Fully Informed Jury Association

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Function of Juries | 08 Dec 2016

-Alabama Set to Kill a Man Against His Jury’s Wishes

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The state of Alabama is on the verge of committing a grossly unconstitutional and irreversible act. It is trying to carry out the execution scheduled for this evening of Ronald Bert Smith, a defendant whose jury voted 7-5 to sentence him to life without parole, but whose sentence was overridden by a judge, who unilaterally decided he should be killed.

How is this possible? In short, despite this year’s United States Supreme Court ruling disallowing it, Alabama continues to allow judges to usurp the jury’s fact-finding role in capital cases.

The United States Supreme Court clearly and unequivocally ruled earlier this year in the case of Hurst v. Florida that the jury, in light of Ring v. Arizona, holds sole authority for finding the aggravating factors necessary to deliver a sentence of death. Until that point, three states—Florida, Delaware, and Alabama—had allowed a judge to exercise judicial override of a jury’s decision in order to execute someone whose life the jury decided to spare. The Florida legislature has since taken steps to get rid of judicial override, and the Delaware state Supreme Court has ruled judicial override unconstitutional.

Alabama, however, has pointedly ignored that ruling since it was issued. Its legislature has taken no steps to end judicial override. Several times this year, the United States Supreme Court has sent death penalty cases back to the Alabama Court of Criminal Appeals for review in light of Hurst v. Florida.

This is perhaps not surprising given that Alabama has the worst track record of the three judicial override states. According to the Equal Justice Initiative:

Alabama is the only state where judges routinely override jury verdicts of life to impose capital punishment. Since 1976, Alabama judges have overridden jury verdicts 112 times. Although judges have authority to override life or death verdicts, in 91 percent of overrides elected judges have overruled jury verdicts of life to impose the death penalty.

Nearly 20 percent of the people currently on Alabama’s death row were sentenced to death through judicial override. Judge override is the primary reason why Alabama has the highest per capita death sentencing rate in the country.

Moreover, EJI points out other factors involved in this high death sentencing rate:

There are considerably fewer obstacles to obtaining a jury verdict of death in Alabama because, unlike in most states with the death penalty, prosecutors in Alabama are not required to obtain a unanimous jury verdict; they can obtain a death verdict with only 10 juror votes for death. Capital juries in Alabama are very heavily skewed in favor of the death penalty because potential jurors who oppose capital punishment are excluded from jury service.

According to The Marshall Project:

Of the 57 executions in Alabama since the death penalty was reinstated in 1983, 29 involved non-unanimous jury votes, ranging from 11 to 1 for death to 11 to 1 for life, according to an AL.com, Marshall Project review of each case.

And now today Ronald Bert Smith, whose jury decided 7-5 on a sentence of life without parole, is scheduled to be executed because the judge in his case took matters into his own hands, usurping even the jury’s fact-finding role.

Smith has petitioned the Supreme Court of the United States for a stay of execution. Alabama, meanwhile, continues in its efforts to maintain its power to disregard the jury and continue state-ordered executions against jurors’ independent and conscientious judgment.

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History of Jury Nullification & Jurors Doing Justice & Jury Nullification | 06 Dec 2016

-How Jury Nullification Contributed to Emancipation (and How Government Tried to Thwart It)

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Today marks the anniversary of one of two amendments to the U.S. Constitution that came about in part due to jury nullification—the Thirteenth Amendment, also referred to as Emancipation.

During great turmoil in the U.S. over private ownership of other human beings, Daniel Webster led the charge to maintain slavery and keep the country together and out of war. He championed a package of laws known as the Compromise of 1850, the most key element of which was the Fugitive Slave Act of 1850. He was so invested in this that he staked his presidential aspirations on its enforcement. Ultimately, he was humiliated and his presidential hopes were decimated.

The Fugitive Slave Act of 1850, among its many provisions, punished people for aiding and abetting fugitive slaves, or refusing to aid in their capture when ordered to do so. It was these people who were charged—and often not convicted, thanks to jury nullification—in order for Daniel Webster to defend the platform on which he planned to make a run for president.

Despite common misunderstanding, jury nullification of the Fugitive Slave Act was NOT used to prevent conviction of slaves. Under this law, alleged fugitives were not entitled to trial by jury, nor were they even allowed to testify. It is important to be clear on this point. Let us not mistakenly understate the seriousness and abusiveness of slavery by failing to accurately understand the depth of its evil.

As I have been learning in my research on the topic, it is true that jurors did often nullify the Fugitive Slave Act of 1850, with acquittals and hung juries. Early examples include two series of trials for rescues accomplished in 1851: the Shadrach Rescue Trials and the Jerry Rescue Trials.

In the Shadrach Rescue Trials, Daniel Webster shepherded the prosecutions of several men, both black and white, who aided in the rescue of Shadrach Minkins. The government began prosecuting the cases in the order of most likely convictions, but after just seven trials, in which jurors refused to convict five black and two white defendants, the government admitted defeat and abandoned further prosecutions.

In the Jerry Rescue Trials, around two dozen people were to be prosecuted after a crowd some 2500 people stormed a government building to break out William “Jerry” Henry and helped him escape to Canada. The Jerry Rescue was a catalyst for abolitionist activism in upstate New York from then until the Civil War. It was clear early on that convictions would be key to quelling this effect, but the government managed to secure only one conviction. Even that was likely to have been overturned on appeal had the defendant not passed away before the process was complete.

These early defeats were humiliating for the government and critical in emboldening the abolitionist movement in its rebellious pursuits to end slavery.

It is not surprising, then, that I have also turned up evidence this past summer in my research in Wisconsin that as the government recognized the power of jury nullification to thwart slavery, it dialed up its own efforts to undermine jury nullification. Wisconsin newspaper publisher Sherman Booth became embroiled in a years-long legal battle over his role in the 1854 rescue of Joshua Glover, who successfully escaped to Canada. This battle raged in both criminal and civil court, including involvement of both Wisconsin state and the federal government.

The judge in Booth’s criminal trial tightly controlled the proceedings, refusing to permit the jury to consider the justice of the law or the defense to argue it to the jury as was legal and had previously been done successfully. At least one juror begged the defense attorney to have him removed so that he would not be forced to convict against his conscience. Ultimately, Booth was convicted, imprisoned, and fined for his actions. While an appeal was mounted that resulted in the Wisconsin Supreme Court declaring the Fugitive Slave Act unconstitutional, this ruling was overturned by the United States Supreme Court.

Despite the government’s limited success in undermining the independence of the jury, jury trials in Fugitive Slave Act cases helped build momentum in the abolitionist movement that would ultimately make the Compromise of 1850 unenforceable and open the door to Emancipation.

After the conclusion of the Civil War, the former slave state of Louisiana would overtly craft a new state constitution specifically to politically disenfranchise its newly freed black citizens. One of these Jim Crow provisions, which is still in force today, was to remove the unanimity requirement for a criminal conviction. That way, one or two black jurors could not prevent an injustice by hanging the jury. Appallingly, the United States Supreme Court in the 1970s explicitly approved this and other erosions of the protection of the jury.

