Fully Informed Jury Association

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Jury Nullification | 28 Jul 2015

-Man Sharing Jury Nullification Information Arrested in Denver

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photo credit: Janet Matzen

photo credit: Janet Matzen

We got word yesterday from Occupy Denver that jury rights educator Mark Iannicelli was arrested while handing out jury nullification literature at the Lindsey-Flanigan Courthouse in Denver and charged with jury tampering.

Occupier Mark Iannicelli charged with jury tampering for distributing fliers about jury nullification at courthouse

Soft-spoken activist Mark Iannicelli sits in the Denver County Detention Center tonight, wrongfully arrested for passing out fliers in front of the Lindsey-Flanigan Courthouse on Monday. Though he and an accomplice had no personal interest in any trial at the municipal courthouse, Mark was charged with JURY TAMPERING, a felony with a minimum bond of $5,000. Mark was disseminating information about JURY NULLIFICATION to conscripts showing up for jury duty.

I understand from another person who was at the courthouse at the time that two pieces of jury nullification literature were being handed out that day: FIJA’s True or False? brochure and a flyer from another organization. He reported that the arrest took place on the second day of a planned three-day outreach effort, and that jury rights educators had previously been handing out literature in Westminster, Colorado with no issues.

This person and a second individual I spoke to reported that the arrest seems to have been in response to a complaint from a juror, though nobody I spoke to knew what the specific complaint was. One of the people I spoke to reported that the arrest was for “Offense Code 026517″ and “Offense Type #18-8-609″. I don’t know what the offense code means at this point, but 18-8-609 seems to come from the Colorado Revised Statutes.

C.R.S. 18-8-609 (2014) reads:

18-8-609. Jury-tampering

(1) A person commits jury-tampering if, with intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.

(1.5) A person commits jury-tampering if he knowingly participates in the fraudulent processing or selection of jurors or prospective jurors.

(2) Jury-tampering is a class 5 felony; except that jury-tampering in any class 1 felony trial is a class 4 felony.

Without specifically looking it up, my assumption is that a felony of any sort would almost certainly be jury trial-eligible, in the event that this case got that far. If it did go before a jury, one would imagine that the FIJA brochure and other flyer would be evidence that would be presented to the jury, thereby fully informing every juror of their right to vote Not Guilty for any reason they believe is just.

From the description given to me by the two people I spoke with and from the article I quote from above, however, it does not sound likely that the accused’s activity even met the definition of jury tampering. FIJA encourages everyone who is doing general educational outreach at courthouses to be clear that they are not advocating for or against any case in progress, but rather are sharing this information for educational purposes only. What jurors choose to do with that information is up to them. My impression from what I have heard and read so far is that those at this courthouse were aware of this distinction.

Nonetheless, it sometimes happens that courthouse officials or law enforcement either are ignorant of the difference between general educational outreach and jury tampering or that they choose to ignore it for the sake of making a nuisance arrest that will interfere with free speech activity they find inconvenient or disagree with. It’s possible that one or the other of these is the case in Denver this week. I have shared with one of the people I spoke with the opinion and order throwing out the indictment of another activist in New York in similar circumstances in case Iannicelli or his lawyer finds it helpful (the article quoted above indicates that he does have legal representation).

Additionally, I have been told by one of the people with whom I spoke that in conjunction with the arrest, all of the jury nullification information on hand was confiscated by the government and that the red tape involved in getting it back makes it unlikely that it will be returned to the rightful owner. As soon as I get this report posted and shared around, I will also be heading down to the post office to ship out a priority package of FIJA literature so that Denver activists may continue to legally exercise their right to free speech to create more fully informed jurors.

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Jurors Doing Justice & Jury Nullification | 19 Jul 2015

-Colorado Jury Says No to State’s Marijuana DUI Limit

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Trafficjam

A Denver medical marijuana patient has been acquitted by a jury of a marijuana-related DUI after being pulled over for having an expired license plate tag—not for unsafe driving. She identified herself as a medical marijuana patient when the officer who pulled her over indicated that he smelled marijuana. A blood test indicated a THC level of 19 ng/ml, exceeding the limit specified by state law of 5 ng/ml.

Driver acquitted of marijuana DUI despite high blood test

The Denver woman works at a medical marijuana dispensary and was heading to work when Westminster police said she failed a roadside sobriety test.

But Brinegar’s attorney, Colin McCallin, convinced a Jefferson County jury that Brinegar’s roadside results wouldn’t be unusual for a sober person and insisted she wasn’t impaired when she was stopped.

“She wasn`t weaving, she wasn`t involved in an accident, she wasn`t driving too slow,” said McCallin.

Brinegar was offered a plea deal, but turned it down, choosing instead to argue her case before a jury. Had she accepted the plea deal, she would have been required to abstain from medical marijuana for up to two years, which she says would have made it impossible for her to drive due to pressure on her back causing severe pain.

In many states, a DUI acquittal such as this, for a case in which the state legal limit was clearly exceeded, would be a pretty strong indicator of jury nullification because state laws typically work such that once a person is demonstrated to be above a particular blood concentration or some other measure for a particular substance, they are presumed by law to be impaired. However, Colorado House Bill 1325, passed in 2013, not only set a legal limit for blood THC content, but included a “permissive inference” provision making it possible for the defense to arguing that the accused was not actually impaired at the level of THC in their blood.

Using THC levels as a standard for a criminal conviction is disputed by many because THC can linger in the system long after any impairing effects of the drug have worn off. Even the staunchly prohibitionist National Insititute on Drug Abuse admits that:

In general, standard urine tests can detect traces of THC several days after use. In heavy marijuana users, however, urine tests can sometimes detect THC traces for weeks after use stops.

What this means is that someone who has neither harmed, nor was even a danger to them, could potentially be convicted of a crime, having their entire life upended for no reason at all. They could be imprisoned complete with substantial risks to their safety; lose their savings, property, and livelihood; lose their family; and even more. Meanwhile, taxpayers would foot the bill for incarceration and expenses after release.

Jurors can protect their communities from such unreasonable standards by voting Not Guilty—whether that is a specific defense allowed under the law, or whether they see fit to conscientiously acquit by way of jury nullification.

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FIJA in the News & Jury Health Project & Jury Nullification | 13 Jul 2015

-Fellow Updates: Media Outreach, Jury Health Project

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Nathan_GoodmanHello, FIJA supporters!

