in publications that circulate to thousands or more people. Further, the more times and ways people encounter the issue, the more their curiosity is piqued to learn about it and the more their confidence grows in using the information it should they ever have the opportunity to do so.

Most importantly, FIJA activists should understand that they can assert their right to do this work without getting arrested. FIJA’s strategy and policy are to exercise peaceful forbearance and avoid getting arrested, as being arrested is not helpful to, and can be detrimental to, effective juror education. Government officials who want to get rid of us would like nothing more than to tarnish our message by putting a negative image of the messengers into the minds of the general public. Getting arrested is not only not necessary, but it plays into the pre-written script that government officials know very well how to leverage for their own purposes. On the other hand, challenging their unlawful orders through the public media, or civil, legal processes if necessary, are much harder for them to manipulate to their own ends.

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Jury Nullification & Volunteer | 14 Oct 2014

-Volunteer Educators Will Offer FIJA Literature On Jury Nullification Near Bucks County Courthouse

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FIJA Logo with URL14 October 2014

Volunteer Educators Will Offer
FIJA Literature On Jury Nullification
Near Bucks County Courthouse

FOR IMMEDIATE RELEASE
CONTACT: (610) 574-1222; jamesbabb@mac.com

Doylestown, PA—On October 21 at 7:30 am, juror rights educators will peacefully exercise their First Amendment-protected rights in support of the Fifth, Sixth, and Seventh Amendments. They will share free jury nullification information from the Fully Informed Jury Association on the public sidewalk adjacent to Bucks County Courthouse in Doylestown, PA. This day of outreach follows successful outreach on October 6, when local police declined to make the volunteers leave, despite repeated harassment from courthouse employees.

“Pennsylvania has a strong legacy of free speech activism, beginning with its founder,” says juror rights educator James Babb. “In 1670, when William Penn was charged with illegally addressing a group of Quakers, the jury refused to convict him. Despite considerable pressure from the judge, the jury understood their right to vote their conscience and nullify an unjust law. 344 years later, jurors still retain this right, and some judges still don’t like it,” Babb said.

When volunteers kicked off the campaign in July, officials sought to make them leave, citing anti-solicitation rules. Since they were merely offering free jury nullification brochures to passersby, however, the volunteers were not soliciting. Upon explaining this to the official trying to send them away, the volunteers were left to continue their work that day.

Educators again hosted outreach in September as part of FIJA’s annual Jury Rights Day celebration. This time an official threatened them with arrest if they didn’t leave, suggesting they would be charged with disorderly conduct for peacefully offering free jury nullification literature to passersby. Not wishing to be arrested, volunteers exercised peaceful forbearance and left, with the intention of returning after investigating the legality of this verbal order.

“Such behavior by public employees is particularly disappointing in Pennsylvania,” said Kirsten Tynan, executive director of the Fully Informed Jury Association. “Jury Rights Day commemorates jurors’ refusal to convict William Penn for publicly preaching against the order of the king. Penn’s case firmly established in English common law, not only jurors’ right to conscientiously acquit by jury nullification, but also freedoms of religion, speech, and assembly that would later be enumerated in the First Amendment to the U.S. Constitution. Pennsylvania employees dishonor their history when they attempt to undermine the very same rights that William Penn stood firmly in defense of throughout his life,” Tynan said.

On October 3, volunteers returned to the courthouse, this time having researched the legal basis officials claimed for violating their rights. Volunteers received a page of an unidentified Security manual that relegated petitioning and protesting to a “free speech zone” in a remote corner of the courthouse campus. As they were engaging in neither activity, juror educators again chose to work on the public sidewalk where they had been before. Bucks County Security Division director Chris Daley aggressively harassed them, incorrectly accusing them of petitioning, demanding they not record him in the course of his tax-paid, official capacity, and subsequently calling local police.

“Never in a million years would I have thought I would have been detained and investigated for ‘trespassing’ on a public sidewalk for the peaceful act of handing out juror rights flyers to those who wished to take them,” said juror rights educator Andrew Rumbold.

Fortunately, Sgt. Lance Carlen of the Central Bucks Regional Police Department checked into the matter before going so far as to forcefully remove volunteers who, he later acknowledged, were acting lawfully. He determined from Chief Deputy District Attorney Matt Weintraub that they were free to do what they were doing in their selected location.

