Fully Informed Jury Association

Are you fully informed about jury nullification?

FIJA Calendar & Function of Juries & Jury Nullification | 05 Jun 2014

-FIJA to Educate about Jury Nullification at FREE HER Rally

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FIJA Logo with URLYesterday, Families for Justice as Healing issued the below press release on the upcoming FREE HER Rally to be held at the Sylvan Theater on the National Mall in Washington, D.C. from 10 am—2 pm on Saturday, 21 June 2014. People will be coming from across the United States to encourage President Obama to commute the sentences of those in the federal system who have applied under his recently announced clemency initiative. FIJA will be one of many organizations represented at the rally. We will be educating everyone about our OWN powers of pardon by conscientious acquittal via jury nullification when we have the opportunity to serve on a jury. If you would like to help distribute jury nullification information at this event, please contact us in the office at (406) 442-7800 or by email to aji@fija.org so that we can coordinate with you ahead of the event.

Families for Justice as Healing Rallies in Washington, D.C. to End Mass Incarceration

Boston, MA (PRWEB) June 04, 2014

Families for Justice as Healing is mobilizing concerned individuals and organizations from across the country to converge on the National Mall in Washington, D.C. in support of an end to mass incarceration. The FREE HER Rally will assemble at the Sylvan Theater on the National Mall, Independence Avenue & 15th, on Saturday, June 21, 2014 from 10:00 am-2:00 pm.

Women, families and supporters will come together from across the nation, uniting to speak with one voice, to raise awareness of the devastating impact of overly harsh drug sentencing policies and the direct impact on communities of mass incarceration and the war on drugs. The objectives of the rally are:
1. To raise awareness of the alarming increase in the rate of incarceration of women in the United States and its impact on our children and communities.
2. To demand an end to voter disenfranchisement for people with felony convictions and to encourage the passing of the Smarter Sentencing Act.
3. To ask President Obama to commute the sentences of women and men in the federal system who have applied for commutations.

“On April 23, 2014, the Justice Department announced President Obama’s intention to commute the sentences of eligible people serving federal non-violent sentences,” says Andrea James, founder and director of Families for Justice as Healing. “Now is more important than ever to stand together and join our voices as one to encourage the President to commute the sentences of women serving non-violent sentences. Allow them to return to their children and communities.”

Between 1980 and 2010, the number of women in prison increased by 646% overall, with a disproportionate impact on women of color. Black women are incarcerated at nearly 3 times the rate of white women, and Hispanic women are incarcerated at 1.6 times the rate of white women. Most incarcerated women are imprisoned for non-violent drug and property crimes, with many women charged and convicted of conspiracy and other related counts, even though they had minimal or no involvement in the offenses that led to their arrests.

Incarcerated women have unique health and safety issues, which prisons are often unprepared to address appropriately, according to Families for Justice as Healing. Women swept into the prison system disproportionately suffer from abuse and sexual violence. They are particularly vulnerable to being re-traumatized by strip searches, solitary confinement, and staff sexual misconduct. Prisons and jails also often fail to handle reproductive needs appropriately, providing inadequate prenatal and abortion care. Pregnant women are often subjected to dangerous, demeaning, and unnecessary shackling during labor and delivery.

Locally hosted by the D.C. Office of Returning Citizen Affairs, the rally will include organizations, speakers, and individual participants from around the country. Other participating organizations include Alpha Kappa Alpha, ACLU of Washington, D.C., Boston Feminists for Liberation, Free Marissa Alexander Movement, the Fully Informed Jury Association, Institute of the Black World, Mommie Activist, Mothers in Charge, Pittsburgh Northside Residents Coalition, and Women Who Never Give Up.

After the June rally, the FREE HER campaign will continue on, with participants calling, emailing and sending postcards to encourage the President and to raise awareness among everyday people of the need to end the war on drugs and mass incarceration of women.

About Families for Justice as Healing:
Families for Justice as Healing is a criminal justice reform, legislative advocacy organization. At Families for Justice as Healing, we organize formerly incarcerated women to join the movement toward creating community wellness alternatives to incarceration, to heal and rebuild families and communities. Our membership advocates a shift away from expansion of the prison system and toward creation of community wellness alternatives to incarceration. We seek public health alternatives to current U.S. drug policies and legislation that focus on criminalization, the war on drugs and mass incarceration.

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Function of Juries & Jury Nullification & Myths and Misconceptions | 02 Jun 2014

-Jury Myths and Misconceptions: Is It ‘Jury Tampering’ to Share Jury Nullification Literature?

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San Diego jury nullification outreachThis is part of a series of responses to myths, misconceptions, and misstatements about jury issues, including jury nullification and juror education outreach. There are no lawyers on FIJA’s staff or board of directors, and FIJA does not provide legal advice. These observations are provided for educational purposes and do not in any way constitute legal advice.

Q: Is it illegal to share jury nullification literature? For example, does it constitute “jury tampering”?
A: No, when juror education outreach is done properly, it is neither illegal, nor jury tampering.

Many people seem to be confused about the legality of the kind of outreach that FIJA activists and others around the country do to fully inform everyone of the traditional, legal role of jurors, including their right of jury nullification. Sometimes this is because people who have been handing out jury nullification literature have been arrested. Most recently, we have heard tell that there may be someone who is discouraging marijuana activists from discussing and publicizing this very powerful, protective tool at jurors’ disposal, saying that it is illegal or jury tampering to discuss it, or something along those lines. When many peaceful defendants’ last resort for a just verdict in their trials is jury nullification, it is very important not to let this kind of errant information discourage activists from fully informing our communities of jurors’ full authority in delivering just verdicts. Now seems a critical moment to shed some light on this topic so that activists feel confident in exercising their First Amendment rights in support of all of our Sixth Amendment rights.

First off, what is jury tampering? There are various legal prohibitions against jury tampering, so let’s just look at the federal level to get the general idea. 18 U.S.C. 1503 covers influencing jurors generally. It discusses threatening or actually injuring jurors in an attempt to influence the outcome of a specific case. 18 U.S.C. 1504 covers influencing jurors in writing. It covers attempting in writing to sway the decision of a juror in a particular case one way or the other. If you are purposely trying to sway a juror who is actively serving on a case to vote either Guilty or Not Guilty in a specific case for which they are a juror, you may be engaged in jury tampering.

FIJA outreach, however, is different. We do not advocate for or against a particular verdict in any case in progress, but rather we do general juror education outreach. Our brochures that we use for sidewalk outreach do not mention any case in progress, and our guidelines specifically advise against mixing case advocacy with general juror education efforts:

FIJA activists should make it clear that they are only passing out information of general interest to all citizens, and are not trying to influence any particular case. No case-specific literature should be distributed with FIJA literature to anyone who might be a prospective juror.

In the most recent case we’re aware of that involved general juror education outreach with FIJA literature being met with jury tampering charges, the case against the defendant was dismissed by the judge, who ruled that:

The Court’s holding merely maintains the existing balance that federal courts have found between freedom of speech and the administration of justice. Attempts to tamper with a jury in order to influence the outcome of a trial or a grand jury proceeding are still clearly prohibited under 18 U.S.C. § 1503 and 18 U.S.C. § 1504. Efforts to distribute leaflets to jurors in the immediate vicinity of courthouses may still be sanctioned through reasonable time, place, and manner restrictions such as those promulgated pursuant to 40 U.S.C. § 1315 and 41 C.F.R. § 102-74.415(c). The Court declines to stretch the interpretation of the existing statute prohibiting communications with a juror in order to cover speech that is not meant to influence the actions of a juror with regard to a point in dispute before that juror or the outcome of a specific case before that juror.
CONCLUSION
For the foregoing reasons, the Defendant’s motion to dismiss the Indictment is GRANTED. The Defendant’s other motions are now moot and are dismissed.

If there is a case of interest to you personally, we recommend that you do not just suddenly show up the day of the trial and disappear once it is over. Rather, consider establishing a presence at least two weeks prior to a particular jury trial, and continue at least a week after. This makes you a “part of the landscape” and keeps you from being associated with a specific case. (Better yet, establish an ongoing juror outreach effort in your area as activists have done in California, Florida, New Hampshire, and elsewhere.)

We also recommend the following to juror education activists doing outreach near courthouses:
1. Stick to the public sidewalk in front of the courthouse. You are more likely to have an unpleasant encounter with courthouse officials if you attempt to distribute literature inside the courthouse.

2. Offer literature to everyone without regard to who they are and do not try to single out jurors in any way. We do general educational outreach not only to avoid the mistaken impression that anything we do is jury tampering, but also because it is a more effective educational strategy. Most of the people you encounter could one day be called to serve as a juror. Even those who aren’t eligible may pass along our literature to others. We get calls in the office regularly from people who have been handed our literature by someone else, picked it up in an office waiting room where it was left by someone else, etc. Our mission is to fully inform everyone of the juror’s traditional, legal authority to refuse to enforce the law when it would be unjust to do so, and that is best served by casting a wide net.

