In Honor of a Patriot

“You can only protect your liberties in this world by protecting the other man’s freedom.” Clarence Darrow

Sanford Keller
May 4, 1941-April 12, 2012
Palo Alto, California
Submitted by Michael and Kimberly Osborne

Sanford “Sandy” Keller, the son of Jewish immigrants, who became a lawyer for the rights of the poor and powerless, passed away on April 14th.

Keller devoted his life to helping prisoners and other clients who could not pay him. His toughest fight lasted 12 years and took him from the parole board to regulatory panels and all the way to the federal courts. It ended on Dec. 4, 1989, when the federal court of appeals overturned the conviction of Mr. Keller’s client Francisco Perez, who had been wrongfully convicted in 1977 on charges of armed-robbery.

Sanford Isaac Keller was born on May 4, 1941, in Palo Alto. He attended Cubberley High School in Palo Alto, and graduated from USC and Santa Clara Law School.

In 1970, he went to work for a federally financed legal services agency in a basement storefront in downtown San Francisco. Three years later, he joined the Legal Aid Society, to represent indigent clients in the Bay Area. He first worked on criminal cases, and then on appeals for the society. In 1983, Mr. Keller started a private practice, mainly taking clients who could not afford to pay him much, if anything. He retired from full time law practice in 2001.

Mr. Keller is survived, in addition to his wife, by their daughter, Kimberly Osborne; two sons, Kyle of Seattle, Wash., and Matthew of New York City, N.Y.; a sister, Caroline Lehman of San Jose, Calif.; and a granddaughter.

Why a fundamental understanding of jury nullification is so critical to taking back our criminal justice system

On April 19, 2012 New York federal Judge Kimba Wood dismissed an indictment against 80-year old Julian P. Heicklen for alleged jury tampering in the case against him for handing out materials to members of the public regarding the right of jurors to apply the historic doctrine of jury nullification.

Nullification is the right of jurors to come back with a verdict of not-guilty even if the jurors believe that the defendant in fact technically violated the law, but the jurors conclude that the law in question is an immoral or bad law or a reasonable law applied in a discriminatory fashion.

In dismissing the case Judge Wood commented that a person violates the jury tampering law only when they try to influence a juror in a specific case pending before those same jurors– but not for merely handing out informational materials (protected First Amendment activity) to members of the public who come to the courthouse for a variety of reasons–not necessarily related to jury duty.

The right of jurors to veto or nullify an unjust law—or a law that may be fair on its face but is being applied in a discriminatory fashion–is critical to our democracy and to our ability to serve as citizen jurors while being fully informed of our rights and options as decision makers. These rights are essential when our government calls us to sit in judgment regarding the guilt or innocence of our fellow citizens and community members

In an era where our government is increasingly cracking down on dissent (consider the response of the government to the occupy movement or to high profile whistle blowers such as  Bradley Manning or Julian Assange) the decision by a federal judge to toss out an indictment against an 80-year-old citizen advocate for handing out materials to members of the public in front of a courthouse is a powerful rebuff to the U.S. government’s ongoing efforts to intimidate and steal from its citizens the right to think and speak freely and to exercise their independent judgment in the context of their jury service.

The judge’s decision to toss the indictment goes a long way to prevent—or at least to mitigate– jury tampering activity by judges and or prosecutors who – on occasion — purposely attempt to leave jurors with the wrong and intimidating impression: that to do anything other than to convict the person on trial is itself a criminal act.

Historically brave and courageous jurors refused to convict those charged with violating the Fugitive Slave Act and other immoral laws despite the best efforts of prosecutors and judges to steer jurors towards a conviction.

In the contemporary setting, if more jurors were fully informed of their right to disregard immoral or discriminatorily enforced laws—such as California’s “Jim Crow Drug Laws” and the racially motivated three-strike law—they would undoubtedly refuse to convict many defendants charged under these morally repugnant and frequently discriminatory laws.

The bottom line is that any grassroots organization attempting to reform or rebuild the criminal justice system from the ground up must understand and be willing to educate members of the public regarding their basic rights as jurors—including the right to veto or nullify bad laws.

Failure to educate the public in this regard is to assist and aid the state in wrongfully convicting members of our own communities. Knowledge is power and it’s time we go out into our communities and spread the word—we can just say no to bad laws.

