Fully Informed Jury Association

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Function of Juries & Jury Nullification | 20 Mar 2014

-Judges Circumvent Jury Verdicts with Sentencing for Acquitted Conduct

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Did you know that even if a jury finds a defendant outright Not Guilty on some charges, a judge may still be able to increase the defendant’s sentence for Guilty verdicts based on the conduct of which the jury explicitly acquitted him?

Consider the case of Antwuan Ball, acquitted of every single one of the prosecution’s laundry list of charges against him, with the sole exception of a single count of a victimless offense regarding an alleged $600 crack transaction. Law professor Douglas Bergman explains:

Fence_of_Prison-BPODC Circuit gives disconcertingly short-shrift to Antwuan Ball’s many significant sentencing claims

[Antwuan] Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

Relying on the prosecution’s allegations that Ball was the leader of a huge crack consipracy (claims which the jury rejected), the district judge apparently calculated Ball’s guideline sentence range to be 292 to 365 months (though again, due to the FSA, I am not sure that was the right guideline range circa March 2011). This NACDL amicus brief filed in January 2013 indicates that Ball’s guideline range would have been only 51 to 71 months absent consideration of acquitted conduct.

As reported here, District Judge Richard Roberts at sentencing declared that he “saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction.” At the time of Ball’s 2011 sentencing, I noted here that I was quite pleased the acquitted conduct issues preserved in this notable case, and I suggested “some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct.”

Now fast forward exactly three more years, and I find myself quite disturbed and troubled by how the acquitted conduct issues (and other issues) were given seemingly quite short shrift by a panel of the DC Circuit in its ruling late last week in US v. Jones, No. 08-3033 (DC Cir. Mar. 14, 2014) (available here).

What was the result of this appeal?

Appeals court upholds D.C. man’s 18-year sentence for $600 drug deal

A D.C. man sentenced to nearly two decades in prison after his conviction on a $600 drug deal saw his closely-watched appeal rejected Friday, as defense attorneys prepare to take the case to the Supreme Court.

Antwuan Ball and two other D.C. men in the same case were convicted of dealing small amounts of crack cocaine and were later sentenced from 15 to nearly 19 years in prison.

While the jury acquitted the men — Ball, Joseph Jones and Desmond Thurston — of conspiracy charges, U.S. District Judge Richard W. Roberts nonetheless ruled they had taken part in a conspiracy at their sentencing hearings. The judge’s findings led to far tougher sentences for each defendant compared to the prison terms they would have faced on the basis of their convictions alone.

Unbeknownst to many (probably most) jurors, sentencing guidelines often allow a single judge (frequently an ex-prosecutor) to circumvent the unanimous Not Guilty verdict of a jury of as many as twelve people through sentence enhancements based on unconvicted or outright acquitted conduct. Unconvicted conduct is conduct for which a defendant has not been convicted, including offenses for which the defendant has not been charged and charges on which the jury cannot come to a unanimous verdict. Acquitted conduct is conduct of which the defendant has been found explicitly Not Guilty, which requires a unanimous verdict when determined by a jury. It is even possible for judges to increase sentences for convicted conduct so much based on acquitted conduct as to render the jury’s role in the matter completely irrelevant.

In his 2009 opinion in the case of U.S. v. Papakee, Judge Bright had damning words for this practice and its implications with respect to the Fifth and Sixth Amendments:

Not long ago, I wrote extensively that the use of acquitted conduct violates the Sixth Amendment. See United States v. Canania, 532 F.3d 764, 776 (8th Cir. 2008) (Bright, J., concurring) (noting the Supreme Court’s affirmation of the centrality of the jury in the criminal-justice system and that “[a] judge violates a defendant’s Sixth Amendment rights by making findings of fact that either ignore or countermand those made by the jury”). I also believe that use of acquitted conduct to enhance a sentence violates the Due Process Clause of the Fifth Amendment. See id. at 777 (Bright, J., concurring) (“[T]he consideration of ‘acquitted conduct’ undermines the notice requirement that is at the heart of any criminal proceeding.”).

I will not repeat here my concurrence in Canania. But I will reiterate that “the use of ‘acquitted conduct’ at sentencing in federal district courts is uniquely malevolent.” Id. (Bright, J., concurring). We must end the pernicious practice of imprisoning a defendant for crimes that a jury found he did not commit. It is now incumbent on the Supreme Court to correct this injustice.

Whether they are voting Not Guilty because they believe the offense has not been committed or because they believe the law is unjust in the case at hand, jurors often feel compelled to throw the prosecutor a bone just for having done something, no matter how unconvincing or shoddy, or they may feel peer pressure during deliberations to compromise with jurors insisting on some punishment for something. As a result, they may give in despite their own judgement and agree to convict on what seems to them a minor charge, unaware of circumstances that may allow severe punishment for that single, minor offense, such as mandatory minimum sentencing schemes or sentencing based on acquitted or uncharged conduct.

It is important for jurors to understand that a trial is not a “partial credit” type situation. The prosecution does not get points just for showing up. If a juror believes that the defendant has not committed the offense of which he is accused, the juror should vote Not Guilty and stick to that vote. If a juror believes that the defendant has technically broken the law, but has not harmed anyone or their property, the juror should vote Not Guilty and stick to that vote. If a juror conscientiously believes for other reasons, such as punishment being disproportionately severe compared to the offense committed, the law being unjustly applied in the case at hand, and so on, the juror should vote Not Guilty and stick to that vote.

