Fully Informed Jury Association

Are you fully informed about jury nullification?

Function of Juries & Jurors Doing Justice | 04 Apr 2012

Judge Rejects Prosecutorial Request to Bar Free Speech Defense in Occupy Trial and Other Prosecutorial Shenanigans


We recently brought you news of a case in Iowa in which a jury nullified a local rule, deciding in favor of the defendant on the basis that he was exercising his First Amendment rights. The jury ruled that the defendant’s exercise of his freedom of speech on public property took precedence over a locally imposed curfew. In a bizarre twist, prosecutors had asked the jury to nullify the superior law, the United States Constitution, in favor of the inferior local curfew. Having been rebuked by the jury, who correctly upheld the superior law, prosecutors apparently went back to the drawing board to try and secure a conviction in the next such case they tried.

Judge Asked to Bar Free Speech Defense in Occupy Trial

Polk County prosecutors are trying stronger tactics in an Occupy Des Moines trespassing trial scheduled to begin Monday, arguing that jurors should be barred from considering “free speech rights.”

Earlier this month, former state Rep. Ed Fallon was acquitted in the first of several trespassing trials when a jury decided that the First Amendment outranks a state Capitol curfew.

Polk County prosecutor Jeff Noble filed paperwork arguing essentially that a jury of “laypeople” could not be trusted to decide in favor of the inferior law over the superior law:

The documents cite a Des Moines Register story that quoted a juror in the Fallon trial explaining the verdict by saying that “the Constitution supersedes all state laws and regulations.”

Because jurors believe such things, “using instructions which characterize the defendant’s actions as an exercise of constitutional rights effectively wraps the defendant in the flag and dictates the outcome of the trial,” according to Noble’s motion. “Other jurors in future cases may not use the same problematic logic as the jurors quoted above. But the mere potential for the jury nullification discussed above is the exact reason why it is the court’s role — not the jury’s — to determine questions of constitutional law.”

These are the kind of statements that would normally be cause for a high school student to fail a Government 101 course. Based on this ignorance, however, Noble requested that District Associate Judge Romonda Belcher bar any evidence or argument that free speech was a justification for the violation with which the defendants are charged. Click through for the disturbing details of Noble’s power-damaged thought process.

We are pleased to report that on Monday this week, Judge Belcher rejected these arguments.

Testimony starts today in first Occupy trial since Fallon acquittal

In the current case, prosecutors failed Monday to convince District Associate Judge Romonda Belcher that she, and not jurors, should rule on whether protesters can legally trespass in the name of free speech. Belcher instead ruled, as in Fallon’s case, that it’ll be up to jurors to decide.

Belcher has reasoned that state law, as spelled out in a 1976 Iowa Supreme Court decision, allows room for protesters to be found “not guilty” if they can show they were reasonably exercising their constitutional rights to speech at the time of arrest. The question of what’s reasonable rightly belongs to the jury, according to Belcher, because Iowa’s law defines trespassing as entering or remaining on property “without justification.” So the lack of justification is part of the crime that prosecutors have to prove to jurors to win conviction.

Upon having this tactic rebuffed by the judge, Assistant Polk County Attorney Kevin Hathaway then wanted to change the charges. The trespassing statute under which the defendants were charged specifically states that their presence was only trespassing if done “without justification”. When Judge Belcher refused to take exercise of First Amendment rights off the table as a potential justification for the jury to consider and essentially hand prosecutors the case for free, Hathaway wanted to amend the charges so that the defendants would be tried under a different rule that does not mention the potential defense of justification. The defendants may not have been charged under this alternate statute because it includes another troublesome element that the prosecution must prove- intent to harm the property upon which the alleged trespass occurred.

Drake University law professor and defense attorney Sally Frank called him out on his shenanigans and Judge Belcher agreed:

“It would be like saying a speeding ticket and a stop sign (violation) are the same general thing because they’re both in the traffic code,” Frank said. “This isn’t an error or omission (in the charging documents). This is, ‘We lost an argument, and now we want to get something else.’ ”

As government-paid employees, prosecutors have an incentive to deliver results in favor of government- that is, convictions -rather than to impartially uphold justice. This is particularly evident in this case where prosecutors keep trying to change the game whenever they are ruled against in order to try and get the upper hand in court. They don’t seem to care on what charges the defendants are convicted or whether they are allowed to defend themselves, so long as the prosecution prevails on SOMETHING and can add another win to its record.

Defense attorneys also have an incentive to deliver the results desired by their clients by securing not guilty verdicts on their behalf. Even judges, as paid employees of government whose livelihoods depend on keeping the courts full, have an inherent conflict of interest between their own interests and justice for all.

This is why independent juries are a part of our judicial system. Jurors do not have a financial or other interest in upholding one side or the other. They do not make their living off the system, but they do have to live with the precedent set by their decision. Therefore, they have a strong incentive is to deliver a just verdict, not only to protect the defendant in the case at hand, but to protect themselves as well as their families and neighbors from abusive prosecutorial aggression.