Fully Informed Jury Association

Are you fully informed about jury nullification?

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

-Jury Acquits Minnesota Man of Filming Police


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.


Function of Juries & Jury Nullification | 04 Mar 2014

-Jurors: Beware of Being Too Cooperative


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.


FIJA in the News & Jury Nullification | 03 Mar 2014

-Jury Nullification on the Progressive Radio Network


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.


FIJA Calendar & Jury Nullification | 03 Mar 2014

-FIJA Speaks on Jury Nullification at the FREE HER Rally this Summer


Please join FIJA at the FREE HER Rally, hosted by Families for Justice as Healing, on 21 June in Washington, D.C. on the National Mall. As FREE HER Rally participants call for an end to mass incarceration and commutations for those who do not belong in prison, we will be educating everyone about our OWN powers of pardon when we have the opportunity to serve on a jury. We are also working on a jury nullification day of action while we’re out there!


Function of Juries & Jury Nullification | 25 Feb 2014

-Jury Nullification Must Check Abusive Prosecutor Nullification


Jury BoxI came across this scholarly paper in the Washington and Lee Law Review as I was looking for information on how many judges come from a prosecutorial background. While it doesn’t answer that question, it does address another important point that we as jury nullification advocates should be making. Often it is claimed that if jurors know about their authority to exercise jury nullification, all kinds of chaos would ensue and the legal system would come crumbling down. But in fact, every other step of the legal process involves nullification power:
1. Law enforcement officers have discretion over whom to arrest or not.
2. Prosecutors have a HUGE variety of nullification powers that we will get to below.
3. If a jury convicts, a judge can overturn that verdict.
4. Assuming a judge lets a jury’s Guilty verdict stand, it can STILL be overturned or softened through an executive’s powers of pardon or commutation.
So why is that when EVERY GOVERNMENT AGENT in the legal process has and is informed about their nullification powers, it is magically going to throw the entire system into disarray if jurors find out that they may conscientiously acquit people by setting aside the law when a just verdict requires it?

Of all of the above agents, prosecutors by FAR have the most extensive nullification power, and it is used HEAVILY in favor of conviction as this paper illustrates:

Prosecutors as Judges

As demonstrated by some recent high-profile cases and suggested by a seemingly endless litany of misconduct, American prosecutors exercise almost limitless discretion in a series of decisions affecting individuals embroiled in the criminal justice system. They decide whether to accept or decline a case, and on occasion, whether an individual should be arrested in the first place; they select what crimes should be charged and the number of counts; they choose whether to engage in plea negotiations and the terms of an acceptable agreement; they determine all aspects of pretrial and trial strategy; and in many cases, they essentially decide the punishment that will be imposed upon conviction. These and other discretionary judgments are often made without meaningful internal and external review or any effective opposition. In many (if not most) American jurisdictions, the prosecutor is the criminal justice system. For all intents and purposes, he makes the law, enforces it against particular individuals, and adjudicates their guilt and resulting sentences.

That’s right. In many cases, American prosecutors now act as judge, jury, and executioner, with little check on their power. This is why we are seeing more and more a HUGE disparity between the sentence offered in a plea bargain vs. the MUCH HARSHER sentence that will be enforced upon a defendant if convicted, often due to mandatory minimum sentencing schemes. The authors use the tragic case of Weldon Angelos, a 23-year-old, first-time offender, arrested for dealing marijuana and possessing firearms, which were never brandished or used while he was selling small amounts of pot to help pay the bills after the birth of his second son:

Instead of bringing state charges, officials decided to prosecute the case in federal court employing an infamously harsh law that carries mandatory minimum punishment. That statute, 18 U.S.C. § 924(c) , provides an obligatory five-year sentence for possessing a firearm during a drug transaction and a twenty-five-year sentence for each subsequent transaction. Multiple charges can be brought under § 924(c) in one case, and the mandatory sentences must be served consecutively, that is, one after the other rather than simultaneously! As a result, the prosecution can slice a drug dealer’s actions into as many transactions as it likes (or wishes to corroborate) and bring them in a single case, where the mandatory sentences can be stacked on top of each other in twenty-five-year increments. A defendant does not need a criminal record to trigger § 924(c). What is more, the firearm does not even have to be brandished or used, nor does the law require that any violence or injury be caused or threatened. When Angelos was convicted of three § 924(c) counts in December of 2003, the punishment was predetermined: a mandatory sentence of fifty-five years.

The authors continue, explaining how the prosecution tried to leverage its nullification power (aka plea bargain) to force Angelos into an unreasonable prison sentence in exchange for dropping charges:

Angelos’s case also reveals the rough play of American adversarialism and the extent of prosecutorial power in plea bargaining. The prosecution initially said that if Angelos pled guilty to a charge of drug distribution and one count of § 924(c), it would recommend a prison term of fifteen years- a steep sentence given the nature of the offense and the background of the offender. If the offer was not accepted, however, the prosecution threatened to obtain a new indictment that carried more than 100 years of mandatory imprisonment via multiple §924(c) counts. When the plea bargain was declined, the prosecution followed through on its promise, charging crimes with the potential for 105 years of mandatory incarceration. And when Angelos was convicted on three § 924(c) counts, the prosecution only obtained an obligatory sentence of fifty-five years.

Of course, some might say that Angelos should have taken the deal, with any disproportionality between crime and punishment the result of his own intransigence rather than the government’s vindictiveness. He is the author of his own demise, or so it might be argued. The counterargument seems just as strong, however. If this defendant is so extremely dangerous or the public interest is so important as to merit a 105-year mandatory sentence, how could the prosecution put the citizenry at risk by permitting Angelos to serve a fraction (1/7) of that amount? Surely, prosecutors would not offer a serial rapist, mass murderer, or violent terrorist a fifteen-year deal when justice demands a century of incarceration.

This is what prosecutorial nullification has come to-it is nothing more than a tool to bully and intimidate defendants into taking unjustly harsh plea bargains to guarantee avoiding unconscionably abusive mandatory minimum sentences as prosecutors stack up charges against them. If the system has fallen into disarray, it is NOT because jurors have too much power as the Angelos case demonstrates:

For Angelos, it did not matter that few U.S. Attorneys would have prosecuted the case in such a heavy-handed manner. Nor did it matter that the sentence was longer than those prescribed for far more serious crimes (e.g., aircraft hijackers, terrorists, second-degree murderers, and rapists). Moreover, it was irrelevant that jurors who heard his case would have recommended a sentence decades less than that demanded by the prosecution, and that his punishment was opposed by twelve dozen former federal judges and prosecutors, including four former U.S. Attorneys General. Most of all, it did not matter that the sentencing judge himself believed that the punishment was “unjust, cruel, and irrational.” By charging the case as it did and obtaining the relevant convictions, the prosecution was the adjudicator of the sentence, with the court relegated to the role of an unwilling rubber stamp.