3. Go the extra mile to be friendly and courteous, and to avoid being perceived as belligerent, profane, harassing or a nuisance.
Earlier this year, about five or six FIJA activists were canvassing the downtown Bellingham, Washington area, including the Whatcom County Courthouse, when some of us had an encounter with a courthouse official. He came out because apparently someone had reported our outreach, and indeed, had exaggerated it FAR out of proportion to what we were doing. The official was surprised to discover only two of our activists in front of a very large courthouse entrance. The others were spread out at the library, city hall, and the post office. He had been under the impression from what had been reported that there were hundreds of us blocking the sidewalk and entrance such that people couldn’t get through. Upon seeing the situation was not at all what had been represented to him, though, he simply had a friendly chat with our activists cautioning us not to block the way into or out of the courthouse and not to harass or badger anyone, which is precisely how we were already behaving.

Behaving in an assertive but still friendly and non-belligerent manner helped our activists get tacit acknowledgement from the courthouse staff that we had the right to be there and were not doing anything wrong. They let us continue our work with no further encounters since. This has helped us maintain our ability to return and continue our efforts at this location without being sidetracked from the mission of educating people about jurors’ rights by having to defend our First Amendment rights.

4. If asked by courthouse officials to leave, exercise peaceful forbearance and challenge the request through civil processes rather than getting arrested. This does not mean forfeiting your First Amendment rights, but rather acting strategically to preserve your ability as well as other activists’ willingness and ability to exercise them in the future. There are other and better means by which to challenge these requests than to get arrested. For example, with a little bit of communication with a courthouse, a peaceful but assertive FIJA activist was able to get this memo issued by the Fifth Judicial Circuit Court of Florida in Marion County specifically clarifying to all courthouse officials that it is our First Amendment right to hand out FIJA literature and that we are allowed to do so.

There are also civil legal processes that are much more advantageous and likely to succeed than being arrested, jailed, and dragged through the criminal court system for pushing back against these First Amendment encroachments. If you are asked to leave, as you magnanimously agree to temporarily suspend your efforts until the matter is sorted out, you may wish to gather pertinent information that will assist you in your efforts to assert your right to do juror education outreach. For example, you can ask some questions as you comply with the request, such as “I’m going to comply with your request, but isn’t it my First Amendment right to distribute this information?” Or you may say, “I’m going to leave, but I would first like to get your name and contact information so that I may call you as a witness if I decide to challenge this order. Do you have a business card?” You may also ask, “Where may I stand to distribute brochures?” If the person harassing you does not recommend another location, you may identify another location and ask “May I distribute literature in that location?” It puts you on a different footing if an official has specifically agreed that you may conduct outreach in a particular location.

When an individual gets arrested, no matter how well-meaning they were in their efforts, that is counterproductive to effective juror education outreach. On the rare occasions when a couple of people have gotten arrested, we have experienced fallout of that for years into the future with other activists feeling they do not want to risk doing sidewalk activism for fear of getting arrested. Often that damage cannot be repaired by explaining how following our guidelines make this a minimally risky activity. Furthermore, when uninformed members of the general public see people getting arrested for informing others about jury nullification, they often get a negative impression about jury nullification itself, thinking that it is somehow illegal or unethical or otherwise a concept that they do not want to learn more about or use when they have the opportunity.

5. Be meticulous in following the law and also administrative orders from judges in the courthouse. On the very rare occasions when someone gets cited or arrested in conjunction with their juror education outreach efforts, it is usually for something incidental going on rather than directly for juror education since most courthouse officials recognize that jury tampering charges are not valid for activism done according to FIJA guidelines, and if the case goes before a jury, the jury will be fully informed about their right to nullify because of the nature of the case and evidence (such as FIJA literature). So be sure you are not committing any offenses that make it easy for officials to harass you such as having unpaid parking tickets, jaywalking, committing driving violations, etc. This will minimize the options law enforcement officers have for bullying you.

We have seen a couple of activists arrested for allegedly violating orders in effect from a chief administrative judge in a courthouse. If you violate a judge’s order, you are not likely to be charged with jury tampering, which would probably be eligible for a jury trial, but rather with contempt of court with the judge who charged you also serving as your “jury” and sentencer. Your odds of prevailing under such circumstances are obviously very low and will likely necessitate an appeal. By the time that happens, you may have already served out your entire sentence. This legal theater is based on a script that judges and law enforcement are very expert at performing, and you are at a distinct disadvantage on this stage.

This is why we recommend pursuing a civil challenge to such orders rather than getting arrested and endangering yourself and jeopardizing the ability for anyone to do activism in that location for years to come. A civil challenge to a judge’s order can at the very least involve the order being reviewed by a second judge, rather than the criminal scenario where the judge adjudicates his own order. If a civil challenge to an illegal administrative order works, great! Problem solved. If the administrative challenge does not get the order removed and you really want to get arrested, you can still do that. But if you go the criminal route first, odds are good that a civil challenge by you or anyone else who appears to be associated with you will not be taken seriously by the court as it appears that a party to the challenge is acting in bad faith.

Conclusion
In summary, when done properly, informing others about jury nullification, even in close proximity to a courthouse, is generally not illegal and does not constitute jury tampering. FIJA activists have done this regularly nationwide, for many years, coming out en masse every 5 September to celebrate Jury Rights Day by distributing FIJA brochures on jury nullification at courthouses across the country. When following FIJA guidelines, the chances of being arrested or charged are vanishingly small. Our guidelines include extra precautions for safely dealing with courthouse officials who do not properly understand the bounds of their authority. FIJA does not want anyone getting arrested. We are happy to provide free training to minimize this very small risk and work with you to develop a local strategy tailored for juror education outreach in your community. You may contact us in the office at (406) 442-7800 or by email to aji@fija.org to discuss how we can set up a training and strategy session specifically tailored for your group. We are not a legal advocacy organization, we do not have lawyers on staff, and we do not defend or fund the defense of anyone who gets arrested.

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FIJA Calendar & Function of Juries & Jury Nullification | 02 Jun 2014

-The Power of Jury Nullification at the Global Freedom Summit

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Kirsten Tynan of the Fully Informed Jury Association will speak on
The Power of Jury Nullification: The Independent Juror’s Role in Limiting Government and Protecting Our Freedoms
at the online Global Freedom Summit
this Friday, 6 June 2014 at 9:00 pm Eastern/6:00 pm Pacific.
There is a small fee to attend this summit. We will be making the FIJA talk available online after the event for those who are unable to attend.

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Function of Juries & Jury Nullification | 30 May 2014

-Edward Snowden Has the Right to the Benefits of Trial by Jury. Period.

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Earlier this week, NSA whistleblower Edward Snowden sat for an extensive interview, filmed in Moscow, Russia, with NBC’s Brian Williams. Here is the first of six parts:

The full interview is available here.

Edward Snowden 2013-10-9 (1) (cropped)Depressingly, yesterday I encountered two different people in totally different contexts on social media who advocated that Snowden be murdered. Not tried, convicted and executed even, but outright murdered without even a trial. And both have said that they would do it themselves if given the opportunity. This disturbing turn of events makes me think now is good time to revisit the Sixth Amendment to the United States Constitution, which reads in full:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

“In all criminal prosecutions…”

ALL.

There is no exception for indefinite detention without charge or trial of those suspected (and even those who have been cleared) of terrorist activity such as has been the standard practice at Guantanamo for over a decade with no end in sight since the first prisoners arrived.

There is no exception for extrajudicial killing of so-called ‘kill list’ targets such as 16-year-old Abdulrahman al-Awlaki who was killed by drone stroke, never having been charged with a crime or his family ever having been told why he was targeted.

And there is no exception for people like Daniel Ellsberg, Chelsea Manning, and Edward Snowden.

Whether you view Snowden as a hero, a traitor, or something in between, he is Constitutionally guaranteed the exact same right to the benefits of trial by jury as every one of us in ALL criminal prosecutions.

So as Brian Williams asked him in the interview, why doesn’t he return to the United States to “face the music” and stand trial? Snowden explains:

It’s a fair question, you know, why doesn’t he face charges? But it’s also uninformed because what has been lain against me are not normal charges. They are extraordinary charges.

We’ve seen more charges under the Espionage Act in the last administration than we have in all other administrations in American history. The Espionage Act provides anyone accused of it of no chance to make a public defense. You are not allowed to argue based on all the evidence in your favor because that evidence may be classified, even if it’s exculpatory.

And so when people say, “Why don’t you go home and face the music?” I say, you have to understand that “the music” is not an open court and a fair trial.

Fellow whistleblower Daniel Ellsberg, who leaked the Pentagon Papers, echoes Snowden’s concern, explaining how the legal environment would be very different for Snowden today than the one Ellsberg faced decades ago:

As I know from my own case, even Snowden’s own testimony on the stand would be gagged by government objections and the (arguably unconstitutional) nature of his charges. That was my own experience in court, as the first American to be prosecuted under the Espionage Act – or any other statute – for giving information to the American people.

