Jury Nullification Advocate Faces Indictment | Hacker News Reader

Jury Nullification Advocate Faces Indictment

nytimes.com

54 pointsmhb49 comments

The Streisand Effect in action: by literally turning the issue into a federal case, the prosecutors are guaranteeing that more Americans will learn about the concept of jury nullification than from merely handing out pamphlets on the street. I wouldn't be surprised if he intended to provoke the case all along.

This is certainly true. In past events, Julian has notified the media that something interesting might happen. (And the police have harassed his friends who have photographed and filmed these events, going as far as arresting them and confiscating their cameras, as I recall)

(fwiw, I've never met Julian, but I've communicated with him by email and get regular updates on his work)

    “I don’t want them to nullify the murder laws,” he said.  
    “I’m a big law-and-order guy when it comes to real crime.”

    But, he said, there were other laws he wanted to nullify,
    like drug and gambling laws.

You can't get one without the other. There is no murderer that some don't consider unjustly prosecuted. For instance there are a lot of people that would use nullification if told about it when trying someone accused of killing an abortion doctor.

Worse, once you tell a jury they can judge the law you will get juries that go for anti-nullification--that is, they will convict the defendant even though they do not believe he broke the law. In this case at least the judge or an appeals court can reverse the conviction...if they can tell it happened. In many cases they won't be able to tell. In most cases, the prosecution alleges a set of facts that if true support conviction, and the defense alleges that those facts are not true. There is no way in general for the judge or the appeals court to distinguish between "jury believed prosecutor's alleged facts and so convicted" and "jury believed defendant's view of facts but convicted anyway".

Another problem is different outcomes for similar defendants. If 5-6% of people think that a particular law should not have passed, and a unanimous jury of 12 is required for conviction, then 50% of guilty defendants get a jury that will not convict.

It's really hard to design a system of checks and balances where you tell juries about nullification but somehow stop the bad outcomes I described above. The best anyone has been able to come up with is to not tell the jury about it. The idea then is that it is only applied in cases where some juror decides that his conscious would find convicting so wrong that he must violate his oath.

While it's true we don't want juries nullifying casually, it would be a great loss if they never did it at all. The jurors are the only people in the system who are not answerable to anyone else -- not the appellate courts, not the DA, not the voters. When the system is corrupt, as at various times and places it certainly has been and continues to be, jury nullification is in some cases the only way a just verdict can be reached.

No, it's not perfect, but neither is the system it's intended to counterbalance. I believe that the possibility of jury nullification is the most important reason that the Constitution guarantees a trial by jury.

The whole point of a jury is that it is a check on government power. Before a person can be convicted of a serious crime, a jury of his peers, not just the government, must convict him.

Your hypothetical of a jury maliciously convicting even without evidence is a misleading one. In order for a false conviction to take place, someone in the government must have already screwed up: the police who investigate, the prosecutor who brings the charges, the judge or the grand jury who determine the sufficiency of the evidence, the prosecutor who decided to bring the case, the judge who allowed a biased jury to be seated, etc. Also, in most states, the defendant has the right to waive his right to a jury trial, so a defendant who is wrongly and maliciously convicted by a jury chose to be tried by a jury instead of the judge.

If a defendant is so unfortunate as to be tried in a place where both the government and his peers on the jury are willing to maliciously break the law to convict him, then no legal system would be able to help him. Trial by jury affords defendants some protection against the government, but it does not guarantee perfect justice all the time.

And you can't have true freedom of speech while simultaneously preventing people from being jerks and saying mean things. Surely not telling people they have freedom of speech is an absurd solution.

The consequences of legally obligating a jury to rule as the judge feels is proper are MUCH worse than any of the consequences you have described.

Nullification is a check against the power of the state. Jury nullification was used all the time in the North to protect escaped slaves.

Yes, but look at the South where it was hard to get a white jury to convict a white defendant for a crime against a black. That's nullification too.

To repeat: jury nullification is a check on state power. It prevents the state from convicting. A lot of US criminal procedure law functions the same way: it prevents conviction. The presumption of innocence, the burden of proof, the right not to be unreasonably searched, the right to an attorney, the right to present and confront witnesses, etc, all can function to prevent the conviction of a guilty person. We accept this because we think that too much state power is worse than regular crime. If you want to be sure of convicting the guilty every time, you're going to have to accept the loss of many freedoms as well as the conviction of many innocent people.

