Fully Informed Jury Association

American Jury Institute

FIJA Calendar & Jury Nullification & Volunteer | 25 Jul 2014

-Learn About Jury Nullification in Spokane


Join The Fully Informed Jury Association and The Human Solution
on Saturday 2 August at 1:00 pm
in Conference Room 1A
at the Downtown Branch public library in Spokane, WA

At this presentation, which is free and open to the public, you will learn about jurors’ right of conscientious acquittal and how jury nullification can be used to protect peaceful people from unjust prosecutions in marijuana-related cases. Even though marijuana has largely been legalized in Washington, people are still being prosecuted for victimless, marijuana-related offenses. Jury nullification helped end alcohol prohibition in just thirteen years!

Included in the talk is a volunteer training session. We are looking to kick off a long-term juror education campaign in Spokane, so please join us!

Join the Facebook event page here.

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Function of Juries & Jury Nullification & Media Releases | 23 Jul 2014

-Jury Nullification Billboard Educates Valley Residents of Jurors’ Secret Power


23 July 2014

Jury Nullification Billboard Debuts to Educate Valley Residents of Jurors’ Secret Power

FIJA Logo with URL
Kirsten Tynan
(406) 442-7800

James Babb
(610) 574-1222

Phoenix, AZ—This week marks the start of an initial 8-week run of a billboard in Phoenix, Arizona at the Jefferson Street/1st Avenue Light Rail Station, designed to educate the community about jury nullification.

Also referred to as conscientious acquittal or juror veto, jury nullification is a traditional, legal authority of jurors to judge the law as well as the facts in any case they hear. Jurors can vote Not Guilty when they conscientiously believe a just verdict requires it, even if they believe the law has technically been broken.

“If you are selected for jury duty, the normal instinct is to find a way out of it. That is completely understandable, especially if you don’t understand the incredible opportunity you have as a juror to stop wrongful imprisonment and government tyranny,” said project facilitator James Babb.

Funded through crowd-sourced donations contributed by activists around the country and sponsored by Freedom’s Phoenix, who hosted the fundraising effort at FreedomsPhoenix.com, the billboard builds on the initial success of Babb’s efforts last fall that placed billboards in the Judiciary Square metro station in Washington, D.C. On October 29, 2013, The Washington Post reported that D.C. prosecutors were so upset by the educational billboards that they were asking judges to ensure jurors were not influenced by the information they provided.

FIJA-PhoenixTransit-2This effort is part of a nationwide educational campaign. Activists are currently working to place billboards in other major cities around the country such as Los Angeles, Seattle, and elsewhere.
Jurors around the world have had the right to conscientiously acquit via jury nullification for centuries. All jurors in the United States have this right still today, but many are completely unaware of it.

“The modern trend of keeping jurors in the dark about their full authority unfortunately has been encouraged by a series of court rulings enabling judges to refrain from informing or even to misinform jurors about their options,” said Kirsten Tynan, executive director of the Fully Informed Jury Association. “Jurors are not required to check their consciences at the courthouse door, but they will not hear this once they are inside. In fact, a prospective juror who, if asked during voir dire, will not agree to abandon their conscience and uphold law they find unjust or unjustly applied will almost certainly be excluded from the jury,” Tynan said.

Ernest Hancock of Freedom’s Phoenix explained the timeliness of this message in Phoenix. “Arizona has been a hotbed of FIJA activism since the early 1990’s,” said Hancock. “Ours was the first state to have a legislative body pass fully informed juror legislation. Continued public education has created a foundation from which to launch another wave of public awareness and to insert jury rights into the public debate,” he explained.

The initial billboard run will encompass Jury Rights Day, celebrated each year on September 5. Founded by the Fully Informed Jury Association in 1991, Jury Rights Day commemorates the famous case of jury nullification in 1670 in which English jurors refused a judge’s order to convict William Penn for publicly preaching the Quaker religion. Even though they were imprisoned for their verdict, several jurors in this case steadfastly maintained their refusal to convict.

By reversing their sentences, a higher court firmly established in English common law not only jurors’ right to conscientiously acquit, but also freedoms of speech and religion. The founders of the United States preserved all of these rights in the new government they designed. Americans enjoy them still today as part of the Constitutional system designed to keep government power in check.

About the Fully Informed Jury Association
FIJA is a non-profit association dedicated to educating the general public about their full rights, powers, and responsibilities in delivering just verdicts as trial jurors. The organization publishes and distributes educational literature and maintains a web site at FIJA.org to inform the general public of their Constitutional 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 the human rights of the defendant.

About Freedom’s Phoenix
Freedom’s Phoenix is a multi-media news and opinion platform from a voluntarist and libertarian perspective. The organization maintains a website at FreedomsPhoenix.com as a daily resource for current and relevant political news.


Function of Juries & Jury Nullification | 09 Jul 2014

-Jury Nullification Educator’s Case Continues


Jury BoxWe have an update on the Luke Lamb case, which had an 18 June 2014 hearing for the defendant’s Motion to Reconsider his Motion to Dismiss. Lamb is being pursued by Greene County, Illinois officials for alleged unlawful communication with a juror, but his attorney says the charge is a politically-motivated tactic wielded against Lamb who is currently running for Sheriff in Greene County.

Lamb’s attorney previously filed a Motion to Dismiss the charge against his client, and it was denied. He then filed a Motion to Reconsider the previous motion, which was heard on 18 June. This most recent motion was also denied.

A post too far?

Watts, in his May 8 motion to dismiss, says the charge against Lamb fails to allege he intended to influence a juror regarding a specific manner and that because he wasn’t aware of the case being discussed Lamb could not have influenced its decision.

“To find that general advocacy in a public forum about the jury process to a juror by a political candidate, not directed with knowledge toward a specific set of facts, issues and parties, is a violation of the statue, would lead to the absurd conclusion that political demonstrations outside a courthouse, or even outside of the town where the court is located which touch upon the subject matter of specific cases occurring in the court and which are directed to jurors would lead to violations of this statute,” he wrote. “Under the state’s interpretation of the statute, if Mothers Against Drunk Drivers members were sitting at home writing on a juror’s public Facebook wall to “convict drunk drivers!” with no knowledge of the particular case, or whether that juror was even hearing a DUI charge … a violation of the statute would occur.”

In a story that ran in the Jacksonville Journal-Courier and the Telegraph shortly after the charge was filed, Watts said, “Lamb made the first comment in jest” and that the wording on the subsequent post demonstrated “that he was leaving any decision about the individual case up to the juror.”

Watts also challenged the timing of the charge, because Lamb is running against McMillen in the November election as a “constitutional sheriff’s candidate,” and contends Lamb is being targeted because of his past outspoken questioning of authority.

From the article, it appears that the judge in the case is attempting to draw some lines in the sand, albeit confused ones, as to where he thinks general jury nullification education is and is not lawful:

Mark Boston, the juror who posted about his jury duty selection, has told the court he was nowhere near the courthouse when he read Lamb’s online comments. He also said the post had nothing to do with the decision he and other jurors reached in the case.

That, Watts maintains, makes this a matter of someone being prosecuted for exercising his First Amendment right to free speech.

But the court disagreed, saying the constitution did not protect Lamb’s Facebook speech “because that speech was made into the courthouse to a juror, as opposed to outside of the courthouse.”

Watts challenged that in his June 23 motion to reconsider, saying Boston was about 20 miles away from the courthouse and at his home when the exchange took place. Because Boston’s cellphone was turned off while he was in the courthouse, “Lamb’s communications for which he was charged occurred exclusively during times when Boston was approximately 20 miles from the courthouse,” the motion to reconsider read.

Lamb’s next court date is set for October, and at this time he is reportedly seeking a jury trial.


