Fully Informed Jury Association

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Jury Nullification | 14 Aug 2015

-Are Your Jury Nullification Outreach Efforts Being Chilled in Denver?

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photo credit: Janet Matzen

photo credit: Janet Matzen

Call to All Colorado Juror Rights Educators

If you have been considering doing juror rights outreach in Denver, Colorado but your willingness to exercise your First Amendment-protected right to do so has been chilled due to the threat of arrest, especially in light of the recent arrests of Mark Iannicelli and Eric Brandt, we would like to hear from you ASAP (aji@fija.org or 406-442-7800)!

An injunction is being filed on Monday barring the Denver Police Department from arresting people for passing out jury nullification literature in the plaza area of the Lindsey-Flanigan Courthouse, and there is a short window during which such people can sign on as plaintiffs to the injunction. This would not cost them anything. We just want plaintiffs who actually want to pass out literature in front of the courthouse.

As Jury Rights Day is coming up on September 5, this would be a great time to plan a Jury Rights Day event, and get one of FIJA’s free event kits for it! We celebrate Jury Rights Day on September 5 each year in commemoration of the famous jury nullification case of William Penn in 1670, which not only firmly established the right of jurors to vote Not Guilty for any reason without punishment, but also helped ground freedom of speech in English common law and in United States jurisprudence.

While the Denver DA’s office seems intent on creating countless fully informed jurors nationwide with the publicity surrounding the erroneous arrests of and charges against Mr. Iannicelli and Mr. Brandt, we would really like everyone to be able to exercise their First Amendment rights to teach others about jury nullification without fear of being abused by police and prosecutors under color of law.

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FIJA in the News & Function of Juries & History of Jury Nullification & Jury Nullification | 14 Aug 2015

-Jury Nullification Case is First Amendment Issue

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photo credit: Janet Matzen

photo credit: Janet Matzen

We understand that the Denver District Attorney will be subpoenaed in connection with the recent arrests of two juror rights educators in Denver, Colorado. Mark Iannicelli and Eric Brandt have been charged with seven counts each of alleged jury tampering, simply for distributing information on jury nullification. Iannicelli and Brandt are being harassed by the Colorado district attorney’s office for exercising their freedom of speech, which is supposedly guaranteed under the First Amendment to the United States Constitution.

Defense in Jury Nullification Case will Subpoena Denver DA

As this is seen as yet another case that is described as an ongoing law enforcement challenge to the First Amendment of the Constitution against area activists, Iannicelli was in court on Tuesday, and Brandt appeared on Wednesday to express that they intend to move their cases forward. The cases are expected to be combined with both Heymann and civil rights attorney David Lane as defense counsel.

In an initial appearance by Brandt on Wednesday, Lane opened with a statement to Denver County Court Magistrate Judge Kate Boland:

“Your honor this is classic First Amendment protected speech. [Iannicelli and Brandt] were not targeting any specific person. They were not targeting any specific case. They were not targeting any specific ideology. People going into the building were being given pamphlets by Mr. Iannicelli and Mr. Brandt. That is the definition of First Amendment protected free speech.”

Lane later told KGNU why he decided to take the case,
“[Brandt] is a political prisoner. He is being incarcerated for his sign saying, ‘F…CK THE COPS,’ he has now been incarcerated for passing out literature in front of the Denver courthouse. That is the quintessential idea of free speech. But Mitch Morrissey’s District Attorney thugs and their police officers that enforce these unconstitutional commands of his, are turning this into a police state. Vladimir Putin would be proud.”

KGNU’s report provides some insight as to why the District Attorney’s office might be particularly fearful at this time of the prospect of having to prove cases before fully informed jurors, aware of their right to conscientiously acquit via jury nullification:

Recent local cases could be used as examples of dumbing down the jury pool as well. During jury selection for a July 29, 2015 trespassing trial involving human rights activist Caryn Sodaro, Judge Nicole M. Rodarte added an atypical question of the potential jurors, the wording of which was carefully constructed prior to jury selection, “Were you approached by anyone who handed you information on your way to jury duty?” Prosecutors at that trial had complained to the judge about the FIJA pamphlets and wanted any potential juror who had received one to be removed from the selection process. During questioning about juror exposure to the literature, only one juror said that he was approached but that he declined to accept the information. Incidentally, that juror was excused from jury selection.

Previous coverage of this case:
Denver DA Doubles Down on Jury Nullification Arrests
Updates on Mark Iannicelli Arrest for Jury Nullification Education
Man Sharing Jury Nullification Information Arrested in Denver

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Jury Nullification | 12 Aug 2015

-Denver DA Doubles Down on Jury Nullification Arrests

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photo credit: Janet Matzen

A second juror rights educator has been arrested this past weekend in Denver. According to another press release from the Denver DA’s office, Eric Brandt is also charged with seven counts of alleged jury tampering.

This morning I requested the charging document and probable cause statement from the contact person listed on the press release, but haven’t yet seen it. Therefore, I speculate that the seven charges are probably for violations of the same law that Mark Iannicelli is accused of violating.