Do you think forbidding jury nullification would've done anything to stop that?

If jury nullification is outlawed only outlaws will nullify juries.

You can't get one without the other.

I don't think you're reading his comment correctly:

> "I don’t want them to nullify the murder laws," he said.

I read this to say that he doesn't want it to happen, i.e., he hopes that it will not. He never says that such an outcome ought to be forbidden, just that it's not desired.

> It's really hard to design a system of checks and balances where you tell juries about nullification but somehow stop the bad outcomes I described above. The best anyone has been able to come up with is to not tell the jury about it.

Given that the internet exists, how do you propose to keep jurors ignorant of it?

Even without the internet, if an idea exists then knowledge of it will spread unless it's kept a strict secret. Further, protecting a system by promoting ignorance of said system protects neither the system nor the people it's designed to serve. Rather it endangers everyone who is beholden to it as the system goes further and further off the rails to justify increasingly erratic behavior. Classic spirit of the law vs. letter of the law debate.

As John Adams said, “It is not only his right but also his duty... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

More recently, the following decisions have upheld jury nullification:

The jury has an “unreviewable and irreversible power ... to acquit in disregard of the instructions on the law given by the trial judge. The pages of history shine upon instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. Most often commended are the 18th century acquittal of Peter Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th century acquittals in prosecutions under the fugitive slave law." - U.S. vs Dougherty, 473 F 2d 1113, 1139 (1972)

"If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision." - U.S. vs Moylan, 417 F 2d 1002, 1006 (1969)

And finally, from two of America’s Founding Fathers:

"... you [juries] have a right to take it upon yourselves to determine the law as well as the fact in controversy." - John Jay, First Chief Justice of the United States Supreme Court

"The jury has the Right to judge both the law and the facts." - Samuel Chase, Supreme Court Justice and signer of the Declaration of Independence

"In reality, FIJA's origins and orientation are extremist, built (like most Patriot schemes) on long-rejected legal theories and dubious "facts."

Now, there have been exceptional rulings in which jury nullification can be seen ipso facto as beneficial (particularly in some of the recent drug-war cases), and these cases are cited readily by FIJA adherents. However, these cases have no more force of law in modern courts than does the Dred Scot decision (though that ruling too is cited on more than a few occasions by FIJA adherents). That system is predicated upon the admonition that juries must rule on evidence and the law, pure and simple, and they take oaths to uphold that standard. Their failure to do so in fact breaks the law.

The legal powers that nullification proponents would hand to juries violates the careful balance of powers that exists within the system. If juries are deciding the justness of the laws, they are assuming powers traditionally relegated to the judiciary and, in other contexts, to the legislative branch. There is nothing in any body of law that would allow them to do this, other than the pure absence of an outright prohibition -- which actually exists in the form of the jurors’ oaths.

...

It is likely that the bulk of nullification proponents -- including, probably, Mark Paschall, though his notions about placing God's laws before man's are common among both Identity followers and Christian Reconstructionists -- have no idea whose agenda they’re being used for. But then, most people are oblivious to the elements in our society that would like to see it all fall apart, and are doing their damnedest to make it happen."

http://dneiwert.blogspot.com/2003/10/spreading-extremism.htm...

I don't know if that's more genetic fallacy or poisoning the well. Possibly both.

"Their failure to do so in fact breaks the law."

Well, no kidding. The whole idea behind jury nullification is to prevent people from going to jail because of unjust laws. Are we supposed to be surprised that the same system that has an unjust law makes it against the law to refuse to enforce an unjust law? Why not just make it against the law for juries to find proponents of jury nullification innocent?

Jury nullification would not have that great of an effect, and it certainly wouldn't make society "fall apart". It would affect one trial by jury at a time. In each one you would have to convince 11 other people that a law was unjust, if just one was convinced of the law's correctness and the defendant's guilt, you'd have a hung jury.

In other jury nullification news:

A judge in Florida has moved beyond merely forbidding the act of jury nullification in his courtroom. He's also banning advocates from letting anyone know about it.

http://reason.com/blog/2011/02/08/judge-orders-prior-restrai...

