Since Trump took office, the federal government has repeatedly pushed cases before grand juries that previously would have embarrassed prosecutors. It was hard to say that grand juries refusing to indict sandwich-thrower Sean Dunn constituted clear-cut “nullification” because the contours of “assault” are not objective. Just as it is not possible for a jury to discard their conscience entirely, all juries inherently judge the law as part of their operation, whether they are fully aware of this or not, because no law is crystal-clear. While today’s judges and prosecutors want to deride “nullification” as some distinct act, it’s a spectrum.

Yet the case of Cody Morelock of Ohio appears quite sharp. *Someone* toppled a Flock Safety camera by removing the bolts securing its support pole. And *if* police claims are to be believed, there’s overwhelming evidence (in part from other Flock cameras), that Morelock was involved. Similarly, the price tag they assign to the damages would clearly cross the line into felony. Yet last week a local grand jury refused to indict Morelock for the vandalism.

It’s important to be cautious in our read of the situation. Simply taking police accounts for granted is dangerous when they’ve repeatedly been shown to lie or overemphasize the conclusiveness of evidence. More importantly, the Fifth Amendment’s double-jeopardy clause is not currently read as protecting Americans on no-bills. The Trump Department of Justice has instructed prosecutors that if grand jurors fail to compliantly produce indictments, prosecutors should just convene new grand juries until they get the results they want. And while they not prove as shameless as the feds, prosecutors in Ohio can still resubmit the same felony charges to a new grand jury, or file lesser charges (as was attempted with Sean Dunn).

Opposition to Flock is sweeping the nation and there are very good reasons to be horrified at the privacy violations they’re involved in. It does seem that juries are more than primed to smile on direct action against the surveillance state, and it’s hard not to be enthused that a jury no-billed in this case. But activists should be cautious around trumpeting the no-bill of Morelock as obviously an act of jury nullification while doing so could still put him in danger.

Morelock has not been judged “not guilty” but simply not indicted. While we hope that jurors will continue to feel emboldened to resist the wishes of prosecutors, at the same time they may find it harder when a public narrative agrees with police on the conclusiveness of the evidence against him. Future jurors facing his case (and others) may well want to emphasize the suspect or inconclusive nature of the evidence.

It’s heartening that so many are increasingly open to juries exercising their right to conscientious acquittal, and we may one day praise Morelock as a case of such acquittal, where the conscience of a community provided a sharp check on the venal ambitions of Flock. But for now there are good reasons to be a little cautious in our public evaluations.

On May 24, 1854, Anthony Burns, an escaped slave, was arrested by police in Boston under the Fugitive Slave Act. Burns’ abduction led to large protests of locals, speeches by abolitionists, and a crowd struggling to directly free him at the courthouse. In response, the government told an already empaneled grand jury that they should consider anyone who had organized, advised or given speeches to anti-slavery protesters to be liable in “obstruction of federal officers.” Yet despite weeks of pressure from the judge, the grand jury refused to indict. ...So months later, a new grand jury was convened, this time stacked to include the Judge’s own brother-in-law, and with the exact same charges presented against the same abolitionists.

What is a grand jury?

Grand juries were intended to be a check on the power of prosecutors -- a filter by which normal citizens could autonomously curtail, oversee, and even direct them. The rebellious colonists who formed the US certainly saw grand juries this way because they had regularly used grand juries to nullify the king’s decrees and refuse to indict those who broke them.

But in the intervening centuries not only have grand juries been corralled and intimidated into operating as rubber stamps, they now function primarily to *extend* the power of prosecutors. They are seen as a mechanism to enshrine into formal record evidence that would be totally inadmissible in a real trial -- like rumor and innuendo -- while an indictment can hinge on nothing but thin hearsay. The Supreme Court has decided that dishonest testimony, misleading evidence, and prosecutorial misconduct are tolerable grounds for an indictment. And even the “probable cause” standard of proof often presented to grand jurors as sufficient for indictment not only has no grounding as a fundamental standard in the US legal system, but was widely considered by judges in the early US to be inappropriately lax for indictment.

More importantly, modern grand juries allow the government and prosecutors to coerce witnesses onto the stand in secret testimony, deprived of legal counsel, with no standing to contest, without Fourth Amendment protections, and often stripped of their Fifth Amendment rights as well. For decades this has made grand juries a powerful Soviet-style tool to repress activists, political dissidents, and journalists, who can be compelled to speculate and testify not about crimes but the mere political opinions of their friends and thrown in jail if they refuse. This was used to great effect by the FBI during Nixon to do vast fishing expeditions and get information on his political enemies.

This notion of the grand jury as a weapon to be wielded by prosecutors rather than an independent check on them has been widely commented on by judicial scholars, and is partially a result of how they’re structured: Jurors on a grand jury see only what a prosecutor selectively chooses to put before them, and, given the incredible lack of oversight or adversarial presence, much less the total lack of representation for witnesses and the accused, unsurprisingly some prosecutors feel free to lie about the law itself. Moreover, while trial juries require a unanimous verdict, prosecutors only need to persuade a fraction of a grand jury to indict; a federal grand jury of 23 jurors only needs 12 to indict. In some states like Virginia, a prosecutor only needs to convince 4 individuals.

The Republican Sol Wachtler, as Chief Judge of the New York Court of Appeals, infamously complained that, “District attorneys now have so much influence on grand juries that ‘by and large’ they could get them to ‘indict a ham sandwich.”

And similarly, a grand jury will almost always *refuse* to indict when the prosecutor is begrudgingly obliged to bring a case but pretty openly does not want it to succeed, as with prosecutions of police officers.

Functionally then, today’s grand juries often serve not just as a weapon by which prosecutors can obtain inquisitional powers, but as a buck-passing mechanism, a scapegoat for the prosecutor. They can lead the jury along to the conclusion they want, while wiping their hands of any public responsibility.

Prosecutors feel confident in treating grand juries as tools in no small part because they or their colleagues are in charge of picking the jurors. In some places the selection of jurors is directly overseen by a district attorney. But even where the prosecution isn’t involved in picking jurors -- e.g. a circuit court judge may pick 60 citizens from which a court clerk picks five -- the selection process is often in the hands of a few close colleagues, sharing the same assumptions, allegiances, and biases. Infamously the makeup of a jury is often decided on county lines rather than city lines, deliberately leading to juror pools unreflective of local communities. And, of course, serving on a grand jury is more prohibitive than a trial, because it lasts longer and requires more time off work.

Santa Clara County Judge George Barnett defended the stocking of jurors by saying, “It takes 12 to return an indictment, what if we drew only revolutionaries, pot smokers, who would vote against indictments?” (Cohen, The grand jury-who needs it?, Town Crier (Los Altos), Oct. 3, 1973, at 16, col. 1.)

Because prosecutors believe that jurors have been selected to be compliant poodles they often patronize them as such.

But what happens when jurors reclaim their independence?

Grand Juror Resistance

With the dramatic expansion of prosecutions by the Department of Justice in Trump’s second term, grand juries have suddenly started demonstrated a liveliness and autonomy not seen in generations. Some, like JD Vance and Stephen Miller have labeled this as “jury nullification” -- but alas, most instances are transparent instances of the prosecutor simply not having a case and jurors refusing to be herded. Because of their secretive nature, it’s impossible to know how many grand juries have resisted prosecutorial overreach in the last year and a half, yet many cases they publicized have fallen apart, like the prosecution of six members of congress for reminding military personnel they are obligated to not follow unlawful orders.

Resistance by jurors can take many forms.

Some resign in protest, like Sol Price, who quit a San Diego County grand jury over it returning indictments on the assertion of the DA without investigation. Or the multiple grand jurors who resigned from a Matin County, California, grand jury in 1971 over indictments against a lawyer with no evidence.

Some grand jurors take their formal role as investigators seriously and do their own independent work, like Edison Uno, a San Francisco County grand juror, who -- not merely following the claims presented by the prosecutor -- went in person to the county jail to inspect it.

While today’s institutions are often surprised at grand jurors doing their own independent research, and institutions are often not receptive to requests like Uno’s, as a grand juror you are totally allowed to engage in proactive independent research and bring that research forward in questions!

Asking questions and grilling a prosecutor is one of the main ways that grand jurors can exercise independence, and it can matter immensely. The answers given in a grand jury are formally entered into the court record and can become vital resources for defense attorneys in future trials. When the government is engaged in a fishing expedition they are more likely to get caught in contradictions and claims that might imperil future cases.

There is no limit to the amount of questions you can ask as a grand juror! Don’t be afraid or shamed out of grilling them extensively on anything and everything.

However it is an unfortunate fact that too direct of criticism of a prosecutor may get you removed. Recently unsealed grand jury transcripts in the Broadview Six case showed a juror getting dismissed on the spot by the prosecutor for characterizing the case as “a crock of shit” — and being dismissed by the prosecutor on the spot for saying so.

Such dismissals are considered improper, and got that case vacated entirely, but many prosecutors don’t face oversight and don’t get caught for such flagrant jury tampering. Our advice is to be studiously civil in your criticism and avoid giving the prosecutor an excuse to dismiss you, then report the prosecutor if you are dismissed.

