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Function of Juries & Jury Nullification | 16 May 2014

-3 Examples of Jurors Regretting Guilty Verdicts


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.


Function of Juries & Jury Nullification | 12 May 2014

-Judge ‘Edits’ Case Heard by Jury


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


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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Function of Juries & Jury Nullification | 09 May 2014

-Jurors Beg Judge Not To Send OWS Protester To Prison


Fence_of_Prison-BPOThanks to Dawn Peterson-Smith and Steve Silverman for these articles on the Cecily McMillan conviction we reported on earlier this week. Upon returning to the real world after being relatively isolated during the four-week trial, several jurors expressed their shock over the possibility that the person they just convicted could go to jail for as much as seven years. One of them seemed to indicate that he or she was a lone, holdout juror who caved to peer pressure and changed a Not Guilty vote to Guilty, not based on a conscientious belief that it was a just verdict, but out of a sense of futility and frustration.

Cecily McMillan jurors tell judge Occupy activist should not go to jail

A majority of the jurors who this week convicted an Occupy Wall Street activist of assaulting a New York police officer have asked the judge in her case to not send her to prison.

Cecily McMillan was on Monday found guilty of deliberately elbowing officer Grantley Bovell in the face, as he led her out of a protest in March 2012. She was convicted of second-degree assault, a felony, and faces up to seven years in prison. She was denied bail and is being detained at Riker’s Island jail.

However, nine of the 12 jurors who unanimously reached the verdict have since taken the unusual step of writing to Judge Ronald Zweibel to request that he not give her a prison sentence on 19 May.

Click here to read the letter to the judge.

Unfortunately, the prospects for human decency do not seem promising from a judge who currently has McMillan locked up even though she has not yet been sentenced and has made clear she plans to appeal.

Jurors Beg Judge Not To Send OWS Protester To Prison

Judge Ronald Zweibel has not shown sympathy for McMillan; he sent her to Rikers without bail after the verdict (and denied her appeal), denied a request to unseal evidence that may have cast more doubts on Officer Bovell’s credibility, imposed a gag order on McMillan’s attorneys, and on more than one occasion acted angrily towards her supporters in the courtroom.

Why is it that a judge in this case can, even before sentencing, begin meting out punishment to the defendant FAR IN EXCESS of what her jurors believe is just? In “The Case for Jury Sentencing”, Morris B. Hoffman discusses the very strange state of the modern American jury’s role in sentencing:

One of the paradoxes of the American criminal justice system is that it reposes almost unassailable confidence in jurors’ ability to reach just verdicts on guilt or innocence, but almost no confidence in their ability to impose just sentences. When Bad Bart is tried and convicted of a noncapital crime, in all federal courts, and in almost all state courts, his jury will have no role in his sentencing.1 The jury’s re- sponsibility will begin and end with the guilt phase, and the trial judge will decide how Bart must pay for his crime, usually within limits set by legislatures or sentencing commissions, but with no input from the jury that convicted him.

Yet when Bart is sued in tort in the same courthouse for the same criminal act, his civil jury will decide both the guilt phase—that is, whether Bart acted negligently or intentionally—and the damages phase—that is, how much Bart should have to pay for his actions.Few can imagine a civil system, or a Seventh Amendment, in which the jury’s role would be limited to deciding liability and the trial judge would assess damages. Yet few can imagine anything but that same artificial division of labor when it comes to noncapital criminal cases.

To further deepen the paradox, if Bart commits a murder and faces the death penalty, suddenly, the jurors trusted to award civil damages but not to impose noncapital sentences are the only ones trusted to decide life or death. Apparently, jurors are necessary and trustworthy only at the two ends of the “importance” continuum—in civil cases where only money is at stake and in capital cases where a life is at stake. They are somehow unnecessary or untrustworthy in the vast middle, where only judges are trusted to impose prison sen- tences that can run from one day to a lifetime.

This was not always the case. Hoffman points out that ancient and classical Greek jurors and many English jurors throughout the Middle Ages and into the seventeenth century participated not only in determining guilt or innocence, but also in determining sentences. Jury sentencing found its way into American legal systems as well. By the nineteenth century, says Hoffman, “sentencing schemes with no input from the jury were the American exception, not the rule.”

As the rehabilitative model overtook the punitive model, he says, the attitude became more prevalent that sentencing was not a matter for mere jurors:

The idea behind rehabilitation was that the primary purpose of the criminal law was not to punish or to deter, but rather to cure criminals of their antisocial tendencies. Once this quasi-medical model became dominant, the idea that mere jurors could decide how long a criminal “patient” needed to be “hospitalized” was absurd. Only qualified, trained judicial professionals could hope to have any insight into such treatment.

By 1960, 13 states still had jury sentencing in non-capital cases. That number has since dwindled down to just a handful. Yet what does our criminal legal system look like today? It is a far cry from this so-called rehabilitative ideal, with malicious prosecutions and vindictive sentences all too common.

In jailing McMillan before she is even sentenced, let alone before she has been afforded the opportunity to appeal, what is Judge Zweibel telling us about this case? Is he in such a rush to rehabilitate McMillan for the poor dear’s own good, and that of the community that he doesn’t want to put it off one day lest she fall further into her supposedly criminal ways wreaking criminal havoc across the city? Or is he rushing to make sure she is punished as harshly as possible before another jury, perhaps with more conscientious jurors, has the opportunity to to overturn a grossly unjust sentence?

McMillan will never get back any one of the days of freedom that she is losing between now and any possible appeal. In fact, she could serve an entire sentence before the legal process gets to her appeal even if a subsequent jury acquits her, thus completely undermining that jury’s verdict. It would serve only as a symbolic vindication and not as a protective barrier between her and abuse at the hands of government. And in that time, she faces the horrors of prison, including the potential for psychological abuse, physical assault, rape, and even death in our violent and almost entirely unchecked prison system.