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Function of Juries & Jurors Doing Justice & Jury Nullification | 28 Oct 2016

-Trial by Jury Crucial in Malheur Refuge Occupation Acquittals

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Yesterday afternoon word came from the federal courthouse in Portland that jurors had reached verdicts for most of the counts in the trial of seven defendants involved in the occupation of the Malheur National Wildlife Refuge. The defendants were found Not Guilty on all counts, with the exception of a count of theft of government property against Ryan Bundy, on which the jury did not come to a verdict.

I understand from Dr. Roger Roots, a member of FIJA’s Board of Advisors who sat for six weeks next to Ryan Bundy as a paralegal during the trial, as well as other sources, that there was substantial jury nullification outreach going on outside the courthouse. Dr. Roots told me that he saw FIJA’s Fresh Air for Justice brochure in someone’s shirt pocket.

Perhaps because of this effort and other factors, I am starting to see claims that the verdicts were a result of jury nullification. I spoke with Dr. Roots, who has also researched and written extensively on jury nullification, about the verdicts shortly after they were delivered

Were the Not Guilty verdicts that resulted from this trial examples of jury nullification?

Dr. Roots and I both agree that the answer is no. Nonetheless, it is clear, as I will discuss below, that trial by jury was crucial to these verdicts.

The major conspiracy count against all seven defendants charged that the defendants “did knowingly and willfully conspire and agree together and with each other and with persons known and unknown to the Grand Jury to prevent by force, intimidation, and threats, officers and employees” from doing their jobs. According to our esteemed Advisor, Dr. Roots, defendants argued that it was actually the federal government who told its employees not to report to work. They did not impede them.

Additionally, defendants argued that impeding them from doing their jobs was not their intent. Rather, their intent was to protest that the refuge in question did not belong to the federal government. Without the intent to do what the charge accuses them of “knowingly and willfully” doing, the charge was not proved beyond a reasonable doubt.

Update: We also now know from a statement made by Juror #4 that jurors believed the government failed to meet its burden of proof on the conspiracy charges.

Juror 4: Oregon standoff prosecutors failed to prove ‘intent’ to impede federal workers

“It should be known that all 12 jurors felt that this verdict was a statement regarding the various failures of the prosecution to prove ‘conspiracy’ in the count itself – and not any form of affirmation of the defense’s various beliefs, actions or aspirations,” Juror 4 wrote Friday in a lengthy email to The Oregonian/OregonLive.

Juror 4 noted the panel couldn’t simply rely on the defendants’ “defining actions” to convict.

“All 12 agreed that impeding existed, even if as an effect of the occupation,” he wrote.

“But we were not asked to judge on bullets and hurt feelings, rather to decide if any agreement was made with an illegal object in mind,” the Marylhurst student wrote. “It seemed this basic, high standard of proof was lost upon the prosecution throughout.”

“Inference, while possibly compelling, proved to be insulting or inadequate to 12 diversely situated people as a means to convict,” the juror wrote. “The air of triumphalism that the prosecution brought was not lost on any of us, nor was it warranted given their burden of proof.”

As to the weapons charges, initially there were two. One was entitled “Possession of Firearms and Dangerous Weapons in Federal Facilities” and the other was entitled “Use and Carry of a Firearm in Relation to a Crime of Violence”.

According to Dr. Roots, that second charge never made it to the jury. Because there was no evidence that any of the defendants used the firearms they possessed, the charges of “Use and Carry of a Firearm in Relation to a Crime of Violence” were dismissed. This is worth mentioning here, however, as it helps illustrate the prosecution’s overzealousness that they couldn’t even get this charge past a judge to be argued in court.

The title of the other charge, “Possession of Firearms and Dangerous Weapons in Federal Facilities”, is misleading, and is, I suspect, the source of many people’s idea that this trial outcome involved jury nullification. It would appear from the title that merely possessing a firearm in a federal facility is the sum total of the offense in question. If the charge was just possessing a firearm on federal property, as it is widely but incorrectly being reported, yes, this would be jury nullification.

But if one looks to the specific language explaining the charge below the title in the indictment, one finds that it contains more elements than are alluded to in the title. This offense specifically entails a requirement that said possession be “with the intent that the firearm or dangerous weapon be used in the commission of a crime”. The jury did not, however, find any of the defendants guilty of any of the other crimes of which they were accused or guilty of intending any other crimes. Therefore, a consistent verdict would require that they also find the defendants Not Guilty on this count as well. No nullification needed.

“I don’t believe it was jury nullification,” says Dr. Roots. “I believe the jury just found that the government had not met its burden of proof. The jury saw through the smokescreen erected by the government. They were being prosecuted for crimes they did not commit.”

That this acquittal was not by way of jury nullification, however, does not diminish the crucial role played by the jury. One can easily imagine a different outcome had this been a bench trial, especially in light of the extreme disappointment expressed by government officials in the wake of the verdicts, and US marshalls’ abusive treatment in tasing and manhandling Ammon Bundy attorney Marcus Mumford.

Jury finds 7 Malheur occupiers not guilty of conspiracy

“While I respect the jury’s decision, I am disappointed. The occupation of the Malheur Refuge by outsiders did not reflect the Oregon way of respectfully working together to resolve differences. I appreciate the due diligence of our federal partners and stand with the communities of Harney County and residents of Burns.”
– Gov. Kate Brown via Twitter

All Seven Defendants Found Not Guilty In Refuge Occupation Trial

“For many weeks, hundreds of law enforcement officers — federal, state, and local — worked around-the-clock to resolve the armed occupation at the Malheur National Wildlife Refuge peacefully,” said Greg Bretzing, special agent in charge of the FBI in Oregon. “Although we are extremely disappointed in the verdict, we respect the court and the role of the jury in the American judicial system.”

“The odds were totally stacked against us,” said Dr. Roots. “It was a hostile environment, and the rules of evidence were uniformly applied against us. The vast majority of motions by the government were approved. The vast majority of motions by the defense were denied.”

The simple fact is that hundreds of tax-paid government employees went up against a rag tag crew of protesters, many of whom represented themselves with standby counsel only, and the government could not get the job done. These verdicts are a result of government incompetence and hubris in overcharging beyond what they could prove, apparently to try and make an example of people rather than to reach a just outcome.

Update: Juror #4 is a business student who has chosen to remain anonymous for the time being, as the trial has negatively impacted his studies and he is not ready for more attention. Nonetheless, his communication with The Oregonian/Oregon Live provided many details about the case, including what seems to be intentional overcharging by the prosecution in order to elicit harsher punishment.

Juror 4: Oregon standoff prosecutors failed to prove ‘intent’ to impede federal workers

The jury, he said, met with Judge Brown after the verdicts were announced and after the U.S. Marshals’ physical confrontation and arrest of Bundy lawyer Marcus Mumford.

He said many of the jurors questioned the judge about why the federal government chose the “conspiracy charge.” He said he learned that a potential alternate charge, such as criminal trespass, wouldn’t have brought as significant a penalty.

The charge of conspiring to impede federal employees from carrying out their official work through intimidation, threat or force brings a maximum sentence of six years in prison.

“We all queried about alternative charges that could stick and were amazed that this ‘conspiracy’ charge seemed the best possible option,” Juror 4 said.

It is NOT the purpose of criminal charges in our legal system to be leveraged as a tool to escalate the consequences for high profile defendants in order to intimidate other citizens from similar behavior. Justice requires that any penalty imposed be commensurate with any offense committed—NOT that the stakes be artificially inflated by malicious overcharging to bully defendants out of their Constitutional right to trial by jury or to deter other people’s possible future behavior.

