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Jury Nullification | 20 Apr 2015

-Stimson Verdict Not An Anti-Jury Nullification Statement

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

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

Explaining the Stimson decision

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

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

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

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

-How Prosecutors Can Control Jury Nullification through Jury Instructions

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

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

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

Stay leaves murder trial on hold

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

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

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

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

Punching trial paused by appeal of jury instructions

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

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

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

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

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

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

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

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

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

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

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

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Function of Juries & Jurors Doing Justice | 13 Apr 2015

-Is Juror Skepticism of Police Testimony on the Rise?

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

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

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

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

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

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

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

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

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

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Function of Juries & Jurors Doing Justice | 09 Apr 2015

-Grand Jury Is Right to Comment on Government Corruption

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

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

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

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

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

Editorial: Hits and Misses

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

Analysis: A Grand Jury With a Taste for Commentary

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

-Holdout Jurors Protect Citizen Media

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Protesters4Fullerton, California jurors recently deadlocked in the cases of citizen journalists A.J. Redkey and P.M. Beers, who were livestreaming during a January 2014 protest after the acquittal of two police officers for the death of Kelly Thomas. Thomas, a mentally ill, homeless man was beaten and tased by police officers. He fell unconscious on the scene and died five days later from his injuries.

Redkey and Beers were accused of violating California penal code section 409. Rather than dealing individually with less than a handful of unruly individuals present at the demonstration, police reportedly declared the assembly of hundreds of concerned citizens to be collectively unlawful based on the arrest of two people for vandalism and a scuffle between a protester and a camerawoman.

City of Fullerton Conspires to Silence Free Press Following Hung Jury in #LivestreamOnTrial

Deputy District Attorney Matt Mattis presented extensive evidence about three other events that day in Fullerton: the vandalism of the small business Slidebar, graffiti spray-painted on the police department, and the confrontation between a bandana-wearing protester and a member of the KCBS camera crew. The convicted perpetrators of those crimes were named throughout the trial. DA Mattis clearly stated defendants Redkey and Beers were never violent and never vandalized, but argued they were guilty of a crime for being present at a location that was declared to be an “unlawful assembly” and willfully remaining after the order was given.

The district attorney pointed out in closing arguments that he never mentioned the First Amendment because it was “not relevant” to this case. During the trial, defense attorney Derek Bercher described PM Beers as an “embedded” journalist providing an unfiltered view from ground level. Defense attorney John Raphling presented AJ Redkey’s style as “Comedy Central” instead of “Fox News or MSNBC” journalism.

By all accounts, neither Beers nor Redkey was involved in any of these incidents, nor was either arrested at the scene of the protest for failing to disperse. Rather, Beers was arrested for failing to disperse only hours later at an entirely different location from where she had allegedly failed to disperse. Redkey wasn’t arrested for failing to disperse until nearly four months later, on what just happened to be the day before another planned protest of unlawful arrests by Fullerton police. Six, apparently undercover, officers traveled all the way from Fullerton to Pasadena to apprehend him over an alleged non-violent offense committed weeks prior.

More information on Redkey’s arrest is here:
6 Fullerton Cops Sent to Pasadena to Arrest Man for Non-Violent Misdemeanor

Ms. Beers recently discussed in an article entitled Why Innocent People Take Plea Bargains, her decision not to take a plea bargain and what allowed her that opportunity when most other people are coerced into forgoing their right to trial by jury:

You may be aware that I was recently on trial for failure to disperse [409 PC] from the Kelly Thomas murder verdict protest. I wasn’t sure if I had broken the law or not, but I was certain that I had done nothing unethical. The first plea deal we were offered was three years unsupervised probation, a fine, and community service. That was a ridiculous offer as I personally know people convicted of the same crime in Los Angeles who were found guilty in a court of law by a jury of 12 people and given a 50 dollar fine. I know of other people who were given the option of taking a class on the first amendment in exchange for the DA not filing charges.