Jurors may not directly participate in sentencing, but they do hold great sway over it through their verdicts. A Guilty verdict gives a judge wide latitude, often far beyond common sense and justice, in punishing the person convicted. But by delivering Not Guilty verdicts, jurors have the protective power to close the door to any further punishment.


Function of Juries & Jury Nullification | 08 May 2014

-Norm Pattis: One Trial Is Enough


Jury BoxIn criminal cases where a jury unanimously finds the defendant is Not Guilty, the process is over with the government having no right to appeal the acquittal. But when juries are split, it is a different matter. Whether the Not Guilty vote is maintained by a lone, holdout juror, or whether the majority voted for acquittal with only a few jurors in favor of conviction, a non-unanimous verdict results in a hung jury, affording the prosecution who failed to prove its case a complete, legal do over. This can occur more than once if another hung jury results. Connecticut-based trial criminal defense and civil rights attorney Norm Pattis argues that one trial should be enough when the prosecution fails to prove its case.

Norm Pattis: One trial ought to be enough for any man

Four propositions are central in a federal criminal trial.

First, a defendant is presumed innocent. Jurors are told that the presumption of innocence alone is sufficient to win an acquittal.

Next, the government bears the entire burden of proof. A defendant need prove nothing at all.

Third, the government must prove its case beyond a reasonable doubt, the law’s highest standard. The standard is so high that if jurors can conceive of a reasonable explanation of events consistent with innocence, they are required to render a verdict of not guilty.

Finally, all 12 jurors must agree in order to reach a verdict — the unanimity requirement.

I understand these propositions. What I don’t understand is why the courts fail to take them seriously.

Brittany Paz and I tried the client’s case in Hartford. The case went to the jury on a Friday afternoon. At the close of the court day on Monday, jurors sent out a note. They were unable to agree on any of the counts the government charged. In other words, the government had failed to meet its burden of proof.
That should have ended the case right there, but it did not.

I don’t know what the division was among members of the jury. Assume it was 11-1 in favor of conviction. In such a case, the government has failed to meet its burden of proof, at least in the eyes of one juror. If unanimity is required, and the defendant truly does not need to prove a thing, why not dismiss?

Click through to read this entire article, arguing against prosecutorial do overs—let alone unlimited ones—when the government fails to prove its case beyond a reasonable doubt.

Pattis explains that there is no official limit to the number of times defendants can be run through the legal wringer, citing a case in which the prosecution failed to secure a conviction THREE TIMES before it finally abandoned its harassment of the defendant. In this way, government can severely punish not just defendants, but their loved ones and supporters as well, even though they have never been proven guilty of any offense. They can be subjected for YEARS to being financially drained, very publicly dragged through the mud, and emotionally battered by the uncertainty of their legal status as they are hauled through the legal process over and over at taxpayer expense. This shows a blatant disregard for fundamental principles of justice, Pattis argues.


Function of Juries & Jury Nullification | 07 May 2014

-Acquittal Now Protects Against Asset Forfeiture in Minnesota


LawBooksJust days ago, we brought you news of the case of Brainerd, Minnesota resident Adam Bush, unanimously acquitted of burglary charges. In spite of this unanimous judgment by the jury, the judge in the case ruled that the state would still keep his property that had been seized. That may have been one of the last such rulings in Minnesota, whose governor just yesterday signed into law a measure supported by the ACLU of Minnesota and the Institute for Justice curtailing the abusive practice of asset forfeiture.

Minnesota police can no longer keep seized property after an acquittal

Minnesota police can no longer keep property and cash seized in drug cases when there is no criminal conviction under a bill signed into law Tuesday by Gov. Mark Dayton.

Previously, police or sheriffs could keep property, vehicles and cash seized in drug cases or drive-by shootings — regardless of the outcome of the criminal case. If a suspect was found not guilty, they could still lose their property in civil court unless they were able to prove it was not involved in a crime.

The new law, set to take effect Aug. 1, requires prosecutors to return the property if there is no criminal conviction associated with the seizure.

This measure leaves open the door for asset forfeiture in other cases—not only those involving outright criminal convictions, but also other situations such as stays of adjudication and diversion programs. Nonetheless, it is a big improvement at least that if one is declared Not Guilty by a jury of one’s peers, a judge may not unilaterally overrule that with respect to and the police may no longer profit off of one’s property stolen under color of law by the state.

This includes not only cases where defendants are found Not Guilty because all of the jurors believed the prosecution had not proven a violation of the law beyond a reasonable doubt, but also in cases where defendants are conscientiously acquitted by jury nullification. Significantly, many cases that are subject to asset forfeiture, such as non-violent drug-related offenses regarding possession, use, or sale of illegal substances are the sorts of cases where jurors are more likely to consider exercising jury nullification.


Function of Juries & Jury Nullification | 07 May 2014

-Occupy Trial Jurors Express Shock and Remorse Over Verdict


Jury BoxThe four-week trial of Occupy activist Cecily McMillan wrapped up this week, with the jury delivering a verdict of Guilty on a charge of felony assault on a police officer. According to supporters and the defendant, Cecily was herself attacked by the police officer and reacted instinctively to protect herself from a sexual assault: “Seized from behind, she was forcefully grabbed by the breast and ripped backwards. Cecily startled and her arm involuntarily flew backward into the temple of her attacker, who promptly flung her to the ground, where others repeatedly kicked and beat her into a string of seizures.” Nonetheless, she was the one to be put in legal jeopardy as a result of this encounter while the police officer, accused of brutality in other incidents the day of the arrest and other occasions, was charged with nothing.