I had looked forward to offering a fuller account in my trial than I had given previously to any journalist – any Glenn Greenwald or Brian Williams of my time – as to the considerations that led me to copy and distribute thousands of pages of top-secret documents. I had saved many details until I could present them on the stand, under oath, just as a young John Kerry had delivered his strongest lines in sworn testimony.

But when I finally heard my lawyer ask the prearranged question in direct examination – Why did you copy the Pentagon Papers? – I was silenced before I could begin to answer. The government prosecutor objected – irrelevant – and the judge sustained. My lawyer, exasperated, said he “had never heard of a case where a defendant was not permitted to tell the jury why he did what he did.” The judge responded: well, you’re hearing one now.

Indeed, in recent years, the silencing effect of the Espionage Act has only become worse. The other NSA whistleblower prosecuted, Thomas Drake, was barred from uttering the words “whistleblowing” and “overclassification” in his trial. (Thankfully, the Justice Department’s case fell apart one day before it was to begin). In the recent case of the State Department contractor Stephen Kim, the presiding judge ruled the prosecution “need not show that the information he allegedly leaked could damage US national security or benefit a foreign power, even potentially.”

We saw this entire scenario play out last summer in the trial of Chelsea Manning. The military judge in that case did not let Manning or her lawyer argue her intent, the lack of damage to the US, overclassification of the cables or the benefits of the leaks … until she was already found guilty.

Without reform to the Espionage Act that lets a court hear a public interest defense – or a challenge to the appropriateness of government secrecy in each particular case – Snowden and future Snowdens can and will only be able to “make their case” from outside the United States.

As things stand now, if Snowden returned for trial he would not only be on the typical playing field of courtrooms today that are heavily tilted toward prosecution with judges frequently siding with prosecutors, jurors being screened to ensure that none are fully informed about their right to exercise jury nullification, and so on. He would further be subjected to the FAR HIGHER hurdles put in place by the Espionage Act, which shamelessly gut the Sixth Amendment protections our founders insisted upon to ensure fair trials.

And that assumes that he even made it to trial. For the last few years now, the government has made it possible to evade the court system completely by dealing with undesirables via extrajudicial processes such as the onerous provisions of the NDAA that say the president may use the military to detain and imprison indefinitely without charge or trial any person captured anywhere in the world, the president’s no longer entirely secret kill list to target and kill undesirables without charge or trial, and more.

It’s been said that the least we are willing to settle for is the most we are going to get. The bar has dropped extremely low these days for dealing with so-called criminals, without the government even having to show evidence or prove that a crime has been committed. Regardless of what any of us personally thinks about Snowden, we should all be concerned about how he is treated. If we don’t mind that the government flagrantly ignores his right to a fair trial by jury as guaranteed in the Bill of Rights, what is standing between us and that treatment should we fall out of favor with those in power?

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Function of Juries & Jurors Doing Justice & Jury Nullification | 28 May 2014

-Jury: Tertelgte Not Guilty of Resisting Arrest

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Jury BoxA jury acquitted a Bozeman, Montana man of a charge of resisting arrest after nearly several hours of deliberation. Apparently, the behavior for which he was charged with resisting arrest consisted of “holding his hands down by his side”.

Jury: Tertelgte not guilty of resisting arrest

The Courtroom saga for a Manhattan man originally charged with fishing without a license continued today.

Ernie Tertelgte represented himself against resisting arrest charges. A jury found Tertelgte not guilty of the charges earlier this evening.

Last week he pleaded no contest to the fishing charge.

An observer’s account of the trial can be read here.

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Function of Juries & Jury Nullification | 28 May 2014

-Mandatory Minimums Eviscerate Right to Trial by Jury

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LawBooksFIJA does not support or oppose any legislative proposal, political candidate, or political party. We present this information for educational purposes only.

Thanks to Families for Mandatory Minimums sharing this article, which details a Pennsylvania proposal by a current Pennsylvania legislator, who is also an ex-prosecutor, that would redistribute even more power from juries into the hands of the prosecutor’s office. Here are some of the highlights of the bill:

Pa. lawmaker pushes for mandatory minimum sentences for convicted felons caught with guns

The proposed legislation would expand the list of gun crimes eligible for mandatory minimum prison sentences, including establishing a five-year, mandatory, minimum penalty for the illegal possession of firearms by individuals prohibited from doing so because of prior convictions, as mandated by existing state law.

The second, and more contentious, aspect of the bill is that it would amend the sentencing code to classify illegal firearm possession, use, manufacture, control, sale or transfer by prohibited individuals (as defined in Title 18, Section 6105 of the Pennsylvania Crimes Code) as a crime of violence, putting it on the established list of approximately two dozen offenses that includes third-degree murder, voluntary manslaughter, aggravated assault, rape, sexual assault, burglary, robbery, incest, kidnapping, human trafficking, arson and more.

Therefore, conviction on an illegal firearms possession charge would trigger an automatic five-year minimum sentence. And, just as the Sentencing Code already dictates for other crimes of violence (Pennsylvania’s so-called “Three-Strikes Rule”), a second such conviction would result in a 10-year minimum sentence, and the third or subsequent conviction would mean a minimum of 25 years and, the law states, “the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole”.

Dr. Nazgol Ghandnoosh, a research analyst at D.C.-based The Sentencing Project, and Greg Newburn, a project director with Families Against Mandatory Minimums, explain the effects of mandatory minimum schemes on our Constitutionally-guaranteed right to trial by jury provided for in the Sixth Amendment:

Increased prosecutorial power is a concern to Ghandnoosh, who says Stephens’ proposed legislation further shifts discretion and power from judges to prosecutors, who then control the decision whether or not to charge individuals with crimes that carry mandatory minimum penalties and are thus enabled to “threaten people with really large sentences in order to negotiate deals with them” to win convictions without ever having to go to trial.

And that, Newburn insists, would eviscerate the Sixth Amendment. “We have a constitutionally guaranteed right to a fair trial and what these (mandatory minimums) are saying is, we’re going to stack the deck so heavily against the defendant ahead of time that they simply can’t opt for that fundamental right unless they want to risk 25 years in prison,” he says. “There’s something inherently wrong about that to me.”

Typically, judges and prosecutors hide from jurors the potential penalty on the table in the case they are hearing. Judges tell jurors that the penalty is of no concern to them and that they are merely to decide whether or not the law was violated. They can and will punish jurors who do their own research to learn about the potential penalty at stake, keeping jurors effectively in the dark about such information that is relevant to delivering a just verdict. They do not want jurors to know when an egregiously unjust punishment is on the table because they might opt to conscientiously acquit by jury nullification.

Because the courts often withhold pertinent information about sentencing, jurors often are left regretting their verdicts when they realize that the punishment is far more than they ever intended and far more than justice allows, such as in the cases of Richard Paey and Cecily McMillan. Defense attorneys and their clients are well aware of this standard practice that substantially tilts the playing field in favor of the prosecutor, and prosecutors are able to use this and their nullification power to drop charges at their own discretion to bully defendants into forfeiting their right to trial by jury and the protections that come with it.

We have previously talked about how prosecutors have amassed immense power to convict without pesky juries making it tough for them. It is important for jurors to understand as they deliberate over a case that convicting on a charge that common sense tells them should have a small or no penalty, such as victimless offenses of harmlessly possessing something in violation of the law, may actually trigger a dramatically unjust penalty due to mandatory minimums, three strikes schemes, and so on. Jurors will not be informed of this ahead of time by the court, and in fact, will be told that it is none of their business. If they are not aware before they go into the courtroom of these kinds of schemes, they will have difficulty in delivering a just verdict.

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Function of Juries & Jury Nullification | 27 May 2014

-Supreme Court Upholds Prohibition on Double Jeopardy

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LawBooksLast week the Fifth Circuit Court of Appeals overturned a Guilty verdict a judge had directed jurors to deliver. We have more good news today for the future of the jury and their power of jury nullification. This morning the United States Supreme Court reaffirmed in no uncertain terms in its ruling in Martinez v. Illinois one of the key elements in our legal system that are the foundation for jurors’ ability to conscientiously acquit through jury nullification: the prohibition against retrying a defendant for a crime of which he has been acquitted, also known as “double jeopardy”.