In hopes of finally being allowed to conduct educational outreach without being bullied now that they have video documentation that courthouse officials have been instructed they are allowed to be there, juror educators will hold another day of outreach on October 21. They hope to make significant progress in educating everyone throughout Bucks County that:
• Jurors cannot be punished for their verdicts.
• Jurors have the right to deliver a general verdict and are not required to explain the reason for their verdict.
• Jurors have the legal authority and the ethical duty to consult their consciences and to render a just verdict, even if it requires setting aside the law to do so.

About the Fully Informed Jury Association
FIJA is a non-profit, educational organization dedicated to informing the public about their rights and responsibilities as jurors in delivering just verdicts. The organization publishes and distributes educational literature, organizes and assists volunteers in local outreach, offers educational programs, and maintains a web site at FIJA.org to inform the general public of their traditional, legal authority to protect human rights by refusing to enforce bad laws. FIJA encourages all jurors to consult their consciences when deliberating over a case and to refuse to enforce any law that violates human rights.

Additional Information:
-FIJA’s Fresh Air for Justice Brochure
-FIJA’s True or False Brochure

-Know Your Rights: Demonstrations and Protests from the ACLU

May I distribute leaflets and other literature on public sidewalks without a permit?

Yes. You may approach pedestrians on public sidewalks with leaflets, newspapers, petitions, and solicitations for donations without a permit. These types of free speech activities are legal as long as entrances to buildings are not blocked and passers-by are not physically and maliciously detained. However, a permit may be required to set up tables or other physical structures.

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Function of Juries & Jury Nullification | 14 Oct 2014

-Supreme Court Turns Blind Eye to Judges Usurping Jury Rights

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GavelIconWhile many people disagree (incorrectly) on the jury’s right to judge the law as well as the facts, it is supposed to be well-settled that the jury is, indeed, the fact-finder in all trials by jury. Unfortunately, the power vortex that is government has not been satisfied merely to deny the jury’s function in standing as a bulwark against unjust laws by refusing to enforce them, but in recent years it has more and more usurped the jury’s role as the finders of fact in the courtroom.

Oftentimes we hear from jurors here in the FIJA office who are appalled to learn once a trial is over that they convicted someone without knowing the whole story because relevant evidence had been pre-filtered out by the judge. They want to know how they can retract their Guilty vote after the fact, and I have to explain to them how very little power they have now that they’ve played into the hands of a far from impartial referee fixing the game in favor of conviction. The best they can do is to beg a biased judge for leniency on behalf of the defendant or perhaps shame the judge publicly into leniency, neither of which can force the judge to do the right thing and often which are ignored.

But it’s one thing for corrupt to courts at least to feel they have to hide their power grab under the guise of trying to ensure a fair trial. It is another thing entirely when they openly and blatantly ignore jury rights and jury verdicts, go home for dinner without giving it a second thought, and have no problem looking themselves in the mirror the next morning. The fact that they don’t even feel like they have to justify or conceal their power grab is a flashing red indicator of a more heightened level of corruption and lack of conscience because it shows they either have no moral qualms about what they are doing, or they feel so protected that they need not conceal their unconscionable abuses of their positions.

One such abusive loophole they are not only exploiting, but have apparently invented out of whole cloth, is called sentencing on acquitted conduct. Here’s how it works:
1. The jury acquits a defendant of some charges, but convicts on one or more others.
2. The judge unilaterally decides, that despite an outright jury acquittal on one or more of the acquitted charges, he or she believes the defendant to be guilty of them.
3. The judge unilaterally “enhances” the defendant’s sentence for convicted charges based on his or her belief that the defendant was actually guilty of one or more of the acquitted charges.

This month the Supreme Court had a chance to consider reining in such corrupt and abusive judges, but it instead made a horrifying move this morning in denying certiorari in the case of Joseph Jones, Desmond Thurston, and Antwaun Ball v. United States. (We’ve previously discussed Antwuan Ball’s case in particular here and here.)

To their credit, Justices Scalia, Thomas, and Ginsburg were in dissent. This is especially excruciating, however, given that a single additional Supreme Court justice on their side would have allowed this case to be heard. One. Just one more person had to do the right thing.

Their dissent reads:

A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal. See Rita v. United States, 551 U. S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concurring in judgment). If so, their constitutional rights were violated. The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U. S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007).* We have held that a substantively unreasonable penalty is illegal and must be set aside. Gall v. United States, 552 U. S. 38, 51 (2007). It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.