I was for him till I read this:

   In one recent letter to the court, he said he wanted
   Muslims “excluded from the jury” because he was Jewish and
   “Islam preaches death to Jews.”

Now he comes off as some old racist, cranky dude. [Edit: I still do think what he's doing is admirable and very noteworthy. I was just saying that that single quote makes it easy for people to dismiss him and why he's doing what he's doing.]

This may or may not have been taken out of context. The way it was tacked on to the end of the article makes me wonder about the source. How did the writer get that quote? The writer definitely wasn't digging through court filings. Likely from the prosecutor or opponent of the professor. It's not hard to imagine a context where he uses that in a reductio ad absurdum argument that a judge/prosecutor intentionally misrepresents.

When I read that at first, I though he meant that he thought Muslims should be excluded from all juries. However I think his correspondence with the court is in relation to his own trial - so he was talking about one specific jury.

It might be moot point though - Ironically, I have read that he is not likely to get a jury for his trial.

"Ironically, I have read that he is not likely to get a jury for his trial."

How does that legally work? Surely if he wants one, he is entitled to one.

The right to a jury trial in criminal cases is only available for serious offenses (possibility of six months in jail.)

http://en.wikipedia.org/wiki/Trial_by_jury_in_the_United_Sta...

Julian is cranky, and I've occasionally disagreed with some of the details of his claims. But that doesn't invalidate the core truth of what he's fighting for.

Racist? Which race is he against?

You're right. I guess there's no comparable word for someone who's biased against followers of a particular religion, as there is one for someone who's biased against a race. So I used 'racist' as a proxy. Does my use of that word somehow take away from the point?

Consider the following. If I were an atheist on trial for what I considered to be a freedom of expression issue, would I be out of line to call for self-pronounced Southern Baptists to be removed from the jury?

If a citizen on trial has concerns that the jury of their peers might not be as disinterested as initially assumed, they have an obligation to voice their concerns. And I think we all dislike sweeping generalizations, but lets be honest here. Lawyers make far more offensive generalizations during jury selection as standard practice.

The word you are looking for is bigoted, and yes the word take away from it, though the point still stands fairly.

Being critical of a religion is a bit like being critical of a political philosophy, like how I'm critical of communism. I've never been called racist for that.

Being critical of someone's race is different, as that's something inherant to an individual. I can't just decide to be Korean but I can become or stop being a communist anytime I want to.

He is not being critical of Islam; he's being biased against all followers of Islam. He is saying that a Muslim cannot be an impartial jury member at a trial for a Jew.

For the record: I think all religions suck (some more than others).

There's a jury that i'd like to be on!

I was pretty much on his side until this:

> Mr. Heicklen has sued the government and various hospitals to which he was taken after being issued citations and falling to the ground.

He sued the hospitals? What did they do wrong?

More info here . . . http://tyrannyfighters.com/progress-report-2010-12-20/

The purpose of the hospital visits is to perform what is euphemistically referred to as extraordinary rendition. In each incident, the hospitals, ambulance personnel and the police knew that I had no medical problem. The hospitals are in collusion with the police to perform torture. At the hospitals, I have been sodomized, had a plug driven up my left nostril (extremely painful), had my corneas “dusted” with a brush, beaten black and blue on my chest, and forcefully injected with thorazine on two occasions against my expressed wishes. Two days after one of these hospital visits, I saw my physician, who looked at my chest and exclaimed: “Did the police do that to you?” I answered: “No, it was not the police. It was the hospital personnel.”

In the NYT article it sounds like he intentionally collapsed and then they took him to the hospital. From the above link it sounds like the police just took him to the hospital because they wanted to.

"I have been arrested 9 times. The proper procedure for police is to take the arrestee to a magistrate. This happened twice. On 7 occasions, I was taken to hospitals (3 times to NY Downtown Hospital, 3 times to Bellevue Medical Center, and once to Saint Vincent Catholic Hospital)."

I can't help but think of the recent case of the NYPD who was forcefully admitted to a psych ward because he was a whistleblower.

In this most recent incident, at least, he was cooperating with police (who entered his home with an arrest warrant) until they refused to provide their names and badge numbers. At that time he dropped to the floor and refused to speak. He didn't actively resist their arrest, but did refuse to cooperate in any way.