Jurors can close the door on sentencing for acquitted conduct by voting Not Guilty on ALL charges before them. This is particularly important to do in cases where jurors are only considering conviction on victimless charges. When there is no victim, there is no crime. When there is no crime, there is no reason to open the door for the judge to impose any punishment, let alone enhance punishment based on charges for which the jury has explicitly found the defendant Not Guilty.

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Function of Juries & Jurors Doing Justice & Jury Nullification | 19 Mar 2014

-San Diego Jury Acquits Couple in Medical Marijuana Case

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Good news AGAIN in San Diego, this time in the medical marijuana case of Dennis and Deborah Little, whose dire medical situation includes HIV/AIDS, cancer, arthritis, neuropathy, and more. Jurors found the Littles Not Guilty on charges of possession of marijuana for sale and of cultivation of marijuana.

Click through for the transcript. (Note: audio may automatically play when the page loads.)

Terrie Best reported from the courtroom during the case, alerting us to the ridiculousness of the case. The Littles were growing in the neighborhood of two dozen plants for their own medical use. Terrie explains:

After the DEA removed the Littles’ marijuana garden and confiscated all of their medicine, they proceeded to weigh the evidence and destroy almost all of it at an undisclosed location. The Littles were then charged with possession for sale and cultivation of marijuana. At the preliminary hearing, Deputy Matt Stevens stated that, in total, he seized more than 640 pounds. However, there are no viable pictures, video, or other evidence to corroborate that testimony. As such, the Littles have never had the opportunity to test the DEA’s incredible assertions by analyzing and testing the evidence themselves to demonstrate that, in fact, they were cultivating an amount reasonably necessary for their medical needs.

The situation was made even more confusing when the ex-prosecutor turned judge in the case ruled on the admissibility of testimony regarding the non-existent evidence:

At the end of questioning Judge Munroy admonished DEA agent Stevens for not complying with an evidence-collecting statute in the case, telling him a “fashioned legal remedy” was put in place because of this non-compliance. The sanction, in place because of DEA antics, formally restricts the prosecution from perpetrating the fallacy of the unsubstantiated weight of 640 pounds, in favor of the also unsubstantiated weight of 118 pounds of cannabis evidence, during trial.

In fact, only about 8 pounds of marijuana were available as evidence at the time of the trial. Says Terrie of the wrap-up of the trial:

Both parties held closing arguments at end of day, yesterday. Nate Shaman told the jury they had the ability to turn in a not guilty verdict based solely on the fact that the DEA had intentionally destroyed evidence that would have benefited the Littles. He also called the prosecutions witnesses “DEA sponsored.”

Lance Rogers pointed out all the mistakes law enforcement had in the case and highlighted the unfair conflict between state and federal law.

Brock Arstill, in his closing, asserted that marijuana is still illegal except under strict circumstances and the Little’s, while clearly sympathetic, are not entitled to a “pass.” Arstill has been a bit more slippery than he started out. In much of his questioning of Steven’s he tried to circumvent the court’s weight sanction. This necessitated a few sidebars in which I’m certain the judge admonished him since he gave up the line of questioning and stuck to the court’s ruling on the sanction.

Of note, at the end of day Tuesday, Judge Munroy asked the jury not to watch CNN Medical Correspondent Dr. Sanjay Gupta’s special on medical cannabis which was scheduled to air that night.

Thankfully, the jury delivered Not Guilty verdicts on all counts, setting the Littles free to rebuild their lives after the nightmare they have been put through by federal and state government agents.

We should all be asking ourselves of this kind of case, what was the value in government relentlessly hounding a couple who had harmed nobody? As jurors vote Not Guilty over and over in these kinds of cases, refusing to be complicit in the government’s injustice to peaceful people, prosecutors and law enforcement have a more and more difficult time justifying their malicious actions and the wasteful expense to taxpayers who are forced to fund their pointless shenanigans.

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Function of Juries & Jury Nullification | 18 Mar 2014

-Mongielo May Be Headed to Jail for Clerical Error

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Jury BoxDavid Mongielo may begin a 10-day jail sentence as early as Friday, effectively serving time in jail for a clerical error made by his attorney’s office. We recently posted this update on the case, asking whether this is actually judicial retribution against Mongielo after a jury acquitted him?

Town clerk says Mongielo appeal error wasn’t “malicious”

Town Clerk Nancy A. Brooks said last week that the failure to take an appeal notice for David J. Mongielo’s sign ordinance conviction to Town Court was not intentional.

“I certainly didn’t do anything maliciously,” Brooks said in an interview. “I have no reason to.”

The statement came as Niagara County Judge Matthew J. Murphy III granted a one-week delay in arguments over whether the combination of mistakes by Brooks and defense attorney Frank T. Housh is fatal to Mongielo’s hopes of appealing a 10-day jail sentence for violating his conditional discharge on a sign ordinance violation.

One of the first steps in filing an appeal is to give notice to the original court within 30 days. In this case, the clock started running Jan. 21, when Town Justice Leonard G. Tilney Jr. imposed the 10-day jail term on Mongielo for violating the town’s law against flashing signs.