Even those who don’t agree with what the Bundys and others actually did should keep in mind two things:
1. These defendants were WAY overcharged. Jurors SHOULD acquit when the government fails to prove its case beyond a reasonable doubt for the charges it levels. This overcharging is totally inappropriate, whether it is against the Bundys, or Marissa Alexander, or Aaron Swartz, or anyone else, and jurors can discourage it with their very appropriate Not Guilty verdicts.

2. Even when we think that someone has done something wrong, we have got to get out of this mentality of going from zero to years in prison, or in the case of LaVoy Finicum who will never get his day in court, zero to a death penalty, anytime someone does anything wrong. I don’t care if they’re occupying a refuge or an intersection. We should not automatically jump to incarceration or death for every offense.

Jurors have the power to rein in government legal officials who are out of control in overzealously prosecuting anyone for anything, with charges stacked so high as to strain credulity beyond belief. The two most powerful words in any courtroom are: Not Guilty.

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FIJActivist & Jury Nullification | 14 Oct 2016

-Another Threat of Illegal Arrest at Denver Courthouse

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Just yesterday we received word from Eric Verlo, a plaintiff on the lawsuit to make a preliminary injunction against this kind of behavior a permanent injunction, regarding an illegal threat of arrest of someone handing out FIJA brochures at the Lindsey-Flanigan Courthouse. The activist reports:

Jury Nullification activist threatened with arrest. 8:40am, October 11, 2016.

On Tuesday, Oct 11, a Denver jury nullification pamphleteer was once again told they could not be in front of the Lindsey Flanigan Courthouse on pain of arrest. An hour into quietly passing out jury nullification fliers and engaging passersby in polite conversations, a lone activist was accosted by courthouse deputies and threatened with arrest if she didn’t remove herself to the sidewalk.

This incident occurred at the temporary south entrance of the courthouse, where Occupy Denver activists have been distributing jury nullification fliers on weekday mornings, 7:30-9:00 am, without incident since moving from the main doors. For over a month, construction at the main entrance of Lindsay-Flanigan Courthouse has shifted public traffic to a makeshift south entrance, off the picnic area on the plaza.

(On the diagram accompanying the Martinez “Plaza Order” CJO-1, this picnic area is on the southern portion of the “Yellow Zone”.)

Specifically the activist was told by deputies:
“You can’t be here.”

“The Captain says you have to be by the sidewalk or you will be cited.”

“You are too close to people and there has been a complaint.”

“If you do not move from this area we will call the police.”

At first the activist felt intimidated. She observed a half dozen courthouse deputies watching her from the entrance. Although she objected to the instructions given her, she complied.

After five minutes or so standing where directed, outside of the flow of people coming in and out of the courthouse, the activist returned to her original spot adjacent the walkway leading to the temporary entrance. Within minutes two Denver Police Department (DPD) officers arrived and five courthouse deputies joined them to surround the activist.

The activist continued to assert her right to distribute pamphlets at that location and then used her phone to call me, so that I serve as a witness to what would transpire. The time was 8:43 am.

After two more police officers arrived in separate DPD cruisers, the uniformed group left the activist and went into the courthouse to confer. A DPD officer was seen making a phone call.

Shortly, the officers emerged to stand outside the courthouse observing the activist for about twenty minutes. Before they departed at 9:09 am, two of the officers were persuaded to tender business cards. The cards identified DPD Officer *name and badge number redacted*, and *name and badge number redacted*.

A witness to this incident was *name redacted*, an unrelated justice reform advocate who remained on the perimeter of this incident. Even though *name redacted* wielded a bullhorn and multiple signs, neither the deputies nor police took issue with her.

*name of juror rights activist redacted* was the activist accosted. She remained quiet and non-confrontational throughout the incident. But she stood resolute, despite being traumatized at the prospect of being taken into custody.

Occupy Denver activists have maintained a regular schedule of jury nullification outreach, with alternating participants on weekdays. We do not always have the resources to have multiple participants each day, but each person is experienced and well coached about conducting themselves with civility. Listening on the phone that morning I can attest that *name of juror rights activist redacted* remained calm throughout.

I find it very disturbing that people with supervisory authority at the courthouse could still think they can call the police on our well-litigated jury nullification activity. The blonde woman who *name of juror rights activist redacted* recognized to be the courthouse building administrator was standing outside observing the incident from the start.

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Jury Nullification | 10 Oct 2016

-Long-Term Jury Nullification Campaign Paying off in New Hampshire

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Similar to what we saw in San Diego just a couple of years ago, we have great news from New Hampshire, another state that has benefitted from long-term jury nullification outreach in recent years.

On 30 September, the New Hampshire Attorney General’s Office issued a report concluding an investigation into victimless cannabis-related activities alleged to have involved a number of New Hampshire state legislators. In addition to failing to procure enough evidence to substantiate charges against most of the individuals targeted in the investigation, the report cites the possibility of jury nullification as a reason for not prosecuting two individuals on cannabis-related charges:

Lachance appears to have purchased marijuana for what would now be considered medically appropriate use. It is reasonable to conclude that a jury would likely exercise its nullification prerogative to acquit Lachance of dry conspiracy charges under these circumstances.

Sufficient evidence exists to charge Tasker with several dry conspiracy counts for the marijuana transactions he arranged or engaged in with Bouldin, Lachance, Tucker, and Wright. Under the circumstances, however, prosecution would not be fruitful.

At least until Tasker was arrested and the scope of his alleged criminal activity became apparent, each of these individuals believed—wrongly, given his other alleged crimes—that Tasker was acting in a humanitarian capacity by selling marijuana to needy people before the drug was medically available. It is reasonable to conclude that a jury would reject dry conspiracy charges under these circumstances.

San Diego experienced a similar phenomenon just a couple of years ago. San Diego Americans for Safe Access conducted several months of regular juror rights education at the Hall of Justice in San Diego. In the space of less than a year, they went from trials with one day of jury selection ending in conviction at the end of the week, to trials taking more than a day for jury selection and having to come back the next week to conclude, to hung juries and acquittals, and finally, with the prosecutor dropping medical cannabis-related charges when it became evident that juries would not convict.

This photo of prospective jurors reading FIJA literature on their way into the Hall of Justice was sent to us the same week that two notable verdicts were delivered inside—one was a hung jury 9-3 in favor of acquittal (which ended when the judge granted a motion to dismiss with prejudice) in a medical cannabis trial of Tim O’Shea, and the other were Not Guilty verdicts on all 13 counts of so-called “vandalism” in the sidewalk chalking case of Jeff Olson.

Prospective jurors stand in line reading FIJA literature at the San Diego Hall of Justice during a highly successful, long-term, arrest-free juror rights campaign that resulted in the prosecutor losing so may cases she finally wound up dismissing charges in marijuana-related cases, rather than continue being embarrassed in court.

Understandably, many people only want to go out to courthouses to hand out FIJA brochures when a particular case is in progress. They may view any effort made outside of that narrow window to be a waste, but what we have seen most often is actually the opposite. Without additional encounters with the idea of jury nullification, a single mention of it may not be enough to give someone the confidence to use it.