With the prosecution operating with drastically unchecked power to determine the outcome of the case, the injustice and chaos in this legal system, which gave a man a de facto life sentence for completely victimless activity, stems not from juries having too much power, but from FAILING to exercise their rightful power of jury nullification conscientiously to deliver a just verdict. Angelos never needed to be sentenced to a day in prison, let alone a de facto life sentence, had one single juror asked “Who has he harmed?”, answered “Nobody”, and then voted Not Guilty on every single charge against him.

Erik Luna and Marianne Wade, Prosecutors as Judges, 67 Wash. & Lee L. Rev. 1413 (2010), http://scholarlycommons.law.wlu.edu/wlulr/vol67/iss4/6


Function of Juries & Jury Nullification | 25 Feb 2014

-Judges on Trial: Why Juries Are Crucial to Justice


Jury BoxWilliam Grigg reports on this gross miscarriage of justice, with the first ruling coming from a judge in a bench trial and the second ruling backing him up coming from another judge of the Arizona Appeals Court.

Support Your Local Slave Patrol

Phyllis Bear, a convenience store clerk from Arizona, called the police after a customer threatened her. The disgruntled patron, seeking to purchase a money order, handed Bear several bills that were rejected by the store’s automated safe. Suspecting that the cash was counterfeit, Bear told him to come back later to speak with a manager.

The man had left by the time the cops arrived, and Bear was swamped at the register. Offended that she was serving paying customers rather than rendering proper deference to an emissary of the State, one of the officers arrested Bear for “obstructing government operations,” handcuffed her, and stuffed her in the back of his cruiser.

A few minutes later, while the officer was on the radio reporting the abduction, his small-boned captive took the opportunity to extract one of her hands from the cuffs, reach through the window, and start opening the back door from the outside. The infuriated captor yanked the door open and demanded that the victim extend her hands to be re-shackled. When Bear refused to comply, the officer reached into the back seat and ripped her from the vehicle, causing her to lose her balance and stumble into the second officer.

Bear, who had called the police in the tragically mistaken belief that they would help her, was charged with three felonies: “obstruction” – refusal to stiff-arm customers in order to attend to an impatient cop; “escape” – daring to pull her hand out of the shackles that had been placed upon her without lawful cause; and “aggravated assault” – impermissible contact with the sanctified personage of a police officer as a result of being violently dragged out of the car by the “victim’s” comrade.

The first two charges were quickly dropped. During a bench trial, the prosecution admitted that the arrest was illegal. Yet the judge ruled that Bear – who had no prior criminal history — was guilty of “escape” and imposed one year of unsupervised probation. That conviction was upheld by the Arizona Court of Appeals, which ruled that although the arrest was unwarranted and illegal, Bear had engaged in an illegal act of “self-help” by refusing to submit to abduction with appropriate meekness.

That’s right. A woman called police to HELP her, they became impatient that she wasn’t prioritizing them above her customers and took illegal action against her, yet SHE was punished by a judge for failing to comply with their ILLEGAL actions against her.

In our society, we are conditioned to think of a judge in a courtroom as an impartial arbiter of the law, the middle ground between prosecution and defense, but that is just an illusion. In our legal system, judges’ and prosecutors’ paychecks come from the same place, automatically biasing them similarly. Those who attain judgeships are very often former prosecutors, less often have worked defending people, and very rarely have a background in civil rights. Whether judges are elected or appointed, there is an inherent political bias built into their selection, often favoring those perceived as “tough on crime”, which translates into favoring prosecution.

This is why juries are so important in our legal system. Jurors are not beholden to the legal system to make their daily living. They are often paid hardly enough to cover their parking and lunch that day, let alone make up for regular income they may be giving up. They do not have a vested interest in favoring one side or the other in order to keep their jobs and their paychecks. They do not hear case after case after case, so they do not have the opportunity to leave the imprint of their personal biases on a huge pool of adjudications. Of all the people in a courtroom, jurors have the least to gain or lose from any particular outcome and so are the most independent people in the room. It is this jury independence that is crucial to fair trials for everyone.


FIJA Calendar & Jury Nullification | 24 Feb 2014

-Derek Brommerich to Speak on the Power of the Individual Juror


Derek Brommerich, of The Derek Brommerich Show podcast
will speak on the power of the individual juror
March 18, 2014 at 11:00 am
for the Kiwanis Club at Culvers
4004 Silver Lake Rd.
St. Anthony, MN

Many thanks to Derek, who is driving quite a ways to give this talk about the power of the individual juror to judge the LAW, as well as the facts.


Function of Juries & Jurors Doing Justice | 21 Feb 2014

-Jury Refuses to Ruin Teen’s Life Over Tasteless Joke


Jury BoxAfter just 45 minutes of deliberations, a jury today refused to ruin a teen’s life over his tasteless joke.

North Attleboro High student found innocent in school threat trial

Patrick Skrabec, who spent six days in jail over the Christmas holiday after his arrest, was found innocent of threatening to commit a crime and disturbing a school assembly after a two-day trial.

He was 17 when he was arrested Dec. 21, 2012, by North Attleboro police after an investigation into statements Skrabec made about shooting up the school while in math class three days earlier. Skrabec claimed he was only joking with a friend.

In December of 2012, then 17-year-old high school student Patrick Skrabec was held in jail for 6 days over an alleged threat he made to shoot up his school, just days after the mass murder at Sandy Hook Elementary in Newtown, Connecticut. Skrabec said that his comment during his math class was just a private joke between friends. During a dangerousness hearing in court, the teen’s lawyer pointed out that Skrabec had no access to guns, no prior criminal record, and no disciplinary problems. He was subsequently released on $10,000 bail.

Skrabec was initially charged with making a false report of a firearm capable of causing damage-a felony punishable by a minimum 3-year prison sentence. He pleaded not guilty to this charge, and two months later the felony charge was dropped and replaced by two lesser charges of threatening to commit a crime and disturbing a school assembly. A possible deal was at one point on the table to avoid a trial, with the prosecution recommending two years of probation plus mental health counseling and the defense recommending three months probation. The judge in the case rejected both offers, instead offering a sentence of (a) two years probation, with the possibility of excusing the second year if the first year was completed successfully, and (b) mental health counseling unless the probation department was informed counseling was no longer necessary. Skrabec opted instead for a jury trial.