For years, however, we have refrained from saying so. In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case. We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness. 551 U. S., at 353; see also id., at 366 (Stevens, J., joined in part by GINSBURG, J., concurring) (“Such a hypothetical case should be decided if and when it arises”). Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range. See, e.g., United States v. Benkahla, 530 F. 3d 300, 312 (CA4 2008); United States v. Hernandez, 633 F. 3d 370, 374 (CA5 2011); United States v. Ashqar, 582 F. 3d 819, 824–825 (CA7 2009); United States v. Tread- well, 593 F. 3d 990, 1017–1018 (CA9 2010); United States v. Redcorn, 528 F. 3d 727, 745–746 (CA10 2008).

This has gone on long enough. The present petition presents the nonhypothetical case the Court claimed to have been waiting for. And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense. Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs. The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions. But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.

On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment rights were not violated. 744 F. 3d 1362, 1369 (2014). We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment—or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.

Professor Douglas Berman, who submitted an Amicus brief in this case, expresses his disappointment here:
Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case

Given that we now have no idea how long the Supreme Court will continue to ignore this blatant disregard for compliance with the Sixth Amendment—a surefire guarantee that it will continue and expand—it is time to redouble our efforts to educate everyone about the jury’s right of conscientious acquittal. Antwuan Ball was convicted of one single charge of a victimless drug transaction. For many people, simply understanding jury nullification would have been enough for them to refuse to convict on that charge as well. But even for those who think that victimless drug offenses or other victimless offenses deserve some punishment, it is imperative that we fully inform them about the door they are opening for egregiously harsh sentencing on acquitted conduct when they convict on such charges.

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Jury Nullification & Volunteer | 10 Oct 2014

-Jury Rights Educators Stand Firm at Pennsylvania Courthouse

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GavelIconA big congratulations to volunteer juror educators James Babb and Andrew Rumbold for successfully asserting their First Amendment right to express themselves in support of the Fifth, Sixth, and Seventh Amendments.

Repeatedly over the course of some months now, Bucks County Courthouse officials have attempted to bully juror educators who have been handing out Fully Informed Jury Association brochures to passersby in a general educational outreach effort to fully inform everyone of jurors’ full authority to judge the law as well as the facts in a case before them. On one occasion, officials tried to use anti-solicitation rules to get rid of them. Unfortunately for the bullies, handing someone a piece of FIJA literature for free is not “solicitation”. On another occasion, they were said to be “trespassing”. In this instance, county Security department head Chris Daley tries to relegate them to a “free speech zone” in a distant corner of the courthouse campus far from traffic coming and going from the main entrance. However, these educators had already gotten a copy of the county Security policy on the free speech zone, and it only applies to petitioning and protesting. Moreover, it is not clear that the public sidewalk, a public right-of-way within the town of Doylestown, is even county property to which the county Security manual would be applicable, or whether or not county bureaucrats can simply invent new rules in contradiction to Supreme Court precedent that clearly identifies public sidewalks as a traditional forum for First Amendment activity of this type. Check out this video for a nice lesson in how to assert your rights as a jury educator without being arrested:

FIJA’s outreach strategy is that if courthouse officials or others try to impose unacceptable limits that impede our educational work, we do NOT try to get arrested. An arrest is not helpful to spreading FIJA’s message, but rather plays into the script pre-written by the government to try and discredit jurors’ right of conscientious acquittal by associating it with law-breaking in the eyes of the general public. So our strategy is NOT to get arrested, but rather to pursue other channels besides criminal court that are more advantageous for challenging unlawful orders, such as making these unlawful commands very publicly visible.

As juror educators, we seek to do three things:
1. Inform as many people as possible of the information about which jurors are not informed or are outright misinformed in court.
2. Pique their curiosity and encourage them to learn more about it than we can tell them in a 1-2 minute interaction.
3. Persuade them that jury nullification is a valid option, if one day they serve as a juror in a case where they are guided by their conscience that Not Guilty is a just verdict, even if the law has technically been broken.

When courthouse officials try to chase us away, they have made a huge mistake that we can use in support of our goals. By exercising peaceful forbearance in not getting arrested while still working through other channels, we can both assert our First Amendment right to do this educational work AND amplify the signal and spread our message much further by engaging the media in our story. This story is a perfect case in point:
Jury Rights Activists Refuse To Back Down

If you are conducting courthouse outreach and are getting pushback from local government officials or those hired by them to do security work, please feel free to get in touch with us in the FIJA National office at 406-442-7800 or aji@fija.org. We do not have lawyers on staff, nor do we give legal advice. However, we can share with you our observations of how to turn officials’ efforts to impede your work into an advantage that will help you spread the message further.