“We need to remember that, for most people, the idea of jury nullification is pretty radical,” points out long-time New Hampshire juror rights educator Joel Valenzuela. “Humans are naturally slow to accept new ideas. A juror won’t believe they can nullify until they’ve heard it about a dozen times. Jury rights activists need consistency to be effective.”

Joel hits on an important point that is well known in the marketing industry: it takes more than one contact with a product, service, or in our case, an idea, before a person actually acts on a call to action. Handing a brochure to someone is one potential contact, but a long-term campaign increases potential contacts—and the likelihood of people acting on the information we teach—dramatically. That brochure may be passed from person to person and result in people seeking out more information online. People may see you more than once as they pass by the area where you are working week after week, your campaign may be covered in the media, and you may be called upon to speak to civic groups in your community.

It is this level of visibility that makes possible results such as those in San Diego and New Hampshire. If you are interested in joining or starting an ongoing juror rights education campaign, please contact us. We can help with training, materials, strategizing and more!

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FIJA in the News & Jury Nullification & Volunteer | 21 Sep 2016

-Mike Fellows, Montana FIJA State Contact, Died This Week

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It is with a heavy heart that I share with you the shocking news that Montana FIJA state contact Mike Fellows was killed in a car collision Monday night.

Despite health problems that had recently seen him hospitalized, Mike had driven up to Seeley Lake from his home in Missoula to participate in a candidate forum. On his way home, his vehicle reportedly crossed the line on highway 200 and he collided with an oncoming vehicle. Mike did not survive the accident. The driver of the other vehicle was hospitalized with injuries.

There have been a couple of articles that I thought expressed particularly well Mike’s legacy here in Montana, and I won’t get into too much detail that they’ve already covered:

Montana’s ‘godfather of third-party politics’ dead at 59
Mike Fellows dies while campaigning for U.S. House

Instead, I will add to them a bit about what Mike meant to FIJA-especially FIJA’s Montana contingent.

“I was saddened to hear of the death of Mike Fellows. Mike had been around forever, it seems,” says FIJA president and co-founder Don Doig. Mike had been volunteering with FIJA at least as far back as 1998, and possibly longer, Don tells me. “I worked with him in Libertarian Party politics even before that, the late ’70′s, early 80′s. His death is a loss for the cause of freedom,” says Don.

“Any time Mike had an opportunity to raise any issues, jury nullification was always among them,” says FIJA Board of Advisors member and state contact Roger Roots.

Indeed, as Roger pointed out, Mike made jury nullification a prominent issue in his record-setting 2012 campaign for Montana Supreme Court Clerk. Mike is known for this race in particular, as he set a nationwide record for a Libertarian candidate, by earning 43% of the popular vote and carrying 27 out of Montana’s 56 counties. “My main issue was always the fully-informed jury,” Mike told the Libertarian Party in a 2013 interview about that race.

If one thing can be said of Mike Fellows, it is that for decades now, he has showed up for liberty and for those who loved liberty.

With few exceptions, if there was a liberty-related event of any sort in Montana (and even many out of state), Mike showed up. He consistently promoted liberty, with special emphasis on jury rights, through his political campaigns and support of others’, by marching in parades, tabling at hempfests, gun shows, county fairs, and other events complete with FIJA literature and posters, writing letters to the editor, and through his work with Montana Community Access TV, where he featured jury nullification as a topic more than once.

Early on in my time with FIJA, I met Mike when I gave a talk on jury nullification at the University of Montana. Mike showed up.

One year when I was promoting jury nullification at the Ravalli County Fair with Dave and Leona Merrick, sure enough, Mike showed up and stopped by the table to chat.

Many a time I’ve gotten a call from Roger Roots that started with Roger mentioning, “Hey, guess who showed up at…”. I could hardly ever go wrong if I guessed Mike Fellows.

Just a week before Mike’s death, Roger, Roger’s dad, FIJA state contact Ted Dunlap, and I all met up in Missoula for dinner. I had called a gathering of FIJA’s Montana state contacts so we could all meet one another, and also so we could check up on Mike.

Roger had mentioned to me that Mike had been in ill health lately. Since Roger had a lecture on campaign finance scheduled in Missoula where Mike lived, it seemed like a good time to get the FIJA state contacts together in one place.

I had emailed the invitation to all our Montana state contacts, but Mike did not reply, so we weren’t sure what to expect. Nonetheless, not long after Ted, Roger and his dad, and I were all at the table, sure enough, Mike showed up.

This was the one and only time I and all the Montana FIJA state contacts have been in one place at the same time. I am so grateful that we all made it there, despite it being considerable effort for all of us to gather in one place from our many corners of Montana.

Mike stood up several times during dinner last week, explaining that it was painful for him to stay seated for very long. Nonetheless, he followed up dinner with us by attending Roger’s talk down the street at the library afterward. Not only did he show up, but he made sure someone came to video record the talk, even though he was not able to do so himself as he often did at these sorts of shindigs.

In an attention deficit-ridden era in which many find it challenging to do much more than click Like or Share, Mike gave us the rare gifts of his time, effort, and sincere attention. Whenever he had the opportunity to support or advance liberty, Mike’s butt was in the seat, his boots were on the pavement, he was speaking at the mic or podium, he was greeting people at the information table, or his hands were on the wheel traveling to where he could do any of the preceding or support others doing so.

Most folks probably do not realize how much he sacrificed in this regard. I had heard from Roger that Mike was having severe kidney problems, but was avoiding getting started on dialysis that would be necessary to keep him alive. This year Mike was running as the Libertarian candidate for Montana’s seat in the U.S. House of Representatives. He was invited to debate along with the Republican and Democratic candidates, and he wanted very much to participate.

It seems as though Mike was trying to hold off on dialysis until after a debate in Billings because once he began dialysis, it would not be possible for him to travel that distance. There was some question whether Mike would even live through the election. His health situation was that serious. Before that debate, as it turned out, he ended up in the hospital. With treatment, we hoped that he was on the road to recovery.

Everyone at our dinner that night urged him to take it easy, but I guess Mike had different ideas. Despite his health setback, he was back out on Monday this week traveling from Missoula up to Seeley Lake to participate in a candidate forum.

Of all the candidates vying to be Montana Congressional Representative, only Mike showed up. And he showed up despite Dave Merrick, another member of the Montana FIJA family, having tried to talk him out of it.

Mike Fellows lived and breathed liberty, and set the bar high for those of us still here carrying the torch in Montana. He brought his passion and dedication to liberty everywhere he traveled, and if he had any ego, he must have left that at home, because I never saw it.

It is hard to imagine a Montana in which we will never again run into him at a debate, a fair, a lecture, or a parade. But if anyone can find a way to show up from the hereafter, Mike’s the guy.

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Function of Juries & Jury Nullification | 23 Apr 2016

-New Hampshire HB 1270: Is It a Jury Nullification Bill?

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FIJA National does not endorse or oppose any piece of legislation. The following is provided for informational and educational purposes only.

In recent weeks, New Hampshire’s HB 1270 has been the subject of much discussion, usually referred to in public discourse as a jury nullification bill (as was its 2012 predecessor). HB 1270 passed the New Hampshire House some weeks ago, and just had a hearing in the Senate this past week. A recording of the hearing is linked here.