He was convicted of that in a nonjury trial in 2010 and received a fine and a one-year conditional discharge from then-Justice Raymond E. Schilling. But before the year was up, Mongielo was cited for violating the ordinance again.

Although Tilney dismissed that charge, scrapping a planned jury trial, he imposed the sentence because Schilling already had found Mongielo guilty of violating the discharge in a hearing that didn’t require a jury.

Let’s consider the arithmetic of injustice here:
Mongielo’s sentence was imposed for a violation of which he stands not convicted, due to it being overturned. It was then stayed pending an appeal that has yet to be heard. If this stay is lifted, he will not be serving jail time for the offense of having a sign that changed too frequently to suit someone’s aesthetic preferences, but in fact, will be serving jail time for a clerical made by someone else over which he had no control whatsoever. If the stay of this sentence is lifted now, the arithmetic here is this:

0 days in jail for a crime
10 days in jail for a clerical error made by someone else

Does that seem just to you? Does that sound like a good use of taxpayers’ dollars?

This is what “justice” without juries looks like.

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Jurors Doing Justice & Jury Nullification | 17 Mar 2014

-Jury Nullification and the Saint Patrick’s Day Four

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Jury BoxOn March 17, 2003, the United States was on the brink of war with Iraq, using as an excuse the ominous specter of weapons of mass destruction that even the government would later admit did not exist. Believing they had exhausted all other remedies working within the system to prevent the mass destruction and atrocities that are part and parcel of war, four American peace activists of Irish Catholic heritage, who were members of the Ithaca Catholic Worker community, went into a military recruiting center to perform non-violent, direct action to raise awareness against the war. These four people were Daniel Burns, Peter DeMott, and sisters Clare and Teresa Grady, daughters of John Grady who had been a member of the Camden 28, who were prosecuted for their direct action against the Vietnam War and all found Not Guilty.

Bill Quigley, law professor at Loyola University New Orleans School of Law and advisor to the four, described the peace action in a Democracy Now interview about halfway through the second trial:

Two of the defendants, Peter De Mott, and Daniel Burns have given their direct testimony. They have admitted from the beginning that they went into the recruiting center, that they knelt down, that they read a very powerful statement, that they poured their blood around the vestibule of the recruiting center, including on the American flag, and they’ve admitted that ever since they did it. They have been proud of that. They knelt and prayed. They were taken away and arrested.

Daniel Burns explained why they took this action in the recruiting center:

In that room, and in all that literature, there’s no mention of blood. There’s no mention of killing or being killed or wounded. The recruiters, what they do is come into your high schools… They are preying on our children, and so, there’s no mention of the horrors that they are committing, and they do it with a smiling face. And in that room were cutouts of beautiful people in uniform, smiling, and we poured blood on them because that’s what they’re sending them to do. They’re sending them to go get killed or be killed and all these other horrors that go along with war, which we knew were going to happen… Going in there, we went and poured our blood, we knelt down, and we waited for the police. And then we were in jail for about a week, and then ‘Shock and Awe’ happened the next day.

Burns sums up the two trials:

We had a Darth Vader-type district attorney in Ithaca in Tompkins County, and we were in little Lansing Township which is mostly Republican. And he said to us—we were charged with a misdemeanor, “You plead Guilty to a misdemeanor, or we’re going to indict you on a felony and bring you to state court.” And so without even a flinch, of course we pleaded Not Guilty. And so we had a trial in state court with 12 jurors instead of 6 jurors in the town of Lansing, which had been overwhelmingly Republican. We would have gotten a conviction right away. But, again, the Republican DA tries to snuff out our voices and they get louder, and we go to a larger courtroom, and we were able to raise awareness against the war in that way…

So anyway, we had a trial there and the DA thought it was a no brainer. The assistant DA prosecuted it, and they could not get a conviction. 9 to 3 to acquit. 9 jurors out of the 12 said, “No, we’re not going to convict.” And so the DA, the macho man that he is (or was, unfortunately), drops charges only after the federal government has agreed to pick it up…

So the feds, they bring us to Binghampton. They hit us with a conspiracy charge. We’re facing 6 years just on the conspiracy charge alone. We were also charged with lesser charges, which were misdemeanor, which was damage to government property and trespass. We were found innocent—they could not get a conviction on the conspiracy charge. It was the first conspiracy charge since the Vietnam War.

So we beat the conspiracy charge. The media takes it, “Oh, they were found Guilty!” But they don’t mention it was of a misdemeanor.

The four were ultimately convicted of the lesser charges and each spent 4-8 months in prison. They presented various arguments in their defense, including the defense of necessity, arguing that because their actions were taken in order to prevent a greater harm, the lesser harm they caused was not illegal. Because defendants usually have to offer some sort of opening for jurors to cling to when voting Not Guilty, it is often difficult or impossible to know if a particular case involved jury nullification. Whether or not the jurors in these cases accepted these arguments is unknown, but it is possible that straightforward jury nullification played a role in either or both of these cases. If the necessity of defense was accepted, that can still be viewed as a permutation of jury nullification and certainly as a verdict from conscience.

Daniel Burns, Peter DeMott, and Teresa Grady tell the story in detail in the videos below. Check back throughout the week as we bring you more commentary on this anniversary in jury history.