While awaiting his trial, this young man who was supposedly dangerous enough to be imprisoned for 3 years was allowed to return to school and complete his junior year after serving a suspension. He is now a senior and expects to graduate this spring.

In arguing for her client, Skrabec’s attorney, Maria Deaton, told the jury, “Maybe it was in poor taste and maybe it was inappropriate. But that doesn’t mean he is a criminal or had criminal intent.” Assistant District Attorney Anthony Riccio sounded about as reasonable as many other prosecutors intent on winning rather than doing justice, arguing to the jury that, “Just because it was a mistake does not make it excusable. It doesn’t mean it’s not a crime.”

Most teenagers are not adults. Scientific evidence suggests that younger people’s brains are typically not fully developed, and most have not developed to the same same level of judgement, insight, inhibitory control, and decision-making as most adults.

Should it truly be our social policy to criminalize victimless behavior teens engage in, perhaps as a function of their biology? Is our best solution to tactless behavior to destroy a person’s life by sentencing him to years in prison, destroying his relationships and damaging his educational and economic opportunities for the rest of his life? That’s the best we can do? Fortunately, the jury’s answer to that was “No.”


Jury Nullification | 21 Feb 2014

-The ‘Crime’ of Having a Hidden Compartment in Your Car


Jury BoxNo drugs? No problem! Cops in several states already can or hope soon to be able to arrest you simply for HAVING EMPTY SPACE in the car where you MIGHT be able to hide drugs EVEN IF YOU HAVEN’T!

The ‘Crime’ of Having a Hidden Compartment in Your Car

Last fall, Ohio state troopers pulled 30-year-old Norman Gurley over for speeding. Detecting an “overwhelming smell of raw marijuana,” officers spent hours searching the vehicle and found no contraband.

But they did discover an empty secret compartment.

For that, police hauled Gurley, who has no criminal record, off to jail. Gurley became the first person arrested under a new Ohio statute that makes it a crime to “knowingly operate … a vehicle with a hidden compartment … used or intended to be used to facilitate the unlawful concealment … of a controlled substance.”

Lawmakers in Ohio are not alone in enacting or envisioning bans on unauthorized empty space. California, Georgia, Illinois, and Oregon have similar prohibitions on the books. Legislators in Iowa, Maryland, and New Jersey may add them this session. Similar bills have been filed in Delaware, Massachusetts, Pennsylvania, and Virginia in recent years.

While it is difficult to find any benefit to society from wasting money locking harmless people up for having hidden empty spaces in their cars that they may not even know about themselves, it is easy to spot the benefit to law enforcement. George Washington University law professor Jonathan Turley explains:
Ohio Man Arrested For Having Hidden Compartment In The Car . . . Without Drugs Or Guns

Note that prosecutors already have criminal enterprise and conspiracy laws to nail people involved in the drug trade. This crime turns on the dubious distinction of an intention to use the compartment for illegal purposes. Moreover, it allows for the proliferation of charges in cases where drugs are found. Instead of just being charged with the drug possession, intent to distribute, and other conventional charges, the Ohio prosecutors can add a charge for the actual compartment in the car. Such proliferation of counts allows prosecutors to force people to plead guilty to avoid long potential sentences.

This is another on an already looming stack of tactics the government has to bully people into forfeiting their right to trial by jury, and as a result, any hope of jury nullification.


Function of Juries & Jury Nullification | 18 Feb 2014

-Are Unjust Laws Enforceable? Understanding Jury Nullification


Jury BoxWith the introduction of New Hampshire’s HB 1452 in the legislature this year, jury nullification is once again in the news in New Hampshire. Jeff Woodburn discusses it in the March edition of New Hampshire Magazine.

Understanding Jury Nullification

The times are changing. Polls consistently show a growing majority of people support marijuana legalization. The New Hampshire House of Representatives recently made history by becoming the first legislative body in the country to endorse legalizing possession of small amounts of cannabis. Colorado and Washington did the same thing by voter referendum. But don’t light up that joint quite yet. The bill faces another House vote, a tough fight in the Senate and a veto by Gov. Maggie Hassan.

This leaves New Hampshire in a bit of legal quandary. Is growing popular support running headlong into the region’s toughest marijuana prohibition laws? It begs the basic question: Are widely unpopular laws enforceable?

The question is both theoretical and practical. Will growing grassroots support for changing cannabis laws have more influence over politicians or the judiciary? Will a new state law that permits explicit instruction to juries that they have the right to thumb their noses at the evidence if the law itself is unjust render the state’s marijuana possession laws meaningless? And, are these laws going to be heaped on the dump pile of unenforceable, antiquated laws that ban things like adultery?

One notably ridiculous point is made by Deputy Attorney General Ann Rice:

“The NH Legislature, not the jury,” Rice continued, “is responsible for establishing the law … And, once passed, there is a common understanding that the law will apply equally to all.”

This is particularly rich given data from The Sentencing Project indicating that New Hampshire incarcerates more than 9 times as many blacks as white and more than 3 times as many Hispanics as whites despite the fact that its population is less than 2% black or African American and only about 3% Hispanic or Latino.

Marc Mauer of The Sentencing Project explains how the law is not applied equally to all, LONG before questions of law ever reach a jury:

N.H. has low crime rate, but high rate for incarcerating minorities

The higher incarceration rate for minorities can stem from a number of factors, such as policy set by legislatures, stepped-up policing in communities and neighborhoods with large minority populations and decisions made by people in the criminal justice system, said Marc Mauer, executive director of the Sentencing Project.

“Broadly speaking, it’s often a mix of things like that,” he said.

Higher incarceration rates often are the results of economic factors rather than race or ethnicity, Mauer said.

For example, someone who committed a crime related to a drug problem, including crimes such as burglary where addiction is the underlying cause, is more likely to avoid jail if he’s enrolled in a drug treatment program. There are few such public programs available, Mauer said.

A middle-class family would be more likely to have the resources to pay for a private treatment center, Mauer said. A poor family without that option is likely to see a family member sent to jail instead, he said.

Perhaps that is why former prosecutor Professor Paul Butler of George Washington University Law School advocates jury nullification:

Former Prosecutor to Jurors: Nullify!

