Jurors Need To Know That They Can Say No

[Michael Komorn]

 

Jurors Need to Know That They Can Say No

 

By PAUL BUTLER

Washington

 

IF you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.

 

The information I have just provided — about a constitutional doctrine called “jury nullification” — is absolutely true. But if federal prosecutors in New York get their way, telling the truth to potential jurors could result in a six-month prison sentence.

 

Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by. Given that I have been recommending nullification for nonviolent drug cases since 1995 — in such forums as The Yale Law Journal, “60 Minutes” and YouTube — I guess I, too, have committed a crime.

 

The prosecutors who charged Mr. Heicklen said that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” The prosecutors in this case are wrong. The First Amendment exists to protect speech like this — honest information that the government prefers citizens not know.

 

Laws against jury tampering are intended to deter people from threatening or intimidating jurors. To contort these laws to justify punishing Mr. Heicklen, whose court-appointed counsel describe him as “a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse,” is not only unconstitutional but unpatriotic. Jury nullification is not new; its proponents have included John Hancock and John Adams.

 

The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished. As Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”

 

In 1895, the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn’t have the power, or that they couldn’t be told about it, but only that judges were not required to instruct them on it during a trial. Since then, it’s been up to scholars like me, and activists like Mr. Heicklen, to get the word out.

 

Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. (Prosecutors now say they will remember the actions of those jurors when they consider whether to charge other people with marijuana crimes.)

 

There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.

 

How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust jurors a lot. I first became interested in nullification when I prosecuted low-level drug crimes in Washington in 1990. Jurors here, who were predominantly African-American, nullified regularly because they were concerned about racially selective enforcement of the law.

 

Across the country, crime has fallen, but incarceration rates remain at near record levels. Last year, the New York City police made50,000 arrests just for marijuana possession. Because prosecutors have discretion over whether to charge a suspect, and for what offense, they have more power than judges over the outcome of a case. They tend to throw the book at defendants, to compel them to plead guilty in return for less harsh sentences. In some jurisdictions, like Washington, prosecutors have responded to jurors who are fed up with their draconian tactics by lobbying lawmakers to take away the right to a jury trial in drug cases. That is precisely the kind of power grab that the Constitution’s framers were so concerned about.

 

In October, the Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries in checking governmental power, seemed open to the notion that jurors “can ignore the law” if the law “is producing a terrible result.” He added: “I’m a big fan of the jury.” I’m a big fan, too. I would respectfully suggest that if the prosecutors in New York bring fair cases, they won’t have to worry about jury nullification. Dropping the case against Mr. Heicklen would let citizens know that they are as committed to justice, and to free speech, as they are to locking people up.

 

Paul Butler, a former federal prosecutor, is a professor of law at George Washington University and the author of “Let’s Get Free: A Hip-Hop Theory of Justice.”

 

 

[TajMahal]

Morning Micheal.

[legacy]

Michael,

 

Can you share a few points of interest from the Constitution about the doctrine called “jury nullification”? If you were to guess a few snippets of information that Heicklen provided outside the courthouse, what would some of them be?

[cristinew]

Just try to use that in court, the Judge will say CONTEMPT

[nexplosion]

Medicine=Not Guilty.

[maxmax]

In order to avert what will surely be a far more violent situation than we are already experiencing, and to restore our Republic to a system "OF THE PEOPLE, BY THE PEOPLE, FOR THE PEOPLE," there appears to be just one last avenue left to us – Jury Nullification. If we choose not to use this peaceful means for change then a violent solution may inevitably be forced upon us:

 

Jury Nullification is a constitutional doctrine that allows juries to acquit defendants who are technically guilty, but who don’t deserve punishment. All non-violent drug offenders who are not selling to children, be they users, dealers or importers, fall into this category. If you believe that prohibition is a dangerous and counter-productive policy, then you don’t have to help to apply it. Under the Constitution, when it comes to acquittals, you the juror have the last word!

 

To avoid such carnage and turmoil on a scale not seen in this land since the 1860s, we may have just one last chance: If you wish to see this insane prohibition replaced by a workable policy based on science, public health and sound principles of Justice & Human Rights, one that will ensure a safe future for your children and grandchildren, PLEASE VOTE TO ACQUIT! — We must now create what we can no longer afford to wait for.

[Fat Freddy]

Interesting!! This information needs to be placed in High Times, Weed World etc etc.

I ws unaware of this. now we are armed with a right no one can take. call it free will!!

[mike44]

Interesting!! This information needs to be placed in High Times, Weed World etc etc.

I ws unaware of this. now we are armed with a right no one can take. call it free will!!

 

I would guess most jurors do not read high times or weed world, but this would be a start.

We need our plight publicized badly, if we can find a way to do this, many of our problems will go away. I don't believe there are many people on a jury that would convict a defendant, if they knew the defendant was being forced not to tell the truth that would vindicate him.