Function of Juries & Jury Nullification | 08 Jul 2014

-Jury Nullification Can Protect against Unjust Sentencing


Fence_of_Prison-BPOJurors have the right and the power to conscientiously acquit through jury nullification for any reason they believe will deliver a just verdict. Sometimes they do this because they think the offense should not be illegal, but there are also other reasons they may feel moved to acquit even though a law has technically been broken. In this article, Molly Knefel discusses jury nullification as a tool by which jurors can protect defendants from sentences that are unjustly harsh compared to the severity of the offense.

Nullification: Jurors’ Secret Weapon Against Harsh Sentencing

On July 2, Occupy Wall Street protester Cecily McMillan was released from Rikers Island, completing a sentence that her jury never wanted her to serve. On May 19, that jury of twelve convicted McMillan of felony assault against police officer Grantley Bovell. The verdict came after a four-week trial, during which McMillan’s defense team argued that it was actually Bovell who assaulted McMillan, and that she had elbowed him as a reflexive response after he grabbed her breast. The trial carried symbolic weight because it was the last Occupy criminal case, one of the few Occupy-related felonies, and an incident of alleged police violence that many protesters felt characterized NYPD norms. Still, the jury returned a “guilty” verdict. As is typical, jurors had been instructed by the judge not to read or research any further details of the case on their own, including the punishment that McMillan would face if convicted.

After the conviction, members of the jury learned that McMillan faced two to seven years in prison, according to sentencing guidelines. An anonymous juror told The Guardian that “they felt bad,” and that “even a year in jail is ridiculous.” The juror added that he hadn’t been convinced of McMillan’s guilt, but gave in to his fellow jurors and, not expecting harsh sentencing, voted to convict. Nine of the twelve jurors petitioned Judge Ronald Zweibel for leniency and no incarceration. At that point, however, the power was out of their hands (Zweibel ended up sentencing McMillan to ninety days in jail and five years’ probation). Many of McMillan’s supporters expressed frustration that the jurors who had held Cecily’s freedom in their hands didn’t take the consequences of the trial seriously until after it was over.

Cecily McMillan’s case is one of many cases where jurors had the power to protect a defendant from a harsh sentence, but for one reason or another forfeited it and left the defendant at the mercy of an unmerciful judge, or an unmerciful system with mandatory sentencing rules. Often jurors come forward afterward, distraught or angry over the injustice they were railroaded into aiding and abetting.

We previously reported on the case of Antwuan Ball, convicted of a single drug transaction worth about $600. In that same trial, his jury unanimously acquitted him of the prosecution’s long laundry list of charges related to racketeering, conspiracy, and even a murder indictment, but left the door open for the judge to sentence harshly based on this single conviction for a totally victimless offense. Based on the conduct of which the jury outright acquitted Ball, U.S. District Judge Richard W. Roberts sentenced him to MORE THAN 18 YEARS IN PRISON for a single transaction involving a half ounce of cocaine. After helping deliver the verdict, juror Jim Caron learned that prosecutors were, in fact, seeking 40 years in prison for this single conviction, along with harsh sentences for Ball’s co-defendants who were likewise convicted of instances of selling small amounts of drugs. He wrote to the judge decrying the blatant circumvention of the jury’s Not Guilty verdicts in these cases:

I write because I recently saw a press release from the US Attorney’s Office which states that Gregory Bell and Joseph Jones were sentenced to 16 years and 15 years, respectively, “for their roles in this case”. It also states that Antwuan Ball, Desmond Thurston, and David Wilson “each face up to 40 years imprisonment for the narcotics crimes for which they were convicted.”

Can this be true? We as a jury found these individuals guilty of somewhere around 20 instances of selling drugs, but as I remember it, most of these were very small amounts. And this was over a period of nearly 10 years. Now I’m not a lawyer, but after 30 years of living in the District, I believe people selling small amounts of crack on the street usually end up with probation or only a year or two in prison if they have a previous offense.

And then there is the case of Richard Paey, a chronic pain patient, charged with and convicted of 15 counts of drug trafficking, obtaining a controlled substance by fraud, and possession of a controlled substance due to the large volume of medication he sought for his extreme, debilitating pain. While in prison, doctors supplied him with painkillers for his own personal use in excess of what he was accused of having for so-called trafficking purposes.

According to juror Dwayne Hillis however, had the jury been aware that prison time was on the table, they never would have reached a consensus to convict:

They said he would get treatment. If I would have known he wasn’t going to get help I would still be in that room fighting for what I thought was right.

Hillis regretted his decision afterward, and said that he wanted to vote Not Guilty, but relented under pressure during deliberations after being assured by the jury foreman that Paey would serve no prison time. This was not true. In fact, the charges on which the jury convicted Paey triggered a mandatory minimum sentence of 25 years in prison. Paey was eventually given a full pardon by then Florida governor Charlie Crist in September of 2007, after serving nearly four years in prison, including what seems to be punitive time in solitary confinement for an interview he gave that displeased prison officials. During the entire 30 days, Paey was subjected to sleep deprivation with the lights on the entire time, and corrections officers banging on his cell door nearly hourly to keep him awake.

All of these cases share two things in common:
1. The jurors were kept unaware of the potential punishment to which they would be subjecting the defendant.
2. In spite of that, all of the jurors made these egregiously unjust punishments possible by voting to convict, in spite of not knowing all of the relevant information in the case.

This past fall, the ACLU released its report “A Living Death: Life without Parole for Nonviolent Offenses”, documenting thousands of cases across the country of individuals serving life without parole for nonviolent offenses, mostly for nonviolent drug offenses:

Life in prison without a chance of parole is, short of execution, the harshest imaginable punishment. Life without parole (LWOP) is permanent removal from society with no chance of reentry, no hope of freedom. One should expect the American criminal justice system to condemn someone to die in prison only for the most serious offenses.

Yet across the country, thousands of people are serving life sentences without the possibility of parole for nonviolent crimes as petty as siphoning gasoline from an 18-wheeler, shoplifting three belts, breaking into a parked car and stealing a woman’s bagged lunch, or possessing a bottle cap smeared with heroin residue. In their cruelty and harshness, these sentences defy common sense. They are grotesquely out of proportion to the conduct they seek to punish.

Using data obtained from the Bureau of Prisons and state Departments of Corrections, the ACLU calculates that as of 2012, there were 3,278 prisoners serving LWOP for nonviolent drug and property crimes in the federal system and in nine states that provided such statistics (there may well be more such prisoners in other states). About 79 percent of these 3,278 prisoners are serving LWOP for nonviolent drug crimes. Nearly two-thirds of prisoners serving LWOP for nonviolent offenses nationwide are in the federal system; of these, 96 percent are serving LWOP for drug crimes. More than 18 percent of federal prisoners surveyed by the ACLU are serving LWOP for their first offenses.

That these kinds of sentences can happen so frequently reflects a legal system bent not only on conviction, but on vindictive punishment. Jurors have the power and the responsibility to protect our communities from such grotesquely unjust sentences.

As a juror, if you do not believe that the punishment is appropriate for the crime, or if you do not have access to the relevant information about what the punishment is for a an offense, you have the right to conscientiously acquit by exercising your jury nullification authority. A judge may tell you that you are not to concern yourself with the penalty phase of the case and that you are only to decide whether or not the law was broken, but you should not cede your conscience when your vote can open the door for all manner of unconscionable mandatory minimums or vindictively imposed punishments that circumvent the intent of the jury, and for which defendants have little or no recourse.


FIJA in the News & Function of Juries & Jury Nullification | 02 Jul 2014

-Lamb Seeks Dismissal of Felony Charge for Jury Nullification Posting on Facebook


Jury BoxWe brought you news several months ago of so-called jury tampering accusations leveled against Luke Lamb, for allegedly sharing on Facebook a link to the FIJA website and making comments about jury nullification to someone who apparently requested the information.