Interestingly, its proponents were anywhere from seemingly reluctant to describe it as a jury nullification bill to outright adamant that it is NOT a jury nullification bill. Recall that the NH Supreme Court unanimously ruled that the 2012 bill previously described as a jury nullification bill was not a jury nullification bill after all, effectively nullifying it, with the state arguing that the intent of the legislature had not been to pass a jury nullification bill.

A couple of choice quotes from the hearing:
Representative Rowe (in support of the bill):
“This bill is absolutely not jury nullification. If it was jury nullification, I assure you it would have NOT made it to our committee. If this bill, in my opinion, changes… changed the Wentworth instruction, I would not have voted for it.”

Representative Berch (opposed to the bill and to jury nullification):
“The purpose of a criminal trial is not to do justice. The purpose of criminal trial is to see if the state has proven a case beyond a reasonable doubt.”

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FIJA in the News & Function of Juries & Jury Nullification | 23 Mar 2016

-Felony Charge Dropped, Misdemeanor Still in Play

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We have mixed news this morning from the Mecosta County Courthouse, where Keith Wood was illegally arrested and falsely charged in November with one false felony count of obstruction of justice and one false misdemeanor count of jury tampering for sharing FIJA’s Your Jury Rights: True or False? brochure.

This morning the court held a motions hearing regarding throwing out the two charges and also reducing the punitively high bond required of Keith to get out of jail. News from the court is that the results are mixed:

1. The felony charge has been dropped, but the misdemeanor charge is still in play and will go forward to the pre-trial hearing.
Felony charge dropped for man after passing out jury rights fliers (FOX 17)
Former pastor’s felony charge dropped, jury tampering claim remains (MLive)
Felony dropped for fliers in front of courthouse case (WOOD 8 TV- according to Keith Wood, this report inaccurately states that he knew defendant Andrew Yoder when, in fact, he did not know him)
Felony charge dropped in case over jury nullification pamphlets (ABA Journal)

2. Wood’s brother-in-law also reports that his wife alerted him from the courthouse that the $15,000 Keith paid on his bond has been restored.

Since Keith had to put this amount on his credit card to get out of jail before Thanksgiving, he has already lost money on the credit card interest, as well as having to fund the ongoing expense of his legal defense. A GoFundMe fundraiser is in progress to help with his expenses:

Donations to this GoFundMe do not go to FIJA, and we do not provide a tax receipt to you.

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Function of Juries & Jury Nullification | 09 Feb 2016

-SCOTUS Justice Sotomayor Favors Jury Nullification

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Current Supreme Court Justice Sonya Sotomayor is now on record: she says the prevailing Second Circuit view of jury nullification is too harsh and that juries could benefit from being aware of their option of jury nullification.

In her hour-long talk at NYU yesterday, Justice Sotomayor questioned the Second Circuit’s decision in U.S. v. Thomas, a decision that savaged jury nullification as lawlessness.

Sotomayor Sees Larger Role For Jury Nullification (Free registration required to view.)

Supreme Court Justice Sonia Sotomayor said Monday that the Second Circuit’s harsh view of jury nullification may be wrongheaded, and that there is a place for juries to make findings that contradict the law — a topic that came up in the context of Sen. Claire McCaskill’s recent jury service.

Speaking to a packed auditorium at the New York University School of Law on Monday afternoon, Justice Sotomayor said juries are sophisticated organisms that could benefit from being aware of the option of nullification.

The Second Circuit, where Justice Sotomayor once sat, said in 1997 in U.S. v. Thomas that a juror’s attempt to nullify the law and instead find in favor of their conscience is grounds for dismissal from the jury.

Justice Sotomayor said the Second Circuit may have been wrong to so assiduously close off nullification.

“As we govern in the system, and watching it, I’m not so sure that’s right,” she said. “There is a place, I think, for jury nullification — finding the balance in that and the role judges should play.”

During contentious deliberations, the trial judge in U.S. v. Thomas dismissed Juror Number 5—the only black juror in a trial of all black defendants—based on the belief that Juror Number 5 was engaging in jury nullification and would not convict the defendants under any circumstances. Subsequently, the remaining 11 jurors convicted all but one of the defendants on one or more counts against each of them.

In U.S. v. Thomas, the court held that:

…the district court erred in dismissing a juror, based largely on its finding that the juror was purposefully disregarding the court’s instructions on the law, where the record evidence raised the possibility that the juror’s view on the merits of the case was motivated by doubts about the defendants’ guilt, rather than by an intent to nullify the law.

But the court had harsh words as far as jury nullification. It found that “a deliberating juror’s intent to nullify constitutes “just cause” for dismissal” under Federal Rules of Criminal Procedure 23(b). While acknowledging that jurors who nullify are protected from punishment, the court stated in no uncertain terms:

We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.   Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

and:

A jury has no more “right” to find a “guilty” defendant “not guilty” than it has to find a “not guilty” defendant guilty, and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law.   Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

Whereas the Second Circuit has angrily mischaracterized jury nullification in terms that suggest it is illegal, Justice Sotomayor’s comments indicate quite the contrary. According to NYU, “Justice Sotomayor is the only justice on the U.S. Supreme Court who has presided over a trial by jury.”

Essentially, the only current Supreme Court justice who has presided over a jury trial is on record with comments that effectively verify that jury nullification is a legal, valid option that jurors can exercise. Beyond that, she actually seems to advocate that jurors be informed about this option and even that it is appropriate to exercise it in some circumstances.



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

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Function of Juries & Jury Nullification & Sixth Amendment | 12 Jan 2016

—SCOTUS Ruling in Hurst v. Florida Preserves Jury Rights

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We have BIG NEWS this week from the Supreme Court in the case of Hurst v. Florida.

By a 7-1-1 vote—in fact, even overruling two of its own prior rulings—the Supreme Court of the United States has upheld the jury as the sole fact-finding authority in capital sentencing.

Specifically, the Court found that the Florida capital sentencing scheme, in which the judge is the one whose job is “to make the critical findings necessary to impose the death penalty”, violates the Sixth Amendment, in light of its own ruling in Ring v. Arizona (2002) requiring that the jury find the aggravating factors if the death penalty is to be imposed.

Ring, in turn, traces back to the case of Apprendi v. New Jersey (2000). In Apprendi, the Court ruled that the penalty for a crime could not be extended beyond the statutory maximum due to the findings of a judge based on a preponderance of evidence, but instead such extension could only be based on the findings of a jury meeting the standard of proof beyond a reasonable doubt. Ring was the application of the Apprendi ruling to capital cases.

Florida seems to have tried to carve out an exception for itself to Ring by arguing that the jury plays an advisory role in sentencing. However, the Court noted in its majority opinion that,

In arguing that the jury’s recommendation necessarily included an aggravating circumstance finding, Florida fails to appreciate the judge’s central and singular role under Florida law, which makes the court’s findings necessary to impose death and makes the jury’s function advisory only. The State cannot now treat the jury’s advisory recommendation as the necessary factual finding required by Ring.

In addition to Florida, two other states have a judicial override provision in place that allows a judge to unilaterally impose the death penalty against the jury’s recommendation of a life without parole sentence: Delaware and Alabama. According to the Equal Justice Initiative,

Of the 33 states with the death penalty, Alabama is the only jurisdiction where judges routinely override jury verdicts of life to impose capital punishment. Since 1976, Alabama judges have overridden jury verdicts 111 times. Although judges have authority to override life or death verdicts, in 91 percent of overrides elected judges have overruled jury verdicts of life to impose the death penalty.

