Fully Informed Jury Association

Are you fully informed about jury nullification?

Function of Juries & Jurors Doing Justice | 19 Jan 2015

-Jury Finds Open Carry Advocate Not Guilty

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IMG_1132cropWe start the week off with good news from Detroit, Michigan, where a jury has found an open carry advocate Not Guilty of carrying a concealed weapon due to wearing a coat that police found too puffy, a felony charge that could have put him in prison for five years over an entirely victimless allegation.

Jury finds open-carry advocate not guilty after arrest by Detroit police

After Detroit police arrested 24-year-old Elijah Woody in September, officials said they had an open-and-shut case.

They claimed to have dash-cam footage that proved conclusively that Woody, who admits to regularly openly and legally carrying firearms, illegally had a handgun concealed in his waistband beneath a puffy coat on Sept. 13.

That evidence apparently wasn’t quite as conclusive in the eyes of a jury who found Woody not guilty of the felony carrying a concealed weapon charge Friday.

Elijah Woody is a member of a Detroit group called Hell’s Saints, who inform the public at large on their rights to keep and bear arms. In a strange twist, apparently the Detroit police decided they needed ten officers to have a chat with Hell’s Saints founder James Baker.

Detroit gun arrest prompts unusual meeting between Chief James Craig, open-carry advocate

Baker, who is no relation to Woody, not his attorney and had yet to speak to him — at the time, Woody remained in the Wayne County Jail — said he was invited to a meeting with the chief that up to nine other officers attended.

Detroit Police spokesman Sgt. Michael Woody (no relation to Elijah Woody) said the intent was to “clear up” some discrepancies Baker was disseminating, including that the arrest was racially motivated, which he said was “furthest from the truth,” adding that all three arresting officers, as well as Elijah Woody, are black.

Baker viewed dash-cam video, audio and details of the arrest, he says.

Although Baker told MLive Detroit Thursday he felt the evidence was “inconclusive,” that’s not the impression Sgt. Woody said he had when the meeting ended.

Regardless of whether or not any of the jurors felt the firearm was hidden by the puffiness of the coat, the jury came to the right conclusion in acquitting Mr. Woody. None of the reports surrounding this incident indicate that he in any way harmed or threatened anyone else. Rather, officers chose to make an arrest and put him at risk of five years in jail time over what amounts to fashion policing, not to mention potentially losing his Second Amendment-protected rights that he obviously values. We, as jurors, have an obligation to uphold justice and to refuse to be complicit in such abuse. It is gratifying to see Woody’s jury protect him with their Not Guilty verdict from what some seem to have thought would be an easy conviction.

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Jury Nullification & Volunteer | 09 Jan 2015

-Relevant Rulings Regarding New York City Jury Nullification Outreach

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San Diego jury nullification outreachIn the coming weeks jury nullification educators will once again take their message to the Southern District of New York Courthouse (also known as the Daniel Patrick Moynihan Courthouse). More educators and also people willing and able to video record and/or livestream their outreach efforts are needed for this effort. To help out, click through to the Facebook event page, or contact the FIJA office at aji@fija.org or 406-442-7800 to be put in touch with those coordinating this outreach activity.

This courthouse was the location at which an activist was arrested multiple times in the course of handing out FIJA pamphlets in 2009-2010 and also at which another individual was arrested for filming jury nullification outreach back in 2009. FIJA does not recommend getting arrested as an outreach tactic for a variety of reasons, nor is it consistent with our educational outreach strategy. To minimize personal risk, we have outreach guidelines and training available to help juror educators avoid arrest in the course of conducting legal jury nullification outreach activity. That said, legal cases resulting from the arrest of Julian Heicklen for handing out FIJA literature, and separately of Antonio Musumeci for video recording Julian while he was being arrested in the course of jury nullification outreach, both ended in victories.

In this article, I will outline the circumstances regarding these arrests and the favorable outcomes of each, including documentation thereof. These outcomes are unique features of the courthouse in question that anyone involved in juror rights outreach or recording thereof at this location may find useful in the event of pushback against their lawful activities at or near the Daniel Patrick Moynihan Courthouse in New York City.

Handing Out FIJA Jury Nullification Pamphlets

On several occasions in 2009 and 2010, Julian Heicklen distributed FIJA literature in front of the entrance to the Daniel Patrick Moynihan Courthouse in New York City. On multiple occasions he was arrested in the course of such outreach activity. On one such occasion, an agent with the Federal Bureau of Investigations (FBI) came out of the courthouse posing as a juror apparently in an attempt to entrap Heicklen into engaging in jury tampering.