After the trial, jurors were quickly escorted away from the courthouse in a police vehicle, but reporters did apparently catch up to them to get their reactions. Having been isolated from any outside information throughout the trial, some of the jurors were shocked to discover upon re-establishing contact with the real world that they had just put this woman in jeopardy of seven years in prison.

Occupy trial juror describes shock at activist’s potential prison sentence

As Cecily McMillan was led to a cell in handcuffs amid uproar from her supporters, the 12 jurors who had just convicted the Occupy Wall Street activist of assaulting a New York police officer were whisked away in a police van. On the two-mile trip north through Manhattan to Union Square, where they were deposited well away from Monday’s courtroom commotion, some pulled out mobile phones and began searching online for news on the trial they had just spent a month of their lives considering.

Finally freed from a ban on researching the case, including potential punishments, some were shocked to learn that they had just consigned the 25-year-old to a sentence of up to seven years in prison, one told the Guardian. “They felt bad,” said the juror, who did not wish to be named. “Most just wanted her to do probation, maybe some community service. But now what I’m hearing is seven years in jail? That’s ludicrous. Even a year in jail is ridiculous.”

Worse still, it seems as though this conviction was made possible by at least one juror who seems to have changed a Not Guilty verdict to Guilty, not because he or she was convinced beyond a reasonable doubt that McMillan was guilty, but rather because everyone else voted the other way:

The juror said that an immediate vote after the 12 were sent out for deliberation found they were split 9-3 in favour of convicting. After everyone watched the clip again in the jury room, the juror said, two of the three hold-outs switched to the majority, leaving only the juror who approached the Guardian in favour of acquitting the 25-year-old. Sensing “a losing battle”, the juror agreed to join them in a unanimous verdict. “I’m very remorseful about it,” the juror said a few hours later, having learned of McMillan’s potential punishment.

The verdict of a jury is not meant to be a compromise among 12 people coming to a consensus. Rather, it is intended to reflect each individual’s conscientious verdict, with any votes not in favor of conviction overruling all of the other votes. When a juror changes his or her vote simply to satisfy other jurors, he or she is denying the defendant the fair trial by jury that is due.

There is NO requirement that a jury must come to a unanimous decision. A HUNG JURY IS OKAY! And a hung jury is MUCH better for a defendant who doesn’t deserve punishment than knuckling under to peer pressure in the deliberation and a culture of authority and obedience in the courtroom. Your purpose as an independent juror is to uphold justice—not simply to cooperate for other jurors’ convenience or mindlessly deliver the verdict to which the government leads you. Your VOTE as a juror is your VETO over unjust laws, malicious prosecutions, overly harsh punishments, and other abuses perpetrated under color of law through the legal system.

If you believe the defendant is Not Guilty, or if you believe a Not Guilty verdict is necessary to justice even if the law has technically been broken, you have not only the right, but the responsibility to stick to your vote, even if others disagree with you. Incarceration is not a matter to be tossed around lightly, as if it were as legitimate a point to compromise on as toppings on a pizza. Any time you aid the government in imprisoning someone, no matter how minor the offense is, you have effectively put the death penalty on the table. Whether your Not Guilty vote comes from a believe the defendant has not been proven Guilty beyond a reasonable doubt, or through a conscientious belief that jury nullification is necessary to deliver a just verdict, you may be the one person standing between the defendant and irreparable harm to their reputation, their relationships, their education, their livelihood, their liberty, their physical safety, and perhaps even their entire life itself.


Function of Juries & Jury Nullification | 06 May 2014

-Jury Trials are Necessary even in Misdemeanor Cases


Jury BoxWe recently brought you news of the Arizona Appeals Court ruling that many misdemeanor charges are jury trial-worthy. That’s some good news, but it is nowhere near the level of protection that we are supposedly guaranteed under the Sixth Amendment to the United States Constitution:

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…


Yet across the country it is very common for people to be denied this Constitutionally-guaranteed right to trial by jury for misdemeanors that put them at risk of fewer than six months incarceration. One of the excuses given for blatantly violating this very clear guarantee in the Bill of Rights is that we can’t be wasting tax dollars on these supposedly “minor” crimes that are no big deal. But this recent article in Time magazine urges us to rethink that.

A Misdemeanor Conviction Is Not a Big Deal, Right? Think Again

Christian Watts made a bad decision in 2002, and he has been paying for it ever since. As a 31-year-old, Watts was working for a Las Vegas limousine service when he connected a friend with someone who had a supply of the illegal party drug MDMA, or ecstasy. Federal investigators who were tracking another drug dealer got wind of the deal, and charged him with felony possession. At the advice of his lawyers, he pleaded the conviction down to a misdemeanor, and served no jail time.

But he says he still feels imprisoned by his conviction. “It’s like a have a black mark on me that disqualifies me in the forum of public opinion,” says Watts, now 40, working as a dog walker and Crossfit trainer in Las Vegas, after spending the past decade earning an associates, bachelors and working toward his Master’s degree. “My life is stuck in a standstill.”

Click through for the entire article.

One of the major impacts of a criminal conviction of any kind—even a so-called “minor” conviction of a misdemeanor—is that it severely hampers an individual’s employment prospects. Especially in a bad economy with a large pool of job seekers, a misdemeanor conviction can be an easy way for employers to quickly winnow down a pile of applications. Those who are unable to find gainful employment to support themselves and their families have no choice but to find other ways to survive, such as depending on tax-funded social programs when not permitted to be productive members of the community, or perhaps to commit more criminal offenses to stay afloat, entangling them further in the legal system. Even very minor offenses have landed people in prison for life without parole, thanks to mandatory minimum sentencing, three strikes rules, and the like.