In this case, the state of Illinois charged Esteban Martinez with aggravated battery and mob action against two individuals. Martinez’ trial date was delayed for more than four years due to repeated continuances, many of which were requested by the prosecution who were still attempting to track down their witnesses. When the trial had been pending for two months shy of half a decade and the state still had not located the witnesses it needed to make its case, the judge finally turned down further requests from the state for continuances. The court took several steps to delay the trial so the witnesses could be found, including delaying the swearing of jurors until the entire jury had been empaneled, rearranging its schedule to put other cases first to delay the swearing of jurors further, offering to delay the trial for a few more hours if that would help, and giving the state the option of either moving to dismiss its case or having the jury sworn. When the appointed time for the trial arrived, the state was still unprepared to make its case. Rather than moving to dismiss its case, the state had the following conversation with the judge:

“THE COURT: . . . . It’s a quarter to eleven and [Binion and Scott] have not appeared on their own will, so I’m going to bring the jury in now then to swear them.
“[The Prosecutor]: Okay. Your Honor, may I ap­proach briefly?
“THE COURT: Yes.
“[The Prosecutor]: Your Honor, just so your Honor is aware, I know that it’s the process to bring them in and swear them in; however, the State will not be par­ticipating in the trial. I wanted to let you know that.
“THE COURT: Very well. We’ll see how that works.”

The jury was then sworn, the state was directed to present its opening statement, and the prosecutor proceeded to declare repeatedly in response to such directions that the state was not participating in the case. At that point, the defense moved for directed verdicts of Not Guilty on both counts, which the judge granted. The state appealed this ruling on the basis that it believed that yet another continuance would have been appropriate. The defense opposed this appeal on the grounds that to retry Martinez at this point would constitute a violation of the prohibition on double jeopardy. Both the Illinois Appeals Court and the Illinois Supreme Court sided with the state, claiming in spite of very clear precedent otherwise, that the defendant had never been in jeopardy, even though his jury had been empaneled and sworn.

The Supreme Court ruled today that:

The trial of Esteban Martinez was set to begin on May 17, 2010. His counsel was ready; the State was not. When the court swore in the jury and invited the State to pre­ sent its first witness, the State declined to present any evidence. So Martinez moved for a directed not-guilty verdict, and the court granted it. The State appealed, arguing that the trial court should have granted its motion for a continuance. The question is whether the Double Jeopardy Clause bars the State’s attempt to appeal in the hope of subjecting Martinez to a new trial.

The Illinois Supreme Court manifestly erred in allowing the State’s appeal, on the theory that jeopardy never attached because Martinez “was never at risk of convic­ tion.” 2013 IL 113475, ¶39, 990 N. E. 2d 215, 224. Our cases have repeatedly stated the bright-line rule that “jeopardy attaches when the jury is empaneled and sworn.” Crist v. Bretz, 437 U. S. 28, 35 (1978); see infra, at 6. There is simply no doubt that Martinez was subjected to jeopardy. And because the trial court found the State’s evidence insufficient to sustain a conviction, there is equally no doubt that Martinez may not be retried.

We therefore grant Martinez’s petition for certiorari and reverse the judgment of the Illinois Supreme Court.

The prosecutor erred dramatically in this case, and the state was essentially trying to get a free “do over” by ignoring the protections built into our system to prevent defendants from having vast chunks of their lives held hostage at the mercy of a state that can neither prove its case nor is willing to leave them alone. The U.S. Supreme Court ruled that “the State knew, or should have known, that an acquittal forever bars the retrial of the defendant when it occurs after jeopardy has attached. The Illinois Supreme Court’s holding is understandable, given the significant conse­ quence of the State’s mistake, but it runs directly counter to our precedents and to the protection conferred by the Double Jeopardy Clause.”

If your lifespan is 75 years and the government ties you up with a legal situation such as this for 5 years, that is more than 6% of your life you will live in a legal limbo with a tainted reputation, with the psychological stress of a looming court case and the possibility of conviction and incarceration, the mental and emotional toll it is taking not just on you but also your loved ones, the financially draining need to keep paying expensive lawyers for years, and the inability to really plan for the future, not knowing if everything you are working toward will be snatched away from you at some point down the road. Even without having been convicted, you are being severely punished as the legal process drags on and on with no end in sight. This can be a powerful tool wielded by the prosecution to bully defendants into accepting a plea deal.

This case was ultimately never heard or decided by the jury. However, the jury had been both empaneled and sworn in, at which time our legal system clearly provides that jeopardy has attached to the case. The prohibition against double jeopardy has been chipped away over the years from its original intent. Prosecutors are already able to sidle around this prohibition by retrying a case lost in state or federal court in the other court system and other shenanigans. The more it is whittled away, the less juries have the opportunity to bring unjust prosecutions to a grinding halt with their Not Guilty verdicts. This ruling upholding the prohibition against double jeopardy, even though it wasn’t specifically in a case decided by a jury, helps shore up this key element that has been severely eroded in many ways.

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Function of Juries & Jury Nullification & Myths and Misconceptions | 27 May 2014

-Jury Myths and Misconceptions: Once Deliberations Begin, Can a Juror Be Removed?

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Jury BoxThis is the first in a recurring series of responses to myths, misconceptions, and misstatements about jury issues, including jury nullification. There are no lawyers on FIJA’s staff or board of directors, and FIJA does not provide legal advice. These observations are provided for educational purposes and do not in any way constitute legal advice.

Q: Once deliberations begin, can a juror be removed?
A: Yes, jurors can be removed as late as during deliberations for certain reasons.
Judging from a recent thread on the crowd-sourced Yahoo! Answers website, it is a common misconception that once deliberations begin, the jury is set. This is simply not true. Jurors CAN be removed from the jury and replaced—even as late as during deliberations—for various reasons. For this reason, judges will often also provide that two or three alternate jurors be selected during voir dire along with the initial jury, to be substituted in as regular jurors if one or more of the original jurors are removed.

For example, if a juror becomes ill and cannot continue, the judge may substitute an alternate juror in to take that person’s place. If it comes to light that a juror has been tainted, such as by having an interested party talking to him or her before court convenes for the day, the judge may decide (often after interviewing the juror to find out how this transpired, what was discussed, and what effect it has on the case) to replace him or her with an alternate. In some cases, deliberations can go forward even without alternates, with a jury smaller than twelve delivering the verdict.

And, yes, a juror may be removed if the judge learns that he or she is intending to exercise jury nullification. Consider the 1997 ruling in United States v. Thomas:

We consider below whether a juror’s intent to convict or acquit regardless of the evidence constitutes a basis for the juror’s removal during the course of deliberations under Rule 23(b).   We also consider what constitutes sufficient evidence of that intent in light of the limitations on a presiding judge’s authority to investigate allegations of nullification required by the need to safeguard the secrecy of jury deliberations.   We conclude, inter alia, that-as an obvious violation of a juror’s oath and duty-a refusal to apply the law as set forth by the court constitutes grounds for dismissal under Rule 23(b).   We also conclude that the importance of safeguarding the secrecy of the jury deliberation room, coupled with the need to protect against the dismissal of a juror based on his doubts about the guilt of a criminal defendant, require that a juror be dismissed for a refusal to apply the law as instructed only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution’s case.

In the original trial, several defendants were charged with various counts of actual possession and distribution and conspiracy to possess and distribute illegal substances. During voir dire, the prosecution attempted to use a peremptory challenge to strike the last remaining potential black juror in a case where all of the defendants were black. The defense raised a Batson challenge– an objection based on the 1986 case of Batson v. Kentucky that the prosecution was not permitted to use a peremptory challenge to strike the juror based solely on race. In response to this challenge, the prosecution cited the juror’s failure to make eye contact with the prosecutor as the reason for the peremptory challenge, but the judge ruled that this was insufficient reason to dismiss. The juror, also known as Juror No. 5, was seated.

In the course of the trial, six of his fellow jurors complained about things he did during court such as squeaking his shoe on the floor, crinkling candy wrappers, etc. as being distracting to them during the trial. After interviewing all of the jurors, including the allegedly distracting juror, the court concluded that the disturbances reported would not interfere with the jurors’ ability to deliberate. After initially considering removing the allegedly distracting juror, the court ultimately retained him and the original jury began deliberations together.

From the ruling:

Although the district court did not specifically inquire into any juror’s position on the merits of the case, at least five of the jurors indicated that Juror No. 5 was unyieldingly in favor of acquittal for all of the defendants. The accounts differed, however, regarding the basis for Juror No. 5’s position. On the one hand, one juror described Juror No. 5 as favoring acquittal because the defendants were his “people,” another suggested that it was because Juror No. 5 thought the defendants were good people, two others stated that Juror No. 5 simply believed that drug dealing is commonplace, and another two jurors indicated that Juror No. 5 favored acquittal because he thought that the defendants had engaged in the alleged criminal activity out of economic necessity. On the other hand, several jurors recounted Juror No. 5 couching his position in terms of the evidence-one juror indicated specifically that Juror No. 5 was discussing the evidence, and four recalled him saying that the evidence, including the testimony of the prosecution’s witnesses, was insufficient or unreliable. As for Juror No. 5, he said nothing in his interview with the court to suggest that he was not making a good faith effort to apply the law as instructed to the facts of the case. On the contrary, he informed the court that he needed “substantive evidence” establishing guilt “beyond a reasonable doubt” in order to convict.