We are currently consulting with legal experts to better understand what, if any, implications Hurst holds for judicial override in Delaware and Alabama, in addition to Florida.

It is absolutely unconscionable that in the most serious of all legal cases-those in which the state claims the right to purposely put people to death-government can not only usurp the jury’s traditional, legal function in judging the law, but also jurors’ well-established and uncontroversial role as the fact-finders in the case. If the jury are neither to judge the law nor the facts, then the next step is the elimination of the jury altogether.

Many jury issues with respect to capital cases still need to be addressed including non-unanimous votes in capital sentencing, the unjust effects of death qualification of jurors during voir dire, and so on. But the Hurst ruling upholding the jury as the final arbiter of facts in capital sentencing is greatly encouraging that the endangered species that is the jury can be brought back from the brink of extinction.

Photo credit: By UpstateNYer (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons, resized with no other changes

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Function of Juries & Jury Nullification & Media Releases | 16 Dec 2015

—Juror Rights Educators Triumph AGAIN in Denver

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Juror Rights Educators Triumph AGAIN in Denver

FOR IMMEDIATE RELEASE
FIJA Logo with URL
CONTACT:

Kirsten C. Tynan
Executive Director
(406) 442-7800
aji@fija.org

Denver, CO—This morning Judge Kenneth Plotz dismissed all felony jury-tampering charges that had been pending against juror rights educators Mark Iannicelli and Eric Brandt for handing out Fully Informed Jury Association (FIJA) brochures at the Lindsey-Flanigan courthouse in Denver, Colorado. Each was charged with seven counts of felony jury tampering as outlined in the Complaint and Information document, despite there never being any evidence that they were trying to influence the outcome of any particular case.

Iannicelli and Brandt were represented in court by attorneys David Lane and Lonn Heymann, who argued for dismissal of the charges. After approximately 90 minutes of argument and a short recess of about 20 minutes, the judge returned with his ruling. In dismissing the charges, he noted that such charges for handing out FIJA brochures amounted to an unconstitutional application of the jury tampering law and swept in speech that is protected under the First Amendment.

Earlier this year, a federal court judge granted an injunction sought by attorney David Lane on behalf of the Fully Informed Jury Association and co-plaintiffs Eric Verlo and Janet Matzen to prevent any further such unconstitutional arrests. The court made clear at that time that such activity is protected under the First Amendment.

Nonetheless, Denver District Attorney Mitch Morrissey chose to continue his vendetta, wasting even more taxpayer dollars and harassing harmless Colorado residents, as he refused to drop the charges against Iannicelli and Brandt.

In spite of the possibility of years in jail hanging over their heads, Iannicelli and Brandt have continued courageously for months to work alongside other juror rights educators at the Lindsey-Flanigan Courthouse, doing exactly the same kind of outreach that they had been arrested for this past summer.

In discussing this court victory, Eric Brandt paraphrased a memorable quote (usually attributed to Edmund Burke) that all that is necessary for evil to triumph is for good men to stand by and do nothing. “I chose not to stand by,” Brandt said. “The world is run by those who show up. I elected to show up.”

FIJA has updated with today’s victory its infographic entitled Is Juror Rights Education Legal or Is It “Jury Tampering”? detailing cases in which such prosecutorial abuses are shot down in court.

“We look forward to adding yet another such victory in the case of Keith Wood, a juror rights educator also abusively mischarged in recent weeks by disgruntled courthouse officials in Mecosta County, Michigan,” said FIJA executive director Kirsten Tynan.

Tynan noted that FIJA has a goal to start offering in 2016 an ongoing supply of free brochures to juror rights educators conducting outreach at any courthouse where juror rights educators have been victorious over arrests and threats of arrests for handing out FIJA literature. “All incentive for government officials to harass juror rights educators in an attempt to quash our message would immediately disappear if such efforts were guaranteed to do the exact opposite and spread the message much further,” Tynan said.

In order to combat such prosecutorial bullying, FIJA invites legal professionals to join its newly forming Volunteer Attorney Network. Volunteer attorneys can protect First Amendment rights and support juror rights education by assisting FIJA pro bono in securing injunctions against these types of legal arrests, representing juror rights educators who are falsely prosecuted for jury tampering, and so on.

About the Fully Informed Jury Association
The Fully Informed Jury Association (FIJA) is a 501(c)(3), non-profit, nonpartisan, educational organization headquartered in Helena, Montana. Focusing on issues involving the role of the jury in our justice system, FIJA seeks to preserve the full function of the jury as the final arbiter in our courts of law by informing everyone about their rights, powers and responsibilities in delivering just verdicts when serving as jurors. The organization does not advocate for or against any case in progress, but rather seeks to fully inform everyone of all their options when serving on juries. This includes the option to conscientiously acquit when a just verdict requires it by voting Not Guilty, even if they believe the law has technically been broken, without fear of punishment for their verdict.

Case Documents
Denver DA Press Release, 10 August 2015 (.pdf)
Complaint and Information and Statement of Probable Cause (.pdf)
Civil Rights Complaint
Exhibit 1 to the Complaint
Exhibit 2 to the Complaint
Exhibit 3 to the Complaint
Motion for Preliminary Injunction
Amended Motion for Preliminary Injunction
Order Granting Motion for Preliminary Injunction
Motion for Order to Show Cause Why Defendant Robert C. White Should Not Be Held in Contempt of Court
Exhibit 1 to the Motion to Show Cause
Exhibit 2 to the Motion to Show Cause

Other FIJA Documentation
Is Juror Rights Education Legal or “Jury Tampering”? infographic
Man Sharing Jury Nullification Information Arrested in Denver
Denver DA Doubles Down on Jury Nullification Arrests
FIJA Seeks Injunction Against Denver Arrests for Free Speech
Denver DA Creates Countless Fully Informed Jurors
Judge Halts Unconstitutional Ban on Juror Rights Education
Malicious Prosecutions Continued by Denver DA’s Office

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Function of Juries & Jury Nullification | 15 Dec 2015

—Religion Baiting Prosecutor Terrified of Jurors with Consciences

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Mecosta County Prosecutor Brian Thiede invoked bigoted scaremongering rhetoric last week in the first court hearing for Keith Wood, a juror rights educator falsely charged with felony obstruction of justice and misdemeanor attempting to influence jurors. Wood was handing out FIJA brochures on the public sidewalk near the Mecosta County Courthouse in Michigan, legally and within his First Amendment rights. I have collected details of his case on a case file page in our library.

Wood’s first court hearing was on 10 December 2015, during which the main point in contention was whether the defense would be allowed to call Mecosta County Prosecutor Brian Thiede and Assistant Prosecutor Nathan Hull as witnesses, given their involvement in Wood’s arrest and in questioning Wood without first Mirandizing him and without him having legal representation.

