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.

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

  1. Tony Ciampi
    May 2, 2012 at 4:36 pm

    The United States Supreme Court Supports “Jury Nullification.”

    In 1896 the United States Supreme Court held that “Separate but Equal” was a legal doctrine and thereby justified systems of segregation. For the next 58 years Judges, magistrates, prosecutors, defense attorneys and civil litigators could cite [Plessy v. Ferguson, 163 U.S. 537 (1896)]; in justifying their position of racial segregation and discrimination as being “just,” while arguing their cases to a jury or judge.

    In 1954 the United State Supreme Court’s decision Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), ruled that its own decision 58 years earlier in Plessy v. Ferguson was Unconstitutional and in doing so endorsed and ratified every act of “jury nullification” in every case regarding “Separate but Equal” laws during those 58 years.

       4 likes

    • May 4, 2012 at 5:29 pm

      Very good point, Counselor.

      When the Supremes okay something that wasn’t okay, they retroactively, at least by implication if not intention, validate every case of jury nullification that presaged their most recent decision on the matter.

         1 likes

    • Aram James
      May 5, 2012 at 1:51 am

      Hi Tony,
      Very powerful and compelling comments–if the U.S. Supreme Court can–as you comments suggest–in one fell-swoop-nullify 58 years of ugly, racist, vile, and segregationists case law–the then existing law of the land–how dare any judge–or criminal justice system–deny us, the citizens and the community–the same rights–as individual jurors–to just say no to a bad laws-state and federal prosecutions designed to charge individuals with unconstitutional or immoral laws–i.e., the unconscionable drug laws in this country–the current three-strikes law, etc. Yes—we can refuse to check our consciences at the courtroom door–no judge or system can require us to so, if we are properly educated as to our rights. Thanks so much for your comments on this critical subject.
      Aram

         1 likes

  2. May 3, 2012 at 11:02 am

    This is very powerful and important information. I have served on several juries and I was never informed that I had this right. This should be the first question answered by a jury in all cases “is the law just and is it being justly applied” because just because corporate funding made it a law that in itself does not make it right.

       3 likes

    • May 4, 2012 at 5:43 pm

      What a GREAT idea!

      The very first question a jury should consider is the validity/applicability of the law under which the accused is being charged.

      A jury trial by its very nature is society saying “this is an important matter that we must take time to consider.”

      Deciding on the proper application of the proper law should certainly be among the MOST important responsibilities of the jury.

         1 likes

    • Aram James
      May 5, 2012 at 2:01 am

      Hi Steven,

      You have most concisely captured the essence of jury nullification –we the people should never have to check our consciences at the courtroom door—as you said so simply–but eloquently: the first question must always be is the law a just one—and,even if it is, is the particular law in question being applied in a just and even-handed fashion.

      When judges tell us–instructs us,that we must–regardless of the morality of the law in question–blindly follow the law–the system is stripped of its humanity. As such, we must make certain that every potential juror knows another truth–the right to say no to a bad law. Thanks so much for your comments.

         1 likes

  3. May 4, 2012 at 11:14 am

    Aram James has done us a service by clearly explaining the spirit of the law and how we might rein in a “criminal justice system.” I am politically active because of a sense of outrage over “our government” doing criminal things to innocent people- depriving them of life, liberty, property, health… I’ve witnessed all sorts of benign, actually civic activities that build community- such as sharing being “criminalized” while murder, war, torture have been “legalized,” even though they are morally objectionable and criminal under international law. We need to struggle to reclaim rights for ourselves and those most vulnerable to the abuses by increasingly secretive, unaccountable governments and corporations.

       6 likes

    • Aram James
      May 5, 2012 at 2:53 am

      Hi Carol ( Carol Brouillet For Congress):

      You have described our role as citizen jurors most precisely: grasp the spirit of the law–not the mere cold letter of the law–to ensure a justice application of its principles. Yes you are so right—justice in America has become an upside down reality—heroic activism—i.e., think the Hancock 38 Drone Resisters—protestors in compliance with the Nuremberg Principals–for speaking-out against targeted extrajudicial assassinations–assassinations without due process or a right to trial for its victims– re charged with crimes themselves.

      The most basic expression of free speech–the right to speak-out against your government’s wrong doing–becomes the basis for our government charging us with crimes—all in an orchestrated effort to silence and chill our dissent to government madness and murder. It is time we take back our country.

      Carol we are very lucky to have you running for Congress here in our district. Need I say you have my vote!!!

         1 likes

  4. May 4, 2012 at 5:40 pm

    I agree on all counts.

    Aram James has done us a civic service with his well-written and instructive article.

    I also agree with Ms. Brouillet’s insight: We’ve witnessed and are witnessing the criminalizing what used to be patriotic and legalizing what used to be felonious.

    We are all the beneficiaries of such public discussion.

    Thank you both.

       1 likes

  5. May 5, 2012 at 2:14 pm

    Thanks for this Aarm. We need to start doing something at a grassroots level because the system is insane. More the 1/2 the people in prison for 3 strikes are there for non-violent offenses and though African-Americans are 9% of the population they are 45% of three-strikers. Here are a couple of links:
    Types of crimes: http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
    Racial composition: http://www.justicepolicy.org/uploads/justicepolicy/documents/04-10_tac_caracialdivide_ac-rd.pdf

       1 likes

  6. May 6, 2012 at 2:08 pm

    Great article. Thanks.