Some people argue that it is a waste of tax dollars to allow a fair trial by jury for every single person accused of a crime, as guaranteed to each of us in the Bill of Rights. But if an offense is too minor to waste money on a jury trial, then why are we wasting money arresting, prosecuting, and imprisoning someone for it? Cutting corners on justice by violating a person’s Constitutionally-guaranteed right to a jury trial to save a buck is hardly the place to be pinching pennies. If we can afford to arrest, prosecute, and imprison someone for an offense, then we can afford to honor their Constitutionally-guaranteed right to a fair trial by jury.

Those working in the legal system know this. More likely, the primary motivation for denying defendants the right to trial by jury has to do with the careers and livelihoods dependent on cycling a large volume of defendants through the courts and jails. It is much harder to convince 6 or 12 independent individuals to convict someone for an offense that has harmed nobody—punishing a peaceful person for nothing more than offending the sensibilities of the State—than it is to convince a lone judge, oftentimes a former prosecutor himself, with a vested interest in perpetuating the abusive legal cycle from which he makes his living.

In most courts in the United States a single juror (and in every court in the United States, no more than 3 jurors) can protect a defendant, not only from potential prison time, but also from having the rest of his life held hostage by a criminal record, with two simple words: Not Guilty. Many victimless crimes are classified as misdemeanors—prime candidates for jury nullification. But there is no jury nullification if there is no jury, and that is well known to prosecutors and judges who loathe the idea that their plans for a defendant’s future can be upended by a jury of his peers.


Jury Nullification & Volunteer | 06 May 2014

-Support FIJA Through Give Local America


GLA-fullcolorToday FIJA is participating in the Give Local America day of giving, and we would appreciate your support! Give Local America is a national day of giving working to make history as the single largest online giving day. As part of our spring fundraising campaign, and as an outreach activity to new potential constituents, FIJA will join hundreds of other non-profits across the country to ignite the spirit of giving and support causes that make our communities better—in our case by giving our neighbors the tools they need to fulfill the most important role of the juror as protector of human rights and freedom.

As the activist season gears up and we start to organize for Jury Rights Day at the end of the summer, your support is critical to equip volunteers across the country with the training and materials they need to fully inform future jurors everywhere of their right and responsibility to deliver just verdicts, even if it requires setting aside the law to do so. Your support will also help us to develop new educational outreach resources and help make them visible across the country where they can make a difference.

On this day of giving, we are asking you to do any or all of the following:
1. Support the Fully Informed Jury Association with your donation today through Give Local America. Click the Give Local America logo here to visit our donation page on their website:


2. Share our Give Local America page and encourage your Facebook and Google+ friends to support FIJA. If you are making a donation today, mentioning it can encourage your friends and followers to participate as well. Sharing a personal reason why FIJA’s mission is important to you can also encourage people to participate or learn more. The link to our page is: https://www.givelocaleverywhere.org/#npo/fully-informed-jury-association

3. Use the #GiveLocalAmerica hashtag on Twitter to encourage your followers to support FIJA this way and to introduce FIJA to a new audience. By associating FIJA’s website or message with the #GiveLocalAmerica hashtag, we make FIJA visible to those following that hashtag conversation. Throughout the day we will be welcoming from our own Twitter account anyone who has found us through #GiveLocalAmerica and encouraging them to visit our website or get a free Jury Power Information Kit.


Function of Juries & Jury Nullification | 05 May 2014

-Asset Forfeiture Circumvents Trial by Jury and Jury Nullification


Jury BoxWhat is a poor judge to do when the jury sets free an individual he believes is guilty and should be punished, or perhaps when he just wants to funnel more money into the legal system he depends on being packed to maintain his livelihood? Asset forfeiture to the rescue!

Judge approves forfeiture of car, despite not guilty verdict

A Brainerd, Minnesota man who was found not guilty in a burglary at Wakeside Bar and Grill near Hankinson won’t be getting his car back.

Despite the jury’s verdict, a judge has decided that the car will be forfeited to the Richland County Sheriff’s Dept. Adam Bush was arrested last August.

Asset forfeiture is a nefarious tactic, designed to undermine individuals’ rights to due process and trial by jury, especially when prosecutors would have a hard time proving a crime beyond a reasonable doubt or when jurors simply think the law is unjust and are likely to conscientiously acquit by jury nullification. Most commonly, asset forfeiture is described as a process by which law enforcement can seize and financially profit from someone’s property without ever charging them with a crime. The idea is that it is not the individual being accused of a crime, but rather the inanimate objects. Property owners become third party claimants with fewer legally-recognized rights in the legal process and a higher burden of proof to get their property back.

As this case demonstrates, however, it is EVEN MORE ABUSIVE than just that. Government agents can keep property seized this way even if the property owner is ACQUITTED of the crime by a unanimous jury verdict of Not Guilty. That means government can still punish an individual deemed Not Guilty by a jury of his peers, without ever having to make its case beyond a reasonable doubt. And such punishment can be devastating. An individual may lose his vehicle, thereby preventing him from getting to the job he depends on to earn a living. She may lose her house, leaving her without shelter for herself or her family. He may lose tens of thousands of dollars in cash, which government officials know will cost several thousands of dollars just for the opportunity to TRY to get it returned.

Jurors should keep in mind as they deliberate the immense pressure on individuals to waive their rights to due process and trial by jury. Asset forfeiture is another tactic by which the government can punish individuals, even if they are not guilty of any crime whatsoever, and use it as a bargaining chip with which to bully them out of exercising their right to trial by jury.


Function of Juries & Jury Nullification | 02 May 2014

-Jurors Would Have Nullified Had They Anticipated the Sentence


Fence_of_Prison-BPOWe recently brought you news that the Supreme Court has yet again turned down the opportunity to revisit conviction of criminal defendants by less than unanimous agreement of jurors. Non-unanimous criminal convictions are currently allowed only in Oregon and Louisiana, and are unfair for a variety of reasons which we discussed previously.