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Function of Juries & Sixth Amendment | 08 Oct 2014

-Memo to Mississippi and New York: Trial by Jury Is NOT Optional!

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Fence_of_Prison-BPOMuch public concern has been expressed over the increasingly broader indefinite detention provisions included in the National Defense Authorization Acts for Fiscal Years 2012, 2013, 2014, and 2015. Nonetheless, indefinite detention is often considered a mostly hypothetical abuse, which is for now confined to far off places like Guantanamo and for non-U.S. citizens like the 149 remaining Guantanamo prisoners, 79 of whom are cleared for release. To some people, such abuses seem remote.

But in recent days, indefinite detention perpetrated by abusive state governments right here in the United States has come to prominence in public discourse. Consider the following news stories. The first documents the case of a 16-year-old high school student, who was jailed for nearly three years without trial, nearly 800 days of which he spent in the brutal environment of solitary confinement, and who was subsequently bullied by the judge to try and coerce a plea deal for time served. When he turned it down because he maintained his innocence, the case against him was dismissed.

Accused of Stealing a Backpack, High School Student Jailed for Nearly Three Years Without Trial

We look at the incredible story of how a 16-year-old high school sophomore from the Bronx ended up spending nearly three years locked up at the Rikers jail in New York City after he says he was falsely accused of stealing a backpack. Kalief Browder never pleaded guilty and was never convicted. Browder maintained his innocence and requested a trial, but was only offered plea deals while the trial was repeatedly delayed. Near the end of his time in jail, the judge offered to sentence him to time served if he entered a guilty plea, and warned him he could face 15 years in prison if he was convicted. But Browder still refused to accept the deal, and was only released when the case was dismissed. During this time, Browder spent nearly 800 days in solitary confinement, a juvenile imprisonment practice that the New York Department of Corrections has now banned.

The second story regards a lawsuit brought by the American Civil Liberties Union, the ACLU of Mississippi, and the Roderick and Solange MacArthur Justice Center against Scott County Mississippi, which has been found to be holding people for as long as a year without legal counsel or being charged, let alone a trial by jury. Such detention disproportionately impacts lower income citizens who cannot afford bail and are therefore consigned to a cage, their life being destroyed in their absence, with no idea how long they will be punished without trial.
ACLU Sues Scott County on Behalf of Mississippians Jailed Indefinitely Without Lawyer or Indictment

The American Civil Liberties Union, the ACLU of Mississippi, and the Roderick and Solange MacArthur Justice Center filed a class action suit late yesterday against the Scott County (Mississippi) sheriff, district attorney, and judges after learning that the Scott County Detention Center has held people for as long as a year without appointing counsel and without indicting them. The county’s practices violate the Sixth and Fourteenth Amendments’ rights to counsel, to a speedy trial, and to a fair bail hearing.

“This is indefinite detention, pure and simple. Scott County jail routinely holds people without giving them a lawyer and without formally charging them for months, with no end in sight. For those waiting for indictment, the county has created its own Constitution-free zone,” said Brandon Buskey, Staff Attorney at the ACLU’s Criminal Law Reform Project. “These prisoners’ cases are frozen, their lives outside the jail are disintegrating, and they haven’t even been charged with a crime. The county has tossed these people into a legal black hole.”

In addition to the Sixth Amendment to the United States Constitution, which is incorporated to the states, Article I, Section 2 of the New York state constitution and Article III, Section 26 of the Mississippi state constitution guarantee the right to trial by jury. Additionally, the Fifth Amendment to the United States Constitution, as well as Article I, Section 6 of the New York state constitution and Article III, Section 14 of the Mississippi state constitution purport to guarantee that no person shall “be deprived of life, liberty, or property” without due process of law. That supposed guarantee is made in almost exactly the same words in all three documents.

And lest one think that New York has some technical wiggle room under the notion that juveniles, one of the most vulnerable demographics, are not guaranteed trial by jury, please note that New York is one of two states who automatically treat teens as adults instead of juveniles upon reaching the age of 16.

Yet for some mysterious reason, governments in New York and Mississippi seem to be under the impression that following the highest laws of the land that were codified supposedly to protect us all from their abuses is optional. Does the memo need to be reissued to them that trial by jury is NOT OPTIONAL?