After interviewing the jurors, the judge met in chambers with counsel for the parties. He had the record of the interviews read aloud and permitted counsel to comment on the appropriate course of action. The Government argued that the jurors’ responses indicated that there was “almost a jury nullification issue pattern with [Juror No. 5],” and urged the court to order the juror’s dismissal, while defense counsel unanimously opposed his removal. Having heard argument from counsel, the judge rendered his decision to remove Juror No. 5.

The case went forward with only eleven jurors, and they found the defendants Guilty on most of the counts leveled against them. In this appeal, the defense argued that the judge erred in removing the one juror who was standing between the defendants and that Guilty verdict. The Second Circuit Court of Appeals concluded that while jury nullification is an acceptable reason for a judge to dismiss a juror, that is only the case if “the record leaves no doubt that the juror… was not simply unpersuaded by the Government’s case against the defendants.” It further found that “The court in the instant case thus erred by dismissing Juror No. 5, and permitting the jury of eleven to continue its deliberations, based largely on Juror No. 5’s alleged refusal to follow the court’s instructions on the law, where the record evidence raises the possibility that the juror was attempting to follow the law as instructed, but that he simply remained unpersuaded of the defendants’ guilt.” The convictions were overturned as a result, and the court ordered new trials for the defendants.

Even as late as deliberations, if you as a juror indicate that you will be exercising jury nullification, you can be removed from the jury. This is not an offense that you can be legally punished for, but if you are removed from the jury, the defendant will likely not have another person willing to insist on justice for him or her when a just verdict requires setting aside the law. Imagine how you would feel if you were the defendant in this position and your one fully informed juror was removed to facilitate an easy conviction that would devastate your life and those of others in your family and community as a result. But you, as a juror, cannot be removed for expressing doubt about the government’s case so consider that when you are deliberating with your fellow jurors. This is important to keep in mind when you are deliberating with your fellow jurors, some of whom may be emotionally invested in a Guilty verdict, even to the point of reporting you to the judge to try and get rid of you as an obstacle on the path to conviction.

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Function of Juries & History of Jury Nullification & Jurors Doing Justice & Jury Nullification | 20 May 2014

-Anniversary of Jury Nullification in Camden 28 Trial

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What do you do when a child’s on fire? We saw children on fire.
What, what do you do when a child’s on fire in a war that was a mistake?
What do you do? Like write a letter?

With these words from Father Michael Doyle, the award-winning documentary film by Anthony Giacchino entitled The Camden 28 begins to tell the extraordinary story of a group of peace activists working to end the Vietnam War. In the early hours of 22 August 1971, this group of 28 including students, blue collar workers, clergy, and others, most of them would put into motion their direct action against the war. Several of them broke into a draft board office in Camden, New Jersey, and set about their work of destroying and removing draft records while others monitored the situation and advised from outside the buidling. Their goal was to shut the office down. With just a few minutes left before they planned to leave, they were accosted by FBI agents who had lain in wait, watching them work without interfering until they were given the order to intervene.

Since 1967, members of the Catholic Left had become more and more of a thorn in the government’s side, carrying out dozens of direct actions and destroying hundreds of thousands of Selective Service documents in the process. Just a few months prior to the Camden action, eight activists had successfully broken into an FBI office in the town of Media, Pennsylvania, emptying the office of nearly all its documents, which they proceeded to leak selectively to journalists, thereby exposing a massive program by the FBI against American citizens. David Kairys, one of the attorneys assisting in the defense of the Camden 28, explains in Slate the significance of this action:

The FBI files they publicly released documented what many then knew or suspected but couldn’t prove: Hoover’s FBI was secretly intervening in the political process and undermining free speech, privacy, and democracy. The agency used threats, intimidation, infiltrators and informers, phony letters, violence, break-ins, and widespread wiretaps, bugs and surveillance—aimed at law-abiding Americans who were simply exercising their free speech rights. The goal, in the words of the FBI, was to “disrupt,” “neutralize,” and “enhance paranoia” in the mostly left-leaning movements Hoover detested—civil rights, anti-war, and women’s liberation.

Still stinging from this dramatically successful challenge to its power and secrecy, the U.S. government was eager to make a public example of the Camden 28, whose action they in fact helped bring to fruition. But the Camden 28 refused to bow meekly to the government and go quietly away. Instead they chose to take their case before a jury, each defendant facing seven charges and risking up to 47 years incarceration plus fines. From the P.O.V. discussion guide for the film:

All 28 defendants were initially offered a deal, under which they could each plead guilty to a minor offense and receive a dismissal, probation or a suspended sentence rather than jail time, but they refused the deal. On the second day, the U.S. government, the plaintiff in the case, asked that the cases of eight defendants be severed from the remaining 20, in order that the case against “the defendants more significantly involved” move more quickly. These eight and an additional three defendants were severed from the trial before it began, to be tried at a later date.

Here is the trailer from the excellent documentary, The Camden 28:

On 5 February 1973, the trial would finally begin with a conference on motions followed by a lengthy jury selection process. Opening statements would take place over two days, 13-14 February, with each of the defendants openly acknowledging their actions before the jury. From the beginning, jury nullification was seen as the primary defense. These excerpts from defendant Edward McGowan’s opening statement comes from his book Peace Warriors: The Story of the Camden 28:

If I were to see a house in flames with a family on the second floor in immediate need of help, no one would accuse me of breaking and entering if I broke down the front door to bring them to safety. Or if I destroyed a slave ship, or chains of bondage, or concentration camps, or hunting licenses when the hunt involved human beings. Draft cards in the instance of this war, I submit, are hunting licenses to kill.

It began for me in a classroom in Rochester and culminates in a courtroom here in Camden. Three of those high school boys are dead. Four in VA hospitals for life. One in a mental ward. Two were founders of Vietnam Veterans against the War in Rochester. Many others were conscientious objectors. (You should know that from May 1970 to May 1971, 103,000 kids filed for conscientious objector status.) It’s been seven and a half years of turmoil and pain. But some of the best moments of our lives.

I wish to repeat what David said yesterday, ‘I envy you. You can realize your best moments now by acquitting us, and thus liberate yourselves.’ For you must know that the war is not over either in fact or in policy. We have circled mainland Asia in Laos, Cambodia, Thailand, and the Pacific. We have continued the bombing in Laos and Cambodia. We are still militarily present in Southeast Asia. And in policy we haven’t learned at all.

For approximately two months, the Camden 28 would themselves make their case before their jury with assistance from three lawyers. This unorthodox trial would include testimony from Howard Zinn, who describes his role in the trial in this video footage from a Camden 28 reunion, made available by Anthony Giacchino:

Remembering Howard Zinn from Anthony Giacchino on Vimeo.

The remarkable trial would wrap up with closing statements, spanning four days, again with each of the defendants as well as the lawyers making statements to the jury. Here is Camden 28 peace activist Father Michael Doyle reading from his closing statement from the trial:

63 days after the trial began and nearly two years after their direct action the fate of the Camden 28 would be settled by their jury. On 20 May 1973, concluding an historic trial, the jury who had listened and deliberated over the case for two months declared each and every one of the defendants Not Guilty on every count against them. This jury exercised its right of jury nullification to vacate more than 100 charges en masse in this single trial.

Subsequent to this abject defeat in court, the government dropped charges against the other defendants who had been severed from this trial. Supreme Court Justice William Brennan would refer to the Camden 28 as “one of the great trials of the 20th century.” Just months after the close of the trial, the U.S. would end its military involvement in Vietnam.

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Function of Juries & Jury Nullification | 19 May 2014

-Texas Man Faces Life in Prison for Baking Brownies

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marijuana jury nullification thumbnailIn their ever tougher job of putting peaceful people behind bars for victimless offenses, prosecutors are now relying on artificially inflating the severity of marijuana offenses by fictionally magnifying the amount of the substance allegedly involved in the offense. Consider the case of Jacob Lavoro, whose prosecution was bumped from misdemeanor level to felony level—putting him at risk for a level of punishment for a victimless alleged offense on par with what many murderers serve.

Teen faces life in prison for pot brownies

A Texas man is facing up to life in prison for his baking habit. Joe Lavoro said, “It’s outrageous. It’s crazy. I don’t understand it.”

Lavoro says he can’t understand why his son is in so much legal trouble. Authorities say 19-year-old Jacob Lavoro is accused of making and selling pot brownies.

Seriously? Life in prison? How is that possible? Read on for the fiction that will allow the state to prosecute a victimless, pot-related crime on the same level as a murder:

The charge is so severe because the recipe Jacob used includes hash oil, which allows the state to use the sugar, cocoa, butter and other ingredients to determine the weight of the drugs.

Holmes said, “They’ve weighed baked goods in this case. It ought to be a misdemeanor.”

In effect, he is being prosecuted mostly based on the weight of perfectly legal ingredients regularly consumed by five-year-olds in the form of tasty after school treats. The only difference between a perfectly legal snack and one that can land a person in prison is the oil used in Lavoro’s recipe; however, he’s not being prosecuted based only on the weight of the illegal substance, but for the most part based on the weight of perfectly legal substances.