Last month I introduced myself to you and explained a bit about my role at FIJA as the 2015 Summer Fellow. Today I’d like to give you an update on some of what I’ve been doing so far. Research for the Jury Health Project is well underway at this point, and I’ve also been doing some media outreach.

The Young Voices Podcast
On July 1st, I had a delightful conversation with Daniel Pryor on the Young Voices Podcast. We discussed my recent article on Queer Liberation and Jury Nullification, and then discussed the numerous other contexts where jury nullification can be applied to advance liberty and justice. I then explained some of the history of jury nullification.

In addition, we discussed FIJA’s Jury Health Project, an ongoing research project examining various questions about the right to trial by jury as they vary across the 50 states and Washington, DC.  There are quite a few questions we’re asking as part of the Jury Health Project, and we’ll be publishing FIJA Fact Finder papers soon on the answers to these questions.

Thanks to Daniel for having me on the show and bringing important issues of jury rights to the Young Voices audience.

Jury Health Project Logo

How Much Are Jurors Paid?
Much of my work so far has centered around researching a fairly simple question: how much are jurors paid? We now have data on juror compensation for all 50 states, the federal courts, and Washington, DC. This data paints a picture of jurors that in most states are paid somewhere between $10 and $50 per day, substantially less than the federal minimum wage.

This is of course far less than the compensation given to the police, prosecutors, judges, and other government employees within the legal system. It’s understandable that the one element of the criminal justice system that represents the commoners rather than the state receives far less pay than the other elements. Part of the explanation is ideological, because jurors are seen not as employees doing a job, but as citizens performing a civic duty that they are obligated to perform regardless of pay. However, institutional and economic factors also play a role in explaining this disparity, and we will discuss these factors in our forthcoming FIJA Fact Finder paper on the subject.

We will also discuss the consequences that low juror compensation could have for liberty. When low income jurors are more likely to plead financial hardship, this changes the jury pool. This can undermine a defendant’s right to a jury of their peers and to a jury that represents a fair cross-section of the community. This can also have real consequences for the verdicts reached by juries. Psychological research suggests that jurors from different economic classes reach different types of verdicts. This research suggests that excluding or underrepresenting low-income jurors can lead to more punitive verdicts and even verdicts that undermine the right to bear arms. All this and more will be discussed in our forthcoming FIJA Fact Finder paper.

Are Juvenile Defendants’ Rights to a Jury Trial Respected? 
As we wrap up our juror compensation paper, we’re also beginning another FIJA Fact Finder paper for the Jury Health Project. This one examines the question of whether a state recognizes a juvenile defendant as possessing the right to a trial by jury. Sadly, there are many states in the US where this right is not recognized.

Given growing concerns about the school to prison pipeline and the criminalization of youth, this subject is increasingly relevant to public debate. Refusal to grant juvenile defendants a right to trial by jury as often been justified on grounds that “in theory, the juvenile court was to be helpful and rehabilitative rather than punitive.” But as scandals and abuses in juvenile detention centers are exposed, as judges exchange “cash for kids,” and as the school to prison pipeline criminalizes youth, this idealistic vision of the juvenile justice system is becoming less tenable.

As the public contemplates how to protect kids from an out of control juvenile justice system, they should look to the key role that juries can play as a check on government tyranny. Our research on juvenile justice and the right to trial by jury will hopefully illuminate this crucial issue.

Ultimately, the research we’re producing at the Jury Health Project will inform the public about the current state of the jury in America. Moreover, it will introduce crucial ideas about jury nullification and trial by jury as a check on government overreach into the national conversation about criminal justice, law, and civil liberties.

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History of Jury Nullification & Jury Nullification | 15 Jun 2015

-Know Your Roots, Know Your Jury Rights

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Magna Carta

Happy Magna Carta Day! Today marks the 800th anniversary of the sealing of the Magna Carta in 1215 at Runnymede. Now that I’m getting the hang of this after a couple of short broadcasts, I invite everyone to join us at 8 past the hour throughout the day for a series of short broadcasts on the Magna Carta and our jury rights today. You can join us on Periscope where we are FIJA_AJI or by clicking the link that is tweeted at the beginning of each broadcast on Twitter.

KnowYourRoots-KnowYourRights-LOGOFIJA’s theme this year for our celebration of the 800th anniversary of the Magna Carta is Know Your Roots, Know Your Rights. Today when we think of jury rights and jury nullification, we often think of things like drug and gun cases, raw milk, and things like that. Historically we tend to look to freedom of speech and religion cases such as that of John Peter Zenger and William Penn. But at its roots, jury rights were codified in the Magna Carta as part of a tax protest. Jury rights are, in fact, intricately tied up with property rights.

King John, the reigning monarch of the time, is widely said to be the worst king in all of English history. He lived what was seen as an indiscretely decadent and immoral lifestyle. He was arrogant and largely unconcerned with diplomacy. During much of his reign, he was entrenched in the business of fighting ill-conceived wars that were draining the royal coffers. As his predecessors had done, he ruled as if he were above the law, and in order to fund his failing misadventures in violence, he simply taxed the barons under his rule excessively and arbitrarily to the point that he was being described as an extortionist. He created new taxes and expanded existing ones. In addition, he piled on other forms of taxes such as fines and fees for privileges, making money in any way he could.

Sick of the abuse and waste of their wealth, a number of barons gathered their private armies together to persuade the wayward king to agree to some boundaries. Upon his return from a failed war in France, they met him in the meadow at Runnymede, where he had the choice to agree to a peace treaty, now known at the Magna Carta, or wind up in a war at home. Not intending to honor the agreement, King John affixed his seal to the document. 800 years later, parts of it still remain law in England.

While the Magna Carta was designed to protect mainly a select few—the wealthy barons with their own private armies who forced King John to agree to it—and, in some ways, further solidified oppression of others who were not its beneficiaries. We look to it not just for what it was, but for what it has become. It expressed ideas that have not only held up over the last 800 years, but were so good that they have been claimed by more and more oppressed people around the world as their right as well.

Throughout the day, we will be tracing the history of the Magna Carta through English history and then across the pond to colonial and then revolutionary America to track from where our jury rights today originate. Come check us out for a different topic every hour!.

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Jury Nullification | 12 Jun 2015

-Queer Liberation and Jury Nullification

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It’s June, and for the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community, that means it’s Pride month. All around the world throughout June, pride parades and pride festivals celebrate our identities, our lives, our culture, our progress in smashing stigmas, and our resistance to oppression.