Judge Kimba Wood’s action in dismissing the indictment in the Julian Heicklen case is cause for wide celebration-since we now know we are on solid legal ground when we decide to organize our communities around fundamental concepts of justice and our desire to take back our criminal justice system.

We can take back our criminal justice system from the forces that would prefer that justice be administered and understood for the benefit of the few to the detriment of the majority of  people.   The majority of people who must interact daily with the intentionally maintained mysterious and often baffling criminal justice system.

In California –pursuant to the holding in People v. Williams 25 Cal. 4th 441 (2001), jurors are explicitly precluded from exercising the doctrine of jury nullification. In fact, if a judge discovers that a juror is refusing to apply the law to a case–he or she may be discharged from the jury.

On the other hand, if the judge is unaware that the jury has engaged in nullifying what they perceive to be an unfair or bad law—the double jeopardy clause would prohibit retrial of an acquitted defendant. In Sparf v. U.S. 156 U.S. 51 (1894) the U.S. Supreme Court—in a 5 to 4 decision—held that federal judges are not required to instruct jurors on their right to nullify bad laws.

Understanding the power of jury nullification is one way to even the odds of obtaining justice for all. To learn more about the power of jury nullification check out the Fully Informed Jury Association (FIJA).

Aram James is a retired Santa Clara County deputy public defender—and a co-founder of the Albert Cobarrubias Justice Project (ACJP) –a grassroots legal advocacy organization—located in San Jose, CA.

*In a future article the author intends to discuss the provocative and controversial use of race-based jury nullification. The doctrine of race-based jury nullification has been popularized by Law Professor Paul Butler.

After 50 years, Cubans hope to travel freely

HAVANA (AP) — After controlling its citizens comings and goings for five decades, Cuba appears on the verge of a momentous decision to end many travel restrictions, with one senior official saying a “radical and profound” change is weeks away.

That comment, by Parliament Chief Ricardo Alarcon, has residents, exiles and policymakers abuzz with speculation that the much-hated exit visa could be a thing of the past, even if Raul Castro’s government still carefully limits the travel of doctors, scientists, military personnel and others in sensitive roles.

Other top Cuban officials have cautioned against over-excitement, most recently at a weekend teleconference designed to bridge the gap with Cuban emigrants, leaving islanders and Cuba experts to wonder how far Havana’s aging leaders are willing to go.

In the last 18 months, Castro has already removed prohibitions on some private enterprise, legalized real estate and car sales, and allowed compatriots to hire employees, ideas that were long anathema to the government’s Marxist underpinnings. But scrapping travel controls could be an even bigger step, at least symbolically, and it carries enormous economic, social and political risk.

Even half measures such as cutting staggeringly high visa fees or ending limits on how long Cubans can live abroad would be significant.

“It would be a big step forward,” said Philip Peters, a Cuba expert at the Virginia-based Lexington Institute. “If Cuba ends the restrictions on its own citizens’ travel, that means the only travel restrictions that would remain in place would be those the United States imposes on its citizens.”

The move would open the door to increased emigration, and make it easier for those overseas to avoid forfeiting their residency rights, a fate that has befallen waves of exiles since the 1959 revolution. It could also bolster the number of Cubans who travel abroad for work, increasing remittances in the short term and investment by a new moneyed class in the long.

Peters and several other analysts said they doubted the new rules would bring about any immediate shift in Washington’s Cuba policies, including a ban on American tourism, which are entrenched and enjoy the backing of powerful Cuban American exiles.

“I don’t think it would lead to a drastic change in U.S. policy, but an accumulation of human rights improvements could lead to an incremental change,” he said.

Rumors of the exit visa’s imminent demise have circulated on and off for years. The whispers became open chatter last spring after the Communist Party endorsed migration reform at a crucial gathering — only for Castro to dash those hopes in December, saying the timing wasn’t right and the “fate of the revolution” was at stake.

Alarcon’s comments in an interview published in April then revived hopes nonetheless that a bold move is coming.

“One of the questions that we are currently discussing at the highest level of the government is the question of emigration,” he told French journalist Salim Lamrani. “We are working toward a radical and profound reform of emigration that in the months to come will eliminate this kind of restriction.”

But Saturday, Vice Foreign Minister Dagoberto Rodriguez told exiles not to set their hopes too high, vowing the government would always maintain some travel controls so long as it faced a threat from enemies in Washington.

Havana residents say they are on the edge of their seats waiting to see what the government does.