That law, C.R.S. 18-8-609, says:

18-8-609. Jury-tampering

(1) A person commits jury-tampering if, with intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.

(1.5) A person commits jury-tampering if he knowingly participates in the fraudulent processing or selection of jurors or prospective jurors.

(2) Jury-tampering is a class 5 felony; except that jury-tampering in any class 1 felony trial is a class 4 felony.

As in Mr. Iannicelli’s case, I see nothing in the press release that meets the definition of the violation of which Mr. Brandt is accused. I have also briefly spoken with Mr. Brandt on the phone several days ago, and nothing that he described as far as the juror rights outreach activities taking place meets the definition of jury tampering either.

Yet the Denver DA seems to have doubled down for some reason, in choosing to charge Mr. Brandt in addition to Mr. Iannicelli. It is not clear why the DA’s office waited for more than a week after charging Mr. Iannicelli to charge Mr. Brandt.

Mr. Iannicelli’s first court date in this matter was yesterday. According to one report, the judge in the case would not commit to joining the two cases, which seem to be for the exact same thing from what I know at this point. However, he did reportedly allow the attorneys for the defendants in these cases to subpoena all the complainants, including the district attorney:

Denver DA Mitch Morrissey to be subpoenaed in jury tampering case of Mark Iannicelli and Eric Brandt

The target of a recent recall effort, the Denver DA won’t indict killer cops or sheriff’s deputies, but Morrissey and his cronies in the DPD will have to show up August 31 at 8:30am to account for the abridged First Amendment rights of Messrs Brandt and Ianicelli.

Previous coverage of this case:
Updates on Mark Iannicelli Arrest for Jury Nullification Education
Man Sharing Jury Nullification Information Arrested in Denver

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History of Jury Nullification & Jury Nullification | 05 Aug 2015

-John Adams’ Notes on the Right of Jury Nullification

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JohnAdamsJury

The above graphic features a famous quote from John Adams regarding the right—and duty—of jury nullification in accordance with a juror’s best judgment and conscience. But where does it come from?

At a FIJA supporter’s request, I tracked it down and now the source material has found a home on the FIJA website here:

From the Diary of John Adams on the Right of Juries, 12 February 1771

And what moved Adams to pen some notes on this subject in his diary in 1771? According to the Massachusetts Historical Society, these note have:

…every appearance of having been written for a newspaper, but no printing has been found. Samuel M. Quincy, the editor of Josiah Quincy Jr.’s Reports, plausibly suggested that at least some passages in it were originally “part of [JA’s] preparation for the argument” in the case of Wright and Gill v. Mein, which had come before the Suffolk Inferior Court, Jan. 1771, and was appealed to the next sitting of the Superior Court (Quincy, Reports, Appendix II, p. 566–567).

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Jury Nullification | 04 Aug 2015

-Updates on Mark Iannicelli Arrest for Jury Nullification Education

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photo credit: Janet Matzen

photo credit: Janet Matzen

Since the Denver DA issued a press release on the arrest last week of Mark Ianicelli for handing out jury nullification flyers, I gave the contact person listed therein a call this morning to see about getting more information on the case. She forwarded me the Complaint and Information as well as the Probable Cause Statement, which we now have available for anyone to look at on a special page we’ve set up for this case.

The seven charges listed in the Complaint and Information provide very little information. Seven separate charges are listed because, according to my telephone conversation with Lynn Kimbrough from the Denver DA’s office, jury nullification materials were found in the possession of seven different jurors (or possibly potential jurors- now that I’m writing this up I don’t think I asked that). I did ask if the seven individuals were all sitting on the same case. Ms. Kimbrough did not know the answer to that. The charges don’t discuss specifically what Mr. Iannicelli is accused of doing, but rather seem to regurgitate the language of the statute which he is accused of violating (C.R.S. 18-8-609 for all counts) and then claim that he violated it. Even the names of the people who had the jury nullification information in their possession are redacted.

The Statement of Probable Cause, however, sheds a little more light on things. It reads as follows:
The probable cause of the arrest of the above-named individual is as follows:

[The defendant, Mark Iannicelli… was identified by the Denver District Attorney Lamar Simms, as handing out literature in front of 520 W Colfax Ave, the Lindsey Flanigan Court House, to actual and potential state and city jury members. A cardboard sign with “Juror Info” was positioned at the entrance to the court housees. Several jurors were contacted by Denver Police Intelligence Unit and were found to be in possession of fliers handed out by the defendant. The defendant was identified to reporting officers by members of the Intelligence unit. Upon contact, officers explained the reason for the contact, including that the police had been informed of the defendant handing out information to potential jurors. When asked for his name and date of birth, the defendant refused to provide any information. The defendant was taken into custody for investigation of Jury Tampering, and a Colorado Driver’s License was located in his wallet. The fliers were recovered as evidence and were titled, “All You Need To Know About Jury Nullification”.
At the time of the offense, a death penalty case was underway at the same location, 520 W Colfax Ave.]