Many criminal cases take over a year to resolve involving many days in court, delays and postponements. If a person has a job or is a student, this could lead to the loss of their job or failing of their classes. If I had a job where I had to be present to clock-in, I certainly wouldn’t be free to take so many days off whenever I was required to appear in court, let alone more than a week off for my trail by iteself. My co-defendant, AJ, was lucky to have such an awesome employment situation which let him have the days off he needed. If given a choice between loosing one’s job and taking a plea deal, most of us would not be privileged enough to face a jury trial due the state of our economy.

After failing to convict either defendant, the Orange County District Attorney’s Office is seeking do-overs in both cases this month.
OC DA to Retry Citizen Journalists For Unlawful Assembly After Hung Jury: Update

All but one juror favored finding the defendant AJ Redkey guilty of the misdemeanor offense. The jury similarly deadlocked 8-4 for PM Beers. The Orange County District Attorney’s (OCDA) office decided against dismissing the case and, in a gigantic waste of everybody’s time, will press for a retrial next month.

“The case is about the right to protest and whether or not the police can use the negative actions of a very few people in the crowd as an excuse to shut down the entire protest,” defense attorney John Raphling tells the Weekly. “Fullerton Police should have simply arrested the small handful of bad actors and respected the rights of the rest to speak out for justice.”

Round 2 is scheduled to start on April 17 at Orange County Superior Court in Fullerton.

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Function of Juries & Jurors Doing Justice | 02 Apr 2015

-Jury Protects Man from Firearms Charges

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IMG_1132cropThe Youngstown Vindicator reports today that a jury has protected a defendant from charges of carrying a concealed weapon and being a felon in possession of a firearm for a .22-caliber semiautomatic pistol police found in one of twenty shoe boxes in a closet at a home of another person that the defendant was staying with. Defendant Gabriel Green had previously been convicted of two victimless violations, thereby making him legally ineligible to own or possess a firearm.

Felon gun trial centers on statements, possession

Police were serving a warrant at an address on the North Side for another person when they found a .22-caliber semiautomatic pistol in a shoe box in a closet.

They also found several rounds of ammunition in a basement.

According to Brevetta, Green admitted he had a gun he purchased at a gun show in 2005 and asked the officers at the home, “‘I’m not allowed to have a .22?’”

Engler told jurors his client denied making those statements to police, members of the Violent Crimes Task Force who were serving the warrant. Engler also said police took no fingerprint or DNA samples to link the gun to Green and that the gun was in one box out of 20 boxes.

He said prosecutors have to prove Green “knowingly” acquired a weapon, and they failed to do that. Engler said the home was not Green’s where the gun was found.

Kudos to this jury for insisting that the prosecution back up its accusations with something more than the word of police officers. As we have reported previously, the word of police officers alone leaves plenty of room for reasonable doubt.

Read more about jury protection for defendants in felon in possession and other firearms-related cases:
Georgia Judge Informs Jury of Mandatory Sentence
Jury Finds Man Not Guilty of Weapons Charge
Did The First Circuit Encourage Jury Nullification in Stolen Gun Case?

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Function of Juries & Jurors Doing Justice & Jury Nullification | 01 Apr 2015

-Georgia Judge Informs Jury of Mandatory Sentence

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GavelIconFulton County Superior Court Judge Wendy Shoob recently took the all too uncommon but highly commendable step of informing jurors of the mandatory minimum punishment she would be forced to impose on the defendant if they convicted him of armed robbery. In this case, the defendant was facing a mandatory minimum sentence of life in prison without parole if convicted of armed robbery (with an air gun) because he had three prior felonies: one for possession of a screwdriver (yes, really), another for receiving stolen property, and a third for aggravated assault during a jail riot.

Judge Defends Telling Jury of Mandatory Sentence

Judge Wendy Shoob said she has a right to express her opinion on mandatory sentences and had a duty to tell Fulton County Superior Court jurors that if they convicted a defendant of armed robbery, she’d have to sentence him to life.

As “the judge of the law and the facts under the Georgia Constitution,” wrote Shoob in a March 26 order denying prosecutors’ motions that she step off the case, “the jury should be informed when their verdict automatically imposes, by law, a mandatory sentence.”