The only cases he was identified as discussing in the excerpt of their recorded conversation included in the ruling were those of William Penn and Edward Bushell (1670), John Peter Zenger (1733), and Georgia v. Brailsford (1794). Yet in November 2010, a grand jury indicted Heicklen under 18 U.S.C. § 1504, a federal jury tampering statute. In response, he moved to dismiss the indictment on a number of grounds.

On 19 April 2012, Judge Kimba Wood issued an Order and Opinion in the matter, identifying three elements contained in the statute:

(1) that the defendant knowingly attempted to influence the action or decision of a juror of a United States court;
(2) that the defendant knowingly attempted to influence that juror (a) upon an issue or matter pending before that juror, or pending before the jury of which that juror is a member; or (b) pertaining to that juror’s duties; and
(3) that the defendant knowingly attempted to influence that juror by writing or sending to that juror a written communication in relation to such issue or matter.

Wood noted that:

The statute therefore squarely criminalizes efforts to influence the outcome of a case, but exempts the broad categories of journalistic, academic, political, and other writings that discuss the roles and responsibilities of jurors in general, as well as innocent notes from friends and spouses encouraging jurors to arrive on time or to rush home, to listen closely or to deliberate carefully, but with no relation to the outcome of a particular case.

FIJA literature does not discuss any case currently in progress, and FIJA guidelines even caution against verbally discussing cases in progress while involved in juror rights education. Judge Wood observed that Heicklen had “no inkling of what type of case was before the juror who approached him and no intent to affect the outcome of a specific case”. In contrast, it was Wood’s judgement that:

Based upon the plain meaning of the text of 18 U.S.C. § 1504, reinforced by relevant judicial interpretations and the doctrine of constitutional avoidance, the Court holds that a person violates the statute only when he knowingly attempts to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror’s duties by means of written communication made in relation to a specific case pending before that juror or in relation to a point in dispute between the parties before that juror.

It was therefore her conclusion in dismissing this indictment that:

Because the Indictment does not allege that Heicklen attempted to influence a juror through a written communication made in relation to a specific case before a juror or in relation to a point in dispute before a juror, the Court finds that the Indictment fails to state all of the elements of the offense described in 18 U.S.C. § 1504 and must be dismissed as legally insufficient.

Resources:
Opinion and Order dismissing the indictment
18 U.S.C. § 1504- Influencing juror by writing
18 U.S.C. § 1503- Influencing or injuring officer or juror generally

Recording Jury Nullification Outreach

Antonio Musumeci was arrested on 9 November 2009 in the public plaza in front of the steps outside of the Daniel Patrick Moynihan Courthouse in Manhattan in the course of recording the arrest of Julian Heicklen, who was present that day handing out jury nullification information. Heicklen was first arrested by Inspector Barnes.

While he was recording the arrest, Inspector Barnes and another officer grabbed Musumeci and forced him to the pavement. He was arrested, detained for several minutes, and ticketed for violating a photography regulation, but the charge was later dismissed. Subsequent to this incident, Musumeci was twice more harassed by federal officers, including threat of arrest, for attempting to record Heicklen at this location.

Assisted by the New York Civil Liberties Union (NYCLU), Musumeci successfully sued the U.S. Department of Homeland Security over his unlawful arrest and harassment. The settlement of this case included agreement by the Federal Protective Service (FPS) to provide written instruction to its officers and employees engaged in law enforcement directing them that for federal courthouses under the protective jurisdiction of FPS there are no general security restrictions against exterior photography by individuals from public spaces, absent a written local regulation, rule or order, and informing them of the right of the general public to photograph the exterior of federal courthouses from publicly accessible spaces. The original complaint, the settlement, and evidence of compliance with the settlement, obtained from the website of the New York Civil Liberties union, are available below for free download.

This morning I called the NYCLU to inquire about any developments with respect to this settlement. I spoke very briefly with Christopher Dunn, Associate Legal Director of the NYCLU and attorney for the plaintiff in this case, explaining that there are upcoming juror education efforts planned along with video recording and live streaming of such. My first question was to ask for a sort of temperature check with regard to the implementation of this settlement and how well the courthouse was abiding by it. He reports that he has not heard of anyone who has had any further problems of this nature at the courthouse since the settlement. Note that this is a general observation, is not legal advice, and is not a guarantee of future performance by courthouse officials.