Your voice matters, but so does your vote.

Remember that “probable cause” is a made up threshold. You do not have to let yourself or other jurors be bullied into treating weak evidence as sufficient to bring indictments.

Further, in many circumstances you may judge the charges being brought -- while technically meeting some factual litmus -- as nonetheless obscene miscarriages of justice, for reasons of extenuating context, degree of applicability, or simply that the law in question is unjust. For instance, many grand juries refuse to indict sick people for using pain killing medication or survivors who kill their brutal abusers, and knowledge of this can constrain prosecutors.

A juror’s right to use their conscience and good sense in voting to acquit is inherent and applies in grand juries, just as it does in trials. Once you get to vote, you cannot be punished for a “no bill” vote.

This is fundamentally baked into in anglo-american legal tradition, and the Supreme Court has upheld it endlessly, and even more broadly declared in Vasquez v. Hillery that “the grand jury is not bound to indict in every case where a conviction can be obtained.”

That said, attempting to educate your compatriots in a grand jury about their rights can be a risky strategy.

Judges and DAs have maintained their control over juries in no small part by punishing, silencing, and dismissing jurors who make a loud show of knowing their rights. In 1995 a FIJA activist in FIJA activist in Rhode Island was kicked off the Grand Jury he was sitting on for educating other jurors.

(Commentary from the Frontlines of the FIJA Movement, 20 FIJActivist 4 Autumn 1995)

And we’re not going to lie to you, in cases where grand juries exercise independence and hold firm against prosecutors, the state is often outraged and immediately tries to route around. But this doesn’t mean that jurors can’t win against prosecutors.

In 2022, Richard Obrero was facing a host of murder and a firearms charges. When a Hawaiian grand jury reviewed 9 proposed charges including murder against him and no billed every single one of them, the state tried an immediate workaround the same day — refiling 6 of the 9 charges via a preliminary hearing before a district court instead. The Hawaiian Supreme Court shut this down, but prosecutors whined that such bypasses were so standard a response to disobedient grand juries that if it was ruled unlawful 168 felony convictions would be overturned, even appealing to the state legislature to overturn the Supreme Court. https://fija.substack.com/p/15-minutes-with-fija-26-september Ultimately the legislature allowed prosecutors to bypass getting indictments from a grand jury before filing felony charges, but ultimately upheld that they couldn’t do such when a grand jury had refused to indict.

When the DOJ could not get a grand jury to indict paralegal Sean Dunn for tossing a turkey sandwich at one of the federal officers occupying DC, they simply tried again with another grand jury, and when that jury refused as well they abandoned felony charges, turning to misdemeanor charges, before a normal trial jury threw those out as well.

In 2012, young activists in Oregon and Washington were targeted by a wide-ranging grand jury asking about their friends’ political beliefs and trying to trace friendships.

“As I wasn’t allowed to have my lawyer present or record any of the questions, I would ask for a break after every three questions and go into the other room and write them down so I wouldn’t forget them. This way I could share what they were asking about with everyone else, and make this secret process more transparent. Leaving the room frequently was also a way of demonstrating to my lawyer and others that I wasn’t answering their questions, so there would be no doubt.

After a dozen or so questions and refusals, the prosecutor said he had heard enough. As I got up to leave the room, a jurist in the front row smiled and raised his fist in salute to me.”

While multiple activists were held in prison for their principled refusal to testify, prosecutors were never able to get the grand jury to return indictments.

Such bombastic authoritarian declarations are, of course, absurd. Conscientious acquittal -- jury nullification -- is a core right built into the jury system, and repeatedly praised not just by the founders but by sitting supreme court justices. Educating jurors about this right should be the *obligation* of every courthouse, and activists distributing FIJA literature on one’s rights is basic free speech.

Federal law (18 U.S.C. § 1503) prohibits intimidating any juror, but public education is not intimidation. If the justice department wants to look into juror intimidation, they would have to apply that statute -- as it almost never is -- to judges themselves.

Recently the musician Afroman obtained some fame when local police sued him for music videos mocking individual officers involved in a groundless invasion and ransacking of his house. Americans from across the political spectrum united in recognizing this as a basic free speech case, and Afroman’s jury agreed. Yet after the acquittal, the judge in the Afroman case yelled at jurors, demanding to know what went wrong and why they voted the way they did.

FIJA has long documented the various ways that judges apply pressure in addition to outright lying to jurors, implying legal liability and severe consequences for thinking for oneself rather than dancing like a marionette to the judge’s instructions. Recently in the UK -- where the Labour Government is trying to abolish juries -- Judge Silas Reid threatened jurors that using their conscience in judging a case involving environmentalists would constitute a crime. In the US, we have the Allen/”dynamite” charge -- a legally sanctioned version of pressuring jurors who can’t agree by effectively browbeating them and issuing them ever more narrow instructions.

But judges are often more crude in their intimidation. Infamously, in the foundational Bushell’s Case, when jurors refused to convict William Penn the presiding judge was livid and imprisoned them without “meat, drink, fire, or tobacco” to coerce a guilty verdict. This tradition of tantrums is still with us, in 2019, for instance, Judge Scotti “threw a book against the wall, cursed, and berated, yelled at, and threatened a prospective juror” during voir dire.

Most judges were former prosecutors who rose through a culture of coercion and force, winning at almost any cost. As top dog in the courtroom, a judge has rivals — those pesky 6 to 12 people in that box off to the side who, for any reason they see fit, can let the people dragged into your courtroom go free. For centuries judges have resented that their total power has been usurped by juries, and they repeatedly demonstrate every desire to bully and mislead jurors, lest they realize they are actually the most powerful people in the room.

But judges aren’t the only source of regular juror intimidation. Part of the reason we say that jury duty is for heroes, is that sticking to one’s conscience in a jury box can involve a great deal of harassment from other jurors.

In a recent high-profile case of Texas activists accused of “terrorism” for widely varying levels of connection to a noise protest where one attendee discharged a gun, it’s alleged that there was sustained furious yelling during juror deliberations, and when the jury returned the guilty verdicts pushed by the judge, some jurors were sobbing.

In a 2009 trial, a mistrial was finally forced after a severe situation where one juror holdout wrote to the judge that “I am being intimidated, threatened, screamed at, as well as verbally insulted that I am stupid because I do not agree. I have had 2 physical threats against me, a chair thrown and a verbal threat to beat me up.”

Even more extremely, in the 1990 trial of Madison Hobley for murder, the jury foreman, a police officer, produced a gun, laid it on the jury table and announced “We’ll have a verdict.” The jury was sufficiently intimidated to convict, but this apparently wasn’t enough to declare a mistrial, and he had to be pardoned later after it was revealed that the police had used torture to extract confessions.

Sadly, very little research has been done in tracking intimidation within the jury box. In the US, jurors generally cannot formally testify after the fact about what happened during deliberations. The rule is positive in many respects and exists to promote finality, protect jurors from harassment, and preserve the sanctity of deliberations. But it opens the door to consequenceless bullying, harassment, and threatening behavior from jurors “who just want to go home” against holdouts committed to their conscience.

The most comprehensive study among nations inheriting English common law is from Australia, where Judith Fordham used questionnaire data from 913 jurors across 218 randomly selected trials, plus 58 jurors from 17 targeted trials with prior allegations of intimidation, and in-person interviews with 130 jurors. She found that 14.3% of jurors in the random sample reported feeling uneasy, threatened, or unsafe during or after their trial. The study’s most striking finding was that the most common source of intimidation was not defendants or outsiders, but fellow jurors, and this intra-jury coercion was also the most effective — in 8 of 11 documented cases where intimidation caused a juror to change their vote, the pressure came from inside the jury room. Beyond outright intimidation, 14.2% of jurors reported discomfort with offensive statements by other jurors, 12.9% with other jurors shouting, and 15.7% with other jurors emotional intensity.

In short, we have every reason to believe that jurors regularly face pressure and intimidation, and yet these are too often not considered “improper.” Activists handing out pamphlets or giving public talks on one’s rights are the very last people the “justice” department should be concerned about.

Activists interested in sending educational information specifically to potential jurors may have better options than just blanketing a mass-mailer to everyone in a zipcode.

Depending on the jurisdiction you are in, the jury duty list (sometimes referred to as the ‘jury wheel’ even if that is not strictly accurate) may or may not be a matter of public record.

For instance, 28 U.S. Code § 1863 states that each district court will have a plan for jury selection that (among other things) shall:

“fix the time when the names drawn from the qualified jury wheel shall be disclosed to parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court, or such other district court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require.”

Even if it is not itself public record, the jury list may be composed of names from other sources that are public record or are to some lesser degree accessible under some circumstances.

The vast majority of juror names in the United States come from two sources: voter registration lists and driver license records. Some jurisdictions supplement those with other sources, but those are by far the two most common sources.

As of February 2016, the National Conference of State Legislatures reported that:

“All 50 states and the District of Columbia provide access to voter information, according to the U.S. Elections Project run by Dr. Michael McDonald at the University of Florida; but as with everything related to elections there are 51 different variations on what information is provided, who can access it, and how much it costs to get it.