Now we have news of the case of Troy Ellis, a non-violent offender who has been sentenced to life in prison without parole for a petty theft. His co-defendant, who took a plea bargain in exchange for testimony against Ellis, was sentenced to six years and released after serving less than three years in prison. Ellis was convicted on a split 10-2 decision in Louisiana. Now one of his jurors has publicly stated that if he had anticipated the injustice of the sentence that Ellis would receive, he would have voted Not Guilty instead of voting to convict him. A second juror, who remains anonymous, also reportedly expressed remorse over the verdict.

Life in prison for simple burglary?

Addicted and desperate, Ellis was booked in a simple burglary in 2010 with an unlikely co-defendant. His alleged partner in crime was Patrick Constantin, a then-25-year-old from a successful Uptown family.

The two men shared a heroin addiction and non-violent rap sheets, according to police reports and court records, but the similarities end there.

Ellis (pictured right) was sent to prison to die behind bars, hit with a life sentence without parole.

Constantin is a free man today after being sentencing to six years for the same crime, then being released on good time after serving less than three.

The disparity in the sentences shocked not only Ellis’ attorney and family, but even some of the jurors who convicted him.

“Clearly this was a situation where the punishment does not fit the crime,” said Randy Waller, one of the jurors who voted to convict Ellis by a 10-2 verdict. “No one got killed. There was no weapon involved.

Based on what was taken, it amounted to a petty theft. I think it’s greatly unfair.”

When contacted about the sentence, one juror said Ellis got what he deserved. But two other jurors said they were appalled. One of them, Waller, agreed to say so publicly.

“Surely he should be punished in some shape, form or fashion,” Waller said. “But life without the possibility of parole is ludicrous to be honest with you. It really is.”

When asked if he would change his verdict, knowing what he knows now, Waller said, “Had I known that this was a potential outcome, it was on the table for him and the sentence, I would have had to have found not guilty.”

From his comments, it sounds like Waller did believe Ellis committed the crime and that he did believe Ellis should be punished but that he would have nullified by voting Not Guilty in this case had he understood that such a severe penalty, so out of step with the co-defendant’s punishment, was on the table. Had Waller voted Not Guilty, his third vote added to the two Not Guilty votes would have resulted in a hung jury.

The penalty in this case, however, is not the only element the defendant’s attorney has identified in calling into question whether or not this was a fair trial. The case was fraught with cronyism, argued defense attorney Jessie Beasley, noting that the district attorney refused to step aside in prosecuting this case even though the victim was a senior prosecutor in his office. He also noted that Constantin, the beneficiary of the plea deal, was a longtime friend of the lead detective in the case. Additionally, the demographic composition of the pool from which jurors were drawn was majority African-American. From this pool, a majority white jury was reportedly assembled, with prosecutors using 10 of 11 of their allotted peremptory challenges to eliminate African-Americans from the jury, said Beasley.

And then there was reportedly some inconsistency between Constantin’s testimony against Ellis before and after a break in the trial:

Once the jury heard the case, there was no direct evidence that Ellis ever entered the victim’s house. And initially, there wasn’t even circumstantial evidence as the key witness, Constantin, began testifying. But after a break in the trial, all that changed.

“He got one of the public defenders that talked to him in the back for about an hour before he came out and changed his testimony to say that Troy Ellis is the one who did everything,” Beasley said.

The question of whether Ellis entered the apartment was critical, potentially the difference between burglary and the lesser charge of attempted burglary, a verdict that Beasley said would have capped Ellis’ sentence at 12 years, even as a multiple offender.

There’s also a significant possibility that the conviction resulted from a vague statement from the judge that may have been inadvertently interpreted by the jury as being directed to convict as charged, rather than on that lesser included charge:

On the verdict form, the jury foreperson initially wrote “Guilty of attempted burglary” on the wrong side of the page. Judge Parker instructed the panel to fix it.

The jury was left confused, Waller recalled.

He said the group didn’t know whether Parker meant to fix the form or the verdict itself. When the jury came back with a second verdict form, the foreperson again wrote “Guilty of attempted burglary,” but crossed that out and wrote guilty as charged. (Pictured below, click to larger image)

“Yes, there was some confusion during that time, no question about it,” Waller recalled. “I certainly remember there was confusion to exactly what the charge we were supposed to write was.”

There are so many possible reasons Ellis is currently in prison for life without parole for a non-violent, petty theft, none of them having anything to do with justice. For example:
-Had he not exercised his right to trial by jury, he might have gotten the sweet deal that Constantin was given and already be out of prison.
-Had he been convicted in any other state than Oregon or Louisiana, the 10-2 verdict would have resulted in a mistrial.
-Had the jurors been aware of the potential penalty on the table, at least one more says he would have voted Not Guilty, effectively hanging the jury.
These and so many other games played by judges and prosecutors in the courtroom are not implemented with the intention of ensuring justice for all, but rather are tactics used to tilt the playing field toward conviction, and beyond that, toward incarceration.

Thanks to the statements made by two jurors, one anonymously and one publicly, after learning of the egregiously disparate results of their verdict, Ellis’ case is now at least under review by the district attorney.

DA to review burglary case that locked up man for life

The Orleans Parish District Attorney’s office has officially agreed to review a simple burglary case that ended with one convicted defendant on the street within three years, while his accomplice found himself locked up for life without possibility of parole.

The development was set into motion by a statement from District Attorney Leon Cannizzaro in light of information connected to the sentencing disparity.
The information included the fact that two jurors in the case told Eyewitness News – one anonymously, one publicly – that they were shocked by the life sentence and regret their guilty verdicts.

“In light of recent revelations relative to the disparity of sentences between the two defendants in this case, I am in the process of personally reviewing this entire file,” Cannizzaro stated.