This is reminiscent of the case of Dennis and Deborah Little, recently acquitted of charges of possession of marijuana for sale and of cultivation of marijuana. Terrie Best of San Diego Americans for Safe Access explained how, in spite of the vast majority of the so-called evidence not actually existing, the prosecution was allowed to artificially inflate the severity of the alleged offense:

After the DEA removed the Littles’ cannabis garden and confiscated all of their medicine, they proceeded to weigh the evidence and destroy almost all of it at an undisclosed location. The Littles were then charged with possession for sale and cultivation of cannabis. At the preliminary hearing, Deputy Matt Stevens stated that, in total, he seized more than 640 pounds. The Littles have never had the opportunity to test the DEA’s incredible assertions by analyzing and testing the evidence themselves to demonstrate that, in fact, they were cultivating an amount reasonably necessary for their medical needs.

A sanction was put in place by the trial judge in the case, Richard Munroy. Because of the DEA’s destruction of plant evidence his honor restricted the prosecution from perpetrating the fallacy of the unsubstantiated weight of 640 pounds. The prosecution will face a “fashioned remedy” and be limited to testimony of 118 pounds, a fictitious amount to level the playing field in the face of the DEA fallacy.

What we are looking at here is outright lying being openly permitted in courts for the sake of helping prosecutors secure convictions and lengthy sentences. Tactics like this are commonly used in carrot-and-stick fashion by government to bully its victims out of their Constitutionally-guaranteed rights. The carrot in such situations may be reduced charges or recommendation for a lesser punishment if the defendant agrees to forego his right to trial by jury as the vast majority of defendants in criminal courts do these days. The stick is that prosecutors and judges have virtually no limit on the amount of punishment they can subject their victim to if he is convicted. Such punishment is not doled out primarily for the offense committed, but rather to teach the victim a lesson and serve as an example for future defendants of what will happen if they assert their Sixth Amendment right to trial by jury.

As jurors, we should be very skeptical of the information we are spoon fed in a court of law. We should keep in mind that the courtroom is not a level playing field in which justice is sought by all involved, but rather a game with the rules twisted in favor of conviction and incarceration. When a defendant appears before a jury, in many cases it has taken a great deal of courage to get to that point after all of the bullying and intimidation to which the government has subjected him. It is not only our right, but our duty to defend with our Not Guilty votes those who have harmed nobody against the harm the government would inflict on them without just cause to do so.

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Function of Juries & Jury Nullification | 19 May 2014

-Right to Trial by Jury Is Undermined by Incarceration During Appeal

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Fence_of_Prison-BPOThis morning Judge Ronald Zweibel sentenced Cecily McMillan, convicted of assaulting a police officer when she instinctively defended herself against her breast being grabbed, to 3 months incarceration.

Occupy Wall Street Protester Cecily McMillan Sentenced To Three Months In Jail

A New York City judge sentenced Occupy Wall Street protester Cecily McMillan on Monday to three months in jail and five years of probation for elbowing a police officer while he was clearing out a protest in Zuccotti Park.

Judge Ronald Zweibel’s decision comes at the end of a trial that sparked widespread anger among Occupy supporters for the circumstances under which McMillan was convicted of second-degree assault. They said McMillan, a graduate student who’s now 25 years old, was simply reacting to an unknown hand grabbing her breast while visiting a March 2012 protest. Officer Grantley Bovell, not McMillan, they said, should have been on trial.

McMillan’s defense attorney, Martin Stolar, has already indicated that he will appeal McMillan’s conviction.

Thankfully, this is much shorter than the maximum seven years incarceration that she faced, but it is much more than her remorseful jurors expected or intended. Nine of her twelve jurors sent a letter to the judge requesting on her behalf that she serve NO jail time whatsoever. It is not clear yet if the sentence will be put on hold until her appeal can be heard. However, since she has been imprisoned at Riker’s Island for the past couple of weeks while awaiting sentencing without any bail opportunity, it seems quite possible, perhaps even likely, that she will serve the entire incarceration element of her sentence before her appeal can even be heard.

Recall that this was precisely what happened to Rich Paul, convicted of five victimless drug-related charges. Paul was lured into deals and charged apparently in an attempt by the FBI to strong arm him into spying for them on a local political group in exchange for dropping the charges. He made clear his intention to appeal and had raised sufficient funds to go forward with it in June 2013, yet he was still incarcerated and served many months in jail before being released. His appeal will be heard by the New Hampshire Supreme Court on 18 June 2014, but even a win at this level will not undo the psychological and physical harm he has suffered, the damage to his relationships that has been done, nor will it give back the months of his life that have been stolen from him.

He was aware at the time that he would have served his entire incarceration before the appeal could go forward, but he has chosen to go forward to try and set a precedent against undermining of New Hampshire’s jury nullification law (passed in 2012 to make sure defendants could fully inform their jurors of their right to conscientiously acquit) by way of incorrect jury instructions. In Paul’s case, the judge apparently explicitly told the jury in his instructions to them that they “must” follow the law as he explained it to them, thereby explicitly misinforming them against their right to nullify.

Marissa Alexander, sentenced to a mandatory minimum of 20 years in prison for defensively firing a single warning shot that harmed nobody as she tried to escape an escalating situation with her abusive ex-husband who she says threatened to kill her, is in an even harsher situation. After just twelve minutes of deliberation, her jury convicted her of three counts of aggravated assault with a deadly weapon for her single, defensive shot that harmed nobody. The conviction was thrown out due in part to an egregiously unjust false instruction to the jury that relieved the prosecution of its burden to prove beyond a reasonable doubt that Alexander was NOT acting in self defense and placing it on the defendant to prove that she WAS acting in self defense. Even though she was in the process of appealing, Alexander was not released from jail until just before Thanksgiving, after spending many months incarcerated and separated from her young children.

When a conviction is overturned on appeal, the case may be reheard by a jury who may then outright acquit the defendant or fail to convict due to a lack of a consensus among its members. However, if the defendant is incarcerated during the appeal process, he or she can be punished very harshly at the discretion of a judge alone, often an ex-prosecutor, not only in cases where the defendant is not convicted again, but even if the defendant is later declared Not Guilty by a jury. To punish someone who is not proven guilty beyond a reasonable doubt is not only a gross and irreparable miscarriage of justice, it fundamentally undermines what is supposed to be our Constitutionally-guaranteed right to trial by jury.

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Function of Juries & Jury Nullification | 17 May 2014

-Fifth Circuit Re-Affirms Jury Nullification

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Jury BoxThanks to Eapen Thampy of Americans for Forfeiture Reform for this piece of good news out of the Fifth Circuit Court of Appeals earlier this month. Without mentioning it by name, the Fifth Circuit has in effect re-affirmed jurors’ right to judge the law as well as the facts of the case and to exercise jury nullification when they deem it appropriate by delivering a Not Guilty verdict even in the face of overwhelming evidence that the defendant has broken the law.

United State of America v. Juan Agudin Salazar (.pdf)

Juan Salazar was charged with multiple drug and gun violations. At trial, the government presented overwhelming evidence of guilt; against the advice of counsel, Salazar decided to testify and confessed to all of the crimes charged. At the trial’s conclusion, believing no factual issue remained for the jury, the district court instructed the jury “to go back and find the Defendant guilty.” Because the Sixth Amendment safeguards even an obviously guilty defendant’s right to have a jury decide guilt or innocence, we vacate the conviction and remand.

Click through (.pdf) to read the entire opinion.

Judges have absolutely no business directing jurors to deliver a Guilty verdict, and they know this very well. Competence to serve credibly in this legal role is questionable with respect to any judge who is unclear on this fundamental concept.

The opinion also calls into question the credibility of the prosecution, who apparently argued that a confession in court is a de facto change of plea from Not Guilty to Guilty, which then allows a directed verdict of Guilty:

In Griffin, the defendant pleaded not guilty of assaulting his wife. During trial, “after [his wife] testified to the assault . . . , [Griffin] informed the court that he wished to plead guilty.” Griffin, 255 S.W.2d at 774. The state, however, did not waive its right to have a jury trial. Id. In light of the fact that the defendant wanted to plead guilty, “the court informed [the parties] that the jury would be instructed to return a verdict of guilty. Neither party objected to the procedure or the charge, and the court so instructed the jury.” Id. at 774–75. Because the defendant wanted to plead guilty, the appellate court considered any problem to be invited error. Id. at 775.

As Walker and Griffin instruct, if a defendant wished to change his plea during trial to a guilty plea and thereby waive his right to a jury, we might invoke the doctrine of invited error. Nothing in this record, however, suggests that Salazar wished to change his plea or consented to the directed verdict.