I learned jury nullification from the jurors of the District of Columbia. It was commonplace that if you had a young, black defendant charged with drug possession, DC jurors were not going to send them to jail. They didn’t want to send another black man to jail. When senior prosecutors first told us rookies about this, they would roll their eyes in exasperation. Like, here we are trying to improve their city, and they don’t have the sense to lock up all these cretins. (In the prosecutor’s office, that’s what we called the defendants: “cretins” and “douche bags.”) When I left the prosecutor’s office and started to teach, it was the thing I was the most interested in studying. From a scholarly perspective, I found that it’s a proud part of our constitutional tradition, that it’s perfectly legal and indeed was embraced by the framers as a way to protect people from too powerful law enforcement and too powerful prosecutors. It says that people from the community, not the government, should have the ultimate authority over what happens to a criminal defendant.


Function of Juries & Jury Nullification | 18 Feb 2014

-Misinformation in “Jury Nullification: The Law You Won’t Be Told”


While we’re happy to see a video on jury nullification getting lots of views, it unfortunately contains some incorrect and misleading information, which we will address here:

IMG_02671. “A video, such as this one, simply acknowledging the existence of jury nullification and in no way advocating it is totally okay… So why can’t you do this?”

Well, you CAN do this, and FIJA activists do this regularly, usually without any problems. Advocating jury nullification is, in fact, generally okay. It is HOW you do it that is important, which is why we have guidelines for doing courthouse outreach.

Per the United States District Court, Southern District of New York:

The relevant cases establish that the First Amendment squarely protects speech concerning judicial proceedings and public debate regarding the functioning of the judicial system, so long as that speech does not interfere with the fair and impartial administration of justice. In Wood, the Supreme Court held that even speech to a grand juror may be protected by the First Amendment if it does not present a clear and present danger to the functioning of the courts. 370 U.S. at 395. At the same time, the First Amendment does not create a right to influence juries outside of official proceedings, Pennekamp v. Florida, 328 U.S. 331, 366 (1946) (Frankfurter, J. concurring), because “[d]ue process requires that the accused receive a trial by an impartial jury free from outside influences.” Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). Consistent with this interpetation, the court in Turney found that the narrow category of speech knowingly made to jurors outside of an official proceeding and “with the intent to influence the outcome of a specific case” was not protected by the First Amendment. 400 F.3d at 1201 (emphasis in original).

A broad construction of 18 U.S.C. § 1504 that encompassed speech to a juror on any subject that could be considered by a juror would arguably chill protected speech because it could sweep within its prohibitions speech that was not made with the intent of influencing the outcome of a particular case and that did not pose a clear and present danger to the administration of justice.

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.

FIJA literature does not discuss any case in progress, and on the very rare occasions when individuals are arrested handing out literature advocating jury nullification, it has typically either involved being arrested maliciously for something not specifically related to advocating jury nullification (such as for violating a judge’s order instead of challenging it through the civil legal process) or has involved advocating jury nullification in a particular case rather than just doing general juror education outreach. Twice this year I have myself done general juror education at a courthouse in Bellingham with no problems. We had a couple of dozen events across the country last year on Jury Rights Day, mostly at courthouses, with zero arrests. We recommend that people read and follow FIJA’s guidelines for juror education.

Advertisement for sale of Shadrach Minkins, 1849

Advertisement for sale of Shadrach Minkins, 1849

2. “The go to example of jury nullification is the Fugitive Slave Law when northern juries refused to convict escaped slaves and set them free.”

If you learn just one thing today about jury nullification today, please let is be this: SLAVES were not tried under the Fugitive Slave Act and set free through jury nullification. It was those who AIDED in their rescue who were afforded trials by jury. To say that northern juries set slaves free not only WRONG, but it also reflects dramatic ignorance of the depths of abuse people were subjected to under slavery.

This past weekend was the anniversary of the arrest of Shadrach Minkins, who was arrested in Boston under the Fugitive Slave Act. Shadrach Minkins never had a jury trial, and he never WOULD have had a jury trial. His case would have been decided in a hearing by a judge who had a clear incentive to return him to the person claiming to own him. Everyone standing in Minkins’ corner knew this and so the postponement was requested in order to buy time to find a way to save him. Ultimately, a daring rescue was mounted, the likes of which are barely imaginable today.

3. “And also juries have two options for where their thoughts may differ from their words. Jury nullification usually refers to the not guilty version, but juries can convict without evidence just as easily as they can acquit in spite of it. This is jury nullification, too, and the jurors are protected by the first rule [jurors cannot be punished for their verdicts], though the second [their Not Guilty decision can’t be changed] doesn’t apply. And judges do have the ability to overrule the guilty verdict if they think the jurors aren’t the best. And, of course, a guilty defendant can appeal, at least for a little while, which make the guilty form of jury nullification weaker than the not guilty kind. Cold comfort, though.”

In most courts, jurors must come to a unanimous verdict to convict or outright acquit someone. To state that juries can convict just as easily as they can acquit is technically correct; however, it is misleading. Instead of comparing the cases of conviction and outright acquittal, let’s compare the cases of convicting and not convicting. In the case were jurors THINK a defendant is Guilty but VOTE Not Guilty, it takes only 1 juror in most courts to prevent conviction by hanging the jury. In cases where jurors THINK a defendant is Not Guilty but VOTE Guilty anyway, 1 juror or even a simple majority of jurors, is insufficient in every court in the United States to convict. It is clearly much harder for juries to convict than it is to prevent conviction.

Further, it is harder to make a conviction stick than it is to sustain an outright acquittal. An outright acquittal is the end of the case. A judge cannot overturn an acquittal, nor can the prosecution appeal an acquittal in the United States. On the other hand, defendants DO have the right to appeal their convictions, and in some cases, such as capital cases, an appeal is automatic. If they are unsuccessful in their appeals, defendants’ sentences may be softened or overturned through commutation or pardon (an executive’s nullification power).

The system was specifically designed this way, purposefully making conviction of defendants MUCH harder than non-conviction, either through acquittal or a hung jury. As English jurist William Blackstone expressed in his work Commentaries on the Laws of England in the 1760s, which were in print in the English colonies just before the American revolution and which were a strong influence in crafting the American legal system and on later American jurisprudence, “It is better that ten guilty persons escape than that one innocent suffer.”

It is true that jurors can vote whichever way they want without punishment-including guilty, but calling “the guilty kind” a form of jury nullification is questionable at best. Jury nullification is referred to as “nullification” because in NOT enforcing the law, jurors nullify the law. What the video refers to as “the guilty kind” of jury nullification does not involve nullifying the law, but enforcing its penalty on someone even though they have not broken it. This is more like the opposite of nullification-affirming and enforcing a legal penalty on someone and not nullifying it.