Jurors in the case also considered, and ultimately convicted the defendant of, a lesser charge of robbery, for which Shoob sentenced him to 30 years, with 10 years in prison without the possibility of parole. District Attorney Paul Howard took issue with the fact that jurors had access to full knowledge of the consequences of their choice before making it and filed a motion for disqualification of the judge based on her instructions to the jury.

Michael Mears, Associate Professor at Atlanta’s John Marshall Law School, was also quoted in the same article, unfortunately spreading misinformation regarding the traditional, legal authority of the jury:

“Her rationale is very common-sense,” said Mears, who teaches criminal procedure and for years represented death row inmates. “But jurors are not supposed to be concerned with the sentence. That phrase that a jury is to judge ‘the law and the facts’ has been in our constitutions since the 1700s, but it’s never been determined to mean that jurors are supposed to decide the law. That’s jury nullification, and jurors can’t nullify a law they don’t like.”

Indeed, juries have been doing exactly what he says that can’t for hundreds of years now. In fact, it is quite possible that the jury in this case did as well, by convicting the defendant of a lesser charge. If so, what they did was perfectly legal and they cannot be punished for their verdict.

Georgia’s defendants, as Mears alludes to in his comments, enjoy an extra, explicit layer of legal protection spelled out in the Bill of Rights of Georgia’s state constitution that:

In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.

Shoob soundly denied District Attorney Howard’s request, making several strong points in support of jurors’ rights in her order including that:
—”The right of the Jury to consider mandatory sentencing is grounded in their role as the judges of the law and the facts under the Georgia Constitution,”
—”Jury power over sentencing was historically established under the Sixth Amendment as an intrinsic component of their function as a check on overreaching government,” and that
—”The jury has a right to be informed about mandatory sentencing in light of its intended role of political oversight.”

In her Order Denying Motion for Reconsideration of Order Denying Motion for Disqualification of Judge, Judge Shoob spoke volumes about the crucial role of juries who are fully informed of the punishment at stake in cases where mandatory minimum sentences are in play:

This Court holds that as the judge of the law and the facts under the Georgia Constitution, the jury should be informed when their verdict automatically imposes, by law, a mandatory sentence. The Sixth Amendment’s right to a jury trial was designed to provide the opportunity and power of the community to mediate punishment through the jury itself. Following the Supreme Court’s recent invalidation of statutory sentencing schemes eroding jury power, this Court is applying the same analysis to return to the jury the rights it was intended to have, and historically enjoyed, under the Constitution of the United States.

Criminal defense lawyer and FIJA Georgia State Contact Catherine Bernard praised Judge Shoob’s firm stance. “When jurors are deprived of basic information about the consequences of their decision, their role as the judges of the law and the facts is necessarily diminished. Judge Shoob has taken a courageous stand for justice and fairness in a system increasingly driven by prosecutorial discretion and other tools that undermine the fundamental right to trial by jury,” Bernard said.

When jurors regret their Guilty verdicts, one of the recurring themes we hear from them is that they had no idea that their vote would deliver the defendant, whose life was in their hands, up for an unjust punishment far beyond anything they had imagined. Many such cases involve mandatory minimum sentences that allow judges no discretion and essentially leave sentencing solely in the virtually unchecked control of prosecutors who are themselves fully informed about the consequences when they charge defendants.

We would NEVER hear a prosecutor in court excusing a drunk driver who had killed someone on the basis that the driver hadn’t considered the consequences of his actions when he chose to operate heavy machinery when he was unable to properly do so. Yet prosecutors regularly expect jurors to be complicit in destroying defendants’ lives by rendering a verdict without first considering the consequences of their actions. It is a poor reflection on our legal system that what is considered unacceptably irresponsible in virtually every other context is precisely the sort of behavior that prosecutors expect and even demand in court. It is, on the other hand, an encouraging glimmer of hope in such a cognitively dissonant environment to see a judge helping to readjust such expectations.