Patrick A. Watts, an attorney for Lamb with the Sturycz Watts law firm, issued a press release back in March detailing the context of the charge, including what he says are political motivations behind the felony charge of unlawful communication with a juror. He noted, among other things, that the complaint against lamb was filed by the government less than two weeks before primary voting for Sheriff’s Candidate in Greene County, for which Mr. Lamb was running unopposed, and that Lamb had beeb pulled over by White Hall, Illinois police minutes after giving a speech at the one and only Greene County political candidate convention for his party this year.

Attorney Nathan Sturycz, also of the Sturycz Watts law firm, alerts us that a Motion to Reconsider has been made to the court regarding its 18 June 2014 finding of probably cause and denial of the defendant’s prior Motion to Dismiss. Here is the Motion to Reconsider (.pdf), which was filed on 23 June 2014. Yesterday, the Riverfront Times reported that Lamb’s next hearing in court would take place today, regarding this request for reconsideration.

It is, of course, very disadvantageous to government officials for jurors to be fully informed about their right to conscientiously acquit through jury nullification. This knowledge makes it harder to secure quick and easy convictions, particularly when the law is inherently unjust, when it is being unjustly applied, when the punishment is unjustly harsh for the offense committed, etc. All juror educators should be aware that, while uncommon, gratuitous accusations of “jury tampering” are one tactic that politically and otherwise biased government officials sometimes use against us. While FIJA does not give legal advice nor do we fund legal defenses, we do offer free training to activists to help them assess their own risks and implement their own plans to mitigate them so they can do jury nullification outreach with minimal risk to themselves. We also periodically review and update our outreach guidelines (.pdf), which we recommend all juror educators read and review from time to time.


FIJA Calendar & Jury Nullification | 19 Jun 2014

-FIJA Panel on Jury Nullification at Dudley Branch Library in Roxbury, MA


FIJA Logo with URLJurors Doing Justice: How to Protect Civil Liberties and Promote Social Justice through Conscientious Acquittal

Dudley Branch Library
65 Warren St.
Roxbury, MA
Thursday, 19 June at 6:00 pm

The Massachusetts Department of Corrections reports that over the last decade its prison population increased by 9%. More than eight black people and more than six Hispanic people are incarcerated for each white person in prion or jail in Massachusetts, a state whose population is more than 80% white. Over a third of all people incarcerated by the state are there for non-violent offenses, with more than 90% serving a sentence of greater than three years. A majority of incarcerated drug offenders are serving sentences related to mandatory minimum sentencing schemes. Years after officials learned of massive misconduct in the state’s Hinton drug lab that helped implicate tens of thousands of defendants, it is still unclear how many defendants are wrongly imprisoned as a result of that criminal misconduct.

Massachusetts is on an unconscionable trajectory of irreparably damaging families and communities, wasting tax dollars, perpetrating grave social injustices, and assaulting individual liberties. In this panel discussion, we will go into detail about jurors’ right of conscientious acquittal through jury nullification and its use as a tool to push back against the prison state in Massachusetts.

Kirsten Tynan is the Executive Director of the Fully Informed Jury Association. She will give a primer on your right as a juror to conscientiously acquit through jury nullification when a just verdict requires it, and how to maximize your likelihood of having the chance to exercise it. Jehu Eaves was one of the organizers of the community response to the brutal Greensboro Massacre in 1979. He witnessed in a very personal way the gross inadequacy of the legal system in restoring justice in trials decided by all-white juries. Later in life, he had the opportunity to serve on a jury that ended up acquitting a defendant, gaining firsthand insight into the workings of the jury system. He will discuss how his view of jury nullification has evolved over the years and how conscientious acquittal can be used in pursuit of social justice.


FIJA Calendar & Function of Juries & Jury Nullification | 05 Jun 2014

-FIJA to Educate about Jury Nullification at FREE HER Rally


FIJA Logo with URLYesterday, Families for Justice as Healing issued the below press release on the upcoming FREE HER Rally to be held at the Sylvan Theater on the National Mall in Washington, D.C. from 10 am—2 pm on Saturday, 21 June 2014. People will be coming from across the United States to encourage President Obama to commute the sentences of those in the federal system who have applied under his recently announced clemency initiative. FIJA will be one of many organizations represented at the rally. We will be educating everyone about our OWN powers of pardon by conscientious acquittal via jury nullification when we have the opportunity to serve on a jury. If you would like to help distribute jury nullification information at this event, please contact us in the office at (406) 442-7800 or by email to aji@fija.org so that we can coordinate with you ahead of the event.

Families for Justice as Healing Rallies in Washington, D.C. to End Mass Incarceration

Boston, MA (PRWEB) June 04, 2014

Families for Justice as Healing is mobilizing concerned individuals and organizations from across the country to converge on the National Mall in Washington, D.C. in support of an end to mass incarceration. The FREE HER Rally will assemble at the Sylvan Theater on the National Mall, Independence Avenue & 15th, on Saturday, June 21, 2014 from 10:00 am-2:00 pm.

Women, families and supporters will come together from across the nation, uniting to speak with one voice, to raise awareness of the devastating impact of overly harsh drug sentencing policies and the direct impact on communities of mass incarceration and the war on drugs. The objectives of the rally are:
1. To raise awareness of the alarming increase in the rate of incarceration of women in the United States and its impact on our children and communities.
2. To demand an end to voter disenfranchisement for people with felony convictions and to encourage the passing of the Smarter Sentencing Act.
3. To ask President Obama to commute the sentences of women and men in the federal system who have applied for commutations.

“On April 23, 2014, the Justice Department announced President Obama’s intention to commute the sentences of eligible people serving federal non-violent sentences,” says Andrea James, founder and director of Families for Justice as Healing. “Now is more important than ever to stand together and join our voices as one to encourage the President to commute the sentences of women serving non-violent sentences. Allow them to return to their children and communities.”

Between 1980 and 2010, the number of women in prison increased by 646% overall, with a disproportionate impact on women of color. Black women are incarcerated at nearly 3 times the rate of white women, and Hispanic women are incarcerated at 1.6 times the rate of white women. Most incarcerated women are imprisoned for non-violent drug and property crimes, with many women charged and convicted of conspiracy and other related counts, even though they had minimal or no involvement in the offenses that led to their arrests.

Incarcerated women have unique health and safety issues, which prisons are often unprepared to address appropriately, according to Families for Justice as Healing. Women swept into the prison system disproportionately suffer from abuse and sexual violence. They are particularly vulnerable to being re-traumatized by strip searches, solitary confinement, and staff sexual misconduct. Prisons and jails also often fail to handle reproductive needs appropriately, providing inadequate prenatal and abortion care. Pregnant women are often subjected to dangerous, demeaning, and unnecessary shackling during labor and delivery.

Locally hosted by the D.C. Office of Returning Citizen Affairs, the rally will include organizations, speakers, and individual participants from around the country. Other participating organizations include Alpha Kappa Alpha, ACLU of Washington, D.C., Boston Feminists for Liberation, Free Marissa Alexander Movement, the Fully Informed Jury Association, Institute of the Black World, Mommie Activist, Mothers in Charge, Pittsburgh Northside Residents Coalition, and Women Who Never Give Up.

After the June rally, the FREE HER campaign will continue on, with participants calling, emailing and sending postcards to encourage the President and to raise awareness among everyday people of the need to end the war on drugs and mass incarceration of women.

About Families for Justice as Healing:
Families for Justice as Healing is a criminal justice reform, legislative advocacy organization. At Families for Justice as Healing, we organize formerly incarcerated women to join the movement toward creating community wellness alternatives to incarceration, to heal and rebuild families and communities. Our membership advocates a shift away from expansion of the prison system and toward creation of community wellness alternatives to incarceration. We seek public health alternatives to current U.S. drug policies and legislation that focus on criminalization, the war on drugs and mass incarceration.