4. “Do you have any beliefs that might prevent you from making a decision based strictly on the law? If, after learning about jury nullification you think it’s a good idea, answer yes [during voir dire] and you’ll be rejected. But answer no with the intent to get on the jury to nullify, and you’ve just committed perjury, technically a federal crime, which makes the optimal strategy once on a jury to zip it. But this introduces a problem for jurors who intend to nullify. Telling the other 11 angry men about your position is risky, which makes nullification as a tool for fixing unjust laws nationwide problematic.”

As is the case with any tool, jury nullification is not a universal way to fix everything. That said, empirical evidence shows it to be an extremely powerful and effective tool. Jurors voting Not Guilty undermined the Fugitive Slave Acts and opened the door to Emancipation and the Thirteenth Amendment in the United States. Juror refusing to convict their neighbors under alcohol control laws brought about an end to alcohol prohibition in just 13 years. This past Valentine’s Day, we saw laws against same sex marriage take some major legal blows in two Southern states. But long before now, long before the U.S. Supreme Court’s historic ruling in Lawrence v. Texas, juries were refusing to convict under anti-cohabitation and anti-sodomy laws. In just the past couple of years, we have seen juries refuse to convict

  • farmers on licensing violations related to raw milk,
  • political activists for offenses related to their right to free speech,
  • numerous defendants for marijuana and other victimless drug violations,
  • a man who mistakenly had a firearm in his glove box when he traveled to Manhattan and was pulled over for turning right on red,
  • a man who admitted to punching a priest who he accused of sexually abusing him and his brother 40 years before,
  • and more.

So even very recently, we see that people are successfully getting seated on juries where they successfully protect others through their use of juror veto power. Sometimes this protection comes in the form of outright acquittals; sometimes it is in the form of hung juries. Hung juries, while not as extensive a form of jury nullification as outright acquittal, do at least nullify the law in the trial at hand. This is a much better outcome for a defendant than a conviction. Sometimes prosecutors will not refile charges after a hung jury, believing their odds of securing a conviction the next time to be insufficient. They may offer a much better plea bargain to the defendant than they had previously. Other times judges themselves will not permit a retrial. Even if the defendant is retried, they are likely making their case in court from a much stronger position than they would be if they were appealing a conviction.

But how do you get on a jury if you know about juror veto power? We suggest you browse the brochure Surviving Voir Dire (.pdf). Give careful thought ahead of time to what questions you might be asked and how to answer them. Once on a jury, we do recommend that unless you are very confident in the sympathies of your fellow jurors (or you are in New Hampshire), do not discuss jury nullification with your fellow jurors. While jurors cannot be punished for their verdicts, jurors can be removed from the jury-even as late as deliberations-if they indicate that they are intending to nullify. Jurors cannot, however, be removed for expressing doubt about the defendant being guilty.


Function of Juries & Jury Nullification | 18 Feb 2014

-Disabled Vet Seeks Jury Nullification in Medical Marijuana Case


Cannabis Training University / Wikimedia Commons / CC-BY-SA-3.0

Cannabis Training University / Wikimedia Commons / CC-BY-SA-3.0

We’ve previously brought you news of the Bellingham 3 in the state of Washington who are being prosecuted for offenses related to providing medical marijuana. Even though Washington has since legalized marijuana even for recreational use, they are still being legally pursued by prosecutors. Their case is coming up in April.

Across the country, there is another medical marijuana related case involving jury nullification. Disabled veteran Robert Dorr of Union County, North Carolina grows marijuana for his own therapeutic use. In an unusual move, Dorr called the police on himself, reporting his activities because he knew he wasn’t doing anything wrong and didn’t want to hide it. He has subsequently requested a jury trial. Perry Parks, veterans’ outreach liaison of the North Carolina Cannabis Patients Network, says they are hoping for jury nullification in this case. Dorr’s next scheduled court appearance is currently April 8 at the Union County Courthouse.

Disabled vet fighting for NC medical marijuana appears in court

Robert Dorr, who said he’s willing to face jail time, did not show up at the Union County Courthouse alone. Other veterans who are also fighting for North Carolina to legalize medical marijuana came to show their support.

Dorr said he wants North Carolina’s law banning marijuana for medical use to change.

“This is something that’s unfolding around the country. It’s not about a person trying to make a point or prove he’s right,” said Dorr, “It’s essentially this is how justice unfolds when there’s been legislative error.”

“We hope for jury nullification,” said Parks, “Jury nullification has happened a lot across the country. It’s when the jury looks at the facts of the law and says yes he violates the facts of the law but he’s not a criminal and we refuse to prosecute him.”

Follow-up story:
Army vet calls police on himself; turns over marijuana stash


Function of Juries & History of Jury Nullification & Jurors Doing Justice & Jury Nullification | 17 Feb 2014

-Jury Nullification and the Rescue of Shadrach Minkins


Flexing their rights in the 1850s.

Flexing their rights in the 1850s.

Now that we all know that fugitive slaves themselves were not freed by juries, but rather those who helped rescue them and were subsequently charged under the Fugitive Slave Act, let’s delve into the actual rescue of Shadrach Minkins.

The Fugitive Slave Act was a critical part of the Compromise of 1850, designed to maintain slavery in the United States while avoiding secession or civil war. Its draconian provisions were obviously skewed in favor of turning alleged fugitives over to those who claimed them as their property, with lax standards for “proving” ownership and strong incentives for northerners to assist in the capture and delivery of them to the claimants.

On February 15, 1851, Shadrach Minkins was kidnapped by federal agents from his workplace and taken to a courtroom where a claim of ownership under the Fugitive Slave Act would be heard. There, he was not afforded the benefits of trial by jury. Rather, the Fugitive Slave Act provided for claims for the return of alleged fugitives to be decided by a commissioner. From Section 4 of the Fugitive Slave Act of 1850:

And be it further enacted, That the commissioners above named shall have concurrent jurisdiction with the judges of the Circuit and District Courts of the United States, in their respective circuits and districts within the several States, and the judges of the Superior Courts of the Territories, severally and collectively, in term-time and vacation; shall grant certificates to such claimants, upon satisfactory proof being made, with authority to take and remove such fugitives from service or labor, under the restrictions herein contained, to the State or Territory from which such persons may have escaped or fled.