In arguing that he should not be called as a witness, Thiede further made clear that if called as a witness he would do his best to discredit the concept of jury nullification in the eyes of the jury. In explaining what he would be telling the jury, Thiede engaged in inflammatory, disrespectful, and factually-unsupported religion baiting. Specifically, Thiede stated:

This just says ignore the law, ignore the facts, do what your conscience wants. And I’m thinking, oh my goodness, well we could have the jury who thinks that jihad is righteous and if the San Bernadino shooters had not been killed, they’d say ‘Let’s acquit!’ We would have a lawless nation if people were to vote their conscience.

Let’s examine whether this outrageous rhetoric, which Thiede surely knew to be inflammatory, stands up to reason.

Spoiler alert: no, it doesn’t.

To begin with, defense attorney David Kallman pointed out in the hearing that the Michigan Model Criminal Jury Instructions explicitly call for jurors to vote their consciences:
“In the end, your vote must be your own, and you must vote honestly and in good conscience.”
Reference: M Crim JI 3.11 Deliberations and Verdict (.pdf)

So with all these jurors ALREADY being told to consult and act on their consciences, where is all this lawlessness in Michigan? Is Michigan the very picture of anarchy? If not, that is a dramatic body of empirical data that soundly demonstrates that Thiede’s wild prediction is utter nonsense.

But let’s go beyond that. Let us say there were hypothetically to arise a case in which Thiede were to try a mass murder such as the one he referenced. Are we to believe that he is concerned that if jurors on such a case were to consult their consciences, that murderers would be acquitted? That is what he is saying there.

How could such a thing come about when twelve jurors would ALL have to agree that murder was perfectly acceptable and should not be punished?

Is Thiede saying that he is himself such a bumbling litigator that he would be unable to seat a jury from which he had eliminated people of ill conscience through challenges for cause and peremptory challenges? That he is such a failure of a prosecutor that he could somehow seat a jury of twelve people, ALL of whom would want to let a murderer go free?

Or is he suggesting that Mecosta County is so overrun with citizens who approve of murder of innocents that it would be impossible to seat a jury that would convict?

Even though Thiede clearly specified an outright acquittal, let us also consider the possibility of hung jury. In order to get a hung jury in such a case, he would still have to fail to seat a jury all twelve of whose members would convict someone of murder. If that happened, he would surely refile the charges and prosecute again, given that a mistrial due to a hung jury allows the option of another prosecution. Is he concerned that he would get a second, a third, or even more consecutive juries who would have at least one member solidly in favor of murder?

There are only two ways such a thing could happen—either Thiede is impugning his own competence as a prosecutor, in which case jurors of good conscience should not be blamed, or he is besmirching the character of a huge portion of Michigan’s population. His remarks are nothing short of ludicrous.

Why would a prosecutor such as Thiede reach to such dishonest rhetoric to keep jurors uninformed of their full, legal authority and ethical responsibility to judge of the justice of the law as well as the facts of a case before them?

I think the answer is quite simple: often prosecutors are looking for jurors to rubber stamp their prosecutorial abuses that shock the conscience.

They charge and prosecutor harmless people for victimless activity and do their best to punish them. They often successfully seek to punish defendants more if they assert their Constitutionally-guaranteed right to trial by jury than if they meekly accept prosecutor nullification in the form of a plea bargain. They maliciously charge people who make their jobs more difficult and seek to make examples of them so the rest of the community will be intimidated out of exercising their own rights.

We need look no further than Keith Wood’s case to see Thiede engaging in EXACTLY this kind of abuse. Thiede’s wrongdoing may be enabled by virtue of his position of government privilege, but he cannot force jurors to be complicit in his malicious misdeeds.

Photo Credit: Photo of Mecosta County Courthouse by Jimmy Emerson, DVM [CC BY-NC-ND 2.0], via Flickr

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Function of Juries & Jury Nullification & Volunteer | 12 Dec 2015

—Volunteer Opportunity: Jury Legislation Research Volunteer

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Sunset over Wisconsin State Capitol

The Fully Informed Jury Association’s national office has a strictly educational mission. We do not endorse or oppose any legislation, citizens’ initiative, political candidate, or party. However, we do monitor and track legislation for educational and informational purposes. To that end, we are seeking for the first time to crowdsource efforts to collect such information on a timely basis throughout each legislative session, beginning with 2016.

As a legislative research volunteer, you will be assigned 1 to 5 states (how many is up to you) to check on a weekly basis through an online search for all new proposed jury-related legislation. We will provide training on how to search for such legislation and how to report your findings to us.

You will report to FIJA once a week via an online form some basic information about newly introduced legislation (state, bill number, one sentence description of the bill’s jury-related provisions, and a link to the bill online). As part of our educational mission, we will present to the general public information about select legislation of interest on our jury legislation tracking web page. For examples of what information we are looking for and trying to provide for the general public, jump to Kentucky or New Hampshire on that page.

Click here to apply.






Photo Credit: Photo of sunset over the Wisconsin State Capitol by Jake Pfaffenroth [Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)], via Flickr.

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Function of Juries & Jury Nullification & Media Releases | 30 Nov 2015

—FIJA Files Amicus Brief in Kleinman Case in Ninth Circuit Court of Appeals

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FIJA Files Amicus Brief in Kleinman Case in Ninth Circuit Court of Appeals

FOR IMMEDIATE RELEASE
FIJA Logo with URL
CONTACT:

Kirsten C. Tynan
Executive Director
(406) 442-7800
aji@fija.org

Roger I. Roots, J.D., Ph.D.
FIJA Advisory Board Member
(406) 224-3105
rogerroots@msn.com

Helena, MT—The Fully Informed Jury Association (FIJA) has filed an amicus curiae brief in the case of United States of America v. Noah Kleinman in the Ninth Circuit Court of Appeals challenging the judge’s instructions to jurors, which FIJA argues effectively denied the defendant’s Constitutionally-guaranteed right to trial by jury.

From the outset of the federal trial of Noah Kleinman for victimless, marijuana-related activities that were legal under California state law, the prosecution and the judge were bent on quashing any possibility of jurors conscientiously acquitting Kleinman.

Jurors in the case were vetted extensively not only during the initial voir dire at the start of the trial, but were grilled again by the judge in individual, mid-trial interviews. In explaining his crafting of the mid-trial interrogation, the judge stated that jurors “lie like hell” and that “First they lie not to get in that seat; now they will lie to keep that seat.”

Such blatant disrespect of the jury and abuse of the jury process ultimately culminated in the judge issuing inaccurate instructions to the jury, verbatim as submitted by the prosecutor, with objections from the defense being rebuffed. The offending instruction read:

You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not your determination whether a law is just or whether a law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case.

FIJA argues in its amicus brief that in Kleinman’s trial that the court’s approach and treatment of the jury, and its jury instructions, so deprived the jury of its ability to deliberate over Kleinman’s fate that Kleinman was utterly deprived of trial by jury:

While jury instructions have increasingly taken on a tone and orientation reflecting the prosecution bar’s desire to repress jury discretion, never before has a jury been instructed in such an overtly ham-fisted manner as the jury in Noah Kleinman’s trial…

Roger I. Roots, J.D. Ph.D., attorney and FIJA advisory board member, wrote and filed the brief pro bono on behalf of FIJA. “This case offers a near perfect opportunity for a high-level, appellate court to address the growing inaccuracy of jury instructions at the trial level. In fact, they’re not just inaccurate—in many ways they are totally false,” said Dr. Roots.