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Function of Juries & Jury Nullification | 19 Mar 2015

-Effecting Change Outside the Law with Jury Nullification

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Jury BoxA big thank you to Joseph S. Diedrich for including jury nullification in his recent article on effecting change outside the law, published on the website of the Foundation for Economic Education! Read on for Joseph’s comments on juries.
Effecting Change Outside the Law

A jury can convict you if it finds guilt beyond a reasonable doubt on every element of a charged offense. Stated differently, if all 12 jurors agree that there is legally sufficient evidence to find a defendant guilty, they can convict him.

But they don’t have to.

That’s because juries have the implicit power to nullify unjust laws. Even if there is enough evidence to find guilt beyond a reasonable doubt, a jury can still choose to acquit. Over time, repeated jury nullifications can lead to the de facto repeal of a law. On the eve of the Civil War, juries repeatedly practiced nullification in protest of the Fugitive Slave Act. For example, juries refused to convict runaway slaves in the Shadrach Rescue Cases, which the late Penn State York scholar Gary Collison credits with ruining Daniel Webster’s presidential aspirations.

However, the state does everything it can to prevent juries from exercising their right to judge the law itself in addition to the facts of the case. Judges have no obligation to inform jurors about their nullification powers, and they don’t. Defense attorneys are prohibited from informing jurors about nullification in the courtroom. Still, if a juror already understands the theory and legal status of jury nullification before entering the courtroom, he or she can be a powerful agent of social change.

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Function of Juries & Jurors Doing Justice & Jury Nullification | 04 Mar 2015

-Jurors Find Medical Marijuana User Not Guilty

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marijuana jury nullification thumbnailMedical marijuana patient Jessie Teplicki turned down a plea bargain for 18 months probation after he was arrested for growing marijuana. Teplicki uses marijuana medicinally to treat his severe anorexia by stimulating his appetite and reducing nausea he experiences when eating. Teplicki argued a medical necessity defense to his jury, who found him Not Guilty after deliberating for just 30 minutes. The medical necessity defense in medical marijuana cases has been upheld in Florida in 1991 in Jenks v. State and again in 1998 in Sowell v. State Had he been convicted, Teplicki could have faced five years in prison for his victimless personal use of marijuana.

More on the story here:

-South Fla. man convinces jury he smokes marijuana for medical purposes
-Jesse Teplicki, South Florida Man Charged With Growing Marijuana, Found Not Guilty
-Jury Decides Marijuana was Medically Necessary for Jesse Teplicki
-Jurors in Florida Marijuana Case Accept Medical Necessity Defense

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Function of Juries & Jurors Doing Justice | 19 Jan 2015

-Jury Finds Open Carry Advocate Not Guilty

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

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

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

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

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

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

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

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

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

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

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

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

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Jury Nullification & Volunteer | 09 Jan 2015

-Relevant Rulings Regarding New York City Jury Nullification Outreach

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

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

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

Handing Out FIJA Jury Nullification Pamphlets

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

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

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

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

Wood noted that:

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

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

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

It was therefore her conclusion in dismissing this indictment that:

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

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

Recording Jury Nullification Outreach

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

-”In Our Time” on the Magna Carta

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

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

In Our Time: The Magna Carta

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

KYRKYR-Home-Page-Graphic

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

-Jury Finds Man Not Guilty of Weapons Charge

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

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

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

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

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

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

In Brooklyn Gun Cases, Suspicion Turns to the Police

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

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

The suspects said the guns were planted by the police.

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

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

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

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

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

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

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

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

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

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

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Function of Juries & Jury Nullification | 06 Jan 2015

-Bill Seeks Unanimous Jury In Death Cases

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

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

Bill Seeks Unanimous Juries In Death Cases

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

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

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

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

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Function of Juries & Jury Nullification | 03 Jan 2015

-Kansas Supreme Court Upholds Jury Nullification

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

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

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

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

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

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

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

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

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

According to Judge Leventhal (with emphasis added):

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

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

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

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

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

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

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

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

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

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

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

. . . . .

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

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

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

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

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

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

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

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