That last part, resistance, is absolutely crucial. Pride is held in June in commemoration of the Stonewall Riots of 1969. After police raided the Stonewall Inn, a gay bar in New York’s Greenwich Village neighborhood, patrons fought back. At the time, homosexuality and gender non-conformity were overtly criminalized. Police inspected the genitals of bar patrons dressed in feminine attire, and arrested drag queens and cross dressers. The officers also frisked and groped lesbian patrons.

That night, the queer and trans people at the Stonewall Inn did not accept the coercion and abuse they faced from the police. They fought back. Their acts of defiant self-defense against unjust state violence that night sparked the modern gay liberation movement. Every pride festival and pride parade is a celebration of resistance to an unjust criminal justice system.

While queer and trans people are no longer explicitly criminalized under the letter of the law, they still face unjust state violence and criminalization. Officers profile transgender women of color as sex workers and frequently arrest them on charges of solicitation. Queer and trans people who defend themselves from hate crimes, such as CeCe McDonald and the New Jersey Four, are themselves charged with violent crimes and incarcerated. LGBTQ homeless youth find themselves arrested for “quality of life” crimes such as sleeping in public, panhandling, and a variety of other crimes that primarily exist to criminalize the poor.

Fence_of_Prison-BPOOnce they’re incarcerated, members of the LGBTQ community face outright brutality in prison. A 2007 study found that “[s]exual assault is 13 times more prevalent among transgender inmates, with 59 percent reporting being sexually assaulted.” This same study found that 67% of inmates who identified as LGBTQ reported being sexually assaulted while incarcerated, a rate 15 times more prevalent than that of the general inmate population. Transgender women are often incarcerated alongside male inmates and guards, who rape and abuse them. Supposedly to protect them from this violence, they can be sent to solitary confinement, which is widely recognized as a form of torture.

One tactic that can be used to impede this state violence against queer and trans people is jury nullification. Rather than merely evaluating the evidence to determine whether a defendant has violated a law, jurors can vote “not guilty” when they believe the law is unjust or unjustly applied. Jury nullification is exercising conscience rather than helping the state unjustly cage human beings.

Adrien Leavitt argues in Queering Jury Nullification that the LGBTQ community and our allies should use jury nullification “as a tool to subvert the criminal punishment system in order to fight against structural racism, protest the policing of deviant sexual and gender identities, and reduce the violence perpetrated against queer people by the criminal punishment system.” When queer homeless people are on trial for survival crimes, jurors can vote Not Guilty. When queer and trans people are charged with homicide for defending themselves from hate crimes, jurors can vote Not Guilty. When trans women of color are charged with solicitation, jurors can vote Not Guilty.

Most decisions in the criminal justice system are made by government employees such as police, judges, and prosecutors. They face perverse political incentives that push them to participate in state violence against the most marginalized people in our society. Jurors, on the other hand, are ordinary citizens. Their verdict does not determine whether they are reelected or whether they receive a promotion. The jury is where the people, the rabble, can disrupt the process of state violence.

It’s time for jurors to use their power to disrupt the criminalization of queer and trans people. At pride festivals throughout the world, we commemorate the Stonewall rioters for resisting such criminalization. As long as queer and trans people face criminalization, jurors should stand for queer liberation, with the spirit of Stonewall in their hearts.

FIJA and Outright Libertarians will co-host an online, educational discussion group centered around Adrian Leavitt’s paper Queering Jury Nullification on July 18. Click through for details. RSVP per the instructions on Facebook or by email to aji@fija.org.

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Jury Nullification | 12 Jun 2015

-Nathan Goodman to Serve as FIJA Fellow

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Nathan_GoodmanHello, FIJA supporters! My name is Nathan Goodman, and I will be joining the Fully Informed Jury Association this summer as a Fellow, conducting research for FIJA’s new Jury Health Project. I’ll be studying various issues related to the right to trial by jury as they vary across the federal, state, and Washington, DC court systems.

The long-term goal of the Jury Health Project is to evaluate the health of the jury system across the United States and produce a Jury Health Index ranking the courts by how well (or poorly) they’re upholding the right to trial by jury. However, this project encompasses many issues, so in the coming weeks and months we’ll be releasing papers and other educational materials on these specific issues, which will eventually culminate in the Jury Health Index.

I recently received my bachelor’s degree in mathematics from the University of Utah. In addition, I have written extensively for the Center for a Stateless Society (C4SS), where I am the Lysander Spooner Research Scholar in Abolitionist Studies. My writing and research at C4SS largely focuses on the criminal justice system. For the past year, I have also been involved with Students For Liberty (SFL), where I have written for the SFL blog and helped organize student events, including an event in Salt Lake City on courthouse outreach and juror education for last year’s Jury Rights Day as well as co-hosting a presentation with FIJA regarding the use of jury nullification to end the prison state in Utah. I’ve also been involved in various forms of civil liberties activism in Utah for years.

I look forward to bringing the analytical skills I developed in my formal studies, my passion for liberty, and my experience writing about the criminal justice system together in order to study and protect the right to trial by jury.

Last month, I met with FIJA executive director Kirsten Tynan and with attorney and FIJA Advisory Board member Dr. Roger Roots to prepare for my summer fellowship at FIJA. We did research at the University of Utah’s SJ Quinney Law Library in order to find sources on the various questions I’ll be investigating this summer. We also developed some concrete plans for getting a steady writing and research output going in relation to the Jury Health Project.

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Last week I attended the opening seminar of the Koch Fellow Program, a program of the Charles Koch Institute which is funding my work at FIJA this summer. The seminar largely consists of engaging lectures on philosophy, economics, American history, constitutional law, and public policy analysis, along with sessions for developing professional skills. The intellectual atmosphere at the seminar has been electric, with discussion sessions featuring lively debates among fellows from a diverse range of non-profit organizations.

Now that the opening seminar is concluding, I will start diving into my research and writing responsibilities for FIJA. There’s some exciting stuff in the works at FIJA, and I look forward to sharing that with all of you in the coming weeks. Stay tuned for updates in the weeks ahead!

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Function of Juries & Jurors Doing Justice & Jury Nullification | 10 Jun 2015

-Possible Jury Nullification in Las Vegas MMJ Case

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Marijuana (2)

Late last month, a jury acquitted Steven Ficano on two felony charges, possession of marijuana and possession of marijuana with intent to sell. Ficano grows marijuana for medicinal use, and at the time of his arrest in 2012, he had both a medical marijuana license and a note from his doctor explaining the quantity of marijuana he was growing.

