Fully Informed Jury Association

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FIJA in the News & Jury Nullification & Volunteer | 01 Dec 2017

-Another WIN in Denver!

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Yesterday, the Colorado Court of Appeals upheld a district court’s dismissal of false jury tampering charges against juror rights educators Mark Iannicelli and Eric Brandt.

The Court of Appeals opinions for the defendants are located in .pdf format here and here.

Mark Iannicelli and Eric Brandt were arrested on two separate days at the Lindsey-Flanigan Courthouse in Denver, Colorado. They were falsely charged with seven felony counts each of jury tampering for handing out FIJA flyers.

Colorado’s jury tampering statute, C.R.S. 18-8-609, states:
“A person commits jury-tampering if, with intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.”

As juror rights educators do at many courthouses nationwide, Iannicelli and Brandt had been offering FIJA literature to numerous people who had business at the courthouse that day. Government agents tracked down several people who had been called for jury duty who had received the flyers and tried to suggest that anytime one of them had received a flyer, that constituted a separate count of jury tampering.

Not so, said a district court judge, who ruled that:
“[T]hey engaged in an activity that’s certainly no different from citizens of this county, this state, this city, holding up signs in a place where they knew jurors would see them, signs such as, you know, free the Chicago Seven or Eight, don’t convict so and so, and that’s similar — that’s speech. It’s similar to what the defendants did in this case. Activities such as those are protected by the First [A]mendment, because they are speech, they are in a public place, and I think that’s all the Court needs to — that’s as far as the Court needs to go.”

But the prosecution was not content to accept an interpretation of the law that would permit juror rights educators to engage in peaceful educational activity that threatens the ability of an assembly line-style legal system to churn out the convictions that are prosecutors’ bread and butter. The ruling was appealed. As I recall, I think there was an attempt by prosecutors to leapfrog the Court of Appeals and go all the way to the Colorado Supreme Court, but that does not seem to have worked out.

Just yesterday the Colorado Court of Appeals upheld the district judge’s ruling. The opinion distinguishes between generally handing out FIJA brochures—even to people called for jury duty or those seated as jurors—from the more narrow meaning of jury tampering intended in the statute:
“In sum, we hold that section 18-8-609(1) applies only to attempts to improperly influence jurors or those selected for a venire from which a jury in a particular case will be chosen. Because the People didn’t charge defendants with attempting to influence such a person (as they concede), it follows that the district court didn’t err in dismissing the charges.”

At this point it is not clear if this victory will put a stop to the government harassment of Iannicelli and Brandt, which has been ongoing for more than two years now. It seems possible that this could potentially be appealed to the Colorado Supreme Court. Whether or not that is likely is not yet clear. However, we do know that former Denver District Attorney Mitch Morrissey, under whose leadership this vendetta was initiated, is now out of office. The newly elected district attorney, Beth McCann, reportedly has herself won a case via jury nullification. It seems possible that her attitude on the subject may be different.

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Jurors Doing Justice & Jury Nullification | 23 Aug 2017

-Jury Smacks Down Kangaroo Court in Bundy Trial

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Yesterday the jury in the trial of four men accused of offenses related to a standoff near the Bundy ranch in Bunkerville, Nevada sent a resounding message to prosecutors and the judge in the case by returning absolutely no Guilty verdicts.

Instead, jurors found Ricky Lovelien and Steven Stewart Not Guilty of all 10 charges against them. Jurors found Scott Drexler and Eric Parker Not Guilty of most charges against them, with the jury undecided on four charges against Parker and two charges against Drexler.

“There was not a dry eye in the room, except the prosecutors’, who were steaming mad, and the judge’s. I was literally bawling my eyes out,” said FIJA Advisory Board member Dr. Roger Roots, who was in the courtroom when the verdicts were delivered.

This is the second trial for all the defendants. They cannot be retried on those charges for which jurors delivered Not Guilty verdicts. However, they can be retried on any charges for which jurors failed to reach a verdict. It is not clear yet whether the prosecution will continue jury shopping in order to find jurors who will convict.