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Jury Nullification & Jury Rights Day | 02 Oct 2014

-Jury Rights Day: Jury Nullification Outreach in Fairbanks, Alaska

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JRD_brightblue_square_438x441Jury Rights Day was a big event again in Fairbanks, Alaska thanks to jury educator Maria Rensel and FIJA state contact Frank Turney organizing folks for jury nullification outreach. Maria reports on the day’s events:

We had a nice Jury Rights Day Celebration that was scheduled from 9 a.m to 1 p.m. but ended up lasting all day. We started out downtown at the Courthouse with Frank Turney (of course) and few others holding up a beautiful banner with the Statue of Liberty image on one end. But we were interview by our local television station and even though it wasn’t my best interview we got the word out and had a great time. At lunchtime we moved from the downtown area out to Airport Way to catch more traffic. Alex Ford held a hymnal in one hand and sang while I waved at traffic and helped him hold the banner up. Later we met back up with Frank on the Cushman Street Bridge. Alex sang again, Frank played the air guitar, much to the delight of the passing traffic while I passed out pamphlets and waved.

I’d like to try and make it bigger next year, but we had a wonderful time and shared the message of Liberty!

As has done regularly over the years, Frank Turney was kind enough to get a Jury Rights Day proclamation signed. This year’s was issued by Mayor Luke Hopkins of the Fairbanks North Star Borough.

Jury Rights Day 2014 Fairbanks Proclamation

Frank has also ordered up a copy of the television interview that we will share with you when it is available. In the meantime, check out these photos of juror educators in Fairbanks educating the community on Jury Rights Day. Many thanks to both Frank and Maria, and congratulations on another great Jury Rights Day!

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Jury Rights Day in Fairbanks Alaska

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Function of Juries & Jury Nullification | 02 Oct 2014

-Are the Feds Dialing Back Punishment for Trial by Jury?

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AG_851_Letter_MedFamilies Against Mandatory Minimums (FAMM) yesterday reported on a recent memo issued by outgoing Attorney General Eric Holder with regard to what is known as the “trial penalty”—the effective punishment of a defendant’s use of the Constitutionally guaranteed right to trial by jury, with prosecutors adding extra penalties for which the defendant is at risk if he or she turns down a plea bargain in favor of trial by jury.

AG Eric Holder: No More Super Mandatory Minimums to Punish Defendants Who Want a Trial

Attorney General Eric Holder has issued a memo prohibiting prosecutors from using the threat of enhanced mandatory minimum sentences solely to force criminal defendants to plead guilty in drug trafficking cases. These super-sized mandatory minimums, called “section 851 enhancements,” allow prosecutors to ensure a defendant’s mandatory minimum sentence is doubled or even increased to life in prison.

“FAMM applauds the Attorney General’s repudiation of this heavy-handed practice,” said FAMM General Counsel Mary Price in a statement. “The trial penalty is intolerable. This guidance to prosecutors makes it quite clear that massively enhanced drug mandatory minimums may not be invoked absent cause. While the practice of threatening defendants with the trial penalty to induce them to plead guilty should be abandoned altogether, this is a good start.”

The subset of the trial penalty in question in this memo is known as the section 851 enhancement. FAMM explains what the 851 enhancement is and how it is abused by prosecutors to coerce defendants to forego their right to trial by jury:

How the 851 enhancement works: If the prosecutor advises the court of its intention to “notice” a drug defendant’s prior convictions, the court must double the underlying mandatory minimum facing a defendant with one prior drug trafficking conviction. In some cases, if the defendant has two priors, the section 851 enhancement requires the court to impose a sentence of life in prison.

In short, the section 851 enhancement provides federal prosecutors complete discretion to seek, and requires judges to impose, life sentences for even non-violent drug offenders.

Prosecutors routinely used the section 851 threat to pressure defendants to plead guilty. If the defendant agrees to plead guilty, the government would not “notice” the priors and the defendant would serve the unenhanced mandatory minimum of five or ten years. If instead the defendant rejects the offer, goes to trial and is convicted, she suffers the “trial penalty,” and the section 851 enhancement transforms a sentence of five years into 10, a sentence of 10 years into 20, or even life without parole.