Function of Juries & Jury Nullification & Myths and Misconceptions | 02 Jun 2014

-Jury Myths and Misconceptions: Is It ‘Jury Tampering’ to Share Jury Nullification Literature?


San Diego jury nullification outreachThis is part of a series of responses to myths, misconceptions, and misstatements about jury issues, including jury nullification and juror education outreach. There are no lawyers on FIJA’s staff or board of directors, and FIJA does not provide legal advice. These observations are provided for educational purposes and do not in any way constitute legal advice.

Q: Is it illegal to share jury nullification literature? For example, does it constitute “jury tampering”?
A: No, when juror education outreach is done properly, it is neither illegal, nor jury tampering.

Many people seem to be confused about the legality of the kind of outreach that FIJA activists and others around the country do to fully inform everyone of the traditional, legal role of jurors, including their right of jury nullification. Sometimes this is because people who have been handing out jury nullification literature have been arrested. Most recently, we have heard tell that there may be someone who is discouraging marijuana activists from discussing and publicizing this very powerful, protective tool at jurors’ disposal, saying that it is illegal or jury tampering to discuss it, or something along those lines. When many peaceful defendants’ last resort for a just verdict in their trials is jury nullification, it is very important not to let this kind of errant information discourage activists from fully informing our communities of jurors’ full authority in delivering just verdicts. Now seems a critical moment to shed some light on this topic so that activists feel confident in exercising their First Amendment rights in support of all of our Sixth Amendment rights.

First off, what is jury tampering? There are various legal prohibitions against jury tampering, so let’s just look at the federal level to get the general idea. 18 U.S.C. 1503 covers influencing jurors generally. It discusses threatening or actually injuring jurors in an attempt to influence the outcome of a specific case. 18 U.S.C. 1504 covers influencing jurors in writing. It covers attempting in writing to sway the decision of a juror in a particular case one way or the other. If you are purposely trying to sway a juror who is actively serving on a case to vote either Guilty or Not Guilty in a specific case for which they are a juror, you may be engaged in jury tampering.

FIJA outreach, however, is different. We do not advocate for or against a particular verdict in any case in progress, but rather we do general juror education outreach. Our brochures that we use for sidewalk outreach do not mention any case in progress, and our guidelines specifically advise against mixing case advocacy with general juror education efforts:

FIJA activists should make it clear that they are only passing out information of general interest to all citizens, and are not trying to influence any particular case. No case-specific literature should be distributed with FIJA literature to anyone who might be a prospective juror.

In the most recent case we’re aware of that involved general juror education outreach with FIJA literature being met with jury tampering charges, the case against the defendant was dismissed by the judge, who ruled that:

The Court’s holding merely maintains the existing balance that federal courts have found between freedom of speech and the administration of justice. Attempts to tamper with a jury in order to influence the outcome of a trial or a grand jury proceeding are still clearly prohibited under 18 U.S.C. § 1503 and 18 U.S.C. § 1504. Efforts to distribute leaflets to jurors in the immediate vicinity of courthouses may still be sanctioned through reasonable time, place, and manner restrictions such as those promulgated pursuant to 40 U.S.C. § 1315 and 41 C.F.R. § 102-74.415(c). The Court declines to stretch the interpretation of the existing statute prohibiting communications with a juror in order to cover speech that is not meant to influence the actions of a juror with regard to a point in dispute before that juror or the outcome of a specific case before that juror.
For the foregoing reasons, the Defendant’s motion to dismiss the Indictment is GRANTED. The Defendant’s other motions are now moot and are dismissed.

If there is a case of interest to you personally, we recommend that you do not just suddenly show up the day of the trial and disappear once it is over. Rather, consider establishing a presence at least two weeks prior to a particular jury trial, and continue at least a week after. This makes you a “part of the landscape” and keeps you from being associated with a specific case. (Better yet, establish an ongoing juror outreach effort in your area as activists have done in California, Florida, New Hampshire, and elsewhere.)

We also recommend the following to juror education activists doing outreach near courthouses:
1. Stick to the public sidewalk in front of the courthouse. You are more likely to have an unpleasant encounter with courthouse officials if you attempt to distribute literature inside the courthouse.

2. Offer literature to everyone without regard to who they are and do not try to single out jurors in any way. We do general educational outreach not only to avoid the mistaken impression that anything we do is jury tampering, but also because it is a more effective educational strategy. Most of the people you encounter could one day be called to serve as a juror. Even those who aren’t eligible may pass along our literature to others. We get calls in the office regularly from people who have been handed our literature by someone else, picked it up in an office waiting room where it was left by someone else, etc. Our mission is to fully inform everyone of the juror’s traditional, legal authority to refuse to enforce the law when it would be unjust to do so, and that is best served by casting a wide net.

3. Go the extra mile to be friendly and courteous, and to avoid being perceived as belligerent, profane, harassing or a nuisance.
Earlier this year, about five or six FIJA activists were canvassing the downtown Bellingham, Washington area, including the Whatcom County Courthouse, when some of us had an encounter with a courthouse official. He came out because apparently someone had reported our outreach, and indeed, had exaggerated it FAR out of proportion to what we were doing. The official was surprised to discover only two of our activists in front of a very large courthouse entrance. The others were spread out at the library, city hall, and the post office. He had been under the impression from what had been reported that there were hundreds of us blocking the sidewalk and entrance such that people couldn’t get through. Upon seeing the situation was not at all what had been represented to him, though, he simply had a friendly chat with our activists cautioning us not to block the way into or out of the courthouse and not to harass or badger anyone, which is precisely how we were already behaving.

Behaving in an assertive but still friendly and non-belligerent manner helped our activists get tacit acknowledgement from the courthouse staff that we had the right to be there and were not doing anything wrong. They let us continue our work with no further encounters since. This has helped us maintain our ability to return and continue our efforts at this location without being sidetracked from the mission of educating people about jurors’ rights by having to defend our First Amendment rights.

4. If asked by courthouse officials to leave, exercise peaceful forbearance and challenge the request through civil processes rather than getting arrested. This does not mean forfeiting your First Amendment rights, but rather acting strategically to preserve your ability as well as other activists’ willingness and ability to exercise them in the future. There are other and better means by which to challenge these requests than to get arrested. For example, with a little bit of communication with a courthouse, a peaceful but assertive FIJA activist was able to get this memo issued by the Fifth Judicial Circuit Court of Florida in Marion County specifically clarifying to all courthouse officials that it is our First Amendment right to hand out FIJA literature and that we are allowed to do so.

There are also civil legal processes that are much more advantageous and likely to succeed than being arrested, jailed, and dragged through the criminal court system for pushing back against these First Amendment encroachments. If you are asked to leave, as you magnanimously agree to temporarily suspend your efforts until the matter is sorted out, you may wish to gather pertinent information that will assist you in your efforts to assert your right to do juror education outreach. For example, you can ask some questions as you comply with the request, such as “I’m going to comply with your request, but isn’t it my First Amendment right to distribute this information?” Or you may say, “I’m going to leave, but I would first like to get your name and contact information so that I may call you as a witness if I decide to challenge this order. Do you have a business card?” You may also ask, “Where may I stand to distribute brochures?” If the person harassing you does not recommend another location, you may identify another location and ask “May I distribute literature in that location?” It puts you on a different footing if an official has specifically agreed that you may conduct outreach in a particular location.

When an individual gets arrested, no matter how well-meaning they were in their efforts, that is counterproductive to effective juror education outreach. On the rare occasions when a couple of people have gotten arrested, we have experienced fallout of that for years into the future with other activists feeling they do not want to risk doing sidewalk activism for fear of getting arrested. Often that damage cannot be repaired by explaining how following our guidelines make this a minimally risky activity. Furthermore, when uninformed members of the general public see people getting arrested for informing others about jury nullification, they often get a negative impression about jury nullification itself, thinking that it is somehow illegal or unethical or otherwise a concept that they do not want to learn more about or use when they have the opportunity.