I believe that taking the "suspect" to the hospital in this case is putatively for his own safety, just in case the reason he's unresponsive is that he's having a seizure or some other medical issue. But from Julian case, it appears that sometimes this is treated as an invitation to "soften him up".

(fwiw, I've never met Julian, but I've communicated with him by email and get regular updates on his work)

You can see his technique here - http://tyrannyfighters.com/category/announcement/page/3/

Whatever about the law on what he was doing, they was clearly wrong to be harassing the videographer, and DHS appear to have paid out $5000 in settlement. http://blogofbile.com/2010/10/18/settlement-with-department-...

I'm not sure its a good idea that they can hand out tax-payer money to avoid judgement against them for their illegal acts.

Ok, is there any direct evidence of this? Let's just say that I've seen this type of crusading before, and that formal, yet highly aggressive letter doesn't really assuage my suspicious feelings about the man and his motives... or, I suspect, the judges feelings. :-)

I would have to disagree with this mans views that jurors should ignore the law if they disagree with it. I appeal to the Categorical Imperative on this one which states that you should only act by moral rules that you can at the same time apply to be universal moral laws. If every juror could ignore the law then there would be no point to having a law; it would be a contradiction.

Instead he should be trying to change laws he disagrees with.

[EDIT]: grammar.

This logic is incorrect; you could apply the same argument anywhere in our government: to the Legislature for failing to see what the Courts deem that the Constitution says; to the Courts for finding that the Legislature is wrong; to the Executive, for not enforcing the laws as intended, etc.

The whole point of our system is one of checks and balances: when part of the system gets out of line, it can still be corrected elsewhere in the system. This is exactly what jury nullification does. When the government's laws get out of hand, when they're not listening to the populace (both of which apply today, I would submit), the People have final veto power, on a case-by-case basis, through the jury system. Indeed, this is precisely why the Constitution guarantees the right to a jury trial: otherwise, we could just have a computer keep score.

It beats the next chance for citizens to put a check on the government, by using the 2nd Amendment.

Quite right in the main. However, there are several other chances for a citizen check between jury nullification and guns. Peaceful protest for instance. Nonviolent, civil disobedience for another.

there are several other chances for a citizen check between jury nullification and guns.

I don't think so. It's true in the sense of escalation of severity. But in the "between" sense of chronology, we're past peaceful protest and civil disobedience. You're effectively writing off those who are today being convicted of unjust laws, hoping that things will be better tomorrow, but not considering the plight of those who are wronged today.

From the perspective of someone whose morals are based on natural rights (which, I think, includes the founding fathers), the status quo is such that morally-innocent people are being imprisoned and having their rights taken away in other ways, right now.

Since the force the State is using to do this is founded on its citizens, I am in essence committing the crime of taking away the rights of these innocents. It is therefore morally incumbent upon me to write this wrong. Asking the government nicely to stop being evil hasn't worked, and these innocents are still suffering. It's therefore each citizen's responsibility (under this moral code) to free these innocents.

Have you and like minded people continually staged sit-ins in public, in legislatures, in court houses, etc... designed to peacefully hold public attention, educate others on the cause, and protest for the redress of these grievances?

A gun is a tool which can very easily remove completely and irrevocably another person's most fundamental rights. As someone who claims to care quite a bit about such rights, you present a clear hypocrisy when you choose rhetoric which encourages reaching for that tool as anything but a last resort for effecting change in the body politic.

What exactly are the grievances to which you are referring? Please do answer, but as you do answer, know this. When we read your answer, we will each be able to determine the answer to the question at the start of this comment. And though I cannot speak for others here, in my opinion, until the time I hear on the news about your being arrested numerous times for being chained to the benches in legislatures across the country, you have no true justification for violence in its cause. No, you have harder, more mature work than pulling triggers to do. You have the work of convincing us to join you, chained to the gears of an unjust power.

The floor is yours for that end, but please spare us any egotistical, violent hero fantasies which rely, in their essence, on the premise that you, and people who agree with you, deserve more than the rest of us the power to choose who lives and who dies.

please spare us any egotistical, violent hero fantasies

Whoa, there! None of this should be construed as my own inclination, nor of any endorsement that someone else should do it. Where I said "From the perspective of someone whose morals are based on natural rights", I was trying to provide a reply using the logic that such a hypothetical person might reach.