We know, of course, that a memo is far from a legally binding policy. Given that the memo explicitly acknowledges that the department has a long-standing policy that “[c]harges should not be filed simply to exert leverage to induce a plea” and yet it seems to be an acceptable practice so long as plausible deniability is maintained, one might question how effective another memo will be that merely restates a policy that seems to be ignored.

And, of course, Holder did not issue and enforce this memo in the culture of the Department of Justice years ago when he could have shepherded his prosecutors in proper implementation of it, but rather the memo is dated the day before he announced his resignation. If it is to be enforced, or even maintained in name only, that task will fall to some, as of yet unknown, successor who may or may not agree with it.

While perhaps there is a glimmer of encouragement to be taken from the fact that not undermining a person’s Constitutional rights by leveraging the threat of double the risk or more if they exercise them is now apparently a politically tenable position for a high-ranking government official to take—at least when he’s on his way out the door—the fact remains that this is cold comfort to those who have already been strong-armed into unjust plea deals and to those who may still be bullied by this or similar tactics in the future.

Ultimately, jurors have the final say in whether or not unaccountable prosecutors will continue to be allowed to leverage their power against peaceful people to coerce them to accept plea bargains rather than to take their cases before those who represent the conscience of the community. Jurors can rein in this abusive practice with just two words- Not Guilty. By refusing to convict people of victimless crimes, and otherwise refusing to aid and abet prosecutorial abuse by rubber stamping charges without understanding the full consequences of their verdicts, jurors can serve notice to prosecutors and judges that this kind of treatment of their neighbors under color of law but in direct opposition to justice will not be tolerated. In judiciously exercising the right of jury nullification, a single juror can immediately put a stop to an injustice. But beyond that, as a pattern of hung juries and acquittals becomes apparent over time, prosecutors are forced to determine at what point they have suffered enough embarrassing losses in the courtroom and eventually abandon the strategies and tactics that are undermining their credibility.

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Function of Juries | 01 Oct 2014

-Prosecutor Drops Case without Explanation After Opening Statements

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After hounding a defendant for more than two years, federal prosecutors abandoned their case against a Georgia man just after the trial began.

Feds Drop Case After Opening Statements

For two years, criminal defense lawyer Jay Strongwater could not persuade federal prosecutors to drop felony drug and gun charges against his client.

But after Strongwater delivered his opening statement at the trial of client Carlos Alfredo Arevelo last week, prosecutors pulled him and his cocounsel aside to deliver a stunning message: they were dismissing the case.

The prosecutors offered no reason for their change of heart, and a spokesman for U.S. Attorney Sally Yates would not comment.

The 22-year-old defendant, Carlos Alfredo Arvelo, had been at his sister’s boyfriend’s apartment for less than a day after being kicked out of his mother’s house after a fight with her over skipping school exams when federal agents showed up at the apartment requesting entry. When Arvelo did allow them access, their search reportedly turned up guns and illegal drugs.

Although the defendant had been there for less than a day and had his own belongings still in his car, and although the apartment resident absolved Arvelo of connection to the seized items, prosecutors initially were holding a 10-year mandatory minimum sentence over the defendant. Arvelo’s attorney says that although they backed away from this before trial, they were still insisting that the defendant must spend at least two years in jail. Then, after putting the defendant through two years of state-sponsored terror and imposing the massive expense of mounting a defense for a jury trial, they bailed out after opening statements without explanation.

Veteran defense attorney Don Samuel of Atlanta’s Garland, Samuel & Loeb said that in 32 years of practicing law, “I’ve never seen a prosecutor drop a case after opening statements.”

“It’s conceivable they will drop a case if a witness starts falling apart or admits to something,” he said. “It’s not unusual for a prosecutor to dismiss a defendant halfway through its case when a witness didn’t come through, or a witness is missing. … But the opening statement had to be pretty damn powerful for the prosecution to have a lightbulb go off and say, ‘Wow. We really don’t have a case.’”

“The prosecutor either was not adequately prepared and didn’t understand the facts, or it was articulated in such a way that the prosecutors realized the holes in their case. … Maybe Jay did such a powerful opening, he opened their eyes to something they previously had not quite understood.”

However, if there were no new facts that surfaced during Strongwater’s opening statement, prosecutors “should have dismissed the case long ago,” Samuel said. “They should not have made the kid go through the agony of this and try to force a plea out of him.”

This case reflects the lengths to which power tripping government agents are free to go in tormenting peaceful people with malicious prosecutions and wasting massive amounts of taxpayers’ and defendants’ own personal funds pursuing meritless cases against peaceful people. There will be no consequences for government lawyers in this case. They are free to pull this kind of life-destroying stunt again and again on other victims, who themselves have no recourse against such abuse.