What is interesting about this description is that:
1. it does not accuse Mr. Iannicelli of advocating for or against any case in progress,
2. it does not accuse Mr. Iannicelli even of targeting individuals for sharing information with them based on whether or not they were a juror or were there for jury duty, and
3. a death penalty case happened to be going on in the courthouse at the time of the jury rights educational outreach.

That death penalty case, by the way, does not appear to be the Aurora theater shooting trial that is currently in the national spotlight. I looked that up and it seems to be taking place at the Arapahoe County Courthouse, also in Denver.

From my reading of C.R.S. 18-8-609, which says:

18-8-609. Jury-tampering

(1) A person commits jury-tampering if, with intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.

(1.5) A person commits jury-tampering if he knowingly participates in the fraudulent processing or selection of jurors or prospective jurors.

(2) Jury-tampering is a class 5 felony; except that jury-tampering in any class 1 felony trial is a class 4 felony.

I see nothing in the Statement of Probable Cause substantiating these accusations. The charges allege that Mr. Iannicelli acted “with intent to influence a juror’s vote, opinion, decision, and action in a case”, but nowhere in the Statement of Probable Cause do I see anything that indicates such.

When I give someone information on their full, legal authority as a juror, I’m not telling them to vote one way or another. I’m merely presenting them with the complete picture of all of their options, including the right of jury nullification that they will typically either not be informed about or will be explicitly misinformed about once they get into a courtroom. What they do with that information is up to them. They may choose to exercise that right in a case before them, or they may choose not to exercise it. That is up to them.

Nothing I have heard from any of the local people who saw the arrest and/or know Mr. Iannicelli indicates that he was doing anything other than fully informing people about all the options jurors have. The Statement of Probable Cause, which also does not indicate anything beyond presenting people with all of the options that jurors can exercise, is consistent with that.

This distinction in a similar case years ago with regard to a similar federal jury tampering statute was recognized by the judge in that case, and she correctly dismissed the indictment.

Previous coverage of this case:
Man Sharing Jury Nullification Information Arrested in Denver

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Function of Juries & Jurors Doing Justice & Jury Nullification | 31 Jul 2015

-How Jury Nullification Played into the Carriker Acquittal

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Webster_County,_Nebraska_courthouse_courtroom_3 (1)

I had a long, post-acquittal chat yesterday with Joe Grumbine of The Human Solution International regarding the dramatic and very encouraging acquittal of Kyler Carriker in Wichita, Kansas. Joe attended much of the trial in person and shared many insights as to how jury nullification played into this case.

By way of a brief summary of the case, Kyler Carriker was charged with felony murder even though he had not killed anyone or had in any way anticipated that his peaceful actions would be tied to a violent crime. What he actually did was introduce people to a pot dealer. The people were an old high school buddy who he had recently reconnected with but wasn’t well acquainted with anymore and some of his associates who Carriker didn’t know. Unbeknownst to Carriker, the purported customer and his entourage did not intend to purchase marijuana, but rather were surreptitiously planning to take it by force. And they proceeded to do so with both the murder victim, Ronald Betts, as well as Carriker being shot in the process.

Carriker, who had no prior criminal record, was charged under Kansas’ felony murder law, not because he had any part in the murder or had any knowledge that a killing was going to take place, but rather on the basis that he was involved in a felony that was inherently dangerous or likely to result in death.

But wait! you might protest, as did a commenter on the FIJA Facebook page. The defendant was aiding in a pot transaction and had no idea that violence would ensue. This is hardly an inherently dangerous offense likely to result in death. This merely a case of overcharging and the jury delivered a regular acquittal in which the charge was not proved beyond a reasonable doubt. Surprisingly to many, though, you would be wrong.

As it turns out, in 1998 Kansas added marijuana offenses to its list of inherently dangerous felonies and then in 2013 further amended the law to apply this to middlemen such as Carriker just three months after the death of Ronald Betts, and retroactively applied it to the Carriker case. That would make this a nullification.

That, it turns out, is not the end of the evidence for nullification. According to Grumbine, the jury was polled after the verdict was delivered and comments, including comments from the jury foreman, indicate this was charge was returned Not Guilty by way of jury nullification. That is consistent with the facts that the jury did convict Carriker of a less serious charge related to the drug deal, which would have made him also guilty of the more serious violation under strict application of the law, and that the jury deliberated for several hours over the course of two days.

Moreover, despite the prosecution going to great lengths to keep from the jury any information regarding the egregiously harsh mandatory minimum sentence Carriker faced and the jury’s right to judge the law and acquit by way of jury nullification, the state made a major slip up in court. Despite getting the judge’s approval of a motion in limine that reportedly would curtail informing the jury about its right to conscientiously acquit, Grumbine reports that the prosecution then itself brought up the topic in court. Once the prosecution brought it up, that opened the door for Carriker’s attorney Sarah Swain to respond, invoking language that informed the jury that they could bring in any verdict they saw fit and could not be punished for it.

I have so far seen none of these details being reported in the mainstream news, even though they seem like they would have been highly influential in the outcome of the case.