That said, reaching a bit deeper into what I think that moral code would tell us...

The government has many unjust laws, some of which are punishable by completely destroying the life of the accused. Amongst these are "victimless" crimes, obviously things like use of drugs, but possibly more controversial things like the creation of computer-generated kiddie pr0n (and let me re-emphasize: I think that's gross, but strictly speaking it's victimless).

These so-called crimes would not be recognized as such in a natural-rights morality, because my body and soul are my own to do with as I choose, and I'm not hurting anyone else. Moreover, the prosecution of these crimes at a federal level is illegal, because the Constitution, the very thing that gives the government its legitimacy, does not permit it (contemporary jurisprudence would disagree, but again, I'm putting myself into the shoes of a hypothetical person; there are plenty who have the beliefs I'm describing).

Thus, the prosecution of any such crimes, and any penalties assessed for them, are themselves illegal. In other words, the government is committing crimes in pursuing them as they are doing.

Finally, here's the crux of the matter. The government is only able to do this because it maintains a monopoly on the use of force, and it is using this power in my name. That is, it is using my name to destroy people's lives. That makes me an (unwilling) criminal by proxy.

As a moral, upstanding citizen, I have a moral imperative to prevent these crimes (that is, the government illegally prosecuting non-crimes, as I see it). I should certainly be voting against the bureaucrats and politicians who are driving these actions. And I should be protesting, and making other people aware.

But the fact remains that lives are being destroyed right now, and it's being accomplished through the power that I have ceded to the government. My votes, my protests, and even the outrage of the other citizens that I've been able to convince, are not preventing these ongoing outrages.

When every day, scores more of these abominations are committed, do you expect me to sit idly by, continuing to function as the very foundation for the power that is executing them? If I'm a person who sees the world in moral black-and-white, how can I shrug off the fact that I am, in small part, responsible for destroying hundreds of thousands of lives? I must do something to clear my conscience.

OK, now let's look at things the other way around -- and let me apologize in advance for invoking Godwin, but it's not a stretched metaphor here, it's precisely the topic. What was the right course of action for the Germans under Hitler? Virtually all of them went right along with the program. But our typical American perspective today is that they should all have resisted. Is that sufficient, just letting the evil go rolling on as long as I say that it's evil, and refuse to actively participate? Or should they have taken more direct action to prevent what was happening?

a jury has more power in deciding a case than a judge, the sad fact is that all too often juries are bullied into believing that they cant exercise this power by the judge and advocates. it can never be a crime to inform people of thier rights

Despite heavy pressure from the Lord Mayor to convict Penn, the jury returned a verdict of "not guilty". When invited by the judge to reconsider their verdict and to select a new foreman, they refused and were sent to a cell over several nights to mull over their decision. The Lord Mayor then told the jury, "You shall go together and bring in another verdict, or you shall starve", and not only had Penn sent to jail in loathsome Newgate Prison (on a charge of contempt of court), but the full jury followed him, and they were additionally fined the equivalent of a year’s wages each.[52][53] The members of the jury, fighting their case from prison in what became known as Bushel's Case, managed to win the right for all English juries to be free from the control of judges.[54] This case was one of the more important trials that shaped the future concept of American freedom (see jury nullification)[55] and was a victory for the use of the writ of habeas corpus as a means of freeing those unlawfully detained.

source?

Not a direct source of his quote, but it's the topic in question. http://en.wikipedia.org/wiki/Bushels_Case

http://en.wikipedia.org/wiki/Bushel%27s_Case

http://www.constitution.org/trials/penn/penn-mead.htm

I think of this as the difference between power and authority. juries have the power to reach any verdict they want, but rightly or wrongly the legal system tells them they only have the authority to reach verdicts according to certain rules. everything seems structured in favor of getting juries that forget they have the power to reach any verdict they want, again for better or worse...

funny that legal systems spend so much time justifying to themselves what is legitimate even when it results in absurd, unjust conclusions...

legal systems don't want laypeople muddying the waters of their absurdities.

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