Jurors should understand that when a defendant appears before them in a criminal case, they have often gone to great expense and great personal risk to do so, while prosecutors themselves are funding the case out of other people’s pocketbooks and are themselves at no personal risk. They personally have little to lose by vindictively bullying defendants, even when their case is entirely without merit. That is one reason why well over 90% of criminal cases never even make an appearance before a jury. Prosecutors strong-arm defendants—even innocent people—into pleading guilty by offering them known sentences FAR less severe than what they risk in a jury trial in which prosecutors have piled on more and more charges contrived only for the purpose of making trial by jury much more hazardous for the defendant than a plea deal. You, as a juror, must match defendants’ courage in exercising their right to trial by jury with your own courage and persistence in protecting peaceful people with your Not Guilty vote when a just verdict requires it.

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Function of Juries & Jury Nullification | 25 Sep 2014

-Montana Supreme Court Candidates Debate Jury Nullification

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GavelIconThis is shared for educational and informational purposes only; FIJA National does not endorse or oppose any political candidate or party.

Jury nullification made an appearance in a recent debate between candidates for the Montana Supreme Court. The Great Falls Tribune reported on the event.

Supreme Court candidates square off in Missoula

The four candidates vying for seats on the Montana Supreme Court met during a lively forum at the University of Montana School of Law.

Incumbent high court Justices Mike Wheat and Jim Rice were joined by challengers Lawrence VanDyke and W. David Herbert at the event co-sponsored by the conservative Federal Society and the progressive American Constitution Society.

The event prompted lively debate over issues ranging from outside spending in nonpartisan Supreme Court races, rights of criminals, the controversial Barry Beach case and jury nullification.

Herbert repeatedly advocated for jury nullification, which is the principle that juries have the right to rule against the law if the law is “unjust or unfair.”

“Not all laws are fair and just,” Herbert said.

Herbert said juries have a “right and a duty not to enforce an unjust law.”

Rice disagreed, stating that Herbert’s advocacy of nullification seeks to overturn the fundamentals of our system of government.

“That is subversion of democracy,” Rice said.

Missoula is a particularly interesting venue for someone to claim that jury nullification is a subversion of democracy. Recall that back in 2010, Missoula, Montana was home of what was reported nationwide as a “jury mutiny” in which jurors effectively nullified a pot prosecution when so many of them said during voir dire that they would not convict defendant Touray Cornell for possession of a tiny amount of marijuana that it became impossible for a jury even to be seated. Deputy Missoula County Attorney Andrew Paul prosecuted this case in spite of Missoula County Initiative #2 having been passed in 2006 by 55% of the voters of this county, to “make investigations, citations, arrests, property seizures, and prosecutions for adult marijuana offenses Missoula County’s lowest law enforcement priority”. In this case, it was not the jury who was subverting democracy, but rather the county attorney’s office in pursuing the prosecution. Jurors, in refusing to convict, were acting to uphold the citizens’ initiative, passed by direct vote of the people.

Moreover, after 4 1/2 years of supposedly prioritizing marijuana enforcement at the bottom of its law enforcement priorities, Missoula’s county attorney announced in 2011 that he would once again bump these victimless offenses up in priority level. This change in policy was made possible by legislation initiated at the Missoula county attorney’s request specifically to allow government to overrule Missoula County Initiative 2, in which citizens democratically informed their supposed representatives that they wished marijuana priority to be law enforcement’s lowest priority:

Minor pot crimes to be enforced again, Missoula County attorney says

Marijuana once again is a priority for law enforcement in Missoula County.

So says Missoula County Attorney Fred Van Valkenburg, who issued a reminder Friday about a new law that takes effect Saturday.

“We’ll be prosecuting the misdemeanor marijuana cases that we have not been doing for the last 4 1/2 years,” he said.

Under the new law, sponsored by Republican Rep. Tom Berry of Roundup at Van Valkenburg’s request, “the power of initiative does not extend to the prioritization of the enforcement of any state law by a unit of local government.”

The law applies only to Missoula County, where in 2006, 55 percent of those voting approved Initiative 2 recommending that crimes related to marijuana be the lowest priority for law enforcement.