This is quite amazing and unusual in this type of trial. According to Grumbine, the judge even had words for the prosecutor for this screwup on the state’s part. The bottom line for juror rights educators is that this was an extremely fortunate occurrence, but it is going to be a long time before something like this should happen again.

It is critical that we all be creating fully informed jurors NOW and not waiting until a particular trial we are interested is on the horizon. Jurors in nearly all cases will be kept in the dark at best, or outright misinformed in the courtroom, about their right to conscientiously acquit and uphold justice above the law. We must give them the knowledge and the confidence to exercise jury nullification for justice BEFORE they step foot inside the courthouse.

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Function of Juries & Jurors Doing Justice & Jury Nullification | 30 Jul 2015

-Jury Nullification for Carriker in Ridiculous Felony Murder Case

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Webster_County,_Nebraska_courthouse_courtroom_3 (1)

I got news this afternoon from Joe Grumbine of The Human Solution International of a Not Guilty verdict in the case of Kyler Carriker, accused of felony murder. “This whole case was about jury nullification and bad law,” Joe reports.

Carriker was not involved with the killing, but was charged under a state law that lets the government charge certain other people with murder who are present when the murder takes place but did not actually commit the crime. In this case, Carriker was scooped up by the law and charged with murder merely for introducing the person who committed the actual murder to a pot dealer. He had no idea in doing so that this was going to be anything other than a peaceful transaction. Thankfully, a jury saw that treating his victimless action as a murder was DRASTICALLY out of bounds of justice.

Man found not guilty of murder in drug deal

“We have said from the beginning that Kyler Carriker was not a murderer,” [Carriker’s attorney] Swain said. “He should not have been charged with felony murder. He was in the wrong place at the wrong time.

“He was shot by the real murderers, who are in prison. I think the jury’s verdict shows that that’s what they believed also.”

Kansas’ felony murder law allows prosecutors to bring murder charges against a person implicated in but not directly responsible for a killing that occurs during the execution of a felony crime.

Unfortunately, it appears that the jury left the door open by convicting Carriker of helping to facilitate a quarter-pound marijuana deal. This raises cause for concern in a legal environment where judges have the ability to sentence defendants for uncharged and even acquitted conduct.

Consider the case of Jones v. United States, turned down for review last year by the Supreme Court of the United States:
The jury acquits, the judge still sentences. Can that be?

The jury in the case of three Washington, D.C., men found them not guilty of a conspiracy to run an “open air” market for large quantities of illegal drugs on the streets of the nation’s capital, but it did find them guilty only of selling small quantities. If the sentencing had followed those results, the three men would have faced sentences under federal guidelines of between thirty-three and seventy-one months.

The judge, however, decided that sentencing could also take into account the conduct that had led to the more serious conspiracy charge (the so-called “acquitted conduct”) and opted to give the three men sentences ranging from 180 to 225 months. They argued unsuccessfully, in a federal appeals court, that the longer sentences violated their Sixth Amendment right to have a jury decide the issue of guilt. The judge, in essence, convicted them of the more serious offense, too, despite the jury’s contrary verdict.

This is just one of the underhanded ways courts have found to do an end run around a jury’s verdict when the outcome doesn’t suit their different interests tilted toward conviction and mass incarceration. His attorney will be seeking probation on this count, but the jury could have closed the door on this nightmare by nullifying on the other victimless count as well. Let us hope that sanity, decency, and mercy prevail when all is said and done in the sentencing phase.

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Jury Nullification | 28 Jul 2015

-Man Sharing Jury Nullification Information Arrested in Denver

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photo credit: Janet Matzen

photo credit: Janet Matzen

We got word yesterday from Occupy Denver that jury rights educator Mark Iannicelli was arrested while handing out jury nullification literature at the Lindsey-Flanigan Courthouse in Denver and charged with jury tampering.

Occupier Mark Iannicelli charged with jury tampering for distributing fliers about jury nullification at courthouse

Soft-spoken activist Mark Iannicelli sits in the Denver County Detention Center tonight, wrongfully arrested for passing out fliers in front of the Lindsey-Flanigan Courthouse on Monday. Though he and an accomplice had no personal interest in any trial at the municipal courthouse, Mark was charged with JURY TAMPERING, a felony with a minimum bond of $5,000. Mark was disseminating information about JURY NULLIFICATION to conscripts showing up for jury duty.

I understand from another person who was at the courthouse at the time that two pieces of jury nullification literature were being handed out that day: FIJA’s True or False? brochure and a flyer from another organization. He reported that the arrest took place on the second day of a planned three-day outreach effort, and that jury rights educators had previously been handing out literature in Westminster, Colorado with no issues.

This person and a second individual I spoke to reported that the arrest seems to have been in response to a complaint from a juror, though nobody I spoke to knew what the specific complaint was. One of the people I spoke to reported that the arrest was for “Offense Code 026517” and “Offense Type #18-8-609”. I don’t know what the offense code means at this point, but 18-8-609 seems to come from the Colorado Revised Statutes.