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Function of Juries & Jury Nullification | 14 Mar 2014

-Jurors: Be Skeptical of Snitches

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Jury BoxAlexandra Natapoff, author of Snitching: Criminal Informants and the Erosion of American Justice, defines snitching as “the practice by which offenders—criminal suspects and defendants—can trade away their own liability or shorten their sentences or get other benefits from the government by giving them information.”

Watch this five minute video to learn how pervasive snitching is, not in delivering justice, but in greasing the wheels of the legal system to facilitate convictions and promote incarceration. Natapoff also discusses police exercise of their own nullification power by declining to arrest based on their own, unreviewable discretion.

Jurors should be fully aware when they are deliberating the fate of another human being that the only difference between who is sitting at the defendant’s table and the witness on the stand snitching on the defendant is who caved in first to pressure exerted by law enforcement and prosecutors. In many cases, the witness may have done something worse than the defendant, and was therefore more motivated to make a deal to squeal.

Take for example the case of Rich Paul, convicted primarily of marijuana-related offenses, thanks to government collusion with a snitch named Richie DuPont sent by an FBI agent to make illegal purchases from Paul in exchange for leniency for heroin offenses. And what was the FBI going after Rich Paul for? Were they interested in snaring him on marijuana charges? No, as Paul explained in a 2013 interview with FIJA, the FBI wanted drug charges to hang over his head in order to strong arm him into infiltrating a local community group and acting as a government snitch for political purposes:

The other thing that’s interesting here is that when I was first picked up, I was interviewed by the FBI. They offered to put me back on the street and let me continue selling pot so long as I would wear a wire into the Keene Activist Center, which is a political group. We have nothing to do with drugs. I happen to be a member, and obviously I smoke weed. But it’s not a criminal organization-it’s a political organization. They tried to get me to wear a wire in there and entrap my friends into selling these things so that they could be blackmailed in turn. That’s how this whole thing started. They didn’t want me because I was smoking weed. They wanted me because I’m an anarchist and they thought they could get information out of me.

In this case, Paul was threatened with 81 years in prison unless he cooperated, yet he still refused to snitch. Ultimately, he did serve some time in jail, based on the snitching of DuPont who, for his own personal gain, colluded with government agents to entrap Paul.

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FIJA in the News & Function of Juries & Jury Nullification | 10 Mar 2014

-Are Jury Tampering Charges in Lamb Case Politically Motivated?

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Jury BoxIt’s no secret that judges, prosecutors, and other government officials are not usually fans of jury nullification, for obvious reasons such as that juries have the power to overrule them in court. We recently brought you news that candidate for Sheriff of Greene County, Illinois, Luke Lamb, has been charged with unlawful communication with a juror for sharing a link to the FIJA website and making comments about jury nullification on Facebook to someone who apparently requested the information. This move comes just days before the primary voting for Sheriff. Lamb’s attorney provides the full context of this move in the below press release, noting that “The complete lack of investigation by the prosecution further demonstrates the underlying ulterior motive and the political hack job nature of this criminal Complaint against Mr. Lamb.” We are providing the press release in its entirety below, along with a link to Scribd where it can be read or downloaded.

Letter from Lamb’s Attorney

Patrick A. Watts Attorney
5757 Phantom Drive, Suite 250
St. Louis, MO 63042-0130
Phone: 314-669-5490
Email: pwatts@swattslaw.com
sturyczwatts.com
Licensed: Illinois & Missouri
Federal Court Admissions: SDIL, NDIL, EDMO
Sturycz Watts LLC

FOR IMMEDIATE RELEASE

Mr. Luke Lamb is currently running for Sheriff of Greene County, Illinois, a small county located approximately one hour north of St. Louis, Missouri. He is also a Board member of Greene County, Illinois and was elected in November 2012. Mr. Lamb has created a splash in the small county government of Greene County by advocating against police check points and other infringements on what he believes are the Constitutional rights of the citizens of his county.

Mr. Lamb classifies himself as a “Constitutional Sheriff’s Candidate”, advocating for individual liberty and limited police intervention.

Mr. Lamb has received news coverage over the last several years by video-taping police during his display of an “Impeach Obama” sign over an Illinois overpass in an attempt to demonstrate his first amendment Constitutional rights as well as videotaping St. Louis County police drinking and then driving.

From the factually baseless and wholly uninvestigated criminal complaint recently filed against Mr. Lamb, as more fully explained below, it appears that his advocacy for individual liberties and his candidacy for Sheriff have created quite a backlash against him in the small-town law enforcement community of Greene County, Illinois.

For glaring example, the primary voting for Sheriff’s Candidate in Greene County, for which Mr. Lamb is currently unopposed, is scheduled for March 18, 2014, less than two weeks from today and the filing of the Complaint.

Mr. Lamb was also recently pulled over in White Hall, Illinois, the most populous town in Greene County, by the White Hall police department minutes after giving the key-note speech at the sole Greene County political candidate convention for his party this year.

Mr. Lamb is currently charged with “Communicating with Jurors” because of a Facebook post he left in a public forum in response to a friend’s request for information from him. The Complaint alleges that Mr. Lamb’s comments were intended by Mr. Lamb to influence his friend, who had indicated by way of a Facebook comment, that he had been selected for jury duty.