5. Be meticulous in following the law and also administrative orders from judges in the courthouse. On the very rare occasions when someone gets cited or arrested in conjunction with their juror education outreach efforts, it is usually for something incidental going on rather than directly for juror education since most courthouse officials recognize that jury tampering charges are not valid for activism done according to FIJA guidelines, and if the case goes before a jury, the jury will be fully informed about their right to nullify because of the nature of the case and evidence (such as FIJA literature). So be sure you are not committing any offenses that make it easy for officials to harass you such as having unpaid parking tickets, jaywalking, committing driving violations, etc. This will minimize the options law enforcement officers have for bullying you.

We have seen a couple of activists arrested for allegedly violating orders in effect from a chief administrative judge in a courthouse. If you violate a judge’s order, you are not likely to be charged with jury tampering, which would probably be eligible for a jury trial, but rather with contempt of court with the judge who charged you also serving as your “jury” and sentencer. Your odds of prevailing under such circumstances are obviously very low and will likely necessitate an appeal. By the time that happens, you may have already served out your entire sentence. This legal theater is based on a script that judges and law enforcement are very expert at performing, and you are at a distinct disadvantage on this stage.

This is why we recommend pursuing a civil challenge to such orders rather than getting arrested and endangering yourself and jeopardizing the ability for anyone to do activism in that location for years to come. A civil challenge to a judge’s order can at the very least involve the order being reviewed by a second judge, rather than the criminal scenario where the judge adjudicates his own order. If a civil challenge to an illegal administrative order works, great! Problem solved. If the administrative challenge does not get the order removed and you really want to get arrested, you can still do that. But if you go the criminal route first, odds are good that a civil challenge by you or anyone else who appears to be associated with you will not be taken seriously by the court as it appears that a party to the challenge is acting in bad faith.

In summary, when done properly, informing others about jury nullification, even in close proximity to a courthouse, is generally not illegal and does not constitute jury tampering. FIJA activists have done this regularly nationwide, for many years, coming out en masse every 5 September to celebrate Jury Rights Day by distributing FIJA brochures on jury nullification at courthouses across the country. When following FIJA guidelines, the chances of being arrested or charged are vanishingly small. Our guidelines include extra precautions for safely dealing with courthouse officials who do not properly understand the bounds of their authority. FIJA does not want anyone getting arrested. We are happy to provide free training to minimize this very small risk and work with you to develop a local strategy tailored for juror education outreach in your community. You may contact us in the office at (406) 442-7800 or by email to aji@fija.org to discuss how we can set up a training and strategy session specifically tailored for your group. We are not a legal advocacy organization, we do not have lawyers on staff, and we do not defend or fund the defense of anyone who gets arrested.


FIJA Calendar & Function of Juries & Jury Nullification | 02 Jun 2014

-The Power of Jury Nullification at the Global Freedom Summit


FIJA Logo with URL

Kirsten Tynan of the Fully Informed Jury Association will speak on
The Power of Jury Nullification: The Independent Juror’s Role in Limiting Government and Protecting Our Freedoms
at the online Global Freedom Summit
this Friday, 6 June 2014 at 9:00 pm Eastern/6:00 pm Pacific.
There is a small fee to attend this summit. We will be making the FIJA talk available online after the event for those who are unable to attend.


Function of Juries & Jury Nullification | 30 May 2014

-Edward Snowden Has the Right to the Benefits of Trial by Jury. Period.


Earlier this week, NSA whistleblower Edward Snowden sat for an extensive interview, filmed in Moscow, Russia, with NBC’s Brian Williams. Here is the first of six parts:

The full interview is available here.

Edward Snowden 2013-10-9 (1) (cropped)Depressingly, yesterday I encountered two different people in totally different contexts on social media who advocated that Snowden be murdered. Not tried, convicted and executed even, but outright murdered without even a trial. And both have said that they would do it themselves if given the opportunity. This disturbing turn of events makes me think now is good time to revisit the Sixth Amendment to the United States Constitution, which reads in full:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

“In all criminal prosecutions…”


There is no exception for indefinite detention without charge or trial of those suspected (and even those who have been cleared) of terrorist activity such as has been the standard practice at Guantanamo for over a decade with no end in sight since the first prisoners arrived.

There is no exception for extrajudicial killing of so-called ‘kill list’ targets such as 16-year-old Abdulrahman al-Awlaki who was killed by drone stroke, never having been charged with a crime or his family ever having been told why he was targeted.

And there is no exception for people like Daniel Ellsberg, Chelsea Manning, and Edward Snowden.

Whether you view Snowden as a hero, a traitor, or something in between, he is Constitutionally guaranteed the exact same right to the benefits of trial by jury as every one of us in ALL criminal prosecutions.

So as Brian Williams asked him in the interview, why doesn’t he return to the United States to “face the music” and stand trial? Snowden explains:

It’s a fair question, you know, why doesn’t he face charges? But it’s also uninformed because what has been lain against me are not normal charges. They are extraordinary charges.

We’ve seen more charges under the Espionage Act in the last administration than we have in all other administrations in American history. The Espionage Act provides anyone accused of it of no chance to make a public defense. You are not allowed to argue based on all the evidence in your favor because that evidence may be classified, even if it’s exculpatory.

And so when people say, “Why don’t you go home and face the music?” I say, you have to understand that “the music” is not an open court and a fair trial.

Fellow whistleblower Daniel Ellsberg, who leaked the Pentagon Papers, echoes Snowden’s concern, explaining how the legal environment would be very different for Snowden today than the one Ellsberg faced decades ago:

As I know from my own case, even Snowden’s own testimony on the stand would be gagged by government objections and the (arguably unconstitutional) nature of his charges. That was my own experience in court, as the first American to be prosecuted under the Espionage Act – or any other statute – for giving information to the American people.

I had looked forward to offering a fuller account in my trial than I had given previously to any journalist – any Glenn Greenwald or Brian Williams of my time – as to the considerations that led me to copy and distribute thousands of pages of top-secret documents. I had saved many details until I could present them on the stand, under oath, just as a young John Kerry had delivered his strongest lines in sworn testimony.

But when I finally heard my lawyer ask the prearranged question in direct examination – Why did you copy the Pentagon Papers? – I was silenced before I could begin to answer. The government prosecutor objected – irrelevant – and the judge sustained. My lawyer, exasperated, said he “had never heard of a case where a defendant was not permitted to tell the jury why he did what he did.” The judge responded: well, you’re hearing one now.

Indeed, in recent years, the silencing effect of the Espionage Act has only become worse. The other NSA whistleblower prosecuted, Thomas Drake, was barred from uttering the words “whistleblowing” and “overclassification” in his trial. (Thankfully, the Justice Department’s case fell apart one day before it was to begin). In the recent case of the State Department contractor Stephen Kim, the presiding judge ruled the prosecution “need not show that the information he allegedly leaked could damage US national security or benefit a foreign power, even potentially.”

We saw this entire scenario play out last summer in the trial of Chelsea Manning. The military judge in that case did not let Manning or her lawyer argue her intent, the lack of damage to the US, overclassification of the cables or the benefits of the leaks … until she was already found guilty.

Without reform to the Espionage Act that lets a court hear a public interest defense – or a challenge to the appropriateness of government secrecy in each particular case – Snowden and future Snowdens can and will only be able to “make their case” from outside the United States.