However, prosecutors argued that Ficano possessed more marijuana than he was legally authorized to possess for medical use. They further claimed that this meant he intended to sell some of that marijuana. The jury was unconvinced, and acquitted Ficano on both counts.

Jurors focused not just on the letter of the law and the facts of the case, but on their sympathy with Ficano’s illness. This suggests that jurors exercised their right to use their conscience to evaluate the justice of the charges rather than merely acting as finders of fact. In other words, they may have exercised the legal power of jury nullification.

As the Las Vegas Review-Journal reported:

Outside the courtroom, jurors said they focused on the doctor’s waiver, and said they didn’t think the document clearly defined how much pot Ficano could have at his home.

The waiver allowed him to possess 29 plants and 2 to 4 pounds of finished marijuana per three-month growing cycle. But Ficano said he only harvested marijuana once a year and assumed that he would be allowed to have up to 84 plants and 16 pounds of finished medicine.

Another juror, Donna Florence, said that after reaching the verdict she thought of her mother, who died of cancer about two years ago.

“If I could have gotten something for her that would have spared her that pain, I would have done anything,” she said. “And I think this guy was just in similar pain and trying to help himself.”

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Function of Juries & Jury Nullification | 04 Jun 2015

-Randy England On Jury Nullification When He Was A Prosecutor

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Webster_County,_Nebraska_courthouse_courtroom_3 (1)

In last night’s episode of Freedom Feens, available for online listening here, Randy England spends some time discussing his experience with jury nullification from the prosecutor’s side of the courtroom. The jury nullification discussion comes up in the segment starting about an hour in, but there is extensive discussion of the recent Ross Ulbricht case before that, from which this topic develops.

One of these cases, England points out, led to a long-term change in the prosecutors’ office regarding what kind of cases the office chose to prosecute going forward. As a prosecutor, said England, “I didn’t care what the law said—you know, if something was against the law—if I thought that the community standards would not support it. I never filed a case that I didn’t think the community would convict on if I had to try it.” This power of prosecutor nullification is paralleled by jurors’ power of jury nullification, but prosecutor nullification is FAR more common than jury nullification.

Randy England is currently a criminal defense attorney and formerly also served as a prosecutor in Missouri. He has previously written on the subject of jury nullification:
Jury Nullification – The power to do what is right (Part 1)
Jury Nullification – The power to do what is right (Part 2)

Many thanks to Randy for creating more fully informed jurors!

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Function of Juries & Jury Nullification | 28 May 2015

-Supreme Court to Consider Exclusion of Black Jurors in Death Penalty Case

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By UpstateNYer (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

By UpstateNYer [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

This week the United States Supreme Court accepted for consideration the case of Foster v. Humphrey, regarding Georgia prosecutors’ use of peremptory challenges to strike every black juror in the jury pool in the defendant’s case. Then 18-year-old, black defendant Timothy Tyrone Foster went on to be convicted of the murder of a white woman by the resulting all-white jury, who subsequently also sentenced him to death.

Foster was convicted in 1987, just one year after the United States Supreme Court ruled in Batson v. Kentucky that:

Although a prosecutor ordinarily is entitled to exercise peremptory challenges for any reason, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.

4096px-SQ_Lethal_Injection_RoomDefense counsel challenged the peremptory strikes used against black potential jurors under Batson v. Kentucky, and they were found by the court to reflect a prima facie showing of racial discrimination. Under the Batson ruling, the prosecution was then required to provide race-neutral explanations for each of the strikes, which it proceeded to do. The defense argued that the reasons given were pre-textual, but the court sided with the prosecution. Jurors subsequently convicted the defendant and, urged by the prosecutor to “deter other people out there in the projects”, sentenced him to death.

After the trial, the defense requested post-judgment discovery to preserve the State’s notes regarding jury selection to be used in appeal. This request was denied. However, decades later in 2006, the defense acquired the State’s notes regarding jury selection through Georgia’s Open Records Act and found new evidence in the prosecution’s notes that the defense argues support its claim of racial bias.

That evidence is reproduced in Foster’s petition for writ of certiorari and includes:
1. That the prosecution marked the name of each black prospective juror in green highlighter on four different copies of the jury list, and supplied a key in the notes specifically stating that green highlighting indicated black jurors.
2. That the prosecution circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors.
3. That the prosecution identified three black prospective jurors as “B#1″, “B#2″, and “B#3″ in its notes.
4. That the prosecution’s investigator ranked the black prospective jurors against each other in case “it comes down to having to pick one of
the black jurors” and advised the prosecutor that “if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.” Such language is crossed out in the notes acquired and was not submitted in the final affidavit to the court responding to the Batson challenge.
5. That the prosecution’s strike lists, failure to strike certain white jurors, and explanations for striking black jurors contradict the prosecution’s race-neutral explanations for striking the black prospective jurors.

Despite this new evidence that came to light nearly two decades after the trial, both the Georgia Superior Court and the Georgia Supreme Court declined to revisit the issue. Foster thereafter petitioned the United States Supreme Court for relief.

Foster v. Humphrey case documents are available here:
—Timothy Tyrone Foster’s Petition for Writ of Certiorari (.pdf)
State’s Opposition to Writ of Certiorari (.pdf)
Foster’s Response to State’s Opposition to Writ of Certiorari (.pdf)
Certiorari Granted 26 May 2105 (.pdf)

Additional reading on Foster v. Humphrey:
Supreme Court will hear appeal from Georgia death row inmate over exclusion of black jurors
The Supreme Court Will Hear An Almost Comically Egregious Case Of Race Discrimination
SCOTUS to Decide if Race Motivated Juror Strikes

A jury is meant to be an independent body of individuals who represent a randomly-selected cross section of and the conscience of the community. The process of voir dire is not supposed to be used to “game” the jury, stacking it with individuals favorable to one side or the other, but rather is simply supposed to eliminate anyone with a true conflict of interest or inability to be a fair juror.

Throughout history, however, prosecutors have often been unfriendly not only to having blacks on juries, but also to other people of color, women, people of low income, intelligent or highly-educated people, those who are independent-minded and so on. In this short set of clips from a one-hour presentation, for example, former Philadelphia District Attorney Jack McMahon explains to new prosecutors how and why they should select jurors “that are as unfair and more likely to convict than anybody else in that room”:

The full, hour-long session can be seen here:
Jury Selection with Jack McMahon

In capital cases where jurors are “death-qualified”, with all prospective jurors who are not willing to vote for the death penalty removed before they are seated, the prosecution typically starts out closer to victory than the defense. Evidence has shown that death-qualified juries are statistically more likely to convict in the first place, for a variety of reasons.