Cannizzaro’s own statements on the case help us to calculate the arithmetic of injustice in this case:

Cannizzaro has declined to comment beyond his written words, which concluded with, “Despite overwhelming evidence against Ellis and his complete refusal to accept responsibility for his actions, the District Attorney’s office offered to allow Mr. Ellis to plead guilty as a second offender in return for a 12-year sentence both prior to trial and even after he was convicted. While I believe that such a sentence would still be appropriate in this case, Mr. Ellis must first take responsibility for his actions.”

By his own words, Cannizzarro explicitly indicates that he believes a just sentence for the offense of which Ellis was convicted is twelve years. By his actions in allowing a plea deal for Constantin that allowed his release in less than three years, however, Cannizzarro shows that he is willing to settle for a LOT less prison time—so long as the defendant were to waive his right to trial by jury. Given the average life expectancy of an African-American male, the 50-year-old Ellis could easily serve more than a quarter century in prison before ultimately dying there over a non-violent theft that involved maybe a couple hundred dollars worth of goods. Ellis is primarily being imprisoned, not for the petty theft of which he was convicted, but for exercising his Constitutionally-guaranteed Sixth Amendment rights. He has maintained his innocence in this case, and it is now in the appeals process. He is challenging his conviction on several counts, arguing violation of his Constitutional rights.


Function of Juries & Jury Nullification & Sixth Amendment | 30 Apr 2014

-Arizona Court of Appeals Ruling Protects Trial by Jury


Jury BoxThe Sixth Amendment to the United States Constitution is very clear: we have the right to trial by jury in ALL criminal cases. Nonetheless, this very explicit guarantee is routinely ignored by courts across the United States, with charges punishable by nearly six months incarceration often decided unilaterally by a judge. Last week, the Arizona Court of Appeals applied the Arizona Constitution to this issue and ruled that defendants accused of many such misdemeanors are still guaranteed the right to trial by jury.

Court of Appeals rules people charged with shoplifting entitled to trial by jury

Citing 17th Century English law, the state Court of Appeals concluded Thursday that those charged with shoplifting are entitled to demand a trial by jury.

In a unanimous decision, the judges said the Arizona Constitution makes it clear that if a jury trial was mandated for a crime during territorial days, then that right remains more than a century later. They said the fact that the crime is only a misdemeanor, punishable by six months in jail, does not override that constitutional right.

The state constitution, adopted when Arizona became a state, spells out that “the right of trial by jury shall remain inviolate.”

Appellate Judge Lawrence Winthrop, writing Thursday’s ruling, said that means if someone was entitled to a jury trial prior to 1912 for a comparable common law offense, then that right continues to exist.

The article goes on to detail various other misdemeanors that have been ruled by courts or defined by legislation as jury trial-worthy, such as serious misdemeanors, offenses of moral turpitude, etc. This would, of course, all be a much simpler to navigate if the government obeyed the highest law of the land, guaranteeing the right to trial by jury in ALL criminal cases.

Trial by jury is critical even for offenses which many consider to be “minor”. First, it is obvious that spending any time in jail, let along weeks or months, is not a trivial matter. Such punishment tears apart relationships, destroys livelihoods, and seriously endangers the safety of the incarcerated person. Consider the case of Michael Saffioti, and understand that a de facto death penalty is on the table any time an individual is incarcerated. Second, many of these so-called “minor” offenses are considered minor because they involve no victim, save the delicate sensibilities of those who have the power to redefine things they find offensive as “crimes”. Such offenses are often the most likely candidates for jury nullification, and there is no opportunity for a jury to conscientiously acquit if there is no jury in the courtroom deciding the case.


Function of Juries & Jury Nullification | 25 Apr 2014

-Supreme Court to Consider Revisiting Non-Unanimous Jury Verdicts


Jury BoxLaw professor Eugene Volokh, of the Volokh Conspiracy, reports that the case of Jackson v. Louisiana is on the Supreme Court’s conference list for today. Jackson v. Louisiana is the latest of several cases in recent years calling upon the Supreme Court to revisit its 1972 rulings in Apodaca v. Oregon and Johnson v. Louisiana, allowing criminal convictions with as few as 9 of 12 members of the jury voting Guilty. Currently both Oregon and Louisiana allow convictions on 10-2 or 11-1 margins, only requiring unanimous verdicts in capital cases.

Non-unanimous criminal jury verdicts

Longtime readers of the blog may remember my interest in non-unanimous jury verdicts. In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this rule over to the states, and that even 9-3 verdicts are constitutionally permissible. The Jury Trial Clause is thus the one Bill of Rights clause that is neither completely incorporated against the states via the Fourteenth Amendment, nor completely not incorporated. (Recall that the Bill of Rights originally applied only to the federal government, and has been applied to the states only through the Fourteenth Amendment.) Only Oregon and Louisiana allow non-unanimous juries in those cases in which the right to trial by jury attaches, but they use them routinely.

The Constitutional Accountability Center (CAC) represents Ortiz Jackson in this case, who was convicted of second-degree murder by a jury vote of 10-2 for a crime in which he denies any involvement. Jackson was sentenced to life in prison at hard labor without the benefit of parole, probation, or suspension of sentence. This is the first time the CAC has represented an individual seeking review. From the CAC’s statement on the case:

Jackson v. Louisiana

State courts in both Louisiana and Oregon have refused to consider the constitutionality of their respective state’s non-unanimous jury rule based primarily on the Supreme Court’s badly fractured 4-1-4 decision in the 1972 case Apodaca v. Oregon, which held that state criminal juries may convict a defendant without unanimous jury consent. Our cert. petition in Jackson demonstrates that Apodaca is not only inconsistent with the history and purposes of the Sixth Amendment, but also with the Court’s more recent case law, and urges the Court to review Jackson in order to put an end to the unconstitutional practices in Louisiana and Oregon.