Mr. Lamb posted a link to a site titled “Fully Informed Jury Association” or fija.org in response to his friend’s request. Mr. Lamb, in jest, further made a comment about nullification. Mr. Lamb later went on to comment on the same post that the juror should only hang the jury “if necessary”, demonstrating that he was leaving any decision about the individual case up to the juror. The juror was already intending to investigate the issue of jury nullification on his own and Mr. Lamb knew this. Thus, Mr. Lamb had no intent to influence because the juror was already “influenced” prior to his selection as a juror.

The Complaint was filed by the prosecution without the prosecution or any law enforcement agency interviewing the juror about his understanding of the meaning of Mr. Lamb’s comments. A simple interview of the juror would have clarified that Mr. Lamb in no way intended to influence the juror, but was rather simply providing information that the juror was already aware of at the time and information that Mr. Lamb and the juror had discussed on numerous occasions prior to the juror’s selection for jury duty.

Further, it is clear that Mr. Lamb’s comments had no effect on the juror or the jury pool because nullification or anything of that nature was not discussed during jury deliberations or at any time. The complete lack of investigation by the prosecution further demonstrates the underlying ulterior motive and the political hack job nature of this criminal Complaint against Mr. Lamb.

The 12-0 jury verdict against the prosecution in the case that the juror sat on following Mr. Lamb’s comments, which came down approximately 6 weeks ago, may very well have led to the apparent referral of Mr. Lamb for prosecution. Prosecutors do not like to lose, especially in front of their voting constituency, a jury.

Mr. Lamb’s comments, for which he is charged, are clearly political speech, the highest category of protected speech under the United States Constitution’s First Amendment and only when taken entirely out of context, i.e. without investigation, can they be viewed as an attempt to influence anyone.

As a county board member, Mr. Lamb clearly has the popularity to seriously compete for the office of Sheriff. This case reeks of small town political retribution in an apparent attempt to remove Mr. Lamb from the ballot and retaliate for the prosecution’s failure to prove the simple elements of a speeding in a school zone case.

Sincerely,

/s/ Patrick A. Watts

Patrick A. Watts

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Function of Juries & Jury Nullification | 10 Mar 2014

-Americans Can Protect Each Other with Jury Nullification

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FIJA Logo with URLColorado state contact Alexander Daube asks:
Can Americans Protect Each Other From Abusive Laws?

We Americans are buried under a vast mountain of laws, and it is growing every year. With so many laws anyone can inadvertently violate one, falling prey to what is called “overcriminalization.” As CBN terms it in a video series titled: “Overcriminalization: Making Us a Nation of Felons?” they estimate there are around 300,000 to 400,000 rules that are federal offenses. On top of that, we have myriad state and local laws to deal with, some of them quite ludicrous.

Children can be cited for having lemonade stands without a permit; farmers can be charged with growing more crops than the government approves; and as of April 1, 2013, Coloradans can be charged with failing to perform background checks when privately selling firearms, or buying gun magazines that hold more than 15 rounds. The list of potential violations is mind-boggling. In addition, the penalties can be quite harsh, as George Norris, who spent two years in federal prison for a mere paperwork violation regarding imported flowers in his backyard nursery, can tell you. Moreover, to compound the problem even further, our government routinely passes laws, which violate the meaning and intent of the U.S. Constitution, as Judge Andrew Napolitano makes clear in his excellent book, “The Constitution in Exile.” That means Americans are being prosecuted for violating “illegal laws,” and if ever there was an oxymoron, that is it. So, what can ordinary people do to protect themselves?

Thankfully, our Founding Fathers built such protection into the Constitution by establishing trial by jury, and it is here where citizens can protect each other, even from government.

Click through for his answer in its entirety, including the built-in role of jury nullification in our right to trial by jury.

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Function of Juries & Jurors Doing Justice & Jury Nullification | 10 Mar 2014

-Judicial Retribution Against Mongielo After Jury Acquits Him?

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Jury BoxWe have been following the case of Lockport, New York business owner David Mongielo for over a year now, who faces a possible jail sentence allegedly for violating a town sign ordinance with a sign whose message changed too frequently. Mongielo was initially convicted of sign ordinance violations by a judge, but another judge overturned the second of two convictions on the basis that Mongielo had been denied his right to trial by jury. Even though that second conviction was overturned, the original judge used it as the basis for sentencing him to 10 days in jail for violating the terms of discharge from his original conviction which was not overturned.

That jail sentence was stayed just as Mongielo was to report to jail, pending Mongielo’s appeal. Now, however, that judge has threatened to lift the stay of that sentence due to a clerical error.

Mongielo acquitted in one case, could face jail in another

Friday was a good news-bad news day for David J. Mongielo.

A jury acquitted him of resisting arrest and other counts, except for a charge of using a cellphone while driving, in connection with a June 27 incident when he was injured by Lockport police who pulled him from his pickup truck at a traffic checkpoint.

But 3½ hours later, Niagara County Judge Matthew J. Murphy III said he was inclined to lift a stay of a 10-day jail sentence imposed on Mongielo, owner of an auto repair shop, for violating the Town of Lockport’s law against flashing signs.

It is notable that this threat came just hours after Mongielo was acquitted by a jury of most charges in another matter, including all offenses that would have involved jail time:

The six-member jury found Mongielo not guilty of resisting arrest, obstructing governmental administration, harassment and a second cellphone violation. A charge of driving with an expired registration was dismissed during the trial.