As things stand now, if Snowden returned for trial he would not only be on the typical playing field of courtrooms today that are heavily tilted toward prosecution with judges frequently siding with prosecutors, jurors being screened to ensure that none are fully informed about their right to exercise jury nullification, and so on. He would further be subjected to the FAR HIGHER hurdles put in place by the Espionage Act, which shamelessly gut the Sixth Amendment protections our founders insisted upon to ensure fair trials.

And that assumes that he even made it to trial. For the last few years now, the government has made it possible to evade the court system completely by dealing with undesirables via extrajudicial processes such as the onerous provisions of the NDAA that say the president may use the military to detain and imprison indefinitely without charge or trial any person captured anywhere in the world, the president’s no longer entirely secret kill list to target and kill undesirables without charge or trial, and more.

It’s been said that the least we are willing to settle for is the most we are going to get. The bar has dropped extremely low these days for dealing with so-called criminals, without the government even having to show evidence or prove that a crime has been committed. Regardless of what any of us personally thinks about Snowden, we should all be concerned about how he is treated. If we don’t mind that the government flagrantly ignores his right to a fair trial by jury as guaranteed in the Bill of Rights, what is standing between us and that treatment should we fall out of favor with those in power?


Function of Juries & Jurors Doing Justice & Jury Nullification | 28 May 2014

-Jury: Tertelgte Not Guilty of Resisting Arrest


Jury BoxA jury acquitted a Bozeman, Montana man of a charge of resisting arrest after nearly several hours of deliberation. Apparently, the behavior for which he was charged with resisting arrest consisted of “holding his hands down by his side”.

Jury: Tertelgte not guilty of resisting arrest

The Courtroom saga for a Manhattan man originally charged with fishing without a license continued today.

Ernie Tertelgte represented himself against resisting arrest charges. A jury found Tertelgte not guilty of the charges earlier this evening.

Last week he pleaded no contest to the fishing charge.

An observer’s account of the trial can be read here.


Function of Juries & Jury Nullification | 28 May 2014

-Mandatory Minimums Eviscerate Right to Trial by Jury


LawBooksFIJA does not support or oppose any legislative proposal, political candidate, or political party. We present this information for educational purposes only.

Thanks to Families for Mandatory Minimums sharing this article, which details a Pennsylvania proposal by a current Pennsylvania legislator, who is also an ex-prosecutor, that would redistribute even more power from juries into the hands of the prosecutor’s office. Here are some of the highlights of the bill:

Pa. lawmaker pushes for mandatory minimum sentences for convicted felons caught with guns

The proposed legislation would expand the list of gun crimes eligible for mandatory minimum prison sentences, including establishing a five-year, mandatory, minimum penalty for the illegal possession of firearms by individuals prohibited from doing so because of prior convictions, as mandated by existing state law.

The second, and more contentious, aspect of the bill is that it would amend the sentencing code to classify illegal firearm possession, use, manufacture, control, sale or transfer by prohibited individuals (as defined in Title 18, Section 6105 of the Pennsylvania Crimes Code) as a crime of violence, putting it on the established list of approximately two dozen offenses that includes third-degree murder, voluntary manslaughter, aggravated assault, rape, sexual assault, burglary, robbery, incest, kidnapping, human trafficking, arson and more.

Therefore, conviction on an illegal firearms possession charge would trigger an automatic five-year minimum sentence. And, just as the Sentencing Code already dictates for other crimes of violence (Pennsylvania’s so-called “Three-Strikes Rule”), a second such conviction would result in a 10-year minimum sentence, and the third or subsequent conviction would mean a minimum of 25 years and, the law states, “the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole”.

Dr. Nazgol Ghandnoosh, a research analyst at D.C.-based The Sentencing Project, and Greg Newburn, a project director with Families Against Mandatory Minimums, explain the effects of mandatory minimum schemes on our Constitutionally-guaranteed right to trial by jury provided for in the Sixth Amendment:

Increased prosecutorial power is a concern to Ghandnoosh, who says Stephens’ proposed legislation further shifts discretion and power from judges to prosecutors, who then control the decision whether or not to charge individuals with crimes that carry mandatory minimum penalties and are thus enabled to “threaten people with really large sentences in order to negotiate deals with them” to win convictions without ever having to go to trial.

And that, Newburn insists, would eviscerate the Sixth Amendment. “We have a constitutionally guaranteed right to a fair trial and what these (mandatory minimums) are saying is, we’re going to stack the deck so heavily against the defendant ahead of time that they simply can’t opt for that fundamental right unless they want to risk 25 years in prison,” he says. “There’s something inherently wrong about that to me.”

Typically, judges and prosecutors hide from jurors the potential penalty on the table in the case they are hearing. Judges tell jurors that the penalty is of no concern to them and that they are merely to decide whether or not the law was violated. They can and will punish jurors who do their own research to learn about the potential penalty at stake, keeping jurors effectively in the dark about such information that is relevant to delivering a just verdict. They do not want jurors to know when an egregiously unjust punishment is on the table because they might opt to conscientiously acquit by jury nullification.

Because the courts often withhold pertinent information about sentencing, jurors often are left regretting their verdicts when they realize that the punishment is far more than they ever intended and far more than justice allows, such as in the cases of Richard Paey and Cecily McMillan. Defense attorneys and their clients are well aware of this standard practice that substantially tilts the playing field in favor of the prosecutor, and prosecutors are able to use this and their nullification power to drop charges at their own discretion to bully defendants into forfeiting their right to trial by jury and the protections that come with it.

We have previously talked about how prosecutors have amassed immense power to convict without pesky juries making it tough for them. It is important for jurors to understand as they deliberate over a case that convicting on a charge that common sense tells them should have a small or no penalty, such as victimless offenses of harmlessly possessing something in violation of the law, may actually trigger a dramatically unjust penalty due to mandatory minimums, three strikes schemes, and so on. Jurors will not be informed of this ahead of time by the court, and in fact, will be told that it is none of their business. If they are not aware before they go into the courtroom of these kinds of schemes, they will have difficulty in delivering a just verdict.


Function of Juries & Jury Nullification | 27 May 2014

-Supreme Court Upholds Prohibition on Double Jeopardy


LawBooksLast week the Fifth Circuit Court of Appeals overturned a Guilty verdict a judge had directed jurors to deliver. We have more good news today for the future of the jury and their power of jury nullification. This morning the United States Supreme Court reaffirmed in no uncertain terms in its ruling in Martinez v. Illinois one of the key elements in our legal system that are the foundation for jurors’ ability to conscientiously acquit through jury nullification: the prohibition against retrying a defendant for a crime of which he has been acquitted, also known as “double jeopardy”.

In this case, the state of Illinois charged Esteban Martinez with aggravated battery and mob action against two individuals. Martinez’ trial date was delayed for more than four years due to repeated continuances, many of which were requested by the prosecution who were still attempting to track down their witnesses. When the trial had been pending for two months shy of half a decade and the state still had not located the witnesses it needed to make its case, the judge finally turned down further requests from the state for continuances. The court took several steps to delay the trial so the witnesses could be found, including delaying the swearing of jurors until the entire jury had been empaneled, rearranging its schedule to put other cases first to delay the swearing of jurors further, offering to delay the trial for a few more hours if that would help, and giving the state the option of either moving to dismiss its case or having the jury sworn. When the appointed time for the trial arrived, the state was still unprepared to make its case. Rather than moving to dismiss its case, the state had the following conversation with the judge:

“THE COURT: . . . . It’s a quarter to eleven and [Binion and Scott] have not appeared on their own will, so I’m going to bring the jury in now then to swear them.
“[The Prosecutor]: Okay. Your Honor, may I ap­proach briefly?
“[The Prosecutor]: Your Honor, just so your Honor is aware, I know that it’s the process to bring them in and swear them in; however, the State will not be par­ticipating in the trial. I wanted to let you know that.
“THE COURT: Very well. We’ll see how that works.”