In the case of Shadrach Minkins, it was Judge Curtis who would make the determination of whether or not the claimant owned Shadrach Minkins. Legally speaking, Minkins’ lawyers did not have too many options. In his book Shadrach Minkins: From Fugitive Slave to Citizen, author Gary Collison tells us:

Getting a three-day postponement was a small victory for Minkins’ side, as it gave his attorneys time to plot the most effective defense. Their options, however, were extremely limited. The best chance for securing Minkins’ release, if he was actually the fugitive sought by DeBree, lay in questioning the authenticity of the documents and accuracy of the identifications presented in evidence against him. Minkins’ attorneys asked to examine the claimant’s documents, to which Seth Thomas finally agreed, insisting first on reading them aloud to the courtroom. Most pertained to John DeBree’s hearing before Judge Richard H. Baker, of the U.S. Circuit Court of Norfolk, when DeBree had offered evidence to certify Minkins’ purchase, identity, and escape. The papers included an authenticated copy of the proceedings before Judge Baker and depositions tracing the successive sale and ownership of the fugitive up through the time of his purchase by DeBree from one John Higgins. Additional papers certified John Caphart’s power of attorney for the “apprehension, prosecution, transportation, and restoration to the present claimant” of the fugitive.

While there was a small glimmer of hope, Collison says, in the vagueness of the description of Minkins in these documents, thereby opening a door for a favorable ruling that he was not properly identified, sympathy from the judge in the case was unlikely. Collison writes:

But a sympathetic ruling from George T. Curtis was improbable, to say the least. The commissioner was a Webster Whig through and through. His whole family were mainstays of what remained of Webster’s Whig party base. George T. Curtis had led the efforts to organize the pro-Fugitive Slave Law Union rally at Faneuil Hall in November, at which his brother, Benjamin R. Curtis, had presided. If the Compromise of 1850 and the Fugitive Slave Law could carry Webster and the Whigs into power, George T. Curtis, a lowly federal commissioner, could ride the Webster coattails to power and fortune. So as a commissioner, Curtis would be expected to be scrupulous—but only to a point. He could be expected to strive for the appearance of impartiality. But in all likelihood he would give DeBree and Caphart, not Minkins, the benefit of the doubt.

Not that much benefit of doubt was necessary when the standard for “proving” ownership of an alleged fugitive by a claimant was hardly a bump in the road. The Fugitive Slave Act provided in Section 6 that:

And be it further enacted, That when a person held to service or labor in any State or Territory of the United States, has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such service or labor may be due, or his, her, or their agent or attorney, duly authorized, by power of attorney, in writing, acknowledged and certified under the seal of some legal officer or court of the State or Territory in which the same may be executed, may pursue and reclaim such fugitive person, either by procuring a warrant from some one of the courts, judges, or commissioners aforesaid, of the proper circuit, district, or county, for the apprehension of such fugitive from service or labor, or by seizing and arresting such fugitive, where the same can be done without process, and by taking, or causing such person to be taken, forthwith before such court, judge, or commissioner, whose duty it shall be to hear and determine the case of such claimant in a summary manner; and upon satisfactory proof being made, by deposition or affidavit, in writing, to be taken and certified by such court, judge, or commissioner, or by other satisfactory testimony, duly taken and certified by some court, magistrate, justice of the peace, or other legal officer authorized to administer an oath and take depositions under the laws of the State or Territory from which such person owing service or labor may have escaped, with a certificate of such magistracy or other authority, as aforesaid, with the seal of the proper court or officer thereto attached, which seal shall be sufficient to establish the competency of the proof, and with proof, also by affidavit, of the identity of the person whose service or labor is claimed to be due as aforesaid, that the person so arrested does in fact owe service or labor to the person or persons claiming him or her, in the State or Territory from which such fugitive may have escaped as aforesaid, and that said person escaped, to make out and deliver to such claimant, his or her agent or attorney, a certificate setting forth the substantial facts as to the service or labor due from such fugitive to the claimant, and of his or her escape from the State or Territory in which he or she was arrested, with authority to such claimant, or his or her agent or attorney, to use such reasonable force and restraint as may be necessary, under the circumstances of the case, to take and remove such fugitive person back to the State or Territory whence he or she may have escaped as aforesaid. In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence; and the certificates in this and the first [fourth] section mentioned, shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.

This so-called “proof” amounted to little more than the claimant stating under oath that the fugitive was his property and getting a few official stamps on that statement. Not only did was the fugitive denied the right to have his or her case heard before a jury, the Act also excluded all testimony from the alleged fugitive from being admitted as evidence.

Whether or not this would have played into the Minkins case, there was a further financial incentive for such commissioners to return alleged fugitives to claimants, whether or not they were actually the claimant’s property under the law. Section 8 of the Fugitive Slave Act specified compensation for commissioners as follows:

And be it further enacted, That the marshals, their deputies, and the clerks of the said District and Territorial Courts, shall be paid, for their services, the like fees as may be allowed for similar services in other cases; and where such services are rendered exclusively in the arrest, custody, and delivery of the fugitive to the claimant, his or her agent or attorney, or where such supposed fugitive may be discharged out of custody for the want of sufficient proof as aforesaid, then such fees are to be paid in whole by such claimant, his or her agent or attorney; and in all cases where the proceedings are before a commissioner, he shall be entitled to a fee of ten dollars in full for his services in each case, upon the delivery of the said certificate to the claimant, his agent or attorney; or a fee of five dollars in cases where the proof shall not, in the opinion of such commissioner, warrant such certificate and delivery, inclusive of all services incident to such arrest and examination, to be paid, in either case, by the claimant, his or her agent or attorney.

This section of the Act provides that commissioners be paid $10 if they decided in favor of the claimant and delivered the alleged fugitive into slavery, but they would only be paid $5 if they decided in favor of the alleged fugitive. That’s right. A clear conflict of interest was designed into the Fugitive Slave Act, further tilting the playing field in favor of the claimant. With such kangaroo courts making these decisions, it is no wonder then that not only fugitives were returned to slavery under this and the previous Fugitive Slave Act, but that free blacks were kidnapped and delivered into slavery as well.

It was in such a kangaroo court that Minkins’ case was to be decided, and the odds of justice prevailing through application of the law were slim.

After a brief initial hearing on February 15, Judge Curtis adjourned the proceedings for the day, scheduling them to resume three days later. Minkins and his counsel remained in the courtroom afterward conferring on legal strategy.