About the Fully Informed Jury Association
The Fully Informed Jury Association (FIJA) is a 501(c)(3), non-profit, nonpartisan, educational organization headquartered in Helena, Montana. Focusing on issues involving the role of the jury in our justice system, FIJA seeks to preserve the full function of the jury as the final arbiter in our courts of law by informing everyone about their rights, powers and responsibilities in delivering just verdicts when serving as jurors. The organization does not advocate for or against any case in progress, but rather seeks to fully inform everyone of all their options when serving on juries. This includes the option to conscientiously acquit when a just verdict requires it by voting Not Guilty, even if they believe the law has technically been broken, without fear of punishment for their verdict.

Related Documentation
FIJA Amicus Brief in the Case of Noah Kleinman
Appellant’s Opening Brief in the appeal of Noah Kleinman
Day 5 Transcript from the trial of Noah Kleinman

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Function of Juries & Jury Nullification | 23 Oct 2015

-Juror Rights Educator Threatened at Ocean County Courthouse

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Juror Rights Educator Threatened at Ocean County Courthouse

FOR IMMEDIATE RELEASE
FIJA Logo with URL
CONTACT:

James Babb
(610) 574-1222
jamesbabb@mac.com

Kirsten Tynan
(406) 442-7800
aji@fija.org

Toms River, NJ—Juror rights educator James Babb was threatened with arrest on Thursday over false jury tampering allegations by law enforcement at the Ocean County Courthouse in Toms River, NJ. Babb was handing out information regarding the right of conscientious acquittal—engaging in free speech activity that is legally protected under the First Amendment of the United States Constitution as well as Article I, Section 6 of the New Jersey State Constitution.

Babb captured these threats from law enforcement on two videos.

Part 1:

Part 2:

Confused law enforcement officers repeatedly demanded that Babb stop handing out general educational information regarding the right of jury nullification. First, he was incorrectly accused of soliciting, then he was alleged to have been violating some unspecified “policy”, and ultimately Lieutenant Green of the sheriff’s office told him that he was being investigated for the alleged crime of jury tampering under New Jersey Code Section 2C:29-8(c). Green then threatened to arrest Babb if he continued to hand out such information or returned later to do so.

Attorney David A. Lane, of Killmer, Lane, and Newman, LLC recently represented the Fully Informed Jury Association (FIJA) and two other plaintiffs in federal court to secure an injunction against similar behavior by the Denver Police Department. Lane has sent an email to the prosecutor’s office requesting that Prosecutor Joseph D. Coronato clarify the government’s intentions.

The letter states in part: “The detective in the video indicates that he spoke to either you or members of your office and the detective was advised that this is jury tampering. Please advise me whether you will permit Mr. Babb to leaflet in the walkway seen in the videos or in and around the courthouse grounds or whether you intend to charge him with jury tampering. The threat of arrest by the detective on the video is sufficient for me to make a claim in a NJ federal court that his right to free speech has been chilled by these actions and he needs an injunction to prevent further First Amendment violations. If you take no position, it is my contention that Mr. Babb’s First Amendment rights have been chilled and you are giving him no assurances that he will not be charged with jury tampering.”

“These tax-fattened, mini-tyrants will award themselves any power they can get away with, even if it means curtailing free expression for the entire neighborhood,” said juror rights educator Jim Babb. “Trumped up, overtly bogus “jury tampering” accusations reveal not just their ignorance of the law, but also their total disregard for rights of the mere mundanes who are forced to pay their salary. The freedom of expression is explicitly protected under the U.S. and New Jersey constitutions, which presumably these “public servants” have sworn to uphold,” Babb said.

Jury nullification is the right of jurors to vote Not Guilty, even if they believe beyond a reasonable doubt that the law has been broken. Jurors may wish to conscientiously exercise this right when they believe strict enforcement of the law would be unjust in the case at hand. Not only does the the New Jersey State Constitution guarantee freedom of speech, but it also goes to extra lengths to specifically codify what is every juror’s inherent “right to determine the law and the fact”—the exact concept that courthouse officials wish to hide from jurors.

While prosecutors and judges typically frown on such verdicts and prefer to keep this right secret from jurors so they cannot exercise it, there is nothing illegal about jury nullification and jurors cannot be punished for their verdicts. None of the handouts, nor of any of Babb’s speech discussed any current case or urged jurors to take any particular position in any case before them. Information provided to anyone who accepted a brochure simply informed them of all the options jurors have when judging a case before them, leaving what they do with that information completely up to them and their consciences.

“Whether their false threats of jury tampering charges come from ignorance or malice, the prosecutor’s and sheriff’s offices are violating Constitutionally-guaranteed rights of volunteers. Imagine how terrified they must be of fully informed jurors that they would respond to peaceful people—armed only with information—by threatening them with the possibility of deadly force and imprisonment,” said Kirsten Tynan, executive director of the Fully Informed Jury Association. “How can these government agents be trusted to do their jobs fairly when they can’t even understand the laws? Their tax-paid time would be better spent updating their legal education than using the fiefdom of the courthouse as their own personal schoolyard for bullying.”

Despite repeated attempts by government agents to quash juror rights educators’ efforts to fully inform everyone of jurors’ right to conscientiously acquit, also known as jury nullification, such education is well-established as protected speech. The Fully Informed Jury Association along with two co-plaintiffs secured an injunction in August 2015 against such arrests by the Denver Police Department of juror rights educators handing out FIJA’s Fresh Air for Justice and Your Jury Rights: True or False?.

Additionally, similar false jury tampering charges against another juror rights educator handing out FIJA’s Primer for Prospective Jurors were thrown out of federal court in a ruling from Judge Kimba M. Wood in New York, with a detailed explanation of why juror rights education does not constitute jury tampering. Babb was handing out both the Primer for Prospective Jurors and an additional Know Your Rights handout regarding jury nullification.

About the Fully Informed Jury Association
The Fully Informed Jury Association (FIJA) is a 501(c)(3), non-profit, nonpartisan, educational organization headquartered in Helena, Montana. Focusing on issues involving the role of the jury in our justice system, FIJA seeks to preserve the full function of the jury as the final arbiter in our courts of law by informing everyone about their rights, powers and responsibilities in delivering just verdicts when serving as jurors. The organization does not advocate for or against any case in progress, but rather seeks to fully inform everyone of all their options when serving on juries. This includes the option to conscientiously acquit when a just verdict requires it by voting Not Guilty, even if they believe the law has technically been broken, without fear of punishment for their verdict.

FIJA’s national office conducts its campaign solely through educational outreach programs and materials. A variety of brochures and other materials are available for free download by anyone from the online Library or can be purchased through the online Media Catalog. Many juror rights educators use these brochures for general educational outreach at courthouses, at fairs and festivals, at public speaking engagements, and so on.

Related Documentation
Video of Police Harassment of James Babb at Ocean County Courthouse, Part 1
Video of Police Harassment of James Babb at Ocean County Courthouse, Part 2
Federal injunction against Denver Police Department arrests of juror rights activists for free speech activity, granted August 2015
Federal ruling dismissing false jury tampering charges against Julian Heicklen for free speech activity
FIJA brochure: A Primer for Prospective Jurors
Know Your Rights flyer
First Amendment to the United States Constitution
Article I, Section 6 of the New Jersey State Constitution

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