City Judge William J. Watson, who presided over the four-day trial, imposed the maximum $150 fine and an $88 state surcharge on Mongielo for using a cellphone while driving, and ordered it paid by May 7. Mongielo could have gone to jail for a year if he had been convicted of resisting or obstructing.

And what is the ostensible reason the judge in the sign ordinance matter claims for considering lifting the stay?

But in the same courtroom later in the day, Murphy said he was “inclined to vacate the order” he had issued Jan. 22, blocking Mongielo’s 10-day jail sentence on the sign ordinance violation pending an appeal.

That’s because [Mongielo’s attorney] Housh sent his notice of appeal to the wrong place.

Housh said his assistant looked up the Town of Lockport online and sent the appeal notice to “Nancy Brooks, Clerk of Court.”

But Brooks isn’t the court clerk; she’s the town clerk. The letter was stamped received by Brooks Jan. 31, well within the 30-day appeal window, but last week Town Justice Leonard G. Tilney informed Murphy that Town Court never received the notice of appeal.

Town Court is located in a building next to Town Hall, where Brooks works. Mongielo said Brooks “knew where it had to go. Why did she purposely not walk it across the parking lot?”

What we are looking at is a judge threatening to lift a stay of a 10-day jail sentence for a sign ordinance violation that harmed nobody, not because of anything the defendant in this case did wrong, but because of an administrative error on the part of the defendant’s counsel. That means Mongielo is not going to jail for harming anyone, nor is he even going to jail for violating a law, but rather if the stay is lifted now, he will be going to jail for an administrative error he didn’t even commit. Some might wonder, given the timing of this threat, whether this is perhaps vindictive retribution out of personal malice rather than administration of justice?

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Function of Juries & Jurors Doing Justice & Jury Nullification | 07 Mar 2014

-Jury Finds Woman Not Guilty of Assaulting Officer

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Jury BoxWho do you suppose would have gotten the benefit of the doubt—even given the total lack of any evidence of wrongdoing—had government officials been the ultimate judges instead of an independent jury?

Jury Finds Woman Not Guilty of Assaulting Officer

A Lancaster County jury found a 32-year-old woman not guilty of assaulting a Lincoln police officer who accused her of kicking him when he stopped her from going back into a downtown hotel after a Husker football game.

At a one-day trial Tuesday, Elli Palmer of Lincoln denied she kicked Police Sgt. William Koepke.

Koepke and a second officer working with him at the hotel the night of Oct. 27, 2012, both testified that she did. The officers were off-duty, being paid by the hotel and were in uniform.

The jury got the case Tuesday at 4:36 p.m., and came back to the courtroom 31 minutes later with the verdict.

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FIJA in the News & Function of Juries & Jury Nullification | 06 Mar 2014

-Jury Nullification Comments, Link to FIJA on Facebook Prompt Jury Tampering Charge

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Jury BoxIn a case the defendant’s attorney says is motivated by the proximity of a March 18 primary election in which his client is a contender, Luke Lamb has been charged with unlawful communication with a juror for sharing a link to the FIJA website and making comments about jury nullification to someone who apparently requested the information.

County board member, sheriff candidate faces felony

A member of the Greene County county board who is running for sheriff is facing accusations of tampering with a jury trial.

The felony charge against Luke Lamb — unlawful communication with a juror — claims he made a post to a Facebook page in an attempt to get a juror in a case to vote not guilty. The case involved a speeding in a school zone charge and the person was subsequently acquitted.

Lamb supposedly posted a comment on a Facebook page in response to a request for information and posted a link to the website Fully Informed Jury Association. He also made a comment about nullification and later commented the person should only hang the jury if necessary.

Lamb’s attorney, Patrick A. Watts of St. Louis, maintains Lamb made the first comment in jest and that the wording on the subsequent post demonstrated “that he was leaving any decision about the individual case up to the juror.

“The juror was already intending to investigate the issue of jury nullification on his own and Mr. Lamb knew this. Thus, Mr. Lamb had no intent to influence because the juror was already ‘influenced’ prior to his selection as a juror,” Watts said.

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Function of Juries & Jury Nullification | 06 Mar 2014

-Incarcerated Man Shares Insights with Jurors

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Fence_of_Prison-BPOThis letter from Ray Jasper, scheduled to be executed on March 19, is a part of a series entitled Letters from Death Row. Here we excerpt a short passage that is particularly informative for jurors, who should be aware as they deliberate the fate of a person accused of a crime the seriousness and severity of the punishment their Guilty verdict may help inflict on that person. In a world where we have thousands of people serving life without parole for non-violent—and sometimes entirely victimless—offenses, where we have a woman facing a mandatory minimum of 60 years for actions that did not harm another human being, jurors need to be skeptical of delivering Guilty verdicts to which they are led by a punitive system tilted in favor of prosecution for profit.

A Letter From Ray Jasper, Who Is About to Be Executed

Under the 13th Amendment of the U.S. Constitution all prisoners in America are considered slaves. We look at slavery like its a thing of the past, but you can go to any penitentiary in this nation and you will see slavery. That was the reason for the protests by prisoners in Georgia in 2010. They said they were tired of being treated like slaves. People need to know that when they sit on trial juries and sentence people to prison time that they are sentencing them to slavery.