We argue, among other things, that convicting criminal defendants without the unanimous consent of a jury denies these individuals a right that the Framers viewed as fundamental. As our petition demonstrates, the Framers understood the unanimity of a jury to be as much a part of the jury right as the right to a jury of one’s neighbors and peers. To the Framers, the requirement of jury unanimity was critical to ensuring the full and fair jury deliberations that the Sixth Amendment requires. Indeed, more recent empirical research supports the Framers’ view that jury unanimity is essential to the jury as a bulwark of liberty. Specifically, evidence has shown that when unanimity is required, jurors evaluate evidence more thoroughly, spend more time deliberating, and are more likely to consider all viewpoints.

Here is the CAC’s petition for a writ of certiorari on behalf of Jackson.

Not only does unanimity require more thorough deliberation, but it also guarantees the accused the benefit of every doubt and conscientious objection of every single person sitting in judgment of him or her.

Andrew Cohen of The Atlantic reports that Jackson v. Louisiana is one of six opportunities the Court has this week to correct the errors it made in 1972 that dramatically crippled our Sixth Amendment right to the benefits of trial by jury. He points out that non-unanimous verdicts also allows prosecutors to technically fulfill their obligations not to arbitrarily discriminate against jurors of racial or other minority groups, yet still nullify their Not Guilty votes through non-unanimous verdicts.

Will the Supreme Court Address Louisiana’s Flawed Jury System?

Prosecutors love the non-unanimous jury rule because it increases the chances of conviction—you don’t have to convince every juror of the defendant’s guilt beyond a reasonable doubt, you just have to get 10 or 11 of 12. Judges love the rule because it expedites deliberations and gets more cases off the docket faster. But for criminal defendants, and especially black criminal defendants in Louisiana, the rule cleaves them even further from defendants in the rest of the country whose liberty may be saved by a holdout juror or two.

Unanimity is required in all federal criminal cases. And only two states, Oregon and Louisiana, have a form of the non-unanimous jury rule. Oregon requires a unanimous verdict in first-degree murder cases, an 11-1 verdict in all other murder cases, and of course doesn’t have the history of racial disparity that has marked Louisiana law for centuries. So, alone in the nation, in a state notorious for racial disparities in its justice systems, Louisiana allows a defendant to be convicted and sentenced to life in prison without parole based upon a 10-2 vote.

What does this rule really do? It increases by a significant degree the odds of a conviction following trial. But it also means that prosecutors can comply with their constitutional obligations to permit blacks and other minority citizens to serve as jurors but then effectively nullify the votes of those jurors should they vote to acquit. That precise scenario has happened in some cases that ultimately resulted in wrongful convictions. The Supreme Court has the opportunity to finally end this practice, which is unjust both in its intent and its effect.

Cohen explains how the strange, split verdict in Apodaca v. Oregon set a terrible precedent, of which Oregon’s and Louisiana’s prosecutors have been taking advantage for far too long:

In Apodoca, eight justices agreed that the Sixth Amendment applied identically to the federal and state criminal trials. Four of the eight concluded that there was no right to a unanimous jury either in federal or state prosecutions. Four more of the eight came to the precisely opposite conclusion—that both state and federal criminal cases had to include unanimous juries. Justice Powell split the baby—unanimous for federal criminal trials, non-unanimous for state criminal trials—without spending great energy explaining why.

The Court has long been aware of the cognitive dissonance of the Apodaca ruling. And in a recent line of cases—like Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker—the Court has expressly endorsed the vitality of a unanimous jury’s function in the criminal justice system. These rulings are inconsistent with Justice Powell’s concurrence in Apodaca and with what’s happening on the ground in Louisiana and Oregon. How can we exalt the jury on one hand and discount the votes of jurors on the other?

James Gill of The Advocate discusses the history of racial discrimination that is entangled with Louisiana’s non-unanimous verdicts:
Jury rules aid sloppy judicial process in La.

The notion that a unanimous jury is a “sacred bulwark” of liberty arose in medieval England, was warmly embraced by the Founding Fathers and was incorporated into Louisiana law until 1898, when the state constitution was amended for the express purpose of keeping black people in their place.

The new constitution allowed conviction by a 9-3 vote, and so it remained until 1974, when the 10-2 standard was adopted. Although by that time constitutional convention delegates were no longer declaring their mission was to maintain white supremacy, their decision to keep the balance tilted in favor of the prosecution inevitably hit black defendants harder. Sure, we like to lock up all kinds, but black people are so seriously overrepresented in the prison population that there’s no doubt where our preference lies.

The Louisiana appeals court in New Orleans has opined that, whatever the motives of their 19th-century predecessors, delegates to the 1973 convention retained nonunanimous verdicts purely for the sake of “judicial efficiency.” Certainly, cases are more promptly wrapped up this way, but the American preference traditionally has been for justice, be it ever so messy.

In recent years, the Supreme Court has been asked more than once to review this gross offense against justice and human rights, but it has so far declined all such cases. In 2010, the American Bar Association argued that the Court should revisit this based, in part, on is appeal to ABA standards that are now obsolete.

ABA: State Convictions Should Require Unanimous Verdicts

The ABA argues that reconsideration is necessary because one of the concurring justices in Apodaca cited the association’s 1968 Standards for Criminal Justice as supporting his conclusion that states could use non-unanimous criminal juries. But, the ABA notes, the standards were amended in 1976, based on intervening research, to state that jury verdicts should be unanimous in all criminal trials.

The ABA says research has continued to show that non-unanimous jury verdicts in criminal trials “fail to foster thorough jury deliberation, attention to minority viewpoints or community confidence in jury verdicts.” In its brief, the ABA requests that the court conclude that criminal defendants in state jury trials should have the same right to a unanimous jury verdict as criminal defendants in federal jury trials.