First, research has shown that death qualification skews the composition of the jury toward those who are more likely to convict. For example, death-qualified jurors are more likely to assume guilt, more likely to be concerned with crime control than with due process, and are less remorseful regarding mistaken convictions. Other evidence suggests that death-qualified jurors consider police, prosecutors, and prosecution witnesses more credible and are more suspicious of the defense than other jurors, and are more likely to accept the prosecution’s version of events than the defense’s version in the event of ambiguity.

Beyond that, research also suggests that the death qualification process itself has a tendency to psychologically poison the jury more toward conviction as the process not only elicits information from jurors, but imparts information to them as well.

When a person has been killed, it is understandable that the victim’s survivors and the rest of the community desire justice through the legal system be served quickly and decisively. However, when another person’s life is on the line as well, justice calls not simply for rushing to take revenge on whomever the prosecution puts forth by whatever path most expediently leads to that end. Justice requires that we afford the defendant due process, including a rational and just trial by jury on an equal basis with every other defendant.

The question put to the Supreme Court in Foster v. Humphrey is:

Did the Georgia courts err in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case?

This week the Court agreed to give consideration to this question, but we will have to wait until fall to the hear arguments in this case.

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Function of Juries & Jury Nullification | 06 May 2015

-States Preserve Jury Rights with Asset Forfeiture Reform

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Moneycoronado

Just yesterday, Governor Steve Bullock signed Montana’s HB 463, a civil asset forfeiture reform bill, into law, following in the footsteps of Governor Susana Martinez who signed New Mexico’s HB 560 in April. HB 463 was passed with only 8 representatives and 1 senator opposed in Montana, and HB 560 was passed unanimously through both houses of the New Mexico legislature. Both bills require a criminal conviction as a prerequisite for the state to seize property by asset forfeiture. The Institute for Justice had previously given both Montana and New Mexico grades of D+ for their forfeiture laws.

Asset forfeiture is a process by which government officials seize—and often keep or sell for their own department’s profit—private property they allege was involved in a crime. The standard for such seizures is typically very low, such as mere “probable cause”, which is the standard that must be met merely to obtain a search warrant. Often the property owners need not have been convicted of, or even charged with, a crime, and the burden of proof that the property was NOT involved in a crime lies on them. Because of the extreme expense of going to court to get back such property stolen under color of law, many owners cannot afford to take action or would actually lose more money by doing so. Many either accept a fraction of their property back from the government in exchange for not pursuing legal action or simply lose it completely without due process.

GavelIconSuch an end run around our Constitutionally-guaranteed jury rights undermines the role of the jury in protecting individuals from being punished without due process of law. When we are accused of a crime, the founders intended that we must first be determined guilty through trial by jury before being punished, thereby placing our own neighbors as a protective barrier between us and government. It was intended that government must surmount that high hurdle before depriving us of life, liberty, or property. That, however, has been chipped away at throughout American history, by such tactics as limiting the right to trial by jury, coercing people into alternative court processes or plea bargains, and so on.

Civil asset forfeiture is another such tactic that erodes the protection of the jury. Instead of guilt or innocence being determined by a relatively objective jury representing the community, it is decided by government officials with no accountability and who often have a conflict of interest when their departments’ budgets depend on such “policing for profit”.

Moreover, losing access to one’s own assets makes it all the more difficult to defend oneself in court if criminal charges are involved. “By seizing the assets of a defendant before trial, a prosecutor can make it very difficult for a defendant to hire qualified counsel and make it to a jury trial,” points out Eapen Thampy, executive director of Americans for Forfeiture Reform.

“Defendants without access to qualified counsel must choose between an overworked and under-resourced public defender, defend themselves pro se, or accept a plea bargain from the prosecutor. In every scenario this allows the government to limit the ability of defendants to assert their rights, and prevent government misconduct from being examined during a public trial,” Thampy says.

Insult is added to injury when defendants are not only unable to access their own assets in their own defense, but have such funds used against them when they are channeled into their arrest and prosecution. According to the Institute for Justice when they issued the D+ grades, 100% of New Mexico’s and Montana’s asset forfeiture funds went back to law enforcement, including funding a substantial percentage of prosecutors’ salaries in Montana.

While the measures passed do not close the door entirely on policing for profit, they do make progress in restoring the role of the jury in protecting those accused from punishment without due process, including the ability of juries to protect private property by exercising jury nullification when a just verdict requires it.

Further reading on asset forfeiture and jury rights:
-Acquittal Now Protects Against Asset Forfeiture in Minnesota
-Asset Forfeiture Circumvents Trial by Jury and Jury Nullification
-U.S. Attorney Seeks Forfeiture of Assets from Defendants Acquitted by Jury

This is shared for educational and informational purposes only; FIJA National is a strictly educational organization that does not endorse or oppose any legislation, citizens’ initiative, political candidate, or party.

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Function of Juries & Jury Nullification | 27 Apr 2015

-Texas Appeals Court Upholds Jury Instructions

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LawBooksLast week we reported news of a San Antonio trial that was temporarily halted as prosecutors appealed the judge’s decision to allow the jury to consider a lesser included offense of simple assault in a case that resulted in a death. In this case, an unnamed juvenile, who was being picked on at school reportedly warned those who were throwing things at him and otherwise bullying him to stop or he would retaliate. When the behavior continued, he waited outside his classroom and punched one of them twice when he emerged, knocking him unconscious. His classmate was hospitalized and ultimately pronounced brain dead.

In this case, prosecuting attorneys wanted the jury only to consider charges of murder, with a penalty of up to 40 years in prison, and manslaughter, with a penalty of up to 20 years in prison. The defense requested and the judge granted an additional instruction to the jury that allowed them to consider convicting the defendant of simple assault, which would have a greatly reduced penalty in comparison to the other two offenses. The trial was put on hold and the jurors sent home indefinitely while the prosecutor appealed this instruction to the Third Court of Appeals of Texas, who ruled on Friday, by 2-1 vote, in favor of including the simple assault instruction.