Demonstrators were publicly visible outside the courthouse in recent weeks, including several who educated the general public about jurors’ right of conscientious acquittal by jury nullification. While FIJA previously pointed out that the Malheur Refuge occupation acquittals were probably not the result of jury nullification, we have been keeping an eye on other related trials, such as this one, for potential conscientious acquittals.

According to Dr. Roots, “This was almost certainly jury nullification. I see no other realistic interpretation. I say that because the defense pretty much did not put on a case, and in fact, were not allowed to put on a case.”

Among other things, the judge forbade the defense from many lines of inquiry including
● how well-armed Bureau of Land Management (BLM) agents were or how frightened defendants were of a potential attack,
● any mention of bullying or physically violent behavior of BLM agents leading up to the protest (though the prosecution was allowed to bring up things that happened months beforehand),
● any reference whatsoever to Constitutional First or Second Amendment rights, and
● any testimony from five prospective defense witnesses, whose testimony Judge Navarro pre-screened outside the presence of the jury and ultimately rejected.

Navarro cut off defendant Eric Parker mid-testimony, and she kicked him off the stand for supposedly breaking the rules she laid down. At the time he was cut off, he was rebutting a statement made by a prosecution witness claiming that he looked in a particular direction. That testimony was allowed, but Parker was not allowed to testify that he looked up and to the right. After Not only that statement, but his entire testimony was stricken from the record. Jurors were ordered to disregard all of his testimony, leaving him completely voiceless in his own defense.

Defense attorney Jess Marchese confirmed after speaking with jurors that the treatment of the defense factored into their decisions.

“The court’s restrictive limitations on the defense were overtly aimed at stopping jury nullification, and yet the irony is that they absolutely fueled it,” Roots said.

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FIJA in the News & Jury Nullification | 28 Jul 2017

-Federal Judge Upholds Anti-Free Speech Order

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Late last night we got word that federal Judge William Martinez (note that there is more than one Judge Martinez in this case) has ruled in favor of Chief Judge Michael Martinez, in his official capacity as chief judge of the Second Judicial District, regarding the anti-First Amendment order at the Lindsey-Flanigan Courthouse in Denver, Colorado. The ruling dissolves the preliminary injunction temporarily halting enforcement of the order’s anti-pamphleteering provision in two areas of the courthouse grounds and surrounding area.

I am not a lawyer and I do not give legal advice, but my best understanding of this ruling is that the prohibition on sharing FIJA brochures in the anti-First Amendment zones outside of Lindsey-Flanigan Courthouse as delineated by Chief Judge Martinez is now back in full force for the time being. It is FIJA’s policy not to break any order in force at the courthouse. It would be counterproductive to preserving our right to work in this area for anyone to break the order while we still have other options on the table. Please do not violate this order. We are looking into our options for moving forward on getting this order overruled.

From my reading of this ruling, federal Judge Martinez seems to have ruled against FIJA and our co-plaintiffs on both physical areas in contention. There were two areas outside the courthouse where state Judge Martinez banned a long list (but not all forms) of expressive activity. Our lawsuit specifically challenged the order’s prohibition on sharing FIJA (and other) brochures in the two areas highlighted in yellow in the figure below.

The white area on the left side of the figure is the roof of the irregularly-shaped courthouse building. A large yellow-highlighted area is clearly visible in the figure adjacent to the courthouse on the right. This highlighted area includes the entire Main Entrance to the courthouse building, as well as the primary walkway leading to it through the area labeled “Patio”. Somewhat less visible due to the coloration of the figure is a yellow-highlighted area to the left of the building. This anti-First Amendment zone encompasses the West Entrance as well as a long stretch of the public sidewalk—an area that has been explicitly treated by the Supreme Court as a traditional public forum for First Amendment Activity—on either side of the West Entrance.