C.R.S. 18-8-609 (2014) reads:

18-8-609. Jury-tampering

(1) A person commits jury-tampering if, with intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.

(1.5) A person commits jury-tampering if he knowingly participates in the fraudulent processing or selection of jurors or prospective jurors.

(2) Jury-tampering is a class 5 felony; except that jury-tampering in any class 1 felony trial is a class 4 felony.

Without specifically looking it up, my assumption is that a felony of any sort would almost certainly be jury trial-eligible, in the event that this case got that far. If it did go before a jury, one would imagine that the FIJA brochure and other flyer would be evidence that would be presented to the jury, thereby fully informing every juror of their right to vote Not Guilty for any reason they believe is just.

From the description given to me by the two people I spoke with and from the article I quote from above, however, it does not sound likely that the accused’s activity even met the definition of jury tampering. FIJA encourages everyone who is doing general educational outreach at courthouses to be clear that they are not advocating for or against any case in progress, but rather are sharing this information for educational purposes only. What jurors choose to do with that information is up to them. My impression from what I have heard and read so far is that those at this courthouse were aware of this distinction.

Nonetheless, it sometimes happens that courthouse officials or law enforcement either are ignorant of the difference between general educational outreach and jury tampering or that they choose to ignore it for the sake of making a nuisance arrest that will interfere with free speech activity they find inconvenient or disagree with. It’s possible that one or the other of these is the case in Denver this week. I have shared with one of the people I spoke with the opinion and order throwing out the indictment of another activist in New York in similar circumstances in case Iannicelli or his lawyer finds it helpful (the article quoted above indicates that he does have legal representation).

Additionally, I have been told by one of the people with whom I spoke that in conjunction with the arrest, all of the jury nullification information on hand was confiscated by the government and that the red tape involved in getting it back makes it unlikely that it will be returned to the rightful owner. As soon as I get this report posted and shared around, I will also be heading down to the post office to ship out a priority package of FIJA literature so that Denver activists may continue to legally exercise their right to free speech to create more fully informed jurors.

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Jurors Doing Justice & Jury Nullification | 19 Jul 2015

-Colorado Jury Says No to State’s Marijuana DUI Limit

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Trafficjam

A Denver medical marijuana patient has been acquitted by a jury of a marijuana-related DUI after being pulled over for having an expired license plate tag—not for unsafe driving. She identified herself as a medical marijuana patient when the officer who pulled her over indicated that he smelled marijuana. A blood test indicated a THC level of 19 ng/ml, exceeding the limit specified by state law of 5 ng/ml.

Driver acquitted of marijuana DUI despite high blood test

The Denver woman works at a medical marijuana dispensary and was heading to work when Westminster police said she failed a roadside sobriety test.

But Brinegar’s attorney, Colin McCallin, convinced a Jefferson County jury that Brinegar’s roadside results wouldn’t be unusual for a sober person and insisted she wasn’t impaired when she was stopped.

“She wasn`t weaving, she wasn`t involved in an accident, she wasn`t driving too slow,” said McCallin.

Brinegar was offered a plea deal, but turned it down, choosing instead to argue her case before a jury. Had she accepted the plea deal, she would have been required to abstain from medical marijuana for up to two years, which she says would have made it impossible for her to drive due to pressure on her back causing severe pain.

In many states, a DUI acquittal such as this, for a case in which the state legal limit was clearly exceeded, would be a pretty strong indicator of jury nullification because state laws typically work such that once a person is demonstrated to be above a particular blood concentration or some other measure for a particular substance, they are presumed by law to be impaired. However, Colorado House Bill 1325, passed in 2013, not only set a legal limit for blood THC content, but included a “permissive inference” provision making it possible for the defense to arguing that the accused was not actually impaired at the level of THC in their blood.

Using THC levels as a standard for a criminal conviction is disputed by many because THC can linger in the system long after any impairing effects of the drug have worn off. Even the staunchly prohibitionist National Insititute on Drug Abuse admits that:

In general, standard urine tests can detect traces of THC several days after use. In heavy marijuana users, however, urine tests can sometimes detect THC traces for weeks after use stops.

What this means is that someone who has neither harmed, nor was even a danger to them, could potentially be convicted of a crime, having their entire life upended for no reason at all. They could be imprisoned complete with substantial risks to their safety; lose their savings, property, and livelihood; lose their family; and even more. Meanwhile, taxpayers would foot the bill for incarceration and expenses after release.

Jurors can protect their communities from such unreasonable standards by voting Not Guilty—whether that is a specific defense allowed under the law, or whether they see fit to conscientiously acquit by way of jury nullification.

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FIJA in the News & Jury Health Project & Jury Nullification | 13 Jul 2015

-Fellow Updates: Media Outreach, Jury Health Project

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Nathan_GoodmanHello, FIJA supporters!

Last month I introduced myself to you and explained a bit about my role at FIJA as the 2015 Summer Fellow. Today I’d like to give you an update on some of what I’ve been doing so far. Research for the Jury Health Project is well underway at this point, and I’ve also been doing some media outreach.