By this time a sizable crowd had gathered both inside and outside the courthouse, in numbers far beyond the capacity of those law enforcement officers present to contain them. As the two o’clock hour approached that afternoon, nearly 200 hundred people were congregated outside the courthouse as well as in the hallway and stairs outside the courtroom. Those outside the courtroom grew more and more agitated, pressing for information and access whenever the courtroom door was opened. It was harder and harder for the officer holding the courtroom door to maintain control over it as he allowed people to come and go from the room. Finally, the officer could no longer keep the door shut. Gary Collison describes the moment the rescue began in his book Shadrach Minkins: From Fugitive Slave to Citizen:

From the time that the hearing had adjourned, Officer Calvin Hutchins had been nervously guarding the outer main door of the courtroom, which opened outward into the hall. All the other doors were locked. As the last of the lawyers and visitors were leaving, he would open the door just enough for them to squeeze through into the crowded hallway and then pull it shut again by the handle. At a few minutes before two, he opened the door to allow attorney Charles G. Davis and Commonwealth editor Elizur Wright to leave. Once again, many black and brown fingers gripped the edge of the door from the outside. While Hutchins struggled to keep the door from being pulled open into the hallway, Davis managed to slip through the opening into the crowd. This time, however, Hutchins could not pull it back. The words “Tear him away” and “Come in” echoed in the air.

Collison continues:

At the moment that the assault on the outer courtroom door began, Officer Simpson Clark rushed to Hutchins’ aid, and together the two men struggled with all their might to prevent it from swinging open into the hallway. For perhaps a minute the two officers kept the door from opening farther, but finally the crowd “twitched it around.” Clark appears to have lost his hold first. With half the counterweight gone, Hutchins, still gripping the door handle, was carried out into the hallway as the door swung wide open. In an instant, fifteen or twenty black men surged into the opening. “Blows were passed at me, and some kicks,” Hutchins recalled later, but he was unhurt. “Knife him,” Hutchins heard one of the men say, but that man was immediately rebuked by an older man, who urged, “No, hurt no one.”

Once in the courtroom, his rescuers took physical custody of Minkins, who amidst the confusion could not be sure what was going on. In a mishmash of being carried, dragged, and going forth on his own feet, Minkins raced down the stairs, out of the courthouse, and escorted across the city where he was quickly hidden in the attic of Elizabeth Riley, a few doors away from Lewis Hayden, a prominent Boston abolitionist who had helped to rescue Minkins.

Within hours, the story was in the news, first locally in Boston and quickly thereafter across the country, with heated publications both in favor and against the audacious act of courage and compassion. Elizur Wright, publisher of the Commonwealth in Boston, greeted his Sunday morning readers the next day with the headline “KIDNAPPERS DISAPPOINTED.” A couple of days later, the Boston Daily Times fired back with a flamingly racist column declaring that this act signified “OVERTHROW OF THE WHITE POWER AND THE ESTABLISHMENT OF THE BLACK EMPIRE OF MASSACHUSETTS!”

Communications flew back and forth between government officials, as high up as President Millard Fillmore himself. Secretary of State Daniel Webster, who was staking his presidential aspirations on championing the Fugitive Slave Act, called the rescue an act of treason. There were calls for President Fillmore to send in troops to quell the insurrection in Boston. Avoiding that drastic option, Fillmore issued Proclamation 56 – Calling On Citizens to Assist in the Recapture of a Fugitive Slave Arrested in Boston, Massachusetts:

By the President of the United States of America
A Proclamation
Whereas information has been received that sundry lawless persons, principally persons of color, combined and confederated together for the purpose of opposing by force the execution of the laws of the United States, did, at Boston, in Massachusetts, on the 15th of this month, make a violent assault on the marshal or deputy marshals of the United States for the district of Massachusetts, in the court-house, and did overcome the said officers, and did by force rescue from their custody a person arrested as a fugitive slave, and then and there a prisoner lawfully holden by the said marshal or deputy marshals of the United States, and other scandalous outrages did commit in violation of law:

Now, therefore, to the end that the authority of the laws may be maintained and those concerned in violating them brought to immediate and condign punishment, I have issued this my proclamation, calling on all well-disposed citizens to rally to the support of the laws of their country, and requiring and commanding all officers, civil and military, and all other persons, civil or military, who shall be found within the vicinity of this outrage, to be aiding and assisting by all means in their power in quelling this and other such combinations and assisting the marshal and his deputies in recapturing the above-mentioned prisoner; and I do especially direct that prosecutions be commenced against all persons who shall have made themselves alders or abettors in or to this flagitious offense; and I do further command that the district attorney of the United States and all other persons concerned in the administration or execution of the laws of the United States cause the foregoing offenders and all such as aided, abetted, or assisted them or shall be found to have harbored or concealed such fugitive contrary to law to be immediately arrested and proceeded with according to law.

Given under my hand and the seal of the United States this 18th day of February, 1851.



Secretary of State.

Arrests began even before the proclamation, as government officials moved swiftly to make a public statement that the Fugitive Slave Act could and would be enforced, even in against strong local abolitionist sentiments such as those expressed in Boston the morning of Saturday, February 15th. The Monday after the rescue, U.S. marshals arrested Elizur Wright and Charles G. Davis. On Tuesday, they arrested a man named John Foye (or Noye), followed by James Scott on Wednesday. Joseph K. Hayes was arrested on Friday, the 21st of February, as was Alexander P. Burton of Salem, mistakenly it turns out, on a warrant that actually specified Andrew J. Burton, who lived in Boston. Alexander Burton was subsequently released. The next day, Thomas Paul Smith was arrested, as was Lewis Hayden. A week later, on Saturday, March 1, John P. Coburn and Robert Morris were both arrested.

Not including Burton, nine men total were arrested for aiding in the rescue of Shadrach Minkins, seven of whom—five black and two white—would be charged, with their trials scheduled to begin in May of 1851. Those trials would result in seven consecutive, highly public failures on the part of the government to secure even a single conviction of any of those suspects, with most if not all of those failures likely resulting from jury nullification.


Function of Juries & Jurors Doing Justice & Jury Nullification | 15 Feb 2014

-If You Learn One Thing About Jury Nullification Today, It Should Be This


Advertisement for sale of Shadrach Minkins, 1849

Advertisement for sale of Shadrach Minkins, 1849

Today is an important anniversary in the history of jury nullification. On this day in 1851, on a rainy Saturday morning, federal agents stalked and arrested alleged fugitive Shadrach Minkins, who was at the time working at the Cornhill Coffee House in Boston, Massachusetts. Minkins’ arrest came just a few months after passage of the Fugitive Slave Act of 1850, a key part of the Compromise of 1850, which was a legislative package of five bills designed to maintain the injustice of slavery in the United States and avoid secession or civil war. Secretary of State Daniel Webster in particular took up the cause of enforcing the Fugitive Slave Act, even though he was generally opposed to slavery, staking (and ultimately decimating) his presidential aspirations on his ability to enforce its provisions in northern states.