    I would go even futher. Perhaps we should explore how banksters who skirt the edge of the law but who are clearly corrupt and dirty can be prosecuted by a jury when it’s obvious that law enforcement is asleep or bought off.

       1 likes

    • Aram James
      May 6, 2012 at 8:29 pm

      Hi Bob,

      Thanks for your thoughtful comments. I think one of the avenues to actually accomplishing the goal of securing prosecutions against bad and corrupt banking officials–is to remain actively involved in the process of electing your local District Attorney–and the State Attorney General—and, in addition–becoming as knowledgeable as possible regarding police and prosecutorial practices at both the local and state levels.

      If we work collectively we can influence positive changes in both police and prosecutorial practices–that currently don’t apply an equal application of the rule of law or equal resources to prosecutions against the rich and high powered white collar criminals, rogue members of law enforcement and high ranking members of government–as compared with the normal citizen prosecuted by the state.

      Unless we are relentless in our quest for knowledge in these areas –the powerful will continue to get over on the ordinary citizen. Knowledge is power and it is there for our taking.

         1 likes

  7. Shankar Ramamoorthy
    May 6, 2012 at 9:22 pm

    It all sounds reasonable enough as Aram presents it but I am unconvinced that the fix for bad laws or the bad application of good laws is for juries to legislate.

    First, while the defendant’s advocacy of nullification had everything to do with why the prosecutors brought the case, Judge Wood’s decision is very narrow and her line of reasoning quite independent of
    nullification.

    The defendant was accused of jury tampering and Judge Wood simply found that since the defendant was handing out his material to all and sundry, and not just jurors or jurors in a specific case, it did not meet the definition of jury tampering expressed in the statute.

    The content of the material being handed out isn’t germane to Judge Wood’s decision. So I think this decision says nothing, pro or con,about nullification. Second, I think this is a case of being careful what one wishes for.

    Jury nullification cuts all ways including in ways that Aram might not find so good. Jury nullification was why Klansmen couldn’t be convicted even with overwhelming evidence of guilt.

    It has been suggested that cops are seldom convicted in excessive use of force cases because juries are unwilling to apply the law strictly to on-duty officers, i.e., they nullify the law, in favor of the police.

    Third, nullification will add to the non-uniformity in the application of the laws. For the same crime one jury may nullify against one defendant and another jury not against another. Yes the current system
    hardly ensures uniformity in the application of the laws, but is adding more non-uniformity really what we want?

    On a different note, could someone knowledgeable comment on how the CA Supreme Court decision essentially outlawing nullification jells with the Supreme Court’s reported endorsement of the right of juries to nullify?

    There are also state laws, including in CA I believe, that prohibit defense attorneys from explicitly informing juries of their right to nullify. If the Supreme Court has endorsed nullification I find it surprising that no defendant has argued in federal court that their legal rights were violated by such strictures.

       2 likes

  8. Danielle Martell, former Palo Alto City Council candidate, and Palo Alto Community Advocate
    May 9, 2012 at 11:08 am

    I keep hearing that justice is not found in the American courtroom because our courtroom is about the law … not justice. “Jury nullification” gives me hope for greater integrity within our legal system.

       1 likes

  9. Mark Petersen-Perez
    May 11, 2012 at 2:51 pm

    Aram:

    It is great to see that since the Palo Alto Free Press first opened up a discussion on jury nullification–in our publication on

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

    that the mainstream press has now decided to follow suit with a brief discussion of the topic as well.

    See related topic link below:

    http://www.mercurynews.com/crime-courts/ci_20587679/trial-vietnamese-freedom-fighter-begin

    In the end the more folks and press that discuss jury nullification the better the chance that we can finally bring a little justice to a system that seems bent on delivering only the letter of the law without accounting for justice as part of the equation.

    The sooner we popularize jury nullification in all of our communities the sooner we will have a last opportunity to save our justice system before it crashes and burns for good.

    Outstanding job Aram and we look forward to more timely articles which educates and enlightens us all concerning our criminal justice system.

    The Editor of Palo Alto Free Press

       2 likes

  10. Anna Griffin
    May 15, 2012 at 6:42 am

    Mr. James,

    I would like to commend you on your article on Jury Nullification. After first perusing your article I was very perplexed and uninformed. Your article inspired and empowered me to research: ask questions for clarity and understanding-what are the advantages and disadvantages of the current jury process according to the constitution? And how can I more effectivey stand-up for the constitution as a potential juror in the future?

    In my discovery and review of jury nullification:I found that the power of the jury can be a deterrent force to racial disparities in sentencing practices and other aspects of the criminal justice system-in the ability to acquit defendant who are technically guilty-but either charged under an immoral law or a law that is charged almost exclusively against people of color.

    We the People–as jurors–must decide the law as well as the facts which inevitably might change our criminal justice system and break down the walls of discrimination.

    Thanks for this information and my growing awareness, that there may in fact be tools that the ordinary citizen juror can use to bring at least a little more justice to a corrupt and unjust system.

    If I may, I would like to suggest more articles on jury nullification to increase public awareness and to educate and empower people to become knowledgeable regarding all of their constitution right as jurors.

       1 likes

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