Generally, all states provide the name and address of the registered voter. From there it gets complicated. Some states have statutory limitations on what information is available.”

Driver license records are governed by the Drivers Privacy Protection Act. According to the Electronic Privacy Information Center:

“The Drivers Privacy Protection Act requires all States to protect the privacy of personal information contained in an individual’s motor vehicle record. This information includes the driver’s name, address, phone number, Social Security Number, driver identification number, photograph, height, weight, gender, age, certain medical or disability information, and in some states, fingerprints. It does not include information concerning a driver’s traffic violations, license status or accidents.

The Act has a number of exceptions. A driver’s personal information may be obtained from the department of motor vehicles for any federal, state or local agency use in carrying out its functions; for any state, federal or local proceeding if the proceeding involves a motor vehicle; for automobile and driver safety purposes, such as conducting recall of motor vehicles; and for use in market research activities. Ironically, personal data is still available to licensed private investigators.”

It goes on to list the permissible uses of this information.

Almost everyone is inconsistent in their support for liberty, but just the same almost everyone feels its appeal. We may disagree with our neighbors on many things, and we may judge the various ways they have not always championed liberty, but when they have reason to recoil from the jackboots it can be a learning opportunity to become more consistent and principled.

FIJA is a non-partisan organization, but in defending the rights of jurors and emphasizing Lysander Spooner’s abolitionist values, we inevitably find ourselves critical of whatever party is in power. The drastic expansions of state power under the Trump administration, to say nothing of further erosion of constitutional checks and balances, has sent millions of liberals marching in the streets under the banner of “No Kings.” And while it’s easy to be standoffish or cynical, given the policies many of those marching have naively supported or continue to support, liberty flourishes when we engage in good faith. To that end, FIJA activists have turned out to these “No Kings” marches with literature on the rights of jurors and the vital role of juries in checking tyranny.

Conversations about liberty have to start somewhere, and sincere horror at instances of injustice or unchecked power are a starting point that can transform lives.

The modern trial by jury, and the inextricable right to jury nullification, has its origin in struggles by commoners against kings and lords in feudal Europe. When some brag of supposed unchecked presidential power and stage military occupations of American cities, there are few greater examples of checks against potential “kings” than jury nullification.

This October 18th, millions of Americans plan on marching in another of these “No Kings” protests—we encourage FIJA activists and supporters to show up and treat them as an opportunity for education and productive conversation. A list of planned events is available here.

Americans can disagree on many things, but our nation was founded on a rejection of kings and it’s worth embracing that impulse everywhere on the political spectrum that it can still be found.

In fury at the work of jury nullification activists, Judge Silas Reid threatened jurors in a trial of five environmentalists that applying their conscience to the evidence in a case would itself constitute a crime. Certain facts he had allowed in prior trials led to acquittals, so he thereupon refused to allow juries to hear such facts. This draconian curtailment of a jury’s right to be informed arguably led one environmentalist facing trial before Reid, Xavier Gonzales-Trimmer, to take his own life.

Defend Our Juries was formed by these UK environmentalists to educate about the right of jury nullification, and while its origin differs from FIJA’s in libertarianism and the civil rights struggle, we share much in common. Both the US and UK legal system are founded on ancient struggles for the right of juries. Jury nullification was campaigned for by Quakers and Levellers in the UK, in a period where there were no modern distinctions between leftists and libertarians, and the legacy of that struggle inspired early Americans. Beyond this shared history, we share in facing repression around basic free speech.

The present campaign of repression against juries and jury education activists in the UK is immensely salient to FIJA, as we have seen our own activists repeatedly arrested, threatened, and silenced since our formation in 1989.

In November of 2010 while Julian Heicklen was sharing FIJA brochures outside the Southern District Court of New York, an undercover FBI agent came out posing as a juror to engage Heicklen in conversation. The agent attempted to entrap Heicklen by talking about current court cases. Heicklen refused to discuss any case in progress, but was arrested and charged with jury tampering nonetheless.

During a long-term FIJA general education campaign in Florida in 2011, the high-profile trial of Casey Anthony began. As a result, Judge Belvin Perry issued an onerous anti-free speech order prohibiting our pamphleteering at the Orange-Osceola County Courthouse. He later followed up with another order defining an obscure “free speech” zone. These orders were not uniformly enforced. Mark Schmidter had been handing out pamphlets periodically over the course of nearly a year, and was not doing anything related to the Casey Anthony trial, yet he was arrested and charged with contempt. Schmidter was not permitted a trial by jury. Instead, he was tried by the judge whose orders he was alleged to have violated, found guilty, and sentenced to several months in jail with additional fines.

Similarly, in September 2012 our former executive director, Kirsten Tynan was threatened with arrest for handing out FIJA literature. She asked where she might hand out brochures. First the marshal told her she could hand them out at the library several blocks down the street, but then later that marshal claimed that no matter where she was handing them out, if a juror came into possession of one, she would be guilty of jury tampering.

In the midst of his campaign for Greene County Sheriff, Republican Luke Lamb was prosecuted for sharing a link to our website and making other comments on jury nullification on Facebook in response to inquiry from a friend. The individual at the time happened to be serving as a juror on a trial, which ultimately resulted in acquittal. Lamb was prosecuted for jury tampering and demanded his right to trial by jury. His jury acquitted him.

Mark Iannicelli and Eric Brandt were arrested and each charged with seven counts each of felony jury tampering for sharing FIJA’s brochures in the public area outside of the Lindsey-Flanigan Courthouse in Denver, CO. The charges were all eventually dismissed by the court.

Two days before Thanksgiving in 2016, Keith Wood was arrested and charged with felony obstruction of justice and misdemeanor jury tampering for sharing FIJA’s Your Jury Rights: True or False? brochure on the public sidewalk adjacent to the Mecosta County Courthouse in Michigan. And

He was originally held on $150,000 bond. The obstruction of justice charge was dismissed by a judge. Unfortunately Wood was convicted by a jury of misdemeanor jury tampering, even though no jurors were seated and no jury trial took place on the day he was pamphleting.

These are just a small sampling of repression faced by those in the US for educating the public on their rights.

While a vast gulf no doubt exists between the personal politics of Trudi Warner and Luke Lamb, the right to educate about jury nullification and the right of jurors to acquit from conscience should be uncontroversial.

As state power continues to grow out of control on both sides of the Atlantic, it is more vital than ever that we preserve this check on it.

FIJA unreservedly denounces the state violence inflicted on jury nullification activists in the UK. The struggle for liberty knows no borders or colors. We are all in this together.

"I can't go back, man. I served 10 years. It'll break me to go back."

He was a proud man but he trembled and flinched a little as he said that. He clearly didn't want to talk about his time in prison, but there was an existential urgency that forced his words out.

He was at the courthouse that day because there's a backlog of cases in Oregon still being re-trialed. He had been convicted over a decade ago, you see, by a jury split 10 to 2.

Oregon prides itself on being a unique laboratory of democracy in the country, where it's relatively easy for citizens to put measures on the ballot, even constitutional amendments. We were the first state in the nation to recognize the right to Assisted Suicide in 1994 and universal vote-by-mail in 1998. But not every product of democracy is a winner.

In 1933 a lone Oregonian juror heroically refused to convict a Jewish man of the murder of a Protestant, only accepting a manslaughter charge. A groundswell of racist and nativist outrage quickly swept in the state, which had only just revoked its racial exclusion laws and had sizable KKK and fascist membership. Conservative newspapers like The Oregonian published episodes bemoaning how ridiculous it was that a single juror could veto the bloodlust of a democratic majority.

And so an amendment to Oregon's Constitution was quickly passed that relaxed the constraint of unanimity, allowing juries to convict or acquit against the votes of up to two dissident jurors.

The man speaking to FIJA activists as we passed out literature was one of the great many convicted under this dramatically weakened jury system. A system that the US Supreme Court had endorsed in 1972, before overruling in 2020. In 2022, the Oregon Supreme Court ruled that this judgment was retroactive, entitling those with non-unanimous convictions to new trials.

The result has been a mess, with cases, sometimes decades old, being re-tried in a giant backlog. Judges have even ordered middle-aged survivors to farcically play-act and pretend while testifying before the jury that brutal rapes that occurred when they were in college *just happened.* And sadly most incarcerated people in Oregon have no idea if they were convicted non-unanimously because no one polled their jury and no records were kept.

But some were lucky enough to have evidence of dissident jurors, lucky enough to get their convictions dropped and re-trials scheduled. This was how a man, bent and broken from ten years of torture in a box, could breath the free air and cling to a FIJA pamphlet, thanking us for our work.

Today, racist and nativist rhetoric is again rising, with many conservative voices denouncing the refusal of grand juries in LA and DC to indict protesters against Trump's military occupation forces. Just as papers like The Oregonian howled in 1933 that the jury system should be thrown out rather than allow "mixed-blood halfbreeds" to get a say, today there's a storm of outrage that cities with significant black and latino populations should be allowed juries, lest they have the audacity to nullify bad laws or see higher justice in letting a protester who threw a sandwich go free.