Second, I asked if he had any recommendations as to what people should do if they experience pushback from courthouse officials against their recording and streaming activities. He invited such people to contact him by calling the main office number of the NYCLU (listed on the Contact page linked below). This is ONLY with respect the issue of photography or recording, and this is NOT an offer or promise of legal assistance. This is simply an invitation to call him in the event of courthouse officials failing to abide by this settlement in which he was the plaintiff’s attorney. What may or may not transpire from there would be determined by calling him. If you find yourself with reason to call, you may wish to reference the Musumeci settlement when you ask to speak with him.

Resources:
Musumeci Complaint (.pdf)
Stipulation and Order of Dismissal (.pdf)
FPS Photography Bulletin 8-2-2010 (redacted) (.pdf)
Musumeci v. U.S. Department of Homeland Security at NYCLU Website
Contact Information for the NYCLU

Conclusion

Note that as in the stock market, past performance is no guarantee of future results. In other words, there is no guarantee that courthouse officials are aware of or even that they care to abide by this ruling and settlement, nor that they will not find other reasons to arrest individuals, even those engaged in legal activity. Activists are each individually responsible for the risks that they take, including their own personal actions as well as the choice of with whom else they will do outreach. It is up to you to decide your own personal risk tolerance and not allow yourself to be pressured into activity with which you don’t feel comfortable. It is also your responsibility when communicating your planned actions to those working with you, to honor and abide by how you have represented to them that you will behave so as not to endanger them by acting outside the bounds of how you represented to them that you would conduct yourself in association with them.

There are real risks involved in juror rights education, particularly in the vicinity of courthouses where judges and prosecutors have a vested interest in keeping secret from jurors their full authority. Nonetheless, the vast majority of juror rights outreach, including near courthouses, is done without any arrests or other legal consequences. On occasions where there is a disagreement from courthouse officials over whether or not activists may conduct juror rights outreach, it is usually possible to resolve the issue either afterward or even there on the spot by exercising peaceful forbearance in complying with the unjustified demands to stop but then following up to explore the alleged grounds for such orders non-antagonistically yet assertively. Individuals conducting juror rights outreach can reduce personal risks to themselves while asserting their First Amendment-protected rights by acting in accordance with FIJA guidelines and training, and by strategically pushing back against these orders through means other than violating them.

Moreover, with respect to this particular courthouse, juror rights educators have the benefit of additional legal precedent that activists at other courthouses typically have not had had established prior to their activity. It may provide a bit of protection beyond what activists at other courthouse have to back them up, and I encourage everyone to be aware of the above information so that even if you decide to leave the courthouse at some point for your own safety, you can then push back through media attention, legal action, and other means that do not put you at risk of arrest.

When individuals have been arrested, often such arrests could have been avoided. Among the avoidable errors made that could result in arrest are:
-violating a standing court order rather than challenging it through the civil legal process, in the media, or otherwise
-violating FIJA guidelines, for example, by discussing a specific case, seeking out jurors in particular, or trying to do outreach inside a courthouse
-conducting outreach while they have unresolved legal issues such as unpaid parking tickets or an outstanding warrant for their arrest
-behaving purposely provocatively or antagonistically toward law enforcement
To reduce your risk of negative interactions with law enforcement, don’t do these things.

Arresting people is a script that law enforcement is well familiar with, and it is one that they will more often than not win. Even when they “lose” it can end up costing you far more in time, money, and energy than it costs them, not to mention potentially damaging educational outreach efforts in the process. Instead, we need to write a script that they are not already familiar with, by challenging these orders without getting arrested.

Such efforts have a track record of success such as in Florida, where FIJA activist Robert Dreyfuss peacefully secured a memo from a state circuit court not only upholding our right to hand out FIJA literature at the courthouse, but further directing that such pamphlets should not be confiscated from jurors in the jury assembly room. More recently, we saw juror rights activists’ strategic efforts to challenge repeated harassment in Bucks County pay off, not only in being left alone to do outreach at this location, but also resulting in a front page news story and an editorial in the local paper, which spread the message far beyond just the courthouse.

Remember: just because you may leave the courthouse one day because you are being bullied by courthouse officials does not mean that the situation is over. In fact, more than once juror rights educators have turned such unlawful bullying to their advantage to shine FAR MORE ATTENTION on our educational mission by bringing the situation to the attention of the media, and even successfully asserting their right to be conduct outreach unharassed and unmolested by government agents.