“The time has come to get rid of the exit visa,” said Vivian Delgado, a 45-year-old shopworker. “It’s absurd that as a Cuban I must get permission to leave my country, and even worse that I need permission to come back.”

Added Domingo Blanco, a 24-year-old state office worker: “It’s as if one needed to ask to leave one’s own house.”

Many Cubans are reluctant to talk about their own experience with the exit visa . One woman named Miru, who has been trying to leave Cuba since 2006, shared her story on the condition her full name not be used for fear that speaking with a foreign journalist could land her in trouble.

“This has been a very long process,” she said of her odyssey, which began when her husband defected from a medical mission in Africa and sought asylum in the United States.

First, she had to get a letter releasing her from her job at a government ministry — a process that took five years. Only then could she even apply for the exit visa. That was three months ago, and Miru still hasn’t received an answer. Officials say her case is complicated, but won’t give her a specific reason for the delay.

“I am very anxious to see my husband again,” she said.

The exit controls are a Cold War legacy of Cuba’s alliance with the Soviet Union, instituted in December 1961 to fight brain drain as hundreds of thousands of doctors and other professionals fled — many for new lives in South Florida. That was three months before the U.S. embargo barring most trade with the island went into full effect.

Over the years, it has become much easier for Cubans to obtain permission to travel, though many are still denied and it is particularly hard to take minors out of the country.

Bureaucratic fees are another obstacle. The exit visa’s $150 price tag is a small fortune in a country where salaries average about $20 a month. Whomever the traveler wishes to visit also must pay $200 at a Cuban consulate overseas.

Those who leave only get a 30-day pass, and the cost of an extension varies by country. In the United States, the fee is $130 a month. Those who stay abroad more than 11 months lose the right to reside in Cuba. Before 2011, any property would automatically go to the state.

“The Cuban government has monetized every part of the humiliating process of coming and going,” said Ann Louise Bardach, a longtime Cuba expert and author of “Without Fidel: A Death Foretold in Miami, Havana and Washington.” ”Getting out means running a gauntlet and it is all based on how much humiliation you can endure, and by the time they end up in Miami, people are filled with hate and dreams of revenge.”

Cuban officials have long defended the measures as a necessary counter to Washington’s efforts to meddle. They accuse the U.S. of trying to lure away doctors by letting them walk into any American consulate and request asylum. Havana says it spends more than $40,000 apiece to train doctors who are sent on missions to allies such as Venezuela, which gives Cuba billions of dollars in oil in return.

Even ordinary islanders are encouraged to leave, Cuban officials say, by U.S. regulations that automatically grant asylum to any who reach U.S. shores, a policy Cuba says has encouraged thousands to attempt the dangerous trip on leaky boats and makeshift rafts across the Florida Straits.

It’s not clear how migratory reform will affect dissidents, who are routinely denied permission to leave and could still find themselves on some form of no-exit list.

In a recent New York Times op-ed, dissident blogger Yoani Sanchez called the exit controls “our own Berlin Wall without the concrete. … A wall made of paperwork and stamps, overseen by the grim stares of soldiers.” She has been denied travel papers at least 19 times by her own count.

Noted hunger striker Guillermo Farinas, who said he has been turned down five times since 2006, worried that migratory reform could include a loophole that authorities would use to keep dissidents from returning.

“If there is no restriction like that, yes, I would try to leave,” said Farinas, who won the European Union’s 2010 Sakharov human rights prize but was unable to accept it in person.

Scrapping exit controls should win Cuba kudos in Europe, which improved ties after dozens of political prisoners were freed in 2010; U.S. policymakers more focused on democratic reform are likely to be more guarded.

“The reaction in Washington will be positive, but measured,” said Arturo Lopez-Levy, an exiled Cuban economist at the University of Denver.

Some hardliners in Florida have already predicted that any change will be merely a sleight of hand designed to export malcontents, ease a severe housing shortage and fob off legions of superfluous state workers.

But for hundreds of thousands of Cubans like Miru, the exit visa is not a political matter, but a personal ordeal.

After six years separated from her husband, she’s terrified of somehow jeopardizing her chances of going overseas. She holds onto hope that she’ll finally obtain permission or benefit from a change in the law.

“I have followed all the rules of my country,” she said. “I’ll be so happy to leave.”

Associated PressBy PAUL HAVEN | Associated Press –


Associated Press writers Andrea Rodriguez and Peter Orsi contributed to this report


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