The Young Voices Podcast
On July 1st, I had a delightful conversation with Daniel Pryor on the Young Voices Podcast. We discussed my recent article on Queer Liberation and Jury Nullification, and then discussed the numerous other contexts where jury nullification can be applied to advance liberty and justice. I then explained some of the history of jury nullification.

In addition, we discussed FIJA’s Jury Health Project, an ongoing research project examining various questions about the right to trial by jury as they vary across the 50 states and Washington, DC.  There are quite a few questions we’re asking as part of the Jury Health Project, and we’ll be publishing FIJA Fact Finder papers soon on the answers to these questions.

Thanks to Daniel for having me on the show and bringing important issues of jury rights to the Young Voices audience.

Jury Health Project Logo

How Much Are Jurors Paid?
Much of my work so far has centered around researching a fairly simple question: how much are jurors paid? We now have data on juror compensation for all 50 states, the federal courts, and Washington, DC. This data paints a picture of jurors that in most states are paid somewhere between $10 and $50 per day, substantially less than the federal minimum wage.

This is of course far less than the compensation given to the police, prosecutors, judges, and other government employees within the legal system. It’s understandable that the one element of the criminal justice system that represents the commoners rather than the state receives far less pay than the other elements. Part of the explanation is ideological, because jurors are seen not as employees doing a job, but as citizens performing a civic duty that they are obligated to perform regardless of pay. However, institutional and economic factors also play a role in explaining this disparity, and we will discuss these factors in our forthcoming FIJA Fact Finder paper on the subject.

We will also discuss the consequences that low juror compensation could have for liberty. When low income jurors are more likely to plead financial hardship, this changes the jury pool. This can undermine a defendant’s right to a jury of their peers and to a jury that represents a fair cross-section of the community. This can also have real consequences for the verdicts reached by juries. Psychological research suggests that jurors from different economic classes reach different types of verdicts. This research suggests that excluding or underrepresenting low-income jurors can lead to more punitive verdicts and even verdicts that undermine the right to bear arms. All this and more will be discussed in our forthcoming FIJA Fact Finder paper.

Are Juvenile Defendants’ Rights to a Jury Trial Respected? 
As we wrap up our juror compensation paper, we’re also beginning another FIJA Fact Finder paper for the Jury Health Project. This one examines the question of whether a state recognizes a juvenile defendant as possessing the right to a trial by jury. Sadly, there are many states in the US where this right is not recognized.

Given growing concerns about the school to prison pipeline and the criminalization of youth, this subject is increasingly relevant to public debate. Refusal to grant juvenile defendants a right to trial by jury as often been justified on grounds that “in theory, the juvenile court was to be helpful and rehabilitative rather than punitive.” But as scandals and abuses in juvenile detention centers are exposed, as judges exchange “cash for kids,” and as the school to prison pipeline criminalizes youth, this idealistic vision of the juvenile justice system is becoming less tenable.

As the public contemplates how to protect kids from an out of control juvenile justice system, they should look to the key role that juries can play as a check on government tyranny. Our research on juvenile justice and the right to trial by jury will hopefully illuminate this crucial issue.

Ultimately, the research we’re producing at the Jury Health Project will inform the public about the current state of the jury in America. Moreover, it will introduce crucial ideas about jury nullification and trial by jury as a check on government overreach into the national conversation about criminal justice, law, and civil liberties.

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History of Jury Nullification & Jury Nullification | 15 Jun 2015

-Know Your Roots, Know Your Jury Rights

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Magna Carta

Happy Magna Carta Day! Today marks the 800th anniversary of the sealing of the Magna Carta in 1215 at Runnymede. Now that I’m getting the hang of this after a couple of short broadcasts, I invite everyone to join us at 8 past the hour throughout the day for a series of short broadcasts on the Magna Carta and our jury rights today. You can join us on Periscope where we are FIJA_AJI or by clicking the link that is tweeted at the beginning of each broadcast on Twitter.

KnowYourRoots-KnowYourRights-LOGOFIJA’s theme this year for our celebration of the 800th anniversary of the Magna Carta is Know Your Roots, Know Your Rights. Today when we think of jury rights and jury nullification, we often think of things like drug and gun cases, raw milk, and things like that. Historically we tend to look to freedom of speech and religion cases such as that of John Peter Zenger and William Penn. But at its roots, jury rights were codified in the Magna Carta as part of a tax protest. Jury rights are, in fact, intricately tied up with property rights.

King John, the reigning monarch of the time, is widely said to be the worst king in all of English history. He lived what was seen as an indiscretely decadent and immoral lifestyle. He was arrogant and largely unconcerned with diplomacy. During much of his reign, he was entrenched in the business of fighting ill-conceived wars that were draining the royal coffers. As his predecessors had done, he ruled as if he were above the law, and in order to fund his failing misadventures in violence, he simply taxed the barons under his rule excessively and arbitrarily to the point that he was being described as an extortionist. He created new taxes and expanded existing ones. In addition, he piled on other forms of taxes such as fines and fees for privileges, making money in any way he could.