Authoritarians and populists have always despised juries and the check against state power they represent. Attacks on juries are nothing new. But Oregon is an important reminder that the impact of such demonization of juries can last a very long time.

It is also a reminder that dissent today, even when it seems meaningless or ineffectual, may one day matter. Two jurors stubbornly resisting their peers and loudly refusing to convict may not have thought their efforts mattered a decade ago, when he was convicted and sentenced. But today his torture has ended, or at least been significantly interrupted.

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

This is one of the few clauses of the Magna Carta that is still in legal force. Recall that King John was essentially backed into a corner and had to seal the Magna Carta to avoid a battle at Runnymede with barons who were sick of his wasteful ways being funded by demanding more and more of their wealth.

At that time, the idea of a jury of peers was so that free men would not be judged by those outside of their social class. Nobility would be judged by equally ranked nobility, commoner by equal status commoners, and so on.

At a time when England was ruled by a man who was fond of saying that “the law is in my mouth,” meaning the law was whatever he said it was, this prevented King John from arbitrarily punishing those who did not comply with his edicts. More details can be found in Chapter Thirty-Nine of Magna Carta: A Commentary on the Great Charter of King John by William Sharp McKechnie.

Fast forward to colonial America. English citizens living in the colonies maintained that their rights while living in the colonies were the same as the rights afforded to English citizens living in England. The Crown did not agree. Consequently, colonists wound up with a long list of complaints that were ultimately outlined in the Declaration of Independence.

Its list of grievances read in part and in this order:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences

These three grievances tell a story. Much as the barons did in the time of the Magna Carta, English colonists in America objected to the confiscation of their wealth without having any say in the matter. While the Magna Carta sought to remedy this in part in Clause 39, colonists were incensed that they were not afforded equal protection by the processes that had evolved out of this Clause as those overseas enjoyed.

To thwart colonial jurors’ ability to protect their law-breaking, tax-protesting neighbors by exercising their right to jury nullification in local trials by juries of their peers, the English government took steps to circumvent them. One such step was a plan to remove such trials to be heard in Admiralty Courts far from where the alleged offenses took place. Because Admiralty Courts did not provide for juries and had the judge decide the facts as well as the law in each case, no sympathetic jurors would stand in the way of conviction.

It is no wonder, then, that the early United States government drew heavily on the Magna Carta and other English legal history and scholarship when the Revolution was in part to reclaim the rights the colonists had asserted as English citizens. The language from the Magna Carta referring to a jury of one’s peers appears not only in the Sixth Amendment to the United States Constitution but also in the constitutions of several states.

The modern United States does not, however, have the class-based social structure that was in place overseas at the time of the Magna Carta. What, then, does this mean now in the United States’ legal system?

The Supreme Court of the United States explicitly addressed this in Strauder v. West Virginia (1880). In this case, the Court overturned state provisions for excluding from juries black citizens, whose legal status was explicitly made legal to white citizens’ legal status by the 13th, 14th, and 15th Amendments, noting:

The very idea of a jury is that it is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of persons having the same legal status in society as that which he holds.

and

The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine -- that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.

The Court further cited the language of Strauder v. West Virginia regarding peers in addressing the exclusion of women from juries in its ruling in Taylor v. Louisiana (1974). Consistent with the earlier ruling in Strauder v. West Virginia, the Court ruled that:

The requirement that a petit jury be selected from a representative cross-section of the community, which is fundamental to the jury trial guaranteed by the Sixth Amendment, is violated by the systematic exclusion of women from jury panels, which in the judicial district here involved amounted to 53% of the citizens eligible for jury service.

The practical result of these rulings is this: a jury of one’s peers is one that is drawn from a fair cross-section of the people who have the same legal status in society as the accused.

Individual juries do not have to have exactly the same representation by race, gender, and other factors as the community in which the offense was allegedly committed. However, in order to ensure that a jury meets the current legal standard for a jury of peers, the pool from which its jurors are drawn must be a reasonably representative cross-section of the community. What that specifically means is a matter of ongoing litigation in the courts today.

If you have a question, please check the FAQ first as it may already be answered. If you don’t see an answer there, feel free to email it to aji@fija.org. I will do my best to get to as many of them as possible.

Recently, someone wanted to know if prospective jurors have to answer questions about what they know about jury nullification.

I don’t like to talk about what we “can” or “can’t” do or what we “have to” do because those terms are imprecise and mean different things to different people.

If by “have to”, one means are they legally required to, that’s not something I would be the best person to ask. I am not a lawyer, nor does FIJA have any lawyers on staff, nor do we provide legal advice.

But I will answer it here based on the assumption that it is asked from the point of view of someone who would like to serve on a jury as a fully informed juror. There is quite a bit I have learned from my observations and those of others collected over the many decades FIJA has been around regarding how the court system seems to operate in practice.

Avoid refusing to answer questions

If you want to serve on a jury, the best way to do that is to avoid standing out as someone who might be an independent thinker, a lone wolf, someone who is not easily led, etc. Refusing to answer certain questions will almost certainly raise a red flag in either of the attorneys’ minds or the judge’s mind about whether they want you on a jury.

That especially applies to questions about jury nullification. Refusing to answer questions about jury nullification is basically the same as announcing to the room that you are a fully informed prospective juror.

Understandably, those who are fully informed may be concerned that if they disclose their knowledge about jury nullification they will be deselected and not get a chance to serve on the jury. When backed into this sort of damned if you do, damned if you don’t corner, what can a fully informed juror do to best serve justice?

Answer questions truthfully, but neutrally

To help you navigate the process of questioning prospective jurors, FIJA hosts a resource on our website which we are frequently reviewing and updating whenever possible entitled Questions to Consider Before Jury Selection. I recommend you check this out before you go to the courthouse in order to prepare to answer questions as best you can.

In this resource, we help you think about how you might answer questions truthfully, yet more neutrally than you might first be inclined to answer them. Providing truthful but neutral answers rather than loudly airing your opinions or refusing to answer questions altogether will help you stay off the radar of those choosing the jury as someone to eliminate.

This resource is based on real life scenarios, including what we have learned from criminal defense attorneys, jury consultants, and from watching many jury selections in real cases that were streamed online during the COVID-19 pandemic when courthouse access was limited.

There is a section specifically geared toward questions aimed at rooting out those who know about jury nullification.

Look for indirect questions about jury nullification

You may notice, however, that it includes only indirect questions. That is because almost never will an attorney ask directly during jury selection anything along the lines of “Do you know what jury nullification is?” or “What are your thoughts about jury nullification?”. Typically they do not want to inadvertently inform other jurors about this who do not yet know about it.

Instead, they will ask indirectly using language similar to the sample questions we provide. Jurors who seem neutral or even slightly confused about why they might be asking that are far more likely to pass this test than those who sit up, raise an eyebrow, and launch into an argument with the attorney about the validity of jury nullification in hopes of informing the other prospective jurors this close to trial.

Err on the side of getting on the jury

We strongly recommend erring on the side of trying to get on the jury in this scenario rather than trying to inform other jurors.

If you try to inform others, you will most likely be quickly cut off and ushered out of the room before you can convey enough useful information to educate others. The judge will then usually instruct the other prospective jurors to disregard what you said and may even lie to them saying that it is misinformation.

That means that if you take this route of speaking up and getting removed, most likely there will be no fully informed juror on that person’s jury to stand up for them if needed for a just verdict. So please do not assume you cannot get on the jury or jump to that conclusion to soon.

More jury selection tips

You can find these and other useful tips for getting on a jury and serving as a fully informed juror in our guide to jury duty for fully informed jurors entitled Called for Jury Duty? and located on our website here. I encourage you to review this as soon as you receive a summons to jury duty as it is designed to walk you through the entire process from the beginning.

Thank you for educating yourself so that you may successfully participate and deliver just verdicts when called to serve.

1. requiring the jury to be unanimous to sentence a defendant to death

2. retroactively applying the unanimity requirement to cases already adjudicated, meaning those sentenced to death by non-unanimous juries could be re-sentenced to life without parole (LWOP)

3. retroactively applying previous legislation that banned judges from overriding jury recommendations for sentencing in capital cases such that people on death row because a judge overrode the jury's recommendation of LWOP could be resentenced

That bill is effectively dead this session.

In cases where someone is accused of a crime so serious it is eligible for the death penalty, jurors who believe they committed the crime typically do not want to simply let the person go free. In capital cases, "jury nullification" typically refers to jurors choosing to exercise restraint during the sentencing phase by choosing life without parole instead of execution even though all of the conditions for death penalty eligibility have been met.

It is important to note that this is different from the case where juries choose life without parole because they do not believe all the conditions for death penalty eligibility have been met. Just because someone has been convicted of a capital crime, that does not automatically mean they are eligible for the death penalty. Jurors must weigh a variety of mitigating and aggravating circumstances to determine a convicted person's eligibility for the death penalty. Yet whenever juries deliver an unpopular LWOP sentence, politicians are sure to accuse them of jury nullification as an excuse to weaken their role.