The jury was then sworn, the state was directed to present its opening statement, and the prosecutor proceeded to declare repeatedly in response to such directions that the state was not participating in the case. At that point, the defense moved for directed verdicts of Not Guilty on both counts, which the judge granted. The state appealed this ruling on the basis that it believed that yet another continuance would have been appropriate. The defense opposed this appeal on the grounds that to retry Martinez at this point would constitute a violation of the prohibition on double jeopardy. Both the Illinois Appeals Court and the Illinois Supreme Court sided with the state, claiming in spite of very clear precedent otherwise, that the defendant had never been in jeopardy, even though his jury had been empaneled and sworn.

The Supreme Court ruled today that:

The trial of Esteban Martinez was set to begin on May 17, 2010. His counsel was ready; the State was not. When the court swore in the jury and invited the State to pre­ sent its first witness, the State declined to present any evidence. So Martinez moved for a directed not-guilty verdict, and the court granted it. The State appealed, arguing that the trial court should have granted its motion for a continuance. The question is whether the Double Jeopardy Clause bars the State’s attempt to appeal in the hope of subjecting Martinez to a new trial.

The Illinois Supreme Court manifestly erred in allowing the State’s appeal, on the theory that jeopardy never attached because Martinez “was never at risk of convic­ tion.” 2013 IL 113475, ¶39, 990 N. E. 2d 215, 224. Our cases have repeatedly stated the bright-line rule that “jeopardy attaches when the jury is empaneled and sworn.” Crist v. Bretz, 437 U. S. 28, 35 (1978); see infra, at 6. There is simply no doubt that Martinez was subjected to jeopardy. And because the trial court found the State’s evidence insufficient to sustain a conviction, there is equally no doubt that Martinez may not be retried.

We therefore grant Martinez’s petition for certiorari and reverse the judgment of the Illinois Supreme Court.

The prosecutor erred dramatically in this case, and the state was essentially trying to get a free “do over” by ignoring the protections built into our system to prevent defendants from having vast chunks of their lives held hostage at the mercy of a state that can neither prove its case nor is willing to leave them alone. The U.S. Supreme Court ruled that “the State knew, or should have known, that an acquittal forever bars the retrial of the defendant when it occurs after jeopardy has attached. The Illinois Supreme Court’s holding is understandable, given the significant conse­ quence of the State’s mistake, but it runs directly counter to our precedents and to the protection conferred by the Double Jeopardy Clause.”

If your lifespan is 75 years and the government ties you up with a legal situation such as this for 5 years, that is more than 6% of your life you will live in a legal limbo with a tainted reputation, with the psychological stress of a looming court case and the possibility of conviction and incarceration, the mental and emotional toll it is taking not just on you but also your loved ones, the financially draining need to keep paying expensive lawyers for years, and the inability to really plan for the future, not knowing if everything you are working toward will be snatched away from you at some point down the road. Even without having been convicted, you are being severely punished as the legal process drags on and on with no end in sight. This can be a powerful tool wielded by the prosecution to bully defendants into accepting a plea deal.

This case was ultimately never heard or decided by the jury. However, the jury had been both empaneled and sworn in, at which time our legal system clearly provides that jeopardy has attached to the case. The prohibition against double jeopardy has been chipped away over the years from its original intent. Prosecutors are already able to sidle around this prohibition by retrying a case lost in state or federal court in the other court system and other shenanigans. The more it is whittled away, the less juries have the opportunity to bring unjust prosecutions to a grinding halt with their Not Guilty verdicts. This ruling upholding the prohibition against double jeopardy, even though it wasn’t specifically in a case decided by a jury, helps shore up this key element that has been severely eroded in many ways.


Function of Juries & Jury Nullification & Myths and Misconceptions | 27 May 2014

-Jury Myths and Misconceptions: Once Deliberations Begin, Can a Juror Be Removed?


Jury BoxThis is the first in a recurring series of responses to myths, misconceptions, and misstatements about jury issues, including jury nullification. There are no lawyers on FIJA’s staff or board of directors, and FIJA does not provide legal advice. These observations are provided for educational purposes and do not in any way constitute legal advice.

Q: Once deliberations begin, can a juror be removed?
A: Yes, jurors can be removed as late as during deliberations for certain reasons.
Judging from a recent thread on the crowd-sourced Yahoo! Answers website, it is a common misconception that once deliberations begin, the jury is set. This is simply not true. Jurors CAN be removed from the jury and replaced—even as late as during deliberations—for various reasons. For this reason, judges will often also provide that two or three alternate jurors be selected during voir dire along with the initial jury, to be substituted in as regular jurors if one or more of the original jurors are removed.

For example, if a juror becomes ill and cannot continue, the judge may substitute an alternate juror in to take that person’s place. If it comes to light that a juror has been tainted, such as by having an interested party talking to him or her before court convenes for the day, the judge may decide (often after interviewing the juror to find out how this transpired, what was discussed, and what effect it has on the case) to replace him or her with an alternate. In some cases, deliberations can go forward even without alternates, with a jury smaller than twelve delivering the verdict.

And, yes, a juror may be removed if the judge learns that he or she is intending to exercise jury nullification. Consider the 1997 ruling in United States v. Thomas:

We consider below whether a juror’s intent to convict or acquit regardless of the evidence constitutes a basis for the juror’s removal during the course of deliberations under Rule 23(b).   We also consider what constitutes sufficient evidence of that intent in light of the limitations on a presiding judge’s authority to investigate allegations of nullification required by the need to safeguard the secrecy of jury deliberations.   We conclude, inter alia, that-as an obvious violation of a juror’s oath and duty-a refusal to apply the law as set forth by the court constitutes grounds for dismissal under Rule 23(b).   We also conclude that the importance of safeguarding the secrecy of the jury deliberation room, coupled with the need to protect against the dismissal of a juror based on his doubts about the guilt of a criminal defendant, require that a juror be dismissed for a refusal to apply the law as instructed only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution’s case.

In the original trial, several defendants were charged with various counts of actual possession and distribution and conspiracy to possess and distribute illegal substances. During voir dire, the prosecution attempted to use a peremptory challenge to strike the last remaining potential black juror in a case where all of the defendants were black. The defense raised a Batson challenge- an objection based on the 1986 case of Batson v. Kentucky that the prosecution was not permitted to use a peremptory challenge to strike the juror based solely on race. In response to this challenge, the prosecution cited the juror’s failure to make eye contact with the prosecutor as the reason for the peremptory challenge, but the judge ruled that this was insufficient reason to dismiss. The juror, also known as Juror No. 5, was seated.

In the course of the trial, six of his fellow jurors complained about things he did during court such as squeaking his shoe on the floor, crinkling candy wrappers, etc. as being distracting to them during the trial. After interviewing all of the jurors, including the allegedly distracting juror, the court concluded that the disturbances reported would not interfere with the jurors’ ability to deliberate. After initially considering removing the allegedly distracting juror, the court ultimately retained him and the original jury began deliberations together.

From the ruling:

Although the district court did not specifically inquire into any juror’s position on the merits of the case, at least five of the jurors indicated that Juror No. 5 was unyieldingly in favor of acquittal for all of the defendants. The accounts differed, however, regarding the basis for Juror No. 5′s position. On the one hand, one juror described Juror No. 5 as favoring acquittal because the defendants were his “people,” another suggested that it was because Juror No. 5 thought the defendants were good people, two others stated that Juror No. 5 simply believed that drug dealing is commonplace, and another two jurors indicated that Juror No. 5 favored acquittal because he thought that the defendants had engaged in the alleged criminal activity out of economic necessity. On the other hand, several jurors recounted Juror No. 5 couching his position in terms of the evidence-one juror indicated specifically that Juror No. 5 was discussing the evidence, and four recalled him saying that the evidence, including the testimony of the prosecution’s witnesses, was insufficient or unreliable. As for Juror No. 5, he said nothing in his interview with the court to suggest that he was not making a good faith effort to apply the law as instructed to the facts of the case. On the contrary, he informed the court that he needed “substantive evidence” establishing guilt “beyond a reasonable doubt” in order to convict.