In summary, federal Judge Martinez’ rulings on these two spaces seems to be:
1. Because the plaintiffs’ main focus is on leafletting near the Main Entrance, plaintiffs lack standing to challenge the anti-First Amendment order as it applies to the West Entrance. This sidesteps the little problem that the order bans First Amendment activity in what the Supreme Court seems to pretty explicitly have categorized as the most protected type of forum for First Amendment activity. Since we have been ruled not to have standing to challenge this, the ruling leaves the order in force in that area without regard to the merits of the argument that it is a traditional public forum.
2. Regarding the anti-First Amendment zone on the east side of the building, federal Judge Martinez seems to have explicitly ruled it to be a nonpublic forum. Apparently, this area that leaves people in well-below freezing temperatures throughout much of the winter is actually “an extension of the Courthouse lobby”. That is one inhospitable lobby!

In addition to his ruling, federal Judge Martinez spent nearly three pages scolding FIJA and our co-plaintiffs, saying that we “grossly abuse[d] the expressive freedom granted to them in the Preliminary Injunction.” In addition to the pamphleteering at the courthouse, other activities took place including other legitimate First Amendment activity that was banned by the order. There were also allegations of behavior that was already illegal before the order was put in place.

It is disappointing that federal Judge Martinez made no mention whatsoever of my testimony regarding FIJA’s policy and training with respect to these other types of behaviors. FIJA is VERY CLEAR that juror rights educators are to be courteous, friendly, civil, and generally good neighbors. I make this clear in ALL of the trainings I conduct, as well as in our Volunteer Training for Courthouse Outreach video and our guidelines for those distributing FIJA materials outside of courthouses.

Denver law enforcement and Chief Judge Martinez have ALWAYS had the ability to deal with illegal behaviors before the anti-First Amendment order was implemented. They continued to have the ability to deal not only with illegal behaviors, but EVERY OTHERWISE LEGAL BEHAVIOR PROHIBITED BY THE ORDER except pamphleteering, even while the preliminary injunction was in place. The one and only behavior the preliminary injunction halted enforcement of was arresting people for handing out brochures.

Yet upon issuance of the preliminary injunction, enforcement of all these other behaviors seemed to come to a screeching halt. The nearly uniform lack of enforcement (with the exception of a notable case where no bad behavior actually took place but two arrests were made, including of one person who wasn’t even present) is curious. We can’t see inside anyone’s head to ascertain their motivations, but this gives the appearance of a sort of work slowdown or stoppage with Denver officials abstaining from their duties in the hopes of sinking juror rights outreach by associating it with unrelated bad behavior.

Despite the sorry state of affairs for legitimate exercise of free speech at the Lindsey-Flanigan Courthouse, I will re-emphasize that the original situation that led to this cascade of events remains in the WIN column. Despite prosecutors’ attempts to overturn the dismissal of felony jury tampering charges against Mark Iannicelli and Eric Brandt for sharing FIJA brochures, they have to date been unsuccessful in that endeavor.

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
Final Findings of Fact and Conclusions of Law Ordered

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
Juror Rights Educators Triumph AGAIN in Denver

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Jury Nullification | 30 Mar 2017

-Ed Forchion Denied Pretrial Release

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Ed Forchion, also known as NJWeedman, was indicted in February in New Jersey for two counts of alleged “witness tampering”, which he emphatically disputes. As has been his usual practice, he is seeking trial by jury to address these charges.

In response, the state filed a motion for pretrial detention to incarcerate Forchion, without proving him to have committed any crime, while he awaits his day in court. One of the reasons cited by the state for incarcerationg Forchion on a pretrial basis is that the state alleges that Forchion’s practice of seeking or advocating for jury nullification amounts to obstruction of the administration of justice.

From Forchion’s Bail Appeal brief:

Per N.J.S.A. 2A:162-20 [Pretrial detention], the Court should consider in pretrial detention:
the protection of the safety of any other person or the community, or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process . . . (emphasis supplied).

The State moved for detention “with regard to the third prong of the triad, that would be obstructing, a criminal justice process” (T15-24 to 6-1): “[a]nd his goal in this case is jury nullification. Again, that is obstructing the administration of justice.” (T35-7 to 9).

(“T” denotes material from the transcript of detention hearing dated March 7, 2017.)

Forchion correctly argues in his appeal that:

“Jury nullification” should not be grounds (an unconstitutional “prior restraint”) for denying freedom. It is Mr. Forchion’s First Amendment Free Speech right to advocate the theory of jury nullification.