If a prisoner refuses to work and be a slave, they will do their time in isolation as a punishment. You have thousands of people with a lot of prison time that have no choice but to make money for the government or live in isolation. The affects of prison isolation literally drive people crazy. Who can be isolated from human contact and not lose their mind? That was the reason California had an uproar last year behind Pelican Bay. 33,000 inmates across California protested refusing to work or refusing to eat on hunger-strikes because of those being tortured in isolation in Pelican Bay.

I think prison sentences have gotten way out of hand. People are getting life sentences for aggravated crimes where no violence had occurred. I know a man who was 24 years old and received 160 years in prison for two aggravated robberies where less that $500 was stole and no violence took place. There are guys walking around with 200 year sentences and they’re not even 30 years old. Its outrageous. Giving a first time felon a sentence beyond their life span is pure oppression. Multitudes of young people have been thrown away in this generation.

The other side of the coin is there are those in the corporate world making money off prisoners, so the longer they’re in prison, the more money is being made. It’s not about crime & punishment, it’s about crime & profit. Prison is a billion dollar industry. In 1996, there were 122 prisons opened across America. Companies were holding expos in small towns showing how more prisons would boost the economy by providing more jobs.

How can those that invest in prisons make money if people have sentences that will allow them to return to free society? If people were being rehabilitated and sent back into the cities, who would work for these corporations? That would be a bad investment. In order for them to make money, people have to stay in prison and keep working. So the political move is to tell the people they’re tough on crime and give people longer sentences.

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Function of Juries & Jury Nullification | 05 Mar 2014

-U.S. Seeks Ruling in Terror Trial to Prevent Jury Nullification

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Jury BoxLast March, Sulaiman Abu Ghaith, son-in-law of Osama bin Laden, pleaded Not Guilty in a civilian court to conspiring to kill United States nationals. Additional charges were added to the indictment this past December of providing material support and resources to terrorists, and conspiracy to provide such support and resources. As the trial finally gets under way, federal prosecutors are now asking the judge to bar what they consider potentially inflammatory topics being mentioned by the defense, including discussion of certain U.S. military locations and activities, as well as arguing that the defendant’s speech was protected under the First Amendment to the United States Constitution. Consider that permitting this kind of filtering of defense language and arguments before they ever go before a jury has implications not only for this case in particular, but more widely for other cases.

U.S. Seeks to Keep ‘Potentially Inflammatory Topics’ Out of Terror Trial

In the terrorism trial of Sulaiman Abu Ghaith, a former top adviser to Osama bin Laden, the specter of the Sept. 11 attacks has naturally loomed heavily during jury selection, which resumed on Tuesday morning.

But even the United States’ intelligence efforts after the attacks have now become an issue, as federal prosecutors moved to try to keep what it called “potentially inflammatory topics” out of the case.

The government, in a recent court filing, asked the judge to bar the defense from referring to topics such as the United States military prison at Guantánamo Bay, Cuba; secret “black sites” run by the Central Intelligence Agency; National Security Agency surveillance; and drones.

Referring to “irrelevant concerns or controversies touching on national security would serve only to inflame the jury’s passion and prejudice it against the government,” the government said, adding that it would be a form of impermissible jury nullification.

In its filing, the government also asked that the defense be prohibited from arguing before the jury that Mr. Abu Ghaith’s speeches after Sept. 11, 2001, in which he endorsed the attacks and promised more of them, were protected under the First Amendment. Prosecutors say that also would be jury nullification, in which jurors ignore the law if they disagree with it and render a verdict based on their personal views.

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Function of Juries & Jurors Doing Justice & Jury Nullification | 04 Mar 2014

-Jury Acquits Minnesota Man of Filming Police

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Jury BoxIn less than 90 minutes, a Minnesota jury acquitted Andrew Henderson of filming police and an ambulance crew. When Henderson refused to identify himself to a sheriff’s deputy, the deputy confiscated his camera. While the camera was in police custody, the video footage that he expected to use as evidence in his defense mysteriously disappeared. This is reminiscent of the case of Phil Mocek, who was able to recover the footage deleted by law enforcement officers. In a strange twist, the prosecution presented it in court, conclusively demonstrating that their own witnesses had perjured themselves on the stand during his trial.

Jury acquits Little Canada man who videotaped deputy, ambulance crew

Andrew Henderson said he will continue shooting videos of police after a Ramsey County jury found him not guilty Thursday of criminal charges filed against him after he turned his camera on Ramsey County sheriff’s deputies and an ambulance crew in 2012.

Henderson, 29, was charged with misdemeanor crimes of disorderly conduct and interfering with an ambulance crew.

He thought he would be exonerated by the video he shot, but when he got his camera back from police weeks after the incident, the recording was gone, Henderson said.

A six-person jury found Henderson not guilty Thursday after less than 90 minutes of deliberation at the end of a two-day trial that drew attention of civil liberties advocates. The Minneapolis-based Fredrikson & Byron law firm provided free legal representation to Henderson in association with the American Civil Liberties Union of Minnesota.

Henderson said he could have resolved the case by accepting a prosecution offer to plead guilty to a petty misdemeanor and pay a $50 fine.

But Henderson insisted on a trial.

“It’s the principle of it,” Henderson said. “It’s our First Amendment right to film law enforcement personnel.”