A conviction is supposed to require that the prosecution prove its case beyond reasonable doubt. But if 1 or 2 out of 12 jury members—as much as 16% of the panel—have reasonable doubts about the prosecution’s case against the accused, that doesn’t matter in Oregon and Louisiana. The prosecution gets a pass on this crucial standard and the defendant is still convicted, even though reasonable doubt has clearly been expressed through the non-unanimous vote of the jury.

Beyond that, when a unanimous verdict is required, a single conscientious objector of the opinion that the law is inherently unfair or is being unfairly applied in the case at hand can effect jury nullification in that particular trial by maintaining a Not Guilty verdict and hanging the jury. Non-unanimous verdicts undermine this crucial safeguard, purposely designed into our legal system as a failsafe against political corruption and government violations on our human rights. Without a unanimous verdict required, defendants are not protected by the consciences of every member of the jury, a panel that is supposed to represent the conscience of the ENTIRE community and not just the popular opinion of the day.

If it is unfair to put a man to death based on a non-unanimous verdict, how fair is it to sentence him to a life of imprisonment with hard labor and no possibility of parole based on such a verdict? More broadly, if the prosecution can’t convince JUST 12 independent jurors selected OUT OF MILLIONS that it is necessary and just to punish someone, how fair is it to lower the bar even further just to secure convictions and incarcerations?


Function of Juries & Jury Nullification | 23 Apr 2014

-Jurors Say ‘No’ to Testifying Down


Jury BoxOne of the justifications offered for plea bargaining is that it allows prosecutors to engage lesser offenders in the pursuit of convicting more serious offenders. However, it doesn’t always work that way. Often it is just a matter of who caved first and gave up their right to trial by jury in exchange for a known penalty. In such cases, justice can become so twisted by the legal process that worse offenders sometimes end up with more lenient punishments than the lesser offenders they agree to testify against. This article from the Wall Street Journal documents cases in which jurors sent a message with their Not Guilty votes to prosecutors allowing worse offenders to exchange testimony against lesser alleged offenders for leniency in their penalties.

Prosecutors Using Cooperating Witnesses to Convict Defendants Accused of Lesser Charges

In the recent Brooklyn cases, the government used cooperators to “testify down,” as one defense attorney put it. Prosecutors ultimately walked away with mixed results.

In the alleged bribery trial, the heart of the government’s case was a charge that Brooklyn real-estate developer Stevenson Dunn and his business partners, lawyers Lee Hymowitz and Michael Freeman, solicited a $450,000 bribe from contractor Bogdan “Bob” Starzecki in connection with one of their city Department of Housing Preservation and Development low-income housing projects.

Mr. Starzecki, who testified he paid out millions of dollars in bribes to obtain contracts, was one of the government’s key witnesses. His attorney didn’t return requests for comment. His admitted crimes are punishable by up to 140 years in prison, a prosecutor said during the trial.

Wendell Walters, a former assistant commissioner at the housing agency who testified he received approximately $2.5 million worth of bribes over a decade in exchange for city contracts, also cooperated with the government. Mr. Walters became the highest-ranking city official convicted during the 12-year Bloomberg administration.

Mr. Walters testified that Mr. Dunn provided a single $5,000 bribe to him and that he had almost no dealings with Messrs. Hymowitz or Freeman. Lawyers for the defendants contended that all the money was for legitimate business transactions.

The jury acquitted Messrs. Dunn, Hymowitz and Freeman of 35 charges. After the verdict, many jurors waited outside the courthouse to congratulate the defendants and their attorneys.

Reportedly, Starzecki led investigators to Walters, who was accused of more serious offenses, but Walters apparently has not helped take down anyone above him.


Function of Juries & Jury Nullification | 22 Apr 2014

-Prosecutor Nullification vs. Jury Nullification


Fence_of_Prison-BPOWhen the topic of jury nullification comes up in the public discourse, it is not too long before the alarmist cry of “But it will lead to anarchy, chaos, lawlessness!” is raised. Such was the case, for example, in an editorial ominously titled “The Dangers of Jury Nullification” published earlier this year by The Chicago Tribune, stating that “The promotion of jury nullification rests on the assumption that 12 randomly chosen individuals are entitled to override the democratically expressed will of the citizenry.”

But let’s consider a FAR more common form of nullification which raises hardly an eyebrow: prosecutor nullification, more commonly known as “plea bargaining”. With a plea bargain, the prosecutor unilaterally nullifies the law by agreeing to drop or not to add charges against a defendant, even though the prosecutor supposedly believes the defendant broke those laws and can be convicted in court. Rather than being a work of compassion and justice, prosecutor nullification is most typically used as a battering ram with which to bludgeon defendants into foregoing their right to trial by jury. United States District Judge Jed Rakoff explains in the following article.

Why innocent people plead guilty

Today, only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury. As a result, accepting a deal from prosecutors — despite one’s guilt or innocence — has become a common choice for individuals accused of a crime.

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

Looking at the numbers, it is clear that the VAST MAJORITY of cases are settled, not by 12 independent individuals chosen to represent the conscience of the community, but by a single, politically- and financially-motivated individual whose reputation, career prospects, and compensation depend on securing conviction after conviction after conviction. This has lead to an egregiously unjust legal system, even though there hasn’t necessarily been any rule broken. According to Judge Rackoff:

“We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty. There’s got to be a way to limit this.”

This does not even include the tends of thousands of peaceful people who may have technically broken the law, but did not commit any act that could properly be considered a crime, as they did not harm another person or damage someone else’s property. The next time someone speaks up against jury nullification, you might inquire into their position on the FAR MORE COMMON use of prosecutor nullification.


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