But even if they are engaging in sentencing phase jury nullification, it is their right to make that judgment according to their conscience. Non-unanimous jury sentencing and judicial override undermines the power of one, some, or even the whole jury (in the case of judicial override) to exercise this right.

References:

• Clock runs out on Alabama bill to require unanimous jury for death penalty, AL.com, 25 May 2023

• Animal Passion, Alabama Death Sentences, and HB 14, Montgomery Advertiser, 22 May 2023

• What does jury nullification refer to in capital cases?, FIJA.org FAQ

• Alabama House Bill 14, 2023 Regular Session

Do you think being fully informed about jury nullification means you can't get on a jury? Not true! But it helps if you know something about how the system works and how to navigate it.

You have a real gem of an opportunity to learn how to maximize your chances of serving as a fully informed juror! Join us WEDNESDAY, 22 March at noon Eastern/11 am Central/10 am Mountain/9 am Pacific on Zoom or the official FIJA Facebook page.

Larry Sharpe has both served as a juror and a jury selection and trial prep consultant. We'll pick his brain for tips on what fully informed prospective jurors can expect starting with jury selection all the way through deliberations.

Register for the Webinar on Zoom

Watch on Facebook at the Scheduled Time

As many of you are no doubt wondering, YES! The presentation will be recorded!

I have been so busy juggling various FIJA projects that I'm a little behind on video editing. My apologies! I am on travel right now, but as soon as I get back home to my desktop computer with the large monitor, I'll be camping out in front of it to get those caught up and posted to YouTube.

We will not cede the language of jury nullification as a "right" just because courts want to memory hole this powerful tool against abusive government officials such as themselves.

Massachusetts Court Admits Jurors Have the “Ability” to Nullify, but Refuses to Acknowledge this Right

That said, the latest legal opinion on my radar with regard to the RIGHT of jury nullification comes from Massachusetts. Its Appeals Court has ruled that while jurors have “the practical ability to nullify the law in light of the fact that a not guilty verdict is essentially unreviewable", there was no error in jury instructions telling the jury to apply the law as given by the judge and not consider punishment.

Here is the short opinion:

• Commonwealth v. Jimmy Dixon, Docket Number 20-P-1190, Released 30 January 2023

First, while the opinion says that the defendant notes that juries have a role in determining the law, not just the facts in four other states besides Massachusetts, the defendant is greatly understating the situation. Jurors have this role in EVERY state.

Second, I am not a lawyer, but the gist here seems to be that this court thinks it doesn't matter that jury nullification has historically been a right because, while no law has been passed against it, courts have themselves decided that it's not a right.

Well that's not my understanding of how it works. Courts aren't legally supposed to be able to revoke rights because they find them inconvenient. And in this case, as a practical matter, they actually aren’t able to do so.

As previously mentioned, even this court agrees jurors have the power to exercise jury nullification without legally being punished or overturned. Regardless of whether courts falsely say they have revoked your right, you can STILL exercise jury nullification to deliver just verdicts, whether or not this or any other court likes it. You can't legally be punished for it, and they know that.

That's basically what a legal right is, even if they refuse to acknowledge it. Whether it is called a right or a power is largely academic, though, and doesn't change the fact that you can do this for someone else without risking your own neck.

Jurors Need Not Cede Their Right of Jury Nullification

It's important that we understand that courts' “power” here is mostly an illusion. They can discourage jury nullification by bullying, intimidating, and confusing people out of using it. But they have very little real power to stop it if jurors are intent on exercising it.

Judges can falsely claim it is not a right. They can falsely instruct juries to follow the law as the judge gives it to them. They can prevent discussion of jury nullification in court or discussion of other things that might lead jurors to consider it. They can keep jurors who indicate a willingness to engage in jury nullification off a jury or even remove them as late as during deliberations.

Basically they can scare you, they can keep you in the dark about it, they can lie to you, they can even keep you off or remove you from the jury in some cases if you give them reason to believe you are going to exercise jury nullification.

But if you get on the jury without breaking the law to do so, do not get kicked off by openly discussing jury nullification during deliberations, and successfully deliver a not guilty verdict even if the law was technically broken, the court’s hands are tied. The court can NOT legally punish you for your conscientious vote. And the court can NOT overturn your not guilty verdict based on jury nullification.

That is why the Fully Informed Jury Association exists. If you are to serve as a fully informed juror, you will have to go in with the knowledge you need about your right and power to engage in jury nullification.

To ensure you and others are prepared to get on juries and you successfully deliver just verdicts, including by jury nullification if that is needed, check out and share these resources:

• Guide to Jury Duty for Fully Informed Prospective Jurors

• Questions to Consider before Jury Selection

• Filling Out a Prospective Juror Questionnaire

While I don't know the specifics of the case against Jimmy Dixon, it is described in the opinion generically as having to do with marijuana and firearms. In a footnote, it is mentioned that Mr. Dixon was acquitted of all the firearms charges, meaning he was convicted ONLY of the marijuana-related charges. This sounds very much like he is now convicted of and being punished for victimless offenses—basically a poster case for jury nullification.

Real people's lives are at stake. You can save them with just two words: NOT GUILTY.

What did Lysander Spooner have to say about juries? Why was he writing about jury rights at the time he did? What were his thoughts on what even constitutes a crime?

To celebrate the anniversary of Lysander Spooner's birth on 19 January, the Fully Informed Jury Association invites you to listen in on a free-wheeling discussion of his writings on jury issues. You'll hear from:
• Dr. Roderick Long, Professor of Philosophy at Auburn University
• Dr. Aeon J. Skoble, Professor of Philosophy at Bridgewater State University
• Robert Anthony Peters, Chairman of the Board of Directors of the Fully Informed Jury Association
• Dr. Nathan Goodman, Secretary of the Board of Directors of the Fully Informed Jury Association
• Kirsten Tynan, Executive Director of the Fully Informed Jury Association

Works to be discussed include not only Spooner's Essay on the Trial by Jury, but his argument for the Illegality of the Trial of John W. Webster, Vices Are Not Crimes (though not exactly about jury issues, this seems very relevant when it comes to jury nullification), and possibly other material as the participants see fit.

This discussion will for sure be live streamed on the official Fully Informed Jury Association Facebook page here:
https://www.facebook.com/FIJANational

It MAY be livestreamed on YouTube as well. We will really be trying to make that happen, but the limiting factor will likely be the capabilities of rural Montana internet service. Fingers crossed! Whether or not we are able to also livestream to YouTube, a recording of the event will be posted afterward on our YouTube page here:
https://www.youtube.com/@FIJA

When we do that, let's make sure we fully appreciate how truly protected jury rights are in the Bill Rights. No other rights are addressed directly in the Bill of Rights, and they are even more extensively covered when you consider indirect provisions that also support or include them.

Sixth Amendment

When people think of the right to trial by jury in the Constitution, the first thing they will frequently think of is the Sixth Amendment:

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

(It's worth noting that the right to trial by jury was so important to the founders that it was codified in the United States Constitution years before the Sixth Amendment was ratified in Article 3, Section 2 of the body of Constitution itself.)

This Amendment makes some pretty specific guarantees:

• trial by jury in "all" criminal prosecutions

• speedy trial

• public trial

• an impartial jury

• the jury drawn from the state and district where the accused is alleged to have committed the crime

But inherent in the concept of trial by jury itself, and intended to be included in the guarantee of the right to trial by jury itself, were some other elements. Among them were expectations that:

• a jury would be composed of twelve people

• a conviction required unanimous agreement by all jurors

• jurors would not punished for or unduly impeded from exercising their right to vote not guilty for any reason they believe is just, even if the law was proven to have been broken

Fifth Amendment

While criminal trial by jury is codified in the Sixth Amendment, it is in the same neighborhood with the Fifth Amendment requiring grand juries for certain indictments and the prohibition against double jeopardy:

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Both these provisions supported the founders' vision of juries who stood as a bulwark against tyranny by judging the law as well as the facts in cases before them, and by refusing to do government's dirty work when it was trying to enforce unjust laws or unjustly apply generally good laws in ways they weren't intended to be used. 

Grand juries in American history, for example, on various occasions refused to indict people accused of besmirching the government's reputation by publicizing its misdeeds or resisting taxes they found unjust. And the prohibition against double jeopardy was meant to make a jury's decision to find someone not guilty final such that the government could not circumvent it even if the acquittal was due to jury nullification.

Seventh Amendment

The right to trial by jury in civil matters worth over $20 is also grouped together with these:

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Though our focus tends to be more on criminal trial by jury, and related to that, grand juries, trial by jury in civil cases ought not to be forgotten. 

Keep in mind that the charge to the jury, given by John Jay, first Chief Justice of the United States Supreme Court, in the case of Georgia v. Brailsford (1794):

It may not be amiss, here, Gentlemen, to remind you of the good old rule that on questions of fact, it is the province of the jury; on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court: for, as on the one hand, it is presumed, that juries are the best judges of facts, it is, on the other hand, presumable that the court is the best judge of law. But still both objects are lawfully, within your power of decision.

This was a civil trial by jury. In dispute was an unpaid debt incurred by a Georgia citizen before the American revolution which a British subject tried to collect after the war ended. Jay's instructions to the jury in this case remind us that jury nullification applies not only to criminal trials by jury, but civil jury trials as well.

Ninth and Tenth Amendments

Those might be the only three amendments that come to mind when you think of jury rights in the Bill of Rights. But wait! Jury rights are actually guaranteed in HALF of the amendments that make up the Bill of Rights. Let us not forget the last two:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The word "jury" never appears specifically in these amendments, but they were intended to protect rights that existed at the time the document was adopted without listing them all  individually. Former Washington state Supreme Court Justice William Goodloe pointed out in Jury Nullification: Empowering the Jury As the Fourth Branch of Government that:

It should also be noted that trial by jury and jury nullification were common law rights at the time of the drafting of the Constitution and so are also included as “rights retained” by the people under the Ninth Amendment. And since jury nullification is both a right and a power that the people were exercising at the time the Bill of Rights was adopted it is therefore also a power reserved to the people by the Tenth Amendment.

That jury rights are arguably THE most protected rights in the Bill of Rights makes sense, of course, because denial of the benefits of trial by jury was among the grievances listed in the Declaration of Independence that led the founders to pursue independence from England. They literally fought a revolutionary war, in no small part, to secure jury rights.

We in the FIJA family believe that they are still worth fighting for today. Through our educational efforts, we fight to restore to common public knowledge and legal recognition jurors' right to judge the law as well as the facts in cases before them and to show mercy when they believe it is just by declining to enforce the letter of the law as government dictates it to them, even if the accused has been proved guilty beyond reasonable doubt.

If you have any questions about this episode, I invite you to post them in a comment on this episode’s page on Substack, and I will do my best to answer them for you.

Civil Asset Forfeiture in Georgia

We begin this week in Georgia to discuss a report recently released on civil asset forfeiture there.

To quickly introduce civil asset forfeiture to those not familiar with it, civil asset forfeiture is an underhanded tactic concocted by the government that undermines Constitutional guarantees by circumventing them with a legal fiction. Rather than accusing a person of wrongdoing, the government accuses property of being involved in wrongdoing.

This legal fiction pulls the rug out from under the property owner. Protections they would have had were they accused directly—such as the presumption of innocence, right to an attorney, a high burden of proof laid squarely on the government’s shoulders, protection against self-incrimination, the right to trial by jury, and more—are said by government not to apply to property which doesn’t have Constitutional rights.

Of particular interest to FIJA is that because the accused property has no right to a trial by jury, the government need not worry about the owner’s peers protecting them whether by finding them not guilty due to their actual innocence, due to reasonable doubt, or by way of jury nullification. The potential for circumventing jury nullification is a real eyebrow raiser here because many of the cases the government claims to be using asset forfeiture in are alleged drug cases—a category of cases that tends to be more likely to benefit from jury nullification by sympathetic jurors.

Approximately two years ago, the Georgia Advisory Committee to the U.S. Commission on Civil Rights decided to look into the impact of civil asset forfeiture in Georgia on people of color. In November, it published a report entitled Civil Asset Forfeiture and Its Impact on Communities of Color in Georgia.

Among its findings, the Committee found that “Most cases of civil asset forfeiture in Georgia are not targeting high-level, organized criminal activity as intended but are instead impacting low-income individuals who are rarely charged with any crime.” The report specifically cites Dan Alban of the Institute for Justice, who informed the Committee that between 2015-2018, 58% of the forfeited property at the state level in Georgia was cash, half of that worth less than $540.

The Committee further found that “Civil asset forfeiture is disproportionately deployed against poor people and people of color.” It points to disproportionately high rates of police contact with these communities and the higher likelihood of people in these communities to conduct their financial transactions in cash as two contributing factors to this problem.

Most important among its recommendations is that the Georgia legislature should eliminate civil asset forfeiture. This is then followed by a long list of potential reforms the legislature could implement to civil asset forfeiture if they will not do away with it entirely.

• Civil Asset Forfeiture and its Impact on Communities of Color in Georgia, A Report of the Georgia Advisory Committee to the U.S. Commission on Civil Rights, November 2022

Crypto 6 Trial, Now Down to 1, Begins This Week

Next up is news of a trial on my radar to watch for potential jury nullification.

The trial of the last remaining Crypto 6 defendant to have held out for a jury trial begins this week in New Hampshire. Last year the federal government charged six New Hampshire residents for various offenses allegedly related to operation of a cryptocurrency exchange without government-required permission slips.

As trial begins this week, only one of the group held out for a trial by jury with the other five having taken plea deals. The holdout defendant is Ian Freeman, best known as a libertarian activist in New Hampshire and co-host of the Free Talk Live radio show. He is also known for his advocacy of jury nullification over the years, leading to speculation about whether jury nullification might play a role in this case.

Freeman is represented by defense attorney Mark Sisti, who has some experience with jury nullification. About a decade ago, Sisti represented cannabis defendant Doug Darrell in a criminal trial that ended in acquittal after a judge instructed the jury that “even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.” Cathleen Converse, a member of that jury , reported after the trial that Sisti’s acquittal was delivered after some of the jurors convinced the others to conscientiously acquit him.

Whether or not Sisti will be angling for jury nullification in this case is unclear. Judge Joseph Laplante has reportedly rejected a request to instruct the jury on their ability to engage in jury nullification. However, a post on the Free Keene blog, of which Ian Freeman is a member, claims that jury nullification was never part of the defense strategy. And Freeman himself was quoted by The Keene Sentinel in September as saying, “I don’t believe we broke any of the laws in this case and I believe this trial is a sham.”

I’ll be keeping an eye on this trial and will let you know if anything related to jury nullification develops.

• The Crypto 6 Case Heads to Trial With Only 1 Defendant Left, Prosecutor’s So-Called ‘Expert’ Excluded, Bitcoin.com, 4 December 2022

• Freeman money-laundering trial set to begin next week, New Hampshire Union Leader, 1 December 2022

• Crypto6: Less Than 3 Weeks To Go & Major Updates, Free Keene, 17 November 2022

• As DiMezzo pleads guilty, Freeman maintains innocence in Bitcoin case, The Keen Sentinel, 13 September 2022

• New Hampshire Jury Nullifies its First Felony Marijuana Case, Free State Project, 16 September 2012

• New Hampshire Jury Acquits Pot-Growing Rastafarian, Reason, 14 September 2012

Biden Admin Wants to Seize Crypto without Charge or Trial

We’ve talked civil asset forfeiture. We’ve talked crypto. Now we’re going to talk crypto and civil asset forfeiture.

Though this item is about a month old, I just discovered it in recent days. Nick Sibilla, a writer and legislative analyst at the Institute for Justice, reported on the Forbes website in late October that President Biden wants to expand the federal government’s abusive and unconstitutional civil asset forfeiture scheme to make it easier to go after cryptocurrency without having to prove anyone guilty of a crime.

He points out that the Department of Justice took two concurrent steps in this direction. It released a report entitled The Role of Law Enforcement in Detecting, Investigating, and Prosecuting Criminal Activity Related to Digital Assets. At the same time, it announced the establishment of the nationwide Digital Asset Coordinator Network.

Interestingly, the report has since disappeared from the DoJ website, and I have not been able to track it down. But Sabilla’s write-up seems to be consistent with other articles on the topic—specifically an October article by Carol Alexis Chen, partner and trial lawyer in Winston & Strawn LLP’s Los Angeles office, and a September article by Nicholas Anthony, a policy analyst in the Cato Institute’s Center for Monetary and Financial Alternatives.

All I could tell from these articles about the report is that its main recommendations with regard to asset forfeiture seem to be to expand the government’s authority to engage in it and to raise the dollar amounts up to which it is allowed to do so.

But we don’t need a lot of details to understand that such things are, of course, going to expand the government’s likelihood, frequency, and magnitude of looting people without even accusing them of a crime, let alone having to prove that beyond a reasonable doubt to a jury of their peers. This is EXACTLY the sort of government corruption trial by jury was meant to protect us against, but that is not possible as long as the government can simply bypass trial by jury.

• Biden Administration Wants To Make It Easier To Seize Crypto Without Criminal Charges, Forbes, 25 October 2022

• Enforcement in Directing, Investigating, and Prosecuting Criminal Activity Related to Digital Assets – The Department of Justice, Carol Alexis Chen, 7 October 2022

• The Biden‐​Cryptocurrency Reports: Part 2, The Role of Law Enforcement in Detecting, Investigating, and Prosecuting Criminal Activity Related to Digital Assets, Cato Institute, 19 September 2022

San Francisco’s Trial Backlog Continues to Grow

Finally, we go to San Francisco for an update on a situation I’ve reported on previously.

Recall that I shared with you back in September that folks from the San Francisco Public Defenders and other community leaders and community members publicly staged a mock trial on the steps of the Hall of Justice. On trial was the San Francisco Superior Court, for violations of speedy trial deadlines and a continuously growing backlog of criminal trials.

In conjunction with the mock trial, attorneys filed numerous motions challenging the continued incarceration of people beyond their speedy trial deadlines and asking for dismissal in several cases. At that time, The Davis Vanguard reported more than 550 cases had dragged out beyond their speedy trial deadlines without going to trial and more than 150 people were stuck behind bars past their speedy trial deadlines without trial, let alone conviction.

Now in December, The Davis Vanguard is reporting that the San Francisco Public Defenders and others have again brought the issue to public attention, this time at the annual meeting of the California Judicial Council. The Council is composed of state judges who make policy for the state courts. Presumably, they could take action now—and they could have taken action LONG ago—to remedy this unconscionable situation if they actually cared to.

The San Francisco Public Defenders Office reports that there are “770 individuals who have seen their Constitutionally-mandated trial deadlines pass, including about 180 people trapped in jail beyond their trial deadline.” Compare this to the 550 cases that had exceeded their speedy trial deadlines and 150 individuals trapped in jail past their speedy trial deadline without trial back in September. The pandemic is essentially over, yet the backlogs continue to grow at alarming rates.

San Francisco Public Defender Mano Raju says that “It is shameful and inexcusable that San Francisco stands alone in refusing to honor Constitutional speedy trial rights of hundreds of community members. While other counties cleared their backlogs, San Francisco’s has grown by more than half since it ‘fully reopened’ back in June 2021. San Francisco’s court system has failed its residents badly for months upon months, and has exacerbated the humanitarian crisis in our jails.”

His description of the situation as a humanitarian crisis is not an exaggeration. The San Francisco Public Defenders Office points out that “Many of the people in custody in San Francisco County Jails are subjected to 23-hour-a-day lockdown conditions, have had no exposure to sunlight, very limited in-person family visits, and few opportunities to attend programs.”

What accounts for this continuing increase in the trial backlog? Aside from the fact that the government is, of course, not giving itself any consequences for these mass Constitutional violations, the Public Defenders Office reports that San Francisco has:

• not been prioritizing criminal trials above civil trials as required by law,

• it is not making use of all its currently available courtrooms,

• nor has it sought any alternate venues to hold trials as other counties who have been reducing their backlogs have done.

The pandemic is no longer even a sort of plausible excuse for increasing backlogs. At this point it is clearly the fault of government mismanagement and lack of accountability. As long as the government permits itself to violate Constitutional rights with no consequence, there will be no remedy.

It’s hard to know what more to say about this situation except that one of the most liberal cities in the United States rightfully should now be stained with a reputation as one of the most prolific violators of civil rights in the country.

• SF Public Defenders, Community Members Blast to CA Judicial Council SF Superior Court Unlawful Trial Backlog, ‘Humanitarian Crisis’, The Davis Vanguard, 3 December 2022

• SF Public Defenders and Community Hold Mock Trial to Indict the Court for Violating Speedy Trial Rights Amid Crippling Backlog, The Davis Vanguard, 17 September 2022

We’ve talked asset forfeiture. We’ve talked speedy trial issues. Why do I cover these things? Just as a reminder, if there is no trial by jury—if you cannot get into court in front of a jury and have your day before them to let them judge you—there is no possible way you can benefit from jury nullification. And that’s why I harp on this so much.

And on that kind of angry note, that wraps it up for this week. Thank you for joining me for 15 Minutes with FIJA. For more information on any of the items covered this week, you can find detailed show notes, complete with links to source material, at FIJA.substack.com. You can help ensure educational information like this continues to be provided to the public at no charge by making your donation at FIJA.org/give. I look forward to seeing you next week. Take care.

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Death Sentences Imposed by Judicial Override Still Being Scheduled in Alabama

Judicial override in death penalty cases is a scheme in which the jury merely recommends an advisory sentence of either life without parole or death. Since it is only considered advisory, that sentence can be overridden by the trial judge if the judge disagrees with the jury’s findings regarding the mitigating and aggravating factors.

The Equal Justice Initiative noted in its 2011 report entitled “The Death Penalty in Alabama: Judge Override” that Alabama was the only state in the country whose judges routinely overrode jury sentences of life without parole to unilaterally impose the death penalty. At the time, Alabama, Florida, and Delaware were the only three states in the country to allow judicial override, but nobody in either Florida or Delaware had been on death row due to judicial override since 1999.

On the other hand, EJI pointed out, Alabama judges had used judicial override 107 times since 1976, 92% of the time to replace a jury’s recommendation of a life sentence with the judge’s preferred sentence of death, and there is evidence that significantly more of these overrides take place in years when judges are up for re-election. So we’re not talking about sentences that are imposed so much based on the merits, as imposed based on a sort of campaign strategy, even if unconscious, by people whose jobs are on the line. Moreover, the report states, “Judge override is the primary reason why Alabama has the highest per capita death sentencing rate and execution rate in the country.”

In 2016, the United States Supreme Court addressed the matter in Hurst v. Florida, ruling that a judge making findings of fact regarding the aggravating and mitigating factors to justify a death sentence violated the Sixth Amendment right to trial by jury.

Often you’ll hear it described that jurors judge the facts of a case while the judge gives them the law. It is portrayed as if there is some dichotomy there as a way to discourage jurors from exercising their right to judge the law as well as the facts. Well here is a situation in which judges have not only taken over the jury’s law-judging role, but also are encroaching on and taking over their fact-finding role.

The three states with judicial override subsequently abolished the ability of a judge to override a jury’s recommendation of a life sentence to impose the death penalty. Alabama was the last, abolishing it in April of 2017. However, as we saw with the jury unanimity situation we’ve talked about in previous episodes, lawmakers did not make this prohibition retroactive.

Last week Alabama attempted to execute Kenneth Smith, a death row resident for decades since a judge reversed the sentence of life without parole recommended by 11 out of 12 of his jurors and instead imposed the death penalty.

Eleventh hour attempts by the defense to bring the process to a halt failed. The Supreme Court turned down both Smith’s request for review of his case an a stay of his execution to allow such review. There is no public record of how the judges voted in this case.

It was only due to the state of Alabama’s ongoing troubles with their execution protocols that Smith’s life was spared, albeit temporarily. Government officials began attempting to insert two IV lines needed to kill Smith around 10 pm, but were only able to get one placed before they determined they would not have time to kill him before his death warrant expired at midnight. So he has a brief reprieve but no reason at this point to hope for a permanent one.

Smith is not the only person on death row facing similar circumstances. The Equal Justice Initiative reported earlier this month that 30 people sentenced to death by judicial override against the recommendations of their juries remain on death row in Alabama and account for some 20% of Alabama’s death row population.

I have previously discussed the injustice of the failure of the Supreme Court or the states which previously allowed non-unanimous jury convictions to apply the restored unanimity requirement retroactively. Likewise, having one standard of trial by jury going forward in new cases and yet leaving the old, unjust standard in place for those already sentenced to be killed by the state is yet another example of two-tiered justice due to laziness. It’s seen as inconvenient to look backward and bring these defective trials, verdicts, and sentences up to the standard that the government is saying is the MINIMUM requirement now. But that doesn’t mean they were any more valid. The government is just saying, “Lump it. We violated your rights , and we’re not going to fix it.”

One can imagine why the Equal Justice Initiative would have chosen its name given the blatant disregard for equal justice for all in the criminal legal system still today.

• Alabama Abolished Judge Override, But Still Seeks to Execute People Who Received Life Verdicts, Equal Justice Initiative, 4 November 2022

• The Death Penalty in Alabama: Judge Override, Equal Justice Initiative, July 2011

Virginia Officials Whine About People Exercising Their Right to Trial by Jury

In past 15 Minutes with FIJA sessions I reported on a change made in Virginia that decoupled trial by jury from jury sentencing. Not too long ago, if you exercised your right to trial by jury in Virginia, not only did a jury decide if you were not guilty or guilty, but then if it found you guilty of one or more charges, you had no alternative but to be sentenced by that jury. To be clear, we are not talking about capital cases here, but criminal cases in general.

But there was a catch. In Virginia, juries are legally bound to follow state sentencing guidelines when sentencing someone while judges were legally allowed more options to show mercy and give more lenient sentences. Typically, jury sentences were much harsher than delivered by judges. It was, therefore, a strong incentive (above and beyond the usual strong incentives defendants have everywhere) to forego the right to trial by jury.

However, this changed in July 2021 when a legal remedy for this problem took effect. Now if someone exercises their right to trial by jury and is convicted, they get to choose whether they are sentenced by their jury or by a judge, the person who has more leeway in granting mercy if they so choose. That way they can exercise their right to trial by jury without the extra risk of being sentenced by a jury held to a stricter sentencing scheme than a judge would be.

As a result, CBS19 News in Charlottesville is reporting that trials by jury are up 500% statewide and prosecutors are predictably very cranky about it. Louisa County Commonwealth's Attorney Rusty McGuire trotted out the old scare tactic of threatening for violent criminals to be released because the state can’t be expected to meet speedy trial requirements for all the new people exercising the Constitutionally-guaranteed right to trial by jury.

Virginia law generally sets the speedy trial clock for those incarcerated pre-trial at 5 months, not including delays the government deems justified. No word yet on whether that is actually happening or what the state has done to prevent it. I will, however, be keeping an eye on the situation as prosecutors are likely to try and use any problem they can scrape up as reason to get the legislature to take away jury rights once again.

As I say so frequently, without trial by jury, there is no jury nullification. So this is something worth fighting to keep.

• Jury trials up 500%, circuit courts overwhelmed, CBS19 News, 26 October 2022

• SB 5007 Criminal cases; sentencing reform, procedure for trial by jury, etc.

• Code of Virginia § 19.2-243. Limitation on prosecution of felony due to lapse of time after finding of probable cause; misdemeanors; exceptions

Florida Death Penalty

Though the tone of their news story seems to portray this more of a negative than a positive, First Coast News reports that the death penalty is getting harder to impose in Florida. Due to the recently legislated requirement that death sentences be recommended by unanimous and not split juries, even a single juror can now prevent execution without any other jurors on their side.

Additionally, First Coast News reports that the state is revisiting all death sentences imposed since 2002 by non-unanimous juries. They must either be retried to secure a death sentence or they will default to sentences of life without parole.

“Of 122 capital trials held since jury unanimity became law, the state has lost 64 percent of the time (66 percent of new cases and 62 percent of resentencings). Only 40 of 122 cases resulted in death,” reports First Coast News.

Nonetheless, the state continues to seek the death penalty in numerous cases. In Duvall County alone, says Assistant Public Defender Al Chipperfield, there are 24 pending cases in which the death penalty is on the table.

This issue has been in the spotlight in Florida since Parkland shooter Nicholas Cruz was spared the death penalty, reportedly by three dissenting jurors voting for life without parole. As soon as that happened, several Florida government officials and hopefuls, including both of the main party candidates for governor, expressed interest and intention of reversing the legislation that made jury unanimity a prerequisite for a death sentence.

So you can be sure that is something I will be keeping an eye on in the next month when I start to review state legislative websites for pre-filed legislation. I will let you know if I see that come up at any point.

• Life after Death: Florida's jury unanimity requirement makes death penalty more elusive, First Coast News, 21 November 2022

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SCOTUS Turns Down Khorrami v. Arizona Re: Jury Size

Ramin Khorrami was tried and convicted in the state of Arizona on felony charges for fraud and theft by a jury of just eight people. He appealed his conviction, arguing that his Sixth and Fourteenth Amendment rights were violated by a conviction of a jury of less than twelve people.

Well… were they? Not according to an incredibly jury-unfriendly Supreme Court that made numerous bad rulings on jury rights issues mostly in the 1970s. That court held in Williams v. Florida (1970), an opinion fit for the garbage bin, that:

“The constitutional guarantee of a trial by jury does not require that jury membership be fixed at 12, a historically accidental figure. Although accepted at common law, the Framers did not explicitly intend to forever codify as a constitutional requirement a feature not essential to the Sixth Amendment's purpose of interposing between the defendant and the prosecution the common sense judgment of his peers.”

With that ruling just over a 50 years ago, the Court undermined several hundred years of precedent in which it was widely agreed that in serious criminal trials, a “jury” meant, by definition, one composed of 12 members.

This ruling was particularly ripe for revisiting right about now since the Supreme Court recently restored the requirement of unanimity for convictions by juries in criminal cases. Ramos v. Louisiana (2020), overruled two other of that 1970s era Court’s bad jury rulings in Apodaca v. Oregon (1972) and Johnson v. Louisiana (1972), restored the requirement for unanimity for criminal convictions in future trials going forward. It recognized that the concept of unanimity for conviction was implicit in the understanding of trial by jury at the time the Constitution was written, and that is the same argument being made regarding jury size in this case.

That makes it a bit baffling that just four Supreme Court members could not be found who would accept this case for review. It is even more mysterious given that two judges—Kavanaugh and Gorsuch—went out of their way to make clear that they would have accepted it. No word on why Sotomayor and Brown Jackson, who seem like they should have been the two most obvious other judges to accept this case given their criminal justice interests, declined to review it.

Gorsuch wrote an unusual dissent from the denial of certiorari in this case with passionate words spelling out how big an opportunity the current Court missed out on in denying this case review:

“For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community. In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law. That mistake continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable. Today’s case presented us with an opportunity to correct the error and admit what we know the law is and has always been. Respectfully, we should have done just that.”

His dissent gets into great detail on the history of the twelve-person jury and historical understandings of trial by jury in serious criminal cases necessitating a jury of twelve, not by accident as the 1970s court claimed, but by definition. A link to his dissent appears below so you can read it in its entirety.

Arizona is one of just 6 states that allows serious felony trials to be decided by abbreviated juries of 6 or 8 jurors. The others are Connecticut, Florida, Indiana, Massachusetts and Utah.

It takes just one juror to prevent a conviction by hanging the jury, and the accused is much more likely to find at least one such juror when there are 12 people in the jury box than just 8 or 6. So these states have lowered the bar that their governments must clear in order to punish someone.

This includes not only reducing protection of the accused by those who believe the accused to be factually innocent, but also by those who would vote not guilty even though they believe the person whose case they were judging had been proven beyond reasonable doubt to have violated the law—in other words, those jurors who would consider jury nullification. While this particular case is not a typical poster case for jury nullification, it is important to recognize that the denial in this instance will leave more sympathetic cases without relief.

• Gorsuch Dissent Chides Colleagues and ‘Wrong’ Supreme Court Precedent for ‘Tinkering’ with ‘Ancient Tradition’ in Criminal Justice Reform Case About Jury Trials, Law and Crime, 7 November 2022

• U.S. Supreme Court's Gorsuch says justices should require 12-person juries, Reuters, 7 November 2022

• Khorrami v. Arizona, Supreme Court, 7 November 2022

• Khorrami v. Arizona, SCOTUSBlog

• Johnson v. Louisiana (1972)

• Apodaca v. Oregon (1972)

• Williams v. Florida (1970)

Fallout from SCOTUS Failure to Retroactively Apply Jury Unanimity: Landon Quinn

On a bit more positive note, our second news story tonight is a report from Radley Balko, an investigative journalist who does important work on criminal justice issues and who has been a long-time proponent of jury rights.

Balko has recently left The Washington Post and started his own Substack newsletter called The Watch. He recently reported on The Watch on the case of Landon Quinn.

Quinn was one of the unfortunate thousands of people left in limbo when the United States Supreme Court followed up its restoration in Ramos v. Louisiana (2020) of the unanimity requirement for criminal convictions in trials by jury with a quick refusal in Edwards v. Vannoy (2021) to retroactively apply that to thousands of cases where people had been convicted improperly by split juries but had exhausted their appeals process. The Court did not, however, preclude state legislatures, courts, or governors from providing relief to those unfairly convicted with invalid trials by jury.

Balko detailed in a lengthy 2019 column for The Washington Post numerous details of the gross miscarriage of justice that occurred in Quinn’s case. Rather than get into all the horrifying details, of which there are many, of how two unfair trials (the first a hung jury, the second a conviction on a 10-2 vote) resulted in a life sentence, I am sharing a gift link to that article in the show notes. For two weeks after publication of the podcast episode, you will be able to read it with no paywall.

So what is the good news? Given that unjust conviction, however, and the subsequent failures of both the United States Supreme Court and the Louisiana state supreme court to correct the injustice done in ths case when they each had the chance to do so, Balko reports that there is at least a little good news for Quinn.

Orleans Parish district attorney Jason Williams, a reform-minded DA elected in 2020, offered Quinn a plea deal which freed him from prison after two decades of unjust incarceration, and Quinn accepted.

Unfortunately, he will not be exonerated, nor will he be compensated for decades of his life stolen from him, and he will go through the rest of his life with all the disadvantages that come with having a felony record.

So good news for him that he is at least out while there is likely some meaningful part of his life left to live, but as I have too often found in this field, even the “wins” are very often tainted with some stench of loss.

• I'm happy to report some good news. Mostly., The Watch, 2 November 2022

• How two overworked public defenders and six judges left a New Orleans man with a life sentence, The Washington Post, 28 August 2019

Other Item of Interest

• The Most Sacred Ancient Liberty: Magna Carta & Trial by Jury in the New Republic, Renee Lettow Lerner, professor of Law at George Washington Universty School of Law (the whole lecture is valuable, but comments specifically regarding jury nullification start around 17:49)

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Litigation Regarding Masking in Jury Trials During the Pandemic

Litigation regarding courtroom practices that arguably lowered standards for justice during the pandemic continues, most recently in the case of State of Washington v. Justin Dominic Bell. Bell is appealing his criminal conviction after jurors for his trial were permitted to wear cloth facemasks throughout the trial, thereby obscuring large portions of their faces and the expressions that would normally be seen by attorneys assessing their demeanor. In the same trial, however, witnesses wore clear face shields, a tacit acknowledgement that this information can be critical to the outcome of a trial.

According to the appellant, the judge had the power to have prospective jurors wear the clear face shields and they were available, yet the judge did not require them. “I can only defend my client to the full extent of my ability if I can see the jurors’ entire faces; including whether they’re smirking, opening their mouth in surprise,” argued Washington Appellate Project attorney Oliