
Jury Nullification Advocate Faces Indictment - mhb
http://www.nytimes.com/2011/02/26/nyregion/26jury.html?hp
======
lukifer
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.

~~~
CWuestefeld
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)

------
tzs

        “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.

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

~~~
tzs
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.

~~~
dpatru
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.

------
miles
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

See also:

<http://fija.org/>
[http://www.greenmac.com/eagle/ISSUES/ISSUE23-9/07JuryNullifi...](http://www.greenmac.com/eagle/ISSUES/ISSUE23-9/07JuryNullification.html)

~~~
gnosis
_"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...](http://dneiwert.blogspot.com/2003/10/spreading-
extremism.html)

~~~
isleyaardvark
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.

------
CWuestefeld
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...](http://reason.com/blog/2011/02/08/judge-orders-prior-restraint-o)

------
ajays
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.]

~~~
thailandstartup
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.

~~~
burgerbrain
_"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.

~~~
dpatru
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...](http://en.wikipedia.org/wiki/Trial_by_jury_in_the_United_States#Availability_of_jury_trial_in_criminal_and_similar_cases)

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

------
monochromatic
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?

~~~
thailandstartup
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.”

~~~
isleyaardvark
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.

~~~
CWuestefeld
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)

------
afhof
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.

~~~
CWuestefeld
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.

~~~
nooneelse
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.

~~~
CWuestefeld
_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.

~~~
nooneelse
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.

~~~
CWuestefeld
_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?

------
drstrangevibes
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

~~~
drstrangevibes
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.

~~~
chloraphil
source?

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

~~~
burgerbrain
<http://en.wikipedia.org/wiki/Bushel%27s_Case>

------
svlla
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.