Sick of the abuse and waste of their wealth, a number of barons gathered their private armies together to persuade the wayward king to agree to some boundaries. Upon his return from a failed war in France, they met him in the meadow at Runnymede, where he had the choice to agree to a peace treaty, now known at the Magna Carta, or wind up in a war at home. Not intending to honor the agreement, King John affixed his seal to the document. 800 years later, parts of it still remain law in England.

While the Magna Carta was designed to protect mainly a select few—the wealthy barons with their own private armies who forced King John to agree to it—and, in some ways, further solidified oppression of others who were not its beneficiaries. We look to it not just for what it was, but for what it has become. It expressed ideas that have not only held up over the last 800 years, but were so good that they have been claimed by more and more oppressed people around the world as their right as well.

Throughout the day, we will be tracing the history of the Magna Carta through English history and then across the pond to colonial and then revolutionary America to track from where our jury rights today originate. Come check us out for a different topic every hour!.

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Jury Nullification | 12 Jun 2015

-Queer Liberation and Jury Nullification

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It’s June, and for the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community, that means it’s Pride month. All around the world throughout June, pride parades and pride festivals celebrate our identities, our lives, our culture, our progress in smashing stigmas, and our resistance to oppression.

That last part, resistance, is absolutely crucial. Pride is held in June in commemoration of the Stonewall Riots of 1969. After police raided the Stonewall Inn, a gay bar in New York’s Greenwich Village neighborhood, patrons fought back. At the time, homosexuality and gender non-conformity were overtly criminalized. Police inspected the genitals of bar patrons dressed in feminine attire, and arrested drag queens and cross dressers. The officers also frisked and groped lesbian patrons.

That night, the queer and trans people at the Stonewall Inn did not accept the coercion and abuse they faced from the police. They fought back. Their acts of defiant self-defense against unjust state violence that night sparked the modern gay liberation movement. Every pride festival and pride parade is a celebration of resistance to an unjust criminal justice system.

While queer and trans people are no longer explicitly criminalized under the letter of the law, they still face unjust state violence and criminalization. Officers profile transgender women of color as sex workers and frequently arrest them on charges of solicitation. Queer and trans people who defend themselves from hate crimes, such as CeCe McDonald and the New Jersey Four, are themselves charged with violent crimes and incarcerated. LGBTQ homeless youth find themselves arrested for “quality of life” crimes such as sleeping in public, panhandling, and a variety of other crimes that primarily exist to criminalize the poor.

Fence_of_Prison-BPOOnce they’re incarcerated, members of the LGBTQ community face outright brutality in prison. A 2007 study found that “[s]exual assault is 13 times more prevalent among transgender inmates, with 59 percent reporting being sexually assaulted.” This same study found that 67% of inmates who identified as LGBTQ reported being sexually assaulted while incarcerated, a rate 15 times more prevalent than that of the general inmate population. Transgender women are often incarcerated alongside male inmates and guards, who rape and abuse them. Supposedly to protect them from this violence, they can be sent to solitary confinement, which is widely recognized as a form of torture.

One tactic that can be used to impede this state violence against queer and trans people is jury nullification. Rather than merely evaluating the evidence to determine whether a defendant has violated a law, jurors can vote “not guilty” when they believe the law is unjust or unjustly applied. Jury nullification is exercising conscience rather than helping the state unjustly cage human beings.

Adrien Leavitt argues in Queering Jury Nullification that the LGBTQ community and our allies should use jury nullification “as a tool to subvert the criminal punishment system in order to fight against structural racism, protest the policing of deviant sexual and gender identities, and reduce the violence perpetrated against queer people by the criminal punishment system.” When queer homeless people are on trial for survival crimes, jurors can vote Not Guilty. When queer and trans people are charged with homicide for defending themselves from hate crimes, jurors can vote Not Guilty. When trans women of color are charged with solicitation, jurors can vote Not Guilty.

Most decisions in the criminal justice system are made by government employees such as police, judges, and prosecutors. They face perverse political incentives that push them to participate in state violence against the most marginalized people in our society. Jurors, on the other hand, are ordinary citizens. Their verdict does not determine whether they are reelected or whether they receive a promotion. The jury is where the people, the rabble, can disrupt the process of state violence.

It’s time for jurors to use their power to disrupt the criminalization of queer and trans people. At pride festivals throughout the world, we commemorate the Stonewall rioters for resisting such criminalization. As long as queer and trans people face criminalization, jurors should stand for queer liberation, with the spirit of Stonewall in their hearts.

FIJA and Outright Libertarians will co-host an online, educational discussion group centered around Adrian Leavitt’s paper Queering Jury Nullification on July 18. Click through for details. RSVP per the instructions on Facebook or by email to aji@fija.org.

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Jury Nullification | 12 Jun 2015

-Nathan Goodman to Serve as FIJA Fellow

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Nathan_GoodmanHello, FIJA supporters! My name is Nathan Goodman, and I will be joining the Fully Informed Jury Association this summer as a Fellow, conducting research for FIJA’s new Jury Health Project. I’ll be studying various issues related to the right to trial by jury as they vary across the federal, state, and Washington, DC court systems.