After interviewing the jurors, the judge met in chambers with counsel for the parties. He had the record of the interviews read aloud and permitted counsel to comment on the appropriate course of action. The Government argued that the jurors’ responses indicated that there was “almost a jury nullification issue pattern with [Juror No. 5],” and urged the court to order the juror’s dismissal, while defense counsel unanimously opposed his removal. Having heard argument from counsel, the judge rendered his decision to remove Juror No. 5.

The case went forward with only eleven jurors, and they found the defendants Guilty on most of the counts leveled against them. In this appeal, the defense argued that the judge erred in removing the one juror who was standing between the defendants and that Guilty verdict. The Second Circuit Court of Appeals concluded that while jury nullification is an acceptable reason for a judge to dismiss a juror, that is only the case if “the record leaves no doubt that the juror… was not simply unpersuaded by the Government’s case against the defendants.” It further found that “The court in the instant case thus erred by dismissing Juror No. 5, and permitting the jury of eleven to continue its deliberations, based largely on Juror No. 5′s alleged refusal to follow the court’s instructions on the law, where the record evidence raises the possibility that the juror was attempting to follow the law as instructed, but that he simply remained unpersuaded of the defendants’ guilt.” The convictions were overturned as a result, and the court ordered new trials for the defendants.

Even as late as deliberations, if you as a juror indicate that you will be exercising jury nullification, you can be removed from the jury. This is not an offense that you can be legally punished for, but if you are removed from the jury, the defendant will likely not have another person willing to insist on justice for him or her when a just verdict requires setting aside the law. Imagine how you would feel if you were the defendant in this position and your one fully informed juror was removed to facilitate an easy conviction that would devastate your life and those of others in your family and community as a result. But you, as a juror, cannot be removed for expressing doubt about the government’s case so consider that when you are deliberating with your fellow jurors. This is important to keep in mind when you are deliberating with your fellow jurors, some of whom may be emotionally invested in a Guilty verdict, even to the point of reporting you to the judge to try and get rid of you as an obstacle on the path to conviction.


Function of Juries & History of Jury Nullification & Jurors Doing Justice & Jury Nullification | 20 May 2014

-Anniversary of Jury Nullification in Camden 28 Trial


What do you do when a child’s on fire? We saw children on fire.
What, what do you do when a child’s on fire in a war that was a mistake?
What do you do? Like write a letter?

With these words from Father Michael Doyle, the award-winning documentary film by Anthony Giacchino entitled The Camden 28 begins to tell the extraordinary story of a group of peace activists working to end the Vietnam War. In the early hours of 22 August 1971, this group of 28 including students, blue collar workers, clergy, and others, most of them would put into motion their direct action against the war. Several of them broke into a draft board office in Camden, New Jersey, and set about their work of destroying and removing draft records while others monitored the situation and advised from outside the buidling. Their goal was to shut the office down. With just a few minutes left before they planned to leave, they were accosted by FBI agents who had lain in wait, watching them work without interfering until they were given the order to intervene.

Since 1967, members of the Catholic Left had become more and more of a thorn in the government’s side, carrying out dozens of direct actions and destroying hundreds of thousands of Selective Service documents in the process. Just a few months prior to the Camden action, eight activists had successfully broken into an FBI office in the town of Media, Pennsylvania, emptying the office of nearly all its documents, which they proceeded to leak selectively to journalists, thereby exposing a massive program by the FBI against American citizens. David Kairys, one of the attorneys assisting in the defense of the Camden 28, explains in Slate the significance of this action:

The FBI files they publicly released documented what many then knew or suspected but couldn’t prove: Hoover’s FBI was secretly intervening in the political process and undermining free speech, privacy, and democracy. The agency used threats, intimidation, infiltrators and informers, phony letters, violence, break-ins, and widespread wiretaps, bugs and surveillance—aimed at law-abiding Americans who were simply exercising their free speech rights. The goal, in the words of the FBI, was to “disrupt,” “neutralize,” and “enhance paranoia” in the mostly left-leaning movements Hoover detested—civil rights, anti-war, and women’s liberation.

Still stinging from this dramatically successful challenge to its power and secrecy, the U.S. government was eager to make a public example of the Camden 28, whose action they in fact helped bring to fruition. But the Camden 28 refused to bow meekly to the government and go quietly away. Instead they chose to take their case before a jury, each defendant facing seven charges and risking up to 47 years incarceration plus fines. From the P.O.V. discussion guide for the film:

All 28 defendants were initially offered a deal, under which they could each plead guilty to a minor offense and receive a dismissal, probation or a suspended sentence rather than jail time, but they refused the deal. On the second day, the U.S. government, the plaintiff in the case, asked that the cases of eight defendants be severed from the remaining 20, in order that the case against “the defendants more significantly involved” move more quickly. These eight and an additional three defendants were severed from the trial before it began, to be tried at a later date.

Here is the trailer from the excellent documentary, The Camden 28:

On 5 February 1973, the trial would finally begin with a conference on motions followed by a lengthy jury selection process. Opening statements would take place over two days, 13-14 February, with each of the defendants openly acknowledging their actions before the jury. From the beginning, jury nullification was seen as the primary defense. These excerpts from defendant Edward McGowan’s opening statement comes from his book Peace Warriors: The Story of the Camden 28:

If I were to see a house in flames with a family on the second floor in immediate need of help, no one would accuse me of breaking and entering if I broke down the front door to bring them to safety. Or if I destroyed a slave ship, or chains of bondage, or concentration camps, or hunting licenses when the hunt involved human beings. Draft cards in the instance of this war, I submit, are hunting licenses to kill.

It began for me in a classroom in Rochester and culminates in a courtroom here in Camden. Three of those high school boys are dead. Four in VA hospitals for life. One in a mental ward. Two were founders of Vietnam Veterans against the War in Rochester. Many others were conscientious objectors. (You should know that from May 1970 to May 1971, 103,000 kids filed for conscientious objector status.) It’s been seven and a half years of turmoil and pain. But some of the best moments of our lives.

I wish to repeat what David said yesterday, ‘I envy you. You can realize your best moments now by acquitting us, and thus liberate yourselves.’ For you must know that the war is not over either in fact or in policy. We have circled mainland Asia in Laos, Cambodia, Thailand, and the Pacific. We have continued the bombing in Laos and Cambodia. We are still militarily present in Southeast Asia. And in policy we haven’t learned at all.

For approximately two months, the Camden 28 would themselves make their case before their jury with assistance from three lawyers. This unorthodox trial would include testimony from Howard Zinn, who describes his role in the trial in this video footage from a Camden 28 reunion, made available by Anthony Giacchino:

Remembering Howard Zinn from Anthony Giacchino on Vimeo.

The remarkable trial would wrap up with closing statements, spanning four days, again with each of the defendants as well as the lawyers making statements to the jury. Here is Camden 28 peace activist Father Michael Doyle reading from his closing statement from the trial:

63 days after the trial began and nearly two years after their direct action the fate of the Camden 28 would be settled by their jury. On 20 May 1973, concluding an historic trial, the jury who had listened and deliberated over the case for two months declared each and every one of the defendants Not Guilty on every count against them. This jury exercised its right of jury nullification to vacate more than 100 charges en masse in this single trial.

Subsequent to this abject defeat in court, the government dropped charges against the other defendants who had been severed from this trial. Supreme Court Justice William Brendan would refer to the Camden 28 as “one of the great trials of the 20th century.” Just months after the close of the trial, the U.S. would end its military involvement in Vietnam.


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