In the majority opinion, upholding the jury instructions, Justices Pemberton and Bourland noted that the instructions do not preclude the prosecution from pursuing the charges it considers most appropriate. They merely include another lesser charge, which in no way prevents the jury from convicting on the more serious charges. Justice Puryear dissented.

At this point, the trial could be continued, or alternatively, the prosecution may instead decide to seek relief from the Texas Supreme Court.

Court backs judge in punching death trial

Defense attorney Joseph E. Garcia III said he was just glad they got a ruling.

“I was just wanting to get back in the court and let’s get this thing settled,” Garcia said. “I think they got it right.”

Jennifer Tharp, Comal County criminal district attorney, said Saturday she hadn’t decided whether to take the case to the Texas Supreme Court. She planned to work through the weekend and come up with a decision, Tharp said.

“While we were hoping for a different outcome on the Mandamus, our writ was an appropriate and necessary use of legal action as confirmed by the dissenting opinion of Justice Puryear,” she said. “The appellate court decided that the State does not have a right to appeal Judge Stephens’ ruling and failed to settle the issue we presented for review.

“We respectfully stand by our objection and intend to press forward as we carefully review all options available to protect the rights of the victim in this case and ensure the rule of law prevails throughout our community.”

Court Documents:
Memorandum Opinion in re The State of Texas ex rel. Jennifer A. Tharp, Texas Court of Appeals, Third District, at Austin, No. 03-15-00223-CV
Dissenting Opinion in re The State of Texas ex rel. Jennifer A. Tharp, Texas Court of Appeals, Third District, at Austin, No. 03-15-00223-CV

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Jury Nullification | 20 Apr 2015

-Stimson Verdict Not An Anti-Jury Nullification Statement

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marijuana jury nullification thumbnailLast month, a jury convicted Todd Stimson of multiple, victimless, marijuana-related offenses, in connection with his business The Blue Ridge Medical Cannabis Research Corp. that ran openly for years, complete with business licenses from and paying taxes to the government. There were many problems with the evidence in his trial including decomposed and moldy evidence, as well as evidence that was missing completely or appeared to have been tampered with.

Supporters had reportedly hoped for jury nullification in his trial, but his jury convicted him in just minutes. Retired attorney and activist Jen Foster reports that this cannot be properly interpreted as a rejection of jury nullification by the jury. Rather than pursuing a jury nullification strategy in court, the defense was banking on the condition of the evidence to result in an acquittal.

Explaining the Stimson decision

But, a nullification defense was never presented at trial. As things often go, there was a surprise. When the defense asked to produce the actual evidence allegedly seized in this case, giant garbage cans of decaying, rotting material were discovered. The courtroom had to be cleared and off-site inspection revealed that evidence had been repackaged and degraded. The SBI lab technician testified, in no uncertain terms, that she would have not accepted this evidence had it been presented to her in that state, and that it was not in that condition when it arrived at her lab.

Based on this turn of events, and after a motion to dismiss was denied, Stimson’s attorneys made a strategic decision to not present evidence, and seek a not guilty verdict immediately. They believed that the state had not presented sufficient evidence of the weight of 10 pounds required for the charges. This strategy backfired, however. The jury returned guilty verdicts on both counts in 40 minutes, finding the state had proved the existence of more than 10 pounds, despite the unrecognizable evidence.

Thus, contrary to his original trial plan, Stimson did not present a nullification defense: he did not make any arguments about medical cannabis, he did not present evidence about his business licenses, or vast amount of taxes paid, he did not testify and presented no witnesses as to the impact of this prosecution on himself and his family.

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Function of Juries & Jurors Doing Justice & Jury Nullification | 17 Apr 2015

-How Prosecutors Can Control Jury Nullification through Jury Instructions

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LawBooksThe trial of a San Antonio juvenile has been interrupted by an emergency stay just short of closing arguments, as the prosecutor and defense attorney take their dispute over jury instructions to an appeals court. An unnamed teen is being tried in connection with the death of a classmate. Witnesses in the case reportedly testified that the defendant was repeatedly picked on by fellow classmates who were throwing things at him and at other students. The defendant testified that he warned one of them that if he didn’t stop it, he was going to hit him back. When the behavior continued, the defendant apparently punched the classmate who had continued to throw things at him, knocking him unconscious. He was declared brain dead the next day.

The prosecutor in this case is seeking conviction on murder or manslaughter charges, putting the now 16-year-old at risk of up to 40 years in prison for murder or 20 years for manslaughter. Another student was indicted for murder as well, even though he never threw a punch, but was granted testimonial immunity to take the stand in this case.

Jurors sat through most of the trial before being sent home on Tuesday, with the trial indefinitely on hold, as the state appeals the instructions that will be read to the jury. At the time the appeal was mounted, the jury instructions reportedly allowed the jury to consider, in addition to the possibility of acquitting the defendant, the options of convicting the defendant of murder or manslaughter, as desired by the prosecutor. However, the defense and judge also want to include the option for the jury to convict on another lesser charge—misdemeanor assault, with a penalty of up to one year in jail and $4000 in fines. It is this lesser option to which the prosecution objects:

Stay leaves murder trial on hold

New Braunfels defense attorney Joseph E. Garcia III said he had planned to be ready Thursday morning to present his closing arguments in the Canyon High punching death trial, but that the emergency stay would leave the trial in limbo for now.

On Tuesday, Garcia requested jurors be given the option to consider misdemeanor assault along with the murder and manslaughter charges his 16-year-old juvenile client faces. Clayten Hearrell, a Comal County assistant district attorney, objected to the inclusion.

Judge Charles A. Stephens II denied the state’s request. So prosecutors decided to seek a decision from a higher court hoping to have the lesser-included offense removed from the jury’s instructions.

Prosecutor Clay Hearrell explained part of the reasoning for his objection:

Punching trial paused by appeal of jury instructions

“I wouldn’t have some quarrel if aggravated assault was included,” prosecutor Clay Hearrell told the judge in a bench conference just before jurors were sent home. “But misdemeanor assault is inconceivable in this fact circumstance. There’s no way to escape that a death occurred.”

Definitions for lesser included offenses vary, but the basic idea is that a lesser included offense is one that involves some, but not all, of the elements of a higher level offense. Instructing juries on lesser included offenses is somewhat up to judges to decide, except in capital cases. Per the 1980 ruling of the United States Supreme Court in Beck v. Alabama:

The unavailability of lesser included offense instructions and the apparently mandatory nature of the death penalty both interject irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the “third option” may encourage the jury to convict for an impermissible reason — its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage the jury to acquit for an equally impermissible reason — that, whatever his crime, the defendant does not deserve death. While, in any particular case, these two extraneous factors may favor the defendant or the prosecution or may cancel each other out, in every case, they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.