Ellen and William Craft

Ellen and William Craft

It also came shortly after the government’s humiliating failure to apprehend Ellen and William Craft, who had previously escaped from slavery in Georgia, and who were hidden by the Vigilance Committee in Boston until they made a second escape to England. The Crafts’ escape called into question whether or not the Fugitive Slave Act could be enforced in Boston. Its champions were eager to capture and return a slave successfully to make a public show of its effectiveness. That opportunity would come in February 1851. Federal marshals sat in the coffee house sipping coffee served to them by the very waiter who they would arrest a few minutes later after he was identified as Shadrach Minkins.

I hear time and again people make the claim that “northern juries refused to convict escaped slaves and set them free” or something like that. This is WRONG and reflects dramatic ignorance of the depths of abuse people were subjected to under slavery. Gary Collison explains in his book Shadrach Minkins: From Fugitive Slave to Citizen the legal status of slaves under the Fugitive Slave Act and other laws of the time:

Samuel Sewall and Ellis Gray Loring took charge of Minkins’ defense before the commissioner, assisted by King and others. With Minkins in the prisoners’ bar, an officer on each side, and Commissioner George T. Curtis on the judge’s bench, the proceedings began. The Fugitive Slave Law called for a “summary” hearing, not the trial. Curtis asked the counsels for Minkins if they desired more time, which of course they did. They had known of the case only 15 minutes before, Sewall argued. Caphart’s lawyer, Colonel Seth Thomas, Webster’s friend and the Boston lawyer who had represented the Crafts’ claimant and other Southerners, pressed for a speedy outcome. “There is nothing in the case but a question of identity,” Thomas argued.

In truth Thomas was nearly right. Under the Fugitive Slave Law, Minkins was allowed none of the ordinary civil liberties accorded to citizens. In federal eyes, he was not a citizen. (The U.S. Supreme Court would later confirm this in the Dred Scott case). He could not testify. He could not have this case heard before a jury. He was not entitled to the protections afforded to citizens under habeas corpus. He was hardly guaranteed any positive rights at all. The sole purpose of a hearing before the commissioner or judge was to establish the authenticity of DeBree’s documents—little more than a mere formality—and Mankins identity. There would be no appeal. Once Commissioner Curtis was satisfied that Minkins was the fugitive described in DeBree’s certified documents, the hearing would be at an end. The whole might of the federal government could then be turned to the task of transferring him to the custody of his master.

Commissioners and lawyers for alleged fugitives—when fugitive managed to obtain legal counsel at all—could insist that the owner’s documents be complete and fully authenticated and that reliable witnesses corroborate the identification of the accused. Still, the law did not demand anything complicated. In some “summary” hearings under the new law, fugitives were on their way back to slavery in less than half an hour. A few fugitives were lucky if their hearings lasted five minutes. Some hearings were held secretly, with none but the alleged fugitive, the claimant, the arresting officers, and the federal commissioner present. Fortunately for Shadrach Minkins, Commissioner Curtis was eager to show that the summary hearing called for by law did not deny all due process. Under the circumstances, Curtis concluded, “a postponement to Tuesday” did not constitute an “unreasonable delay”.

If you learn just one thing today about jury nullification, please let is be this:
SLAVES were not tried under the Fugitive Slave Act and set free through jury nullification. It was those who AIDED in their rescue who were afforded trials by jury.

Shadrach Minkins never had a jury trial, and he never WOULD have had a jury trial. His case would have been decided in a hearing by a judge who had a clear incentive to return him to the person claiming to own him. Everyone standing in Minkins’ corner knew this and so the postponement was requested in order to buy time to find a way to save him. Ultimately, a daring rescue was mounted, the likes of which are barely imaginable today.

Click through to continue with the next post in this series: Jury Nullification and the Rescue of Shadrach Minkins


Function of Juries & Jury Nullification | 11 Feb 2014

-Gun Control Advocate Arrested for Gun Offense to Go Before a Jury


IMG_1132cropGun control advocate Dwayne Ferguson is facing two felony charges of criminal gun possession after being discovered in possession of a holstered firearm during a lockdown at Harvey Austin Elementary School. Ferguson, of Buffalo, New York, is well-known locally for his efforts in pushing for the post-Sandy Hook passage of New York’s SAFE Act, bumping carrying a gun on school grounds, which was already classified as a crime, from a misdemeanor to a felony. He was on campus that day when police responded to two anonymous tips that a man with a gun had been seen in or near the school. In addition to locking down the school and conducting a room to room search in association with the tips, police also patted down everyone on campus, at which time they discovered he was carrying. Ferguson says he had forgotten that he was armed.

GUN STUN: Gun control activist swears he forgot he was carrying gun while visiting school

A Buffalo, N.Y. community activist who is well known locally for pushing for a highly restrictive 2013 gun control law has been arrested for — wait for it — carrying a gun illegally at a public elementary school.

The arrested gun-control advocate, Dwayne Ferguson, caused quite a scene at Harvey Austin Elementary School, reports local CBS affiliate WIVB.

Ferguson, 52, was at Harvey Elementary because he works as a mentor in an after-school program for disadvantaged students.

He said he frequently carries a pistol. He has a license but the license does not matter under the strict state law Ferguson helped pass.

Among much else, the 2013 law, deemed New York’s SAFE Act, made it a felony to carry a gun on school property, according to The Buffalo News.

While it was always illegal to carry a gun on school grounds, the new law bumped the crime from a misdemeanor to a felony in response to the Sandy Hook Elementary School shooting.

The community activist has claimed that he forgot he was carrying his gun in a felony gun-free zone he helped create.

This case illustrates how easy it is for people to get caught in the traps that are set by criminalizing victimless offenses. Ferguson’s weapon was not discovered until he was patted down by police and was holstered when it was found. He did not use, nor threaten to use, his weapon against anyone. Even the local chief of police acknowledged that Ferguson had no intent to harm anyone. Yet, in part due to his own efforts, Ferguson now faces up to four years in prison for two felony charges, including having a loaded weapon on school grounds. He has pleaded Not Guilty to both charges. If he maintains his plea, Ferguson’s case will go to a jury to decide his fate. Whether or not that jury will be fully informed remains to be seen.


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