Contrary to the government’s suggestion, Salazar’s confession did not deprive him of his right to have a jury determine his guilt. The Sixth Amendment permits a jury to disregard a defendant’s confession and still find him not guilty. This conclusion does not depend on when the confession occurs—on the stand or pre-trial—or how much the defendant confesses—to one element or to every crime. A defendant’s confession merely amounts to more, albeit compelling, evidence against him. But no amount of compelling evidence can override the right to have a jury determine his guilt.

It is true that a defendant may waive his right to a jury trial by pleading guilty. And he can, at least in theory, waive this right in the midst of trial. We have never held, however, that he changes his plea from not guilty to guilty just by confessing on the stand; certainly none of the cases cited by the government hints as much. And nothing in this record suggests that Salazar, at any point, wished to change his plea to guilty; the court did not ask him, following his confession, whether he wished to do so.

A judge may direct a verdict of Not Guilty if he finds, after all the government’s evidence or after all the evidence has been presented, that there is insufficient basis on which to convict. He or she may also set aside a Guilty verdict delivered by a jury in favor of acquittal. But a jury may not legally be directed to return a Guilty verdict against a defendant who is pleading Not Guilty.

Our legal system was never intended to be a level playing field. In fact, it was purposely designed to err on the side of acquittal based on the long-standing principle articulated by the English jurist William Blackstone in 1765 that, “It is better that ten guilty persons escape than that one innocent suffer.” This principle has even deeper roots, being invoked in various forms in the Salem witch trials in the 1690s, by Sir John Fortescue (Chief Justice of the King’s Bench of England) in the 1400s, by the 12th century legal scholar Maimonides, and in the book of Genesis in the Bible. For this reason, the prosecution is meant to bear a much heavier burden of proof in any criminal case, with the defense bearing no burden at all to prove innocence.

In short, defendants are to be presumed innocent until proven guilty, and the task of deciding whether such proof has been made is within the purview of the jury and not the judge. We are pleased that in its ruling in U.S. v. Salazar, the Fifth Circuit has defended the role of the jury against incursion from the bench and has in effect re-affirmed the right of jury nullification, in which jurors may conscientiously deliver a Not Guilty verdict even in the face of overwhelming evidence that the law has technically been broken.

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Function of Juries & Jury Nullification | 16 May 2014

-3 Examples of Jurors Regretting Guilty Verdicts

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Jury BoxIn the last couple of weeks we have seen jurors express shock about relevant information withheld from them and regret over their verdicts in the cases of Cecily McMillan and Troy Ellis. Often such regrets result from pertinent information being withheld from the jury, or from a frustrated member of the jury compromising or throwing up their hands altogether in frustration that they could not convince those who disagreed also to vote Not Guilty.

Here are three more cases in which jurors seriously regretted the injustices they unwittingly contributed to through their Guilty votes. They illustrate some of the tricks in the legal system that are used to tilt the playing field in favor of prosecution. If you server on a jury, keep in mind that the filtered view of things that you see may not be the full story.

1. Richard Paey, severely disabled pain patient, convicted of drug trafficking
After an automobile accident and a subsequent botched surgery left him in constant, extreme, debilitating pain, Richard Paey, like many chronic pain patients, had difficulty legally obtaining the necessary amount of pain medication to allow him to lead a decent life. Because of the hostile prosecutorial environment associated with prescribing high doses, many physicians are loathe to prescribe the high levels of medication that patients like Paey need. Tipped off by a pharmacist about the volume of medication Paey, a paraplegic suffering with multiple sclerosis, was seeking, the Pasco County Sheriff’s Office arrested him. Even though the prosecutor openly admits that he had no evidence that Paey ever sold or gave away a single pill to any other person, he was charged with and convicted of drug trafficking, triggering a mandatory minimum 25-year prison sentence.

Prison doctors supplied Paey with painkillers deemed necessary for his own pain management in excess of what he was accused of having for so-called trafficking purposes. Not only was he imprisoned, but he was further isolated in solitary confinement for more than 30 days. Paey was finally given a full pardon by then Florida governor Charlie Crist in September of 2007, after serving nearly four years in prison.

According to the St. Petersburg Times,

…the one juror who thought Paey was not guilty voted for conviction, a decision he now regrets.

“It’s my fault,” said juror Dwayne Hillis, a 42-year-old landscaper from Hudson. “Basically I should have stuck it out.”

Other jurors also had qualms about the situation, coming to their verdict after being misled about the punishment at stake:

Against the judge’s instructions, the jurors discussed the possibility of a 25-year sentence for Paey, Hillis said. Many were uneasy with the punishment. But the jury foreman said Paey would get probation, Hillis added.

The jurors didn’t know the judge had no choice.

But in the jury room on March 4, the verdict came down to a compromise. Deliberations had lasted close to 10 p.m. and everyone wanted to go home, Hillis said.

With assurances from the foreman that Paey would do no time in prison, Hillis compromised.

“I said ‘Guilty. Put it on the (verdict). I hope you all can live with yourselves,'” Hillis recalled. “I just hate myself for what I did.”

 

2. Vernon Hershberger, farmer, convicted of breaking a hold order on perishable goods
Wisconsin dairy farmer Vernon Hershberger was charged with four completely victimless misdemeanors related to distribution of raw milk to those who voluntarily sought it out by joining a private buying club that he runs to provide them with the kind of milk they want. Three of the misdemeanors were alleged licensing violations for operating retail, dairy, and processing facilities without licenses. The fourth was for violating a hold order that resulted from the three alleged licensing violations.

In a curious turn of events, jurors acquitted Hershberger of all three charges related to licensing violations, yet they somehow managed to convict him of the one charge that would only make sense if he were found guilty of the other three. Reports from the trial indicated that the judge kept a very tight rein on what the jury was permitted to hear, with the jury being escorted out of the courtroom more than once.

After the trial, jurors learned that they convicted Hershberger due to pertinent information purposely being redacted from the hold order they were allowed to see:

Hershberger was charged with four counts: three counts of not having appropriate licenses, and one count of violating a holding order. The jurors voted to acquit Hershberger of the licensing charges, but since Hershberger admitted during the trial to violating the holding order (which was issued to prevent him from distributing, or even moving, his products) they convicted him on the count. What they didn’t know was that the reason for issuing the holding order was because of Hershberger’s failure to have retail and dairy permits the DATCP said were required — the very charges they acquitted him of.

The members of the Hershberger jury were only allowed by the judge to see a redacted version of the hold order issued to Hershberger during a search of his farm and store by state agriculture and public health authorities on June 2, 2010; blotted out were the causes for the hold order.

If they had been able to see the whole document, some members of the jury believe they would have acquitted on all four counts.

Juror Michelle Bollfrass-Hoppe and two other jurors were so troubled by their verdicts that they wrote letters to the judge afterward requesting leniency for Hershberger. Bollfrass-Hoppe’s letter read in part:

“In my opinion, our jury instructions required us to find Mr. Hershberger guilty of violating a food holding order because we were directed to determine whether a holding order had been issued and whether it had been violated—two events that Mr. Hershberger admitted to during his testimony. I believe that our three not guilty verdicts support the fact that the Wisconsin Department of Agriculture, Trade and Consumer Protection should never have issued a food holding order to Mr. Hershberger.”

In addition to the evidence having been purposely tampered with by the judge, jurors’ willingness to compromise also led to their regretted verdict:

As most juries do, the jurors of the Hershberger trial compromised. [Jury foreman] Freitag wanted to acquit on all counts; Robb Porubsky, a plant manager at a metal fabric company, was holding out for conviction on a charge that would penalize Hershberger for not having a retail license. Eventually Porubsky was persuaded to abandon his position for conviction on the retail license charge (“Hershberger was in a gray area,” Porubsky decided) in exchange for Freitag giving up his lone vote for acquittal on the hold order. Everyone was at peace, until they got home and began reading in articles about the reasons the hold order had been issued to Hershberger.

Jurors were so upset by having been misled into their Guilty verdict that four jurors and also an alternate all attended Hershberger’s sentencing hearing in his support. Several have also spoken publicly in their community of their anger at how the trial had been rigged.

 

3. Branch Davidian survivors of the siege at Waco, convicted of voluntary manslaughter and weapons violations
In the spring of 1993, and in the wake of several damaging reports about the agency in the news, federal agents from the Bureau of Alcohol, Tobacco, and Firearms (BATF) apparently staged a publicity stunt under the guise of law enforcement. Rather than simply serving an arrest warrant for their leader, David Koresh, peacefully on one of his many regular outings away from the property, they attacked the Mount Carmel Center, home of a group known as the Branch Davidians living in Waco, Texas. The ATF’s attempt to raid the center quickly turned deadly, kicking off a 51-day standoff that would end when the FBI finally launched a deadly assault on the center. 76 Branch Davidians would perish, include 23 children, some shot to death, others killed by falling debris as the structures collapsed, and others suffocated or were burned to death in the massive fire.