Indeed, the status of this topic as free speech that is supposed to be guaranteed under the First Amendment has been upheld by courts more than once:
● in Florida, where a judge affirmed that handing out FIJA brochures regarding jury nullification is legal based on principles of free speech
● in New York, where a federal judge dismissed false jury tampering charges against someone handing out brochures that advocated jury nullification
● in Colorado, where a judge dismissed false jury tampering charges against two people handing out FIJA’s educational material on jury nullification

Forchion is a father and cancer patient. Moreover, he is well known not merely for showing up, but for eagerly seeking out opportunities to make his case in court. Subjecting him to pretrial incarceration impedes him not only from fulfilling his financial responsibilities to his family, but also from accessing the medical treatment he needs for his very serious medical condition. In using his advocacy of jury nullification—which is well within his legal rights to conduct—as a thinly veiled excuse to imprison him, the state sinks to a new depth depravity and maliciousness in its ongoing vendetta against him.

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Function of Juries & Jury Nullification | 21 Dec 2016

-My Birthday Wish List for FIJA!

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15542396_1987779508115842_8536816736095708373_nKirsten Tynan, Executive Director of the Fully Informed Jury Association here.

Today is my birthday, and normally I would take today off. But as you read this I am in the midst of getting our 2017 Jury Rights Calendars in the mail to our 2016 donors. If you are one of our loyal donors, I THANK YOU!

If you are not yet one of those donors, please consider supporting FIJA’s educational efforts.

I love this work, but it’s been a tough couple of years in the national office. I am FIJA’s one full-time staff person, and I have less than the equivalent of a quarter-time staff person split between two very, very part-time staff, each working a few paid hours a month, to help me. This is FIJA’s entire staff responsible for handling everything from research to program development to communications to fundraising to social media to writing and publishing to answering the phones to fulfilling orders to press relations to traveling for events to handling legal affairs and so on. This is not sustainable as is, and I have so many projects that I would love FIJA to bring to fruition in the coming years.

FIJA needs your help today to sustain our momentum and expand our educational outreach efforts.

With that in mind, let me share with you my birthday wish list. This one’s not for me, though. It’s for FIJA!

In 2017, we need your support to:
● travel to Denver to our trial in federal court in support of both jury rights and the free speech rights of our volunteer juror educators,
● publish educational ebooks to teach more people about their rights as jurors (The Founders’ Jury is already on the way in early 2017!),
● take advantage of the soundproofed room we now have access to by getting the studio set up with video and audio equipment to produce quality livestreaming and recorded media,
● begin producing online classes for which we’re already developing curricula (Jury Rights 101, a Jury Rights Master Class, and speaker training for those who wish to qualify for a FIJA speakers’ bureau),
● edit and format for our website a TON of great material from our summer fellows’ work that has been burning a hole in my hard drive,
● complete research for, and then write and publish a book on the evolving role of jury nullification throughout the Fugitive Slave Act trials prior to the Civil War,
● train volunteers and supply more materials for long-term campaigns at courthouses around the country, and
● plan and host a top notch FIJA conference in 2018!

These are just a few of the many things FIJA has been working on this year, and we need your generous donations to make them happen. We have been operating on a tiny budget (an annual income less than that of the average attorney), with me skipping paying myself one or two months of each of the last couple of years. We accept no government funding, and there are no overpaid executives with cushy benefits packages here! Any amount you can contribute makes a BIG DIFFERENCE to us.

As we close out 2016 and I start another trip around the Sun, please make your donation today.

I ordered plenty of calendars, and we will send this educational outreach tool to everyone who makes a donation in 2016. Additionally, our 2016 donors will be the FIRST to preview our inaugural ebook, The Founders’ Jury, as soon as it comes out in early 2017. You will also be getting one of the FIRST copies of our updated Your Jury Rights: True or False? brochure in 2017 as well. I’m really excited about that as it is being updated with an interactive twist!

I am so grateful for your support of this timely and critical work. THANK YOU!

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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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Mike Fellows

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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