In spite of the court victory, Henderson’s case illustrates how government officials can effectively punish defendants without ever securing a conviction:
Jurors acquit Little Canada man who videotaped deputies, paramedics

Andrew J. Henderson spent a year fighting the criminal charges against him and said he was passed up for about 10 jobs when background checks showed that he was being prosecuted for filming paramedics and sheriff’s deputies outside his apartment complex.

Jurors should remember that by the time a case ever goes to trial, the defendant has ALREADY been through a gauntlet of pre-trial punishment including such things as the physical and psychological trauma of being roughed up by police and jail officials, legal expenses just to be able to get a trial, additional costs such as lost income, lost job opportunities, loss of financial aid if they are in school, the toll this takes on relationships with family and friends, damage to their reputation in their workplace and community even though they have not been convicted, and more. It takes a certain level of fortitude in the face of all this pre-trial punishment for a person accused of a legal offense ever to get to a jury trial. When we serve as jurors, we should be aware of this and take it into consideration as we deliberate over what is the most just verdict we can render.

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Function of Juries & Jury Nullification | 04 Mar 2014

-Jurors: Beware of Being Too Cooperative

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Jury BoxWhat is with grand juries these days? A recent article in the Charlotte Observer mathematically analyzed the assembly line style of the Mecklenburg County grand jury- a meaningless process has become typical of today’s grand juries:

Officer Kerrick’s indictment reveals grand jury debate

During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

Two prominent attorneys – and even Mecklenburg’s former top prosecutor – say grand juries now fail to perform their traditional role as a protective wedge between overzealous prosecutors and the public.

“The entire system is a joke,” said Joe Cheshire, a Raleigh attorney who handles high-profile criminal cases across the state. “There is absolutely no living, breathing person with any kind of intellect who believes that a grand jury could consider and vote on 10 complex issues in the period of time that they use to deliberate on hundreds.”

How did we get to this sad state of grand jury affairs? One woman who is serving on a grand jury suggests that we often feel driven to cooperate, even when cooperating means doing injustice to someone accused of a legal offense.

Cooperation Is the Problem

Today, as I am serving jury duty, I am struck by how incredibly cooperative people are. Unfortunately, people are often cooperative with the wrong people and for the wrong reasons.

The jury receives its instructions almost entirely from the prosecutor’s office, the exception being the judge who swore us in. That judge, to his credit, told us that we did not work for the prosecutor’s office and said several times that we were a buffer between the state and the accused. But since that initial moment with the judge, all of our information has favored the prosecution and the jury wants to cooperate.

People are mostly inclined to go along. They are inclined to follow the rules (maybe especially in a place like DC where so many work for government or nonprofits or were class valedictorian). But it isn’t just that they acquiesce to authority, it is that they also don’t want conflict. And this is how you have relatively decent people who have some doubts about the process, or at least feel uncomfortable with the system, going along with it.

People want to cooperate. They don’t want to be hated. They don’t want to make the nice lady in the prosecutor’s office job harder. They don’t want to hold everyone up from going to lunch because there is more to discuss. Fighting against the current – whether majority opinion or bureaucratic process – goes against most people’s desire to cooperate.

The only small positive thing I have to say is that every person who is non-cooperative makes it just a little harder for people to go along. The more we can tip the scales, the less it becomes about whether or not to cooperate and the more it becomes about who or what to cooperate with. The more it becomes about the difference between cooperation amongst equals and deference to authority. And then, maybe, we can start having some real talk.

I think this insight is spot on, not only regarding grand juries, but petit juries as well. I can’t tell you how many times we get calls in the FIJA office from people who knew in their hearts that the just verdict was Not Guilty, but they caved in to peer pressure and voted Guilty because everyone else on the jury was doing so. The excuses I hear often have to do with cooperation. They weren’t going to change anyone else’s mind, they’ll say, so they were going to be there “forever”.

No. I guarantee you that there is absolutely no jury in the history of humankind that has been convened “forever”. If someone maintains a Not Guilty vote in spite of the disagreement of fellow jurors, at some point the judge will declare a hung jury and the defendant will not be convicted in that trial. The case may be retried, but a Not Guilty verdict is ALWAYS better for the defendant than to be convicted for a variety of reasons:
-The charges may be dropped against the defendant.
-The charges may be reduced against the defendant.
-The defendant may be offered a more generous plea bargain than was initially offered.
-Even if the case is tried again, the next jury may find the defendant Not Guilty or another hung jury may result, making it less likely still for the defendant to be tried again.

Whatever the discomfort you feel from not going along to get along with your fellow jurors, or with the prosecutor and other government officials, whatever inconvenience you or any of these other people may suffer from you maintaining a Not Guilty verdict when a just verdict requires it-that is virtually NOTHING in comparison to the damage that a Guilty verdict will do to someone who has harmed nobody.

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FIJA in the News & Jury Nullification | 03 Mar 2014

-Jury Nullification on the Progressive Radio Network

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Jury BoxKirsten Tynan of the Fully Informed Jury Association and Poppy Sidhu, one of the Bellingham 3 charged with medical marijuana violations in Washington who has called for jury nullification, were recently interviewed on the Progressive Radio Network in the second segment of a program called Leid Stories by Utrice Leid. Our segment starts at about 33:56.

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