If you experience any uncomfortable encounters with government officials in the course of your work at this location, please feel free to contact me in the FIJA office at 406-442-7800 or aji@fija.org so that we can strategize about how to turn the situation into an advantage to spread the message further! We do not offer legal advice or provide legal defense for activists, but we can offer you ideas and observations about successful strategies and tactics for challenging bullying and unlawful orders coming from government agents in an attempt to stifle our voices and work.

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Function of Juries & History of Jury Nullification & Jury Nullification & Know Your Rights | 08 Jan 2015

-”In Our Time” on the Magna Carta

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KnowYourRootsKnowYourRights_symbol“King John’s a famous villian of English history, and Magna Carta happened on his watch in 1215. Does he deserve the reputation he has?”
“Well, you see most villians in the past are sort of found by modern historians to be good in parts and not good in others. John really was an absolute rotter, through and through. The worst king in English history, possibly.”

How absolutely rotten does a king have to be before he is confronted by those under his despotic rule and given the choice between signing the Magna Carta or going to war? Melvyn Bragg discusses with guests Nicholas Vincent, David Carpenter and Michael Clanchy the historical environment from which the Magna Carta emerged in 1215 and how it has been invoked in the centuries since, reading out in the very beginning of the program Article 39, the clause which codified jury rights some 800 years ago.

In Our Time: The Magna Carta

In celebration of the 800th anniversary of the Magna Carta, FIJA will be sharing with you information on its history and lasting impact still today through a variety of special programming. We invite you to Know Your Roots and Know Your Rights!

KYRKYR-Home-Page-Graphic

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Function of Juries & Jurors Doing Justice & Jury Nullification | 07 Jan 2015

-Jury Finds Man Not Guilty of Weapons Charge

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IMG_1132cropThis week a jury acquitted Reuben F. Hairston of being a felon in possession of a weapon that apparently spent only a couple of minutes in his car and without his knowledge.
Jury finds man not guilty of weapons charge

In April 2012, Hairston gave two men a ride, but the two men asked to be let out of the vehicle less than a minute after they got into the back seat of Hairston’s car, Rice said. Illinois State Police agents pulled over Hairston just a few seconds later, Rice said, and found a gun in the back seat where the two passengers had been sitting.

“They got in and, basically, left a gun behind,” Rice said.

Prosecutors charged Hairston with being a felon in possession of a weapon after they discovered Hairston had a 2009 felony conviction from another county.

It seems possible that jury nullification may have been a factor in this acquittal, and rightfully so. Whereas prosecutors may be given perverse incentive to prosecute a man who, unbeknownst to him, had a gun someone else left in his car for a couple of minutes, never harming nor threatening anyone with it, reasonable people should understand that to punish a man under these circumstances not only serves no purpose, but would be a gross miscarriage of justice.

Felon in possession of a firearm, possession of a stolen firearm, and other similar charges are the sort of overly broad charges that can easily be maliciously leveled and prosecuted to gain convictions against otherwise innocent people. Just a few weeks ago, The New York Times reported on a highly suspicious set of cases in which weapons were conveniently “found” under suspiciously similar circumstances by a certain group of officers, allegedly relying on tips from informants who are conveniently never produced in court, with multiple judges finding officers’ testimony in multiple such cases to be not credible.

In Brooklyn Gun Cases, Suspicion Turns to the Police

The tip comes from a confidential informer: Someone has a gun. Ten or more minutes later, police officers find a man matching the informer’s detailed description at the reported location. A gun is discovered; an arrest is made.

That narrative describes how Jeffrey Herring was arrested last year by police officers in the 67th Precinct in East Flatbush, Brooklyn. It also describes the arrests of at least two other men, Eugene Moore and John Hooper, by some of the same officers.

The suspects said the guns were planted by the police.

There were other similarities: Each gun was found in a plastic bag or a handkerchief, with no traces of the suspect’s fingerprints. Prosecutors and the police did not mention a confidential informer until months after the arrests. None of the informers have come forward, even when defense lawyers and judges have requested they appear in court.

Taken individually, the cases seem to be routine examples of differences between the police account of an arrest and that of the person arrested. But taken together, the cases — along with other gun arrests made in the precinct by these officers — suggest a pattern of questionable police conduct and tactics.