The long-term goal of the Jury Health Project is to evaluate the health of the jury system across the United States and produce a Jury Health Index ranking the courts by how well (or poorly) they’re upholding the right to trial by jury. However, this project encompasses many issues, so in the coming weeks and months we’ll be releasing papers and other educational materials on these specific issues, which will eventually culminate in the Jury Health Index.

I recently received my bachelor’s degree in mathematics from the University of Utah. In addition, I have written extensively for the Center for a Stateless Society (C4SS), where I am the Lysander Spooner Research Scholar in Abolitionist Studies. My writing and research at C4SS largely focuses on the criminal justice system. For the past year, I have also been involved with Students For Liberty (SFL), where I have written for the SFL blog and helped organize student events, including an event in Salt Lake City on courthouse outreach and juror education for last year’s Jury Rights Day as well as co-hosting a presentation with FIJA regarding the use of jury nullification to end the prison state in Utah. I’ve also been involved in various forms of civil liberties activism in Utah for years.

I look forward to bringing the analytical skills I developed in my formal studies, my passion for liberty, and my experience writing about the criminal justice system together in order to study and protect the right to trial by jury.

Last month, I met with FIJA executive director Kirsten Tynan and with attorney and FIJA Advisory Board member Dr. Roger Roots to prepare for my summer fellowship at FIJA. We did research at the University of Utah’s SJ Quinney Law Library in order to find sources on the various questions I’ll be investigating this summer. We also developed some concrete plans for getting a steady writing and research output going in relation to the Jury Health Project.

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Last week I attended the opening seminar of the Koch Fellow Program, a program of the Charles Koch Institute which is funding my work at FIJA this summer. The seminar largely consists of engaging lectures on philosophy, economics, American history, constitutional law, and public policy analysis, along with sessions for developing professional skills. The intellectual atmosphere at the seminar has been electric, with discussion sessions featuring lively debates among fellows from a diverse range of non-profit organizations.

Now that the opening seminar is concluding, I will start diving into my research and writing responsibilities for FIJA. There’s some exciting stuff in the works at FIJA, and I look forward to sharing that with all of you in the coming weeks. Stay tuned for updates in the weeks ahead!

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Function of Juries & Jurors Doing Justice & Jury Nullification | 10 Jun 2015

-Possible Jury Nullification in Las Vegas MMJ Case

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Late last month, a jury acquitted Steven Ficano on two felony charges, possession of marijuana and possession of marijuana with intent to sell. Ficano grows marijuana for medicinal use, and at the time of his arrest in 2012, he had both a medical marijuana license and a note from his doctor explaining the quantity of marijuana he was growing.

However, prosecutors argued that Ficano possessed more marijuana than he was legally authorized to possess for medical use. They further claimed that this meant he intended to sell some of that marijuana. The jury was unconvinced, and acquitted Ficano on both counts.

Jurors focused not just on the letter of the law and the facts of the case, but on their sympathy with Ficano’s illness. This suggests that jurors exercised their right to use their conscience to evaluate the justice of the charges rather than merely acting as finders of fact. In other words, they may have exercised the legal power of jury nullification.

As the Las Vegas Review-Journal reported:

Outside the courtroom, jurors said they focused on the doctor’s waiver, and said they didn’t think the document clearly defined how much pot Ficano could have at his home.

The waiver allowed him to possess 29 plants and 2 to 4 pounds of finished marijuana per three-month growing cycle. But Ficano said he only harvested marijuana once a year and assumed that he would be allowed to have up to 84 plants and 16 pounds of finished medicine.

Another juror, Donna Florence, said that after reaching the verdict she thought of her mother, who died of cancer about two years ago.

“If I could have gotten something for her that would have spared her that pain, I would have done anything,” she said. “And I think this guy was just in similar pain and trying to help himself.”

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Function of Juries & Jury Nullification | 04 Jun 2015

-Randy England On Jury Nullification When He Was A Prosecutor

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In last night’s episode of Freedom Feens, available for online listening here, Randy England spends some time discussing his experience with jury nullification from the prosecutor’s side of the courtroom. The jury nullification discussion comes up in the segment starting about an hour in, but there is extensive discussion of the recent Ross Ulbricht case before that, from which this topic develops.

One of these cases, England points out, led to a long-term change in the prosecutors’ office regarding what kind of cases the office chose to prosecute going forward. As a prosecutor, said England, “I didn’t care what the law said—you know, if something was against the law—if I thought that the community standards would not support it. I never filed a case that I didn’t think the community would convict on if I had to try it.” This power of prosecutor nullification is paralleled by jurors’ power of jury nullification, but prosecutor nullification is FAR more common than jury nullification.

Randy England is currently a criminal defense attorney and formerly also served as a prosecutor in Missouri. He has previously written on the subject of jury nullification:
Jury Nullification – The power to do what is right (Part 1)
Jury Nullification – The power to do what is right (Part 2)

Many thanks to Randy for creating more fully informed jurors!

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