Prosecutors have a great deal of power to influence the outcome of a case, simply by picking and choosing charges to level against the defendant. By stacking on extra charges, they can poison the jury’s view of the defendant by leading them to believe that with so many charges, he must be guilty of something! Stacking of charges or mixing of certain types of charges, such as mixing firearms and drug charges, can also bring mandatory minimum sentences into play, drastically raising the stakes in the case and psychologically strong-arming the defendant into accepting a plea bargain.

Plea bargains often involve defendants pleading guilty to a lesser offense or fewer charges than what he or she would face in court, in exchange for eliminating the risk of being convicted on much more serious—and therefore, more likely to involve more severe punishment—offenses. It is noteworthy that when prosecutors maintain near total control of the situation, they don’t seem to have much problem with lesser included offenses.

But beyond that, prosecutors can also manipulate the jury with their influence over jury instructions. For one thing, pre-filtering which charges the jury is allowed to consider usurps the jury’s authority as the trier of fact in the case at hand. Consider the 1895 case of Sparf and Hansen v. United States, which is usually noted for eroding the jury’s ability to nullify the law. In its decision, the Supreme Court ruled that “if there be no evidence upon which the jury can properly find the defendant guilty of an offense included in or less than the one charged, it is not error to instruct them that they cannot return a verdict of guilty of manslaughter, or of any offense less than the one charged”. This specifically calls for the judge to be the initial finder of fact in that he or she must first determine if there is or is not such evidence in order to instruct the jury regarding lesser included charges before they commence with their deliberations.

In a case where a prosecutor fears a jury may find reasonable doubt regarding some of the elements required to make the case for a very serious offense, he or she may wish to have lesser included offenses presented to the jury. That way, the odds of the jury convicting on at least something are increased. On the other hand, for particularly disturbing cases where a jury may be loathe to let the defendant off the hook entirely with an acquittal, a prosecutor may wish to keep lesser included charges off the table so that jurors feel pressured into convicting the accused of a more serious offense than is warranted rather than letting the accused go without any penalty whatsoever.

Prosecutors surely know that jurors will sometimes choose to temper justice with mercy in unusual cases by convicting on lesser charges, even if a higher level offense has technically been committed. We have previously discussed several cases where conviction on lesser included charges can be a form of jury nullification:
Guilty on Lesser-Included Charges Can Be a Form of Jury Nullification
Jury Nullification and the Saint Patrick’s Day Four
Jury nullifies felony pot charge, reduces to misdemeanor

In her 1985 paper The Jury’s Political Role: “To See With Their Own Eyes”, law professor Valerie P. Hans noted certain types of cases in which juries were more lenient with defendants:

In their landmark book, The American Jury, Harry Kalven and Hans Zeisel asked judges presiding over jury trials to report the jury’s verdict in a specific case and compare it with the verdict the judge would have reached had the case been tried by judge alone. In 78% of the trials, judge and jury would have reached the same verdict. However, in the remaining 22% of cases, the jury’s sense of justice led it to a different verdict. Interestingly, these disagreements occurred almost always when the evidence in the case was close, suggesting that jurors bend the law or facts rather than ignore them entirely. The explanations for the disagreements constituted something of a casebook of jury law. For instance, juries had an expanded view of permissible self-defense that went beyond the bounds prescribed by law. Jurors sometime excused defendants if their victims played a contributory role.

Agents of the state who have a vested interest in the widespread criminalization and incarceration that their livelihoods depend on, have already dramatically eroded in many ways the jury’s traditional, legal authority to exercise jury nullification to deliver just verdicts. By taking lesser charges off the table, the state not only encroaches on the jury’s authority as finders of the facts in the case at hand—what is supposed to be a non-controversial function of the jury—but it can also lessen the chances that jurors will conscientiously acquit in certain types of cases.

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Function of Juries & Jurors Doing Justice | 13 Apr 2015

-Is Juror Skepticism of Police Testimony on the Rise?

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Jury BoxIn the wake of numerous, high-profile cases involving questionable police conduct, are jurors becoming more skeptical of testimony from law enforcement? Beth Hundsdorfer reports in the Belleville News-Democrat that jurors may be the case in St. Clair County, Illinois. St. Clair County is part of the Greater St. Louis metropolitan area, along with Ferguson, Missouri, which has been in the public spotlight most recently due to a Department of Justice report of its investigation of the Ferguson Police Department.

Police conduct issues may be swaying jurors in St. Clair County

The conduct of police officers has been coming up in criminal trials for a long time, but after high-profile cases such as the shooting of a black youth by a white officer in Ferguson, Mo., or last week’s in South Carolina where an officer shot a man in the back, there can be a tendency by the public to question officers’ testimony, said Southern Illinois University Carbondale law professor Bill Schroeder.

“That’s the climate that’s out there right now,” Schroeder said.

Cosby was accused of the shooting death of Antwan Thomas outside an East St. Louis lounge. A St. Clair County jury acquitted Cosby in a trial after East St. Louis Detective Orlando Ward, the lead investigator in the case, was charged with federal drug-trafficking.

“I have been a lawyer for eight years, and the difference now is that jurors no longer give police officers the benefit of the doubt,” Cueto said. “I think jurors focus on the case they are deciding.”

Public defender and longtime defense lawyer John O’Gara agreed. He thought it may have begun with the O.J. Simpson murder case. During the televised trial, jurors sent out questions to Judge Lance Ito, asking and challenging evidence and witnesses. Those jurors were empowered and engaged, O’Gara said, leaving potential jurors around the country to expect the same.

“Jurors we are getting now are millennials. They tend to question things more, not take things at face value, not take the word of a police officer over anyone else,” O’Gara said.

Jurors should always keep in mind that the value they place on any testimony before them is entirely up to them. We know for a fact that many crime labs have perverse incentives to convict and that police misconduct is a common occurrence. Despite the appearance of authority, jurors are not obligated to give police officers’ or any other government officials’ testimony any special consideration or weight simply because it came from someone with a badge, a uniform, or a government title.