Even if guns aren’t planted by law enforcement themselves, otherwise innocent people can be dragged through the nightmare of prosecution in cases like Hairston’s through no fault of their own. Matt Kaiser found the First Circuit Court in 2013 uncharacteristically sympathetic to jury nullification due to the unreasonable lack of an “innocent possession” defense in the case of United States v. Baird against an individual who unknowingly purchased a stolen firearm:

Did The First Circuit Encourage Jury Nullification in Stolen Gun Case?

Mr. Baird wanted an “innocent possession” instruction. He wanted to argue that he didn’t know the gun was stolen when he possessed it and that it got rid of it quickly after having learned it was.

The district court refused to give that instruction, relying on cases that said there’s no “innocent possession” defense in a possession of a stolen gun case, relying on United States v. Teemer, a prior First Circuit case on whether there’s an innocent possession defense to a felon in possession charge.

The First Circuit, reversing on the failure to give the instruction, acknowledge that Teemer held there was no such defense, but then said,

But that is not all Teemer said. While Teemer declined to create a “mandatory safe harbor” for innocent possession, it also acknowledged that “there are circumstances that arguably come within the letter of the law but in which conviction would be unjust,” such as if a felon snatched away a loaded gun from his school-aged son and then called the police to retrieve it. Therefore, although Teemer relied primarily on prosecutorial discretion and the common sense of the jury to weed out the cases warranting leniency in § 922(g) cases, we have simultaneously recognized that “extraordinary cases might arise where . . . . if the government were foolish enough to prosecute, some caveat might indeed be needed (e.g., an instruction on a necessity or justification defense.)”

Kaiser argues is hard to read any other way than “licensing a very limited kind of jury nullification”.

The point of our legal system should not be to terrorize and abuse as many people as possible as a make work scheme for police, lawyers, judges, and prisons. Rather, it should be to ensure justice above all else. While it may technically be possible to prosecute people under these sorts of circumstances, it is crucial that jurors understand that they are NOT required to be accessories to these kinds of crimes against our communities perpetrated by government officials under color of law. When justice and the technical details of the law come into conflict, jurors have the right and the responsibility to uphold justice with their Not Guilty votes.

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Function of Juries & Jury Nullification | 06 Jan 2015

-Bill Seeks Unanimous Jury In Death Cases

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Jury BoxThis 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.

Florida is one of a few states where the judgment of a 12-member jury in a capital case to impose a sentence of life without parole instead of the death penalty can be ignored and replaced with death by a single judge. A bill has been introduced in the Florida legislature this year that could potentially affect how the death penalty is imposed.

Bill Seeks Unanimous Juries In Death Cases

The bill (HB 139), proposed by Rep. Jose Javier Rodriguez, D-Miami, will be considered during the 2015 legislative session. Under current law, a majority of a jury can recommend that a defendant receive the death penalty, with a judge ultimately deciding whether to impose the sentence.

Rodriguez’s bill would create a higher standard, with juries needing to be unanimous in such recommendations. The bill also would give direction to judges on some jury instructions in death-penalty cases.

The potential implications of this legislation are not clear to me. This legislation seems like it could be somewhat protective of a single juror’s ability to utilize jury nullification in the sentencing phase of a capital case to recommend life without parole instead of death. However, while a jury would be required to be unanimous in its recommendation, I don’t see anything that would bind a judge to impose a sentence no harsher than that recommended by the jury. From my reading, it seems possible that even if a jury unanimously recommended life without parole, a judge might still be able to overrule that recommendation. I will be keeping an eye on this bill as it progresses through the legislative process.

Related articles:
-Tallahassee Paper Supports Unanimous Jury Verdicts for Death Sentences
-Non-unanimous Judges Can Overturn Unanimous Jury Sentences in Florida
-Alabama Judges Can Override Juries to Impose Death Sentences

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Function of Juries & Jury Nullification | 03 Jan 2015

-Kansas Supreme Court Upholds Jury Nullification

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GavelIconI am pleased to report another court victory in the final days of 2014! This ruling upholding jurors’ ability to exercise jury nullification and otherwise preserving the role of the independent jury comes from the Kansas Supreme Court in the case of State v. Smith-Parker.