These courts presume guilt before the trial, and say since you are guilty you can't defend yourself. That is exactly what is happening here in Michigan. The courts are forcing the defendants to perjure themselves, and they are withholding evidence that they know would clear the victim. I would be outraged if I were on a jury and later found out that the prosecutor and judge had evidence that the defendant was acting within the law, and forced him to admit he broke the law anyhow.

[Guest animal1x]

--

[DreamWarrior67]

Mike

 

what would happen if you just stood up meaning me.... and yelled or talked loud that you have a medical marijuana card and they don't want you to know that. you need to ask why? Really what do you have to lose if you don't they don't know and think you are just a pot head? if you don't you are screwed anyway right?

Jurors Need to Know That They Can Say No

 

By PAUL BUTLER

Washington

 

IF you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.

 

The information I have just provided — about a constitutional doctrine called “jury nullification” — is absolutely true. But if federal prosecutors in New York get their way, telling the truth to potential jurors could result in a six-month prison sentence.

 

Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by. Given that I have been recommending nullification for nonviolent drug cases since 1995 — in such forums as The Yale Law Journal, “60 Minutes” and YouTube — I guess I, too, have committed a crime.

 

The prosecutors who charged Mr. Heicklen said that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” The prosecutors in this case are wrong. The First Amendment exists to protect speech like this — honest information that the government prefers citizens not know.

 

Laws against jury tampering are intended to deter people from threatening or intimidating jurors. To contort these laws to justify punishing Mr. Heicklen, whose court-appointed counsel describe him as “a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse,” is not only unconstitutional but unpatriotic. Jury nullification is not new; its proponents have included John Hancock and John Adams.

 

The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished. As Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”

 

In 1895, the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn’t have the power, or that they couldn’t be told about it, but only that judges were not required to instruct them on it during a trial. Since then, it’s been up to scholars like me, and activists like Mr. Heicklen, to get the word out.

 

Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. (Prosecutors now say they will remember the actions of those jurors when they consider whether to charge other people with marijuana crimes.)

 

There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.

 

How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust jurors a lot. I first became interested in nullification when I prosecuted low-level drug crimes in Washington in 1990. Jurors here, who were predominantly African-American, nullified regularly because they were concerned about racially selective enforcement of the law.

 

Across the country, crime has fallen, but incarceration rates remain at near record levels. Last year, the New York City police made50,000 arrests just for marijuana possession. Because prosecutors have discretion over whether to charge a suspect, and for what offense, they have more power than judges over the outcome of a case. They tend to throw the book at defendants, to compel them to plead guilty in return for less harsh sentences. In some jurisdictions, like Washington, prosecutors have responded to jurors who are fed up with their draconian tactics by lobbying lawmakers to take away the right to a jury trial in drug cases. That is precisely the kind of power grab that the Constitution’s framers were so concerned about.

 

In October, the Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries in checking governmental power, seemed open to the notion that jurors “can ignore the law” if the law “is producing a terrible result.” He added: “I’m a big fan of the jury.” I’m a big fan, too. I would respectfully suggest that if the prosecutors in New York bring fair cases, they won’t have to worry about jury nullification. Dropping the case against Mr. Heicklen would let citizens know that they are as committed to justice, and to free speech, as they are to locking people up.

 

Paul Butler, a former federal prosecutor, is a professor of law at George Washington University and the author of “Let’s Get Free: A Hip-Hop Theory of Justice.”

 

 

[Timmahh]

contempt of court, it would be struck from the record, the jury would be instructed to disregard, or the judge would declare a mistrial on the grounds of jury tampering, and at the next trial, you ll be gag ordered not to speak to the extent you wont even be allowed to appear at your own trial to ensure the jury fairly hears absolutly ZERO Evidence that proves your innocense or can exhonorate you.

[DreamWarrior67]

Yes, but they still herd it and you can't take that away and if they are real flesh and blood you can't ignore the truth. and it might get people talking.

 

again you are already screwed if you are going to court!

[DreamWarrior67]

they already found you guilty

[Letterhead954]

I would guess most jurors do not read high times or weed world, but this would be a start.

 

Mike, you are sooooo incredibly diplomatic.

[Medcnman]

The real problem with this in Michigan is, no one knows about the plight of a medical marijuana patient. For the last three years we have been kicked and beaten and called criminals. This is the only light we get in the press. Our courts may see it differently if we had more exposure. When someone who is in compliance gets their door kicked in and thrown to the floor, the police say "we believe the criminal was not in compliance". If the light was shined on the fact that the patient was in fact in compliance, the general public would see that the police are the criminals. The justice system is criminals. Our representatives are criminals. We, as patients, are just that. Patients. Compliant, peaceful patients. With the right attorney and PR firm, we can get these issues brought to light. Medcnman.