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Function of Juries & Jurors Doing Justice | 09 Apr 2015

-Grand Jury Is Right to Comment on Government Corruption

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Jury BoxBoth the Dallas News and the Texas Tribune recently called a Travis County, Texas grand jury on the carpet in their editorial sections for the grand jury’s public statement regarding a government official who was not indicted but had been censured by the state legislature. The 390th Grand Jury addressed a special report to Judge Julie Kocurek regarding its consideration of charges against University of Texas Regent Wallace L. Hall, Jr. containing scathing commentary regarding their views of his behavior

Special Report of the 390th Grand Jury
Regarding the Investigation of the Conduct of a
University of Texas System Regent

Based on the information we reviewed we are appalled at the Regent’s abusive and unaccountable behavior.

Hall used his positional power to the point of abuse. The over leveraging of his power resulted in lost talent, lowered morale, exposure of confidential student information, and unreasonable expenses.

The grand jury wrapped up its report with a recommendation that Regent Hall be removed from his position and for a number of changes to University of Texas Board of Regents policies and practices. Both the Dallas News and the Texas Tribune displayed their ignorance of the role of the grand jury and scolded them for supposedly stepping out of bounds.

Editorial: Hits and Misses

In our legal system, a grand jury has a clear and simple mandate: Either indict someone based on probable cause or issue a “no bill.” Nowhere is a grand jury called upon to opine about someone under investigation or to dabble in governmental policy. Yet a Travis County grand jury seated to investigate University of Texas Regent Wallace Hall did just that. The grand jury found no evidence to indict Hall for his work uncovering an admissions scandal that led to the planned resignation of UT-Austin President Bill Powers. But jurors issued a report that smears Hall and makes it more difficult for regents to obtain public information, thus making it harder for them to do their jobs in overseeing the UT System. If this jury had stuck to its legal mission, we would have been better off.

Analysis: A Grand Jury With a Taste for Commentary

Grand juries are the citizen panels that review the work of prosecutors and decide whether there is enough evidence to take someone to trial on criminal charges.

If the answer is yes, the grand jury issues an indictment, everybody who is not already lawyered up hires a lawyer, and they hold a trial to determine whether the person who was charged in the indictment is innocent or guilty.

If the answer is no, the grand jury issues a “no bill,” saying that the information jurors saw was too thin to justify criminal charges.

And then they’re supposed to shut up. In fact, there is a quaint, old-fashioned idea buried in all of this: In a perfect system — not to imply that there is such a thing — nobody is supposed to know that you were investigated if the result is something short of a charge.

Although government officials often treat modern grand juries as if they are there merely to sit down, shut up, and rubber stamp indictments assembly line-style, today’s mostly meek and obedient grand juries are a far cry from the independent and critical bodies they were in early America and before. “There is nothing new about grand juries issuing proclamations other than indictments and ‘no true bills.’ Such grand jury proclamations were were routine events in early America,” says Roger I. Roots, J.D., Ph.D., a member of FIJA’s Advisory Board.

In his book The Conviction Factory: The Collapse of America’s Criminal Courts, Dr. Roots documents the far more extensive role grand juries played in opposition to government abuses:

The actions of grand juries figured prominently in the beginnings of the American Revolution… A Philadelphia grand jury condemned the use of the tea tax to compensate British officials, encouraged a rejection of all British goods, and called for organization with other colonies to demand redress of grievances.

As tensions with the Parliament and the Crown increased, colonial grand juries encouraged individuals to support the effort of independence. “In some instances,” according to legal historians, “the calls to arms were sounded by the grand jurors themselves; in others, the sparks came from the patriotic oratory by the presiding judges in their charges to the grand jury.” The public proclamations of these grand juries were often circulated in local and national newspapers in an effort to “fuel the revolutionary fire.”

Thus was the grand jury enshrined in America’s constitutional criminal procedure. It was an antigovernment institution with power to confront, to stop and to denounce the state, its prosecutors and all its armies and officers.

What of the Texas Tribune‘s argument that if an indictment results in a No Bill, in a perfect system the public would not even know the accused had been under investigation? Keep in mind that the individual under investigation was no ordinary citizen, but a tax-paid government official being investigated for actions conducted under color of his public duties. Roots discusses in his book the now lost presentment power of grand juries:

A presentment is a grand jury communication to the public concerning the grand jury’s investigation. In early American common law, the presentment was a customary way for grand juries to express grievances against the government or to accuse public employees or officials of misconduct. A presentment was generally drafted from the knowledge and findings of the jurors themselves, rather than a prosecutor, and signed individually by each juror who agreed with it. A presentment stood public with or without approval of a prosecutor or court.

He further explains how the secrecy aspect of the grand jury has evolved over time from a protection of the power of the people to investigate government now to cover behind which government can hide its abuses from public scrutiny:

The application of grand jury secrecy in modern courts is fundamentally different from the way secrecy worked under the common law. When the Fifth Amendment grand jury secrecy clause was ratified in 1791, secrecy was a power of grand jurors—a right to investigate on their own in defiance of the state…

A review of American history reveals that grand juries of the Framers’ era were secret only in their taking of evidence (if the grand jurors so choose) and internal deliberations. An indicted defendant generally had a right to know the identities of those who testified, and in many jurisdictions, all bills issued by grand juries generally had to list the names of all witnesses who appeared on the face or the back of the bills. The public had wide access to grand juries and could scrutinize everything from their composition to their political biases. Thomas Jefferson wrote in 1793 that, “our judges are in the habit of printing their [grand jury] charges in all the newspapers.”…

While originally intended to serve the investigatory function of the grand jury, secrecy is now used to conceal from the public that which the government desires the public not see.

It is common for the press to fiercely defend the crucial role it plays in government accountability and its right to speak on controversial matters of interest to the public, as they properly should. Indeed, the Texas Tribune emphasizes in its report on its first five years its commitment to providing the public with more government transparency and government accountability.

“For five years we’ve delivered on our promise to cover public policy and politics with ambition and moxie — giving average citizens more reliable access to nonpartisan information, holding elected and appointed officials accountable and providing the greatest possible transparency into the inner workings of government,” said Texas Tribune CEO Evan Smith.

That makes it all the more disappointing to hear not one, but at least two media outlets essentially telling a grand jury to “sit down and shut up” rather than exercising one of its traditional and proper functions to expose corruption and abuse by a government official and call for him to be held accountable. Even if they are entirely ignorant of the history and purpose of the grand jury in American history, the media could at least support grand jurors’ supposedly First Amendment-guaranteed right to speak on an equal basis with their own.

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