There were several jury-related and other matters at issue in this case, including the incorrect wording of an instruction to the jury regarding their verdict options:
State v. SMITH-PARKER, Kan: Supreme Court 2014

Smith-Parker next argues that the jury instruction on alternative first-degree murder theories contained a misstatement of law with respect to reasonable doubt. The instruction read: “If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.” (Emphasis added.) According to Smith-Parker, the instruction should have been identical to the general reasonable doubt instruction that was also given. That instruction said: “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)

Earlier Kansas Supreme Court precedent allowed the more intimidating “must convict” language in jury instructions, effectively taking conscientious acquittal off the table for all but the most courageous and tenacious of jurors. The Court in this case, however, ruled that previous decision was in error and overturned it, stating clearly that both “must convict” and “will convict” language comes too close to directing a Guilty verdict, which the judge is never permitted to do:

This court addressed a similar instruction challenge in State v. Lovelace, 227 Kan. 348, 607 P.2d 49 (1980). The questioned Lovelace instruction told jurors that they “must” find defendant guilty if they did had no reasonable doubt on the elements of the crime. 227 Kan. at 354. This court rejected Lovelace’s argument that “must” commanded the jury to find the defendant guilty and noted that “should” and “must” could be used interchangeably in criminal instructions. 227 Kan. at 354. Smith-Parker acknowledges this precedent but argues that it was wrongly decided. We agree with him and overrule the Lovelace holding.

Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, see State v. Naputi, 293 Kan. 55, Syl. ¶ 4, 260 P.3d 86 (2011) (juries possess power to decide case contrary to applicable facts and law, i.e., power of jury nullification, but defendant not entitled to instruction on power), the district judge’s instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification. Cf. State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973) (“Although it must be conceded that the jurors in a criminal case have the raw physical power to disregard both the rules of law and the evidence in order to acquit a defendant, it is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon.”). Both the wording of the instruction at issue in Lovelace—”must”—and the wording at issue here—”will”—fly too close to the sun of directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.

FIJA Advisory Board member Dr. Roger Roots, J.D., Ph.D. has written about the disturbing trend in criminal courts of instructing jurors that they “must” convict as opposed to “may” or “should” convict. He points out the 2-1 majority opinion in the 1972 case of United States v. Dougherty was based largely on a distinction in jury instruction verbiage that is no longer a given.

Criminal Courts have Quietly Moved From “May” Convict to “Must” Convict Jury Instructions Over the past 40 Years

Unfortunately, however, Judge Bazelon was outnumbered by Judges Leventhal and Adams, who held that trial judges are under no obligation to inform jurors of their “unreviewable and unreversible power . . . to acquit.” The two-judge majority decided that juries did not need to be explicitly informed because the power of jury nullification is implicit in the overall tone of commonly-given jury instructions.

According to Judge Leventhal (with emphasis added):

The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. . . . Even indicators that would on their face seem too weak to notice — like the fact that the judge tells the jury it must acquit (in case of reasonable doubt) but never tells the jury in so many words that it must convict — are a meaningful part of the jury’s total input. Law is a system, and it is also a language, with secondary meanings that may be unrecorded yet are part of its life.

The problem with Judge leventhal’s 1972 statement is that it is no longer true. During the 1970s, when Dougherty was decided, the common practice was for judges to use the word “must” only when instructing jurors to acquit when prosecutors fail to establish proof beyond a reasonable doubt. In contrast, the word “should” was used when instructing jurors about their obligations when prosecutors prove their cases. But today, many courts have switched to using “must” in both commands.

Thus, a central tenet supporting the opinion of the Dougherty majority—perhaps the lynchpin of the decision—is no longer accurate.

This is further complicated by cases such as that of United States v. Krzyske in 1988. In the Krzyske case, jurors specifically asked the judge during their deliberations about the possibility of nullification. He did not simply fail to instruct them on it, but rather when specifically asked about it by jurors, went so far as to discuss it and give them an explicitly untrue answer that effectively took that option off the table for them.

US v. Krzyske, 836 F. 2d 1013 – Court of Appeals, 6th Circuit 1988

The trial court denied defendant’s request to instruct the jury on his asserted doctrine of jury nullification. The court also denied the government’s motion to prohibit the use of this term during the proceedings and, as a result, Krzyske mentioned the doctrine of jury nullification in his closing argument. During its deliberation the jury asked the court what the doctrine stood for. The court responded, “There is no such thing as valid jury nullification. Your obligation is to follow the instructions of the Court as to the law given to you. You would violate your oath and the law if you willfully brought in a verdict contrary to the law given you in this case.” Defendant objected and claims it was error for the court to so instruct the jury.