Eleven of the Branch Davidian survivors would be tried in court on various charges, with most of them being convicted on charges from voluntary manslaughter to weapons violations. In a stunning defeat for the government, all eleven were acquitted of the most serious charges of murder and conspiracy to commit murder, and three were acquitted of all charges against them. Convicted defendants who did not cooperate with the government were sentenced anywhere from 5 years in prison for the lightest sentence to 40 years in prison for those sentenced most harshly.

After the trial, jury forewoman Sarah Bain spoke publicly against the conviction of Ruth Riddle, which she said was a mistake, and against the harsh sentences the other defendants received, saying that the jury never intended such harsh punishments for them. She wrote in a scathing letter to the U.S. Senate Judiciary committee, in which she spent significant time discussing the crimes of federal law enforcement agents who were never tried or disciplined:

…there are right now five Branch Davidians who in Junes of this year were sentenced to 40 years in prison plus fines and restitution, and three others who were sentenced to 20, 15, and 5 years in prison plus fines and restitution. The jury never believed there was a conspiracy on the part of these defendants to murder federal agents. Yet most of them were sentenced for the crime of “using or carrying a firearm” as part of “a conspiracy”. That is in direct opposition to the jury’s intention. And to compound all the other injustices, Judge Walter Smith, who presided over the trial and passed the sentences, determined that the firearms that were used during this non-existent conspiracy were illegal, “enhanced weapons”. The jury was never asked to determine anything about “enhanced weapons”: not whether they existed before the raid and not whether any of the defendants used or carried such weapons. Yet on this one charge, sentences of 30 years were handed down.

Since the trial, I have been told about many other disturbing matters that should have been presented to the jury. Not only do these matters deserve detailed investigation independent of the BATF’s Treasury Department and the FBI’s Justice Department; but why these matters were concealed from a jury who took an oath to base the verdicts only on the testimony heard in court is a paramount matter.

I implore you not only to seek answers to the many questions raised, but also to provide redress as warranted.

 

We sometimes get calls in the FIJA office from people who regret their Guilty verdicts and want to know what they can do to rectify it. Such mistakes bother jurors years, even decades, after they participated in an injustice against someone in judgment of whom they sat. Legally speaking, they have very little influence anymore once they’ve delivered a Guilty verdict. As McMillan’s jurors are doing, they are essentially reduced to pleading for mercy on the defendant’s behalf, and judges are free to ignore them at that point. All jurors should be aware of the gamesmanship that goes on the legal system, designed not to ensure justice but to encourage convictions. It is our job as jurors to be skeptical of conclusions to which we are led by prosecutors and judges with a vested interest in Guilty verdicts, and to stand as a bulwark against their abuses, including by conscientiously acquitting through the use of jury nullification when required for a just verdict.

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Function of Juries & Jury Nullification | 12 May 2014

-Judge ‘Edits’ Case Heard by Jury

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Fence_of_Prison-BPOThere has been much outcry over the conviction and imprisonment of Occupy activist Cecily McMillan, including a letter from 9 out of 12 of her jurors themselves begging the judge not to include any incarceration in her sentence. Given that he currently has her locked up at Rikers Island before she has even been sentenced, it seems doubtful that this judge will show mercy on that score.

There are many angry comments across the internet blaming jurors for convicting McMillan. And when a juror changes his or her Not Guilty vote to Guilty just because he or she was the lone holdout instead of out of a good faith believe that Guilty would be a just verdict, criticism is certainly legitimate. However, in the initial vote, it seems as though the majority of jurors sincerely believed a Guilty verdict was in order, and that probably has more to do with the gaming of the legal system that goes on out of the view of the jury than with the competence of the jurors themselves. In this article, Kathryn Funkhauser relates numerous legal tactics used during the trial to tilt the playing field toward conviction.

Editors Don’t Belong in Courtrooms, and Cecily McMillan Doesn’t Belong in Prison

Throughout the case, the prosecutor set out to distract the jury from the question at hand by discussing undocumented events, treating witnesses’ opinions as fact and casting aspersions on McMillan’s character. Judge Zweibel gave them free rein to do so, while consistently ruling key testimony and evidence for the defense inadmissible. This pattern was most clearly demonstrated in the court’s treatment of evidentiary video footage. Several videos posted to YouTube show the crowd at Zuccotti Park from different angles on the night in question. However, the jury saw only a sliver of blurry footage. According to the defense, out of a ten-minute video of the events before and after McMillan’s elbow struck Bovell’s face, only fifty-two seconds was admitted. Zweibel’s justification? At the beginning of this fifty-two-second section is the first frame in which Bovell says he can definitively identify himself.

It’s particularly convenient for Bovell that none of the contextual footage was shown. Another piece of his testimony was directly contradicted by the melee shown at the beginning of the video, in which another officer shoves a protester and announces through a bullhorn, “Leave the park or you will be arrested.” Bovell testified that there was an announcement that the park was being temporarily cleared for routine cleaning, at which point the belligerent protesters suddenly began to cause trouble for the polite police force. The violence with which the police are shown to interact with unresistant protesters in the full video is key to understanding the events of that night. But the judge ruled this footage inadmissible because Bovell’s memory, which proved extremely selective under cross-examination, conveniently didn’t coincide with it. One of the jurors anonymously told The Guardian that it was this fifty-two-second clip, taken out of context, that led the jury to its guilty verdict.

Another short clip was only allowed without sound—this one shows McMillan convulsing on the ground after her arrest. In that audio, jurors would have heard voices in the crowd shout at the police officers to help McMillan, which provides important context to the officers’ motionless observation of her body. If McMillan were faking distress, as the prosecution alleged, it certainly fooled many of those present. Had audio been admitted, the prosecution would have been free to argue that the crowd’s assessment was incorrect, but when the audio of the footage was ruled to be prejudicial, the ruling seemed calculated to bolster the prosecution’s narrative. The police officer’s casual reactions were there for the jury to note, but not the reactions of the civilians. Zweibel, through his selective admittance of clips, looked increasingly like an editor of those YouTube parodies of movie trailers in which The Shining is edited to look like a family comedy, or Mary Poppins is recut as a horror film. The prosecution became the director dictating a vision for the story, and Zweibel acted as the editor, selecting footage to tell the tale.

Click through for the full account of the courtroom shenanigans.

Jurors should keep in mind that they are often not told all of the relevant details they need to deliver a just verdict. What they are hearing may be a cut-and-paste mishmash of information cherry picked to put a particular spin on the situation rather than to tell the whole truth. Because judges are often ex-prosecutors themselves, and because judges and prosecutors both depend on packed legal system to make a living, more often than not the playing field in the courtroom is tilted in favor of conviction.

The purpose of a jury is not simply to rubber stamp the conclusion to which they are led by the nose through the selective editing of the information to which they are given access. Rather, each juror should independently evaluate not only the information presented, but be also be alert for any signs that pertinent information is being withheld such as redactions in documented evidence, edited videos, and so on. It is important for jurors to be skeptical of the legal process these days and take into consideration the whole picture when deliberating over a verdict.

 

 

 

 

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Function of Juries & Jury Nullification | 12 May 2014

-The Compartmentalization of Injustice

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Jury BoxThis is a follow-up to a post some weeks ago in which we shared with you the thoughts of a grand juror on the psychology that leads so many people toward injustice. Here are some more of her observations.

The Compartmentalization of Injustice

When I was on grand jury duty we were told again and again that we were not to think about the consequences. When people asked what the possible punishment could be – because they clearly did not think the person should go to prison – the prosecutors would refuse to answer. When people had questions about the legality of searches, the prosecutors would tell us that the defense attorney would worry about that. When people asked questions about the flimsy evidence, the prosecutors told them that those matters would get settled at trial – knowing full well the case would never go to trial.

I tried to muster up some sympathy for the other jurors. I reminded myself that they had not spent the last decade learning about the torture in our prisons. But try as I might I could not find it in me to let go of the rage. It isn’t just that I was in a room full of people who remained willfully ignorant about a system that affects tens of thousands of their neighbors in this city. It was that there has never been a time in my entire life when someone would have told me not to think about what might happen at the end of the line and I would have just saluted and gone along.

What kind of person does that?

On my better days I tried to focus on just how hard the system works to keep us compartmentalized. Without compartmentalization, the whole system would fail. As obedient as the people in that grand jury room were, had they had the opportunity to determine the actual consequences, I believe many of them would have refused to send people to prison. And I say that knowing that they were almost completely unaware of what happens in those places.

What is it about the legal system that leads normally decent people to aid and abet crimes against their neighbors under color of law? Beyond the desire to be cooperative that this grand juror identified in the post we shared with you earlier, she also identifies the isolation of each task in the legal system as one of its features that helps blind people to the injustices to which they are accessories. It is important that when we serve as jurors, whether on grand or petit juries, we take into consideration the full picture before rendering our decision on any matter before us. We have the duty to consider an accurate and full story before we take any steps that aid in punishing another person.

 

 

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