“Since no other community in Montana can adopt such an initiative and, I’m the person who sought the adoption of this law, it would be hypocritical on my part to continue to follow the lowest priority of enforcement policy in Missoula County,” Van Valkenburg’s announcement said.

The committee charged with oversight of the implementation of Initiative 2 disbanded thereafter in 2012 after issuing its final report for 2010 and 2011. In this report, the committee discussed the abject failure of the Initiative to be respected by government officials, and government’s successful efforts to subvert the democratically passed initiative:

During our several years of volunteer service, committee members regularly expressed disappointment that the initiative seemed to have no effect on reducing arrests of adults for marijuana in Missoula County.

With the exception of the County Attorney’s office, which only rarely handles misdemeanor marijuana cases, law enforcement officials declined to heed the voters’ recommendation as expressed in the initiative.

After failing to get out of committee in 2009, a new law (HB 391) was passed in 2011 which prevents Montana communities from enacting initiatives similar to Missoula County Initiative #2. The Missoula County Attorney testified in support of the bill in both sessions.

Jury nullification is a tool. It can be used in many ways, including to uphold the popular will of the people, and it should be used to do so when the popular will of the people is justice. This, of course, is not always the case, and when democracy leads government to violate human rights and perpetrate injustice, it is a proper function for independent jurors to check government abuses, no matter how popular, with their Not Guilty votes. But there is nothing inherently subversive of democracy about jury nullification. If we are truly concerned about the will of the people being subverted, we ought to focus our attention on the vastly more powerful government attorneys who prosecute criminal cases against the will of the people, and in essence, extrajudicially adjudicate them more than 90% of the time via plea bargains.

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Function of Juries & Jury Nullification | 24 Sep 2014

-Jury Nullification Educator Called for Jury Duty on Date of His Own Trial

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Jury BoxWe’ve previously brought you news about the case of Luke Lamb, charged with felony unlawful communication with a juror over comments he made on his Facebook page, including providing a link to the FIJA website, to someone who requested information on jury nullification. The person who made the request happened to be a juror at the time.

-Jury Nullification Comments, Link to FIJA on Facebook Prompt Jury Tampering Charge
-Are Jury Tampering Charges in Lamb Case Politically Motivated?
-Lamb Seeks Dismissal of Felony Charge for Jury Nullification Posting on Facebook
-Jury Nullification Educator’s Case Continues

Lamb’s case is currently scheduled for 20 October, but now there is a new twist in this continuing saga—Lamb has been called for jury duty on the same day of this trial.

Greene County Politician Charged With Jury Tampering Called For Jury Duty

This week, the situation got even weirder: On Sunday, Lamb opened his mailbox to find a jury summons for October 20, the same day as his own trial for jury tampering.

Before you get all excited, there’s virtually no possibility that Lamb will be selected to sit on his own jury. According to Greene County Circuit Clerk Shirley Thornton, the fact that Lamb’s name was pulled is pure coincidence. She says the full list of possible jurors was sent from the administrative offices in Springfield to Greene County back in March, and Lamb’s name happened to wind up among 150 chosen for this particular trial date.

One thing we emphasize as we teach about jurors’ rights is that there is one person who is guaranteed not to be on the jury when you are on trial: YOU. So if you learn about jury nullification and never spread this information to anyone else, it is not going to do you any good. So far, though, this is about the closest I have seen any fully informed potential juror come to serving on his own jury.

Of course, it’s a given that he’s not going to be selected for his own jury, but it certainly adds yet another interesting twist to the already convoluted tale of this apparently malicious prosecution intended to shut him down in the midst of a political campaign. Lamb’s attorney explains:

“This entire case is absurd,” says Lamb’s attorney Patrick Watts. He’s ordered his client not to go on the record about the jury-tampering allegations.

While no law technically bars Lamb from campaigning, as his lawyer, Watts says he can’t allow Lamb speak publicly about his political beliefs, like alleged mismanagement of the Greene County Sheriff’s Office or the principle of jury nullification.

Watt doesn’t shy away from speculating that Greene County Sheriff McMillan is targeting Lamb for political retribution.

“The Sheriff is the one who led the investigation and wrote the reports,” he says. “What has the Sheriff done? He’s silenced his political opponent.”

“I would rather vote for Big Bird in the upcoming November election than a sheriff willing to seek imprisonment of his political opponent for expressing his public political ideas,” Watts adds. “Hopefully the citizens of Greene County take notice.”

More coverage of this story here:
From jury tampering to jury duty

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