The majority ruling in this case—another 2-1 split—upheld the right of a jury to reach any verdict it wishes, including exercising jury nullification if jurors see fit, but approved “the district court’s refusal to discuss jury nullification with the jury” while completely ignoring the fact that the judge had, in fact, discussed jury nullification and made false statements about it to the jury. On this basis, the majority refused an appeal. In dissenting with the majority, Judge Merritt was very pointed in his criticism of the faulty majority ruling:

The law is settled that the jury has the power to decide against the law and the facts. The jury specifically asked about its power to do so, and was told by the District Court that it had no such power. The least that the jury should have been told was “the jury has the power to bring in a verdict in the teeth of both law and facts … the technical right, if it can be called so, to decide against the law and the facts …..” Horning v. District of Columbia, 254 U.S. 135, 138-39, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920). These were the words of Justice Holmes speaking for the Court. The Supreme Court has never taken these words back or indicated that they do not properly state the law. The District Court and our Court are simply refusing to apply these words because they do not agree with them. It is not our prerogative to overrule the Supreme Court.

Subsequent to the initial ruling from the Court of Appeals, the defendant submitted an affidavit from one of the jurors in the original trial. In that affidavit, that juror clearly stated that the false information given to the jury by the judge specifically led to the defendant’s conviction.

US v. Krzyske, 857 F. 2d 1089 – Court of Appeals, 6th Circuit 1988

The sworn affidavit of a juror submitted to us now by defendant Krzyske reports the jurors’ reaction to the warning given them by the district judge:

. . . . .

2. On June 25, 1985 we jurors asked the trial judge, Charles W. Joiner, during the first day of deliberations and before any verdicts were returned, the following question:
“WHAT IS JURY NULLIFICATION?”
3. This question was in the form of a note to the judge, and it was asked because we were very inquisitive as to its meaning.
4. When the trial judge responded by saying “There is no such thing as valid jury nullification”, we were left very confused.
5. After the trial was over, I learned what jury nullification was because I was still in doubt over its meaning as the trial was concluding.
6. If we were told the truth about jury nullification a different outcome would have resulted in favor of the defendant, Kevin Elwood Krzyske, because I (for one) would have voted for “acquittal” on all counts of the indictment.

Yet even upon revisiting the issue in light of the affidavit, the court remained split 2-1 upholding the conviction. Here we have a ruling in which it is clear that the judge’s words to the jury about jury nullification were untrue, and in fact that his erroneous statement led to the defendant’s conviction, and yet the Court of Appeals affirmed the district court and let the conviction stand.

This leads me to be somewhat cautiously optimistic about the ruling from the Kansas Supreme Court. Definitely optimistic, but still cautious. It is not clear to me from the Smith-Parker ruling how much unaccountable wiggle room is left for judges in Kansas to “err” in this way. Note that throughout the many issues the Kansas Supreme Court investigated, the Court declined to rule with respect to any single issue for which it found in favor of the defendant, including the “will” language in the jury instruction, that such issue by itself constituted reversible error. The court found four such errors in this case:

State v. SMITH-PARKER, Kan: Supreme Court 2014

We have found four errors: the exclusion of Letourneau’s out-of-court statement, the faulty jury instruction, the failure to instruct the jury to begin its deliberations anew after N.B. was replaced with an alternate juror, and the denial of Smith-Parker’s motion to recall at least N.B. and the presiding juror to investigate the allegation of jury misconduct.

When a judge errs, such error may be deemed reversible or harmless. A reversible error is one which is deemed to have resulted in an unfair trial and thus results in a reversal on appeal. A harmless error is one which is acknowledged to be an error, but which is not considered a sufficiently egregious error as to warrant a new trial. In this case, the Court did not explicitly rule on which, if any, of these errors it found were considered reversible vs. harmless errors. Rather, it ruled based on the cumulative error doctrine, under which the existence of errors, no one of which necessarily merits reversal, are in combination deemed to necessitate the reversal of a finding or sentence.

If, indeed, the error with respect to the jury instruction is by itself not considered reversible error, that opens the door to judges making this same error in other cases, potentially leading so far as to result in a defendant’s conviction, without any accountability for such error in the higher courts. That leaves plenty of room for concern. Nonetheless, the ruling is a welcome step back in the right direction, reversing the previously standing ruling in the Lovelace case, in which the Court denied any substantial difference in meaning between the “must” and “should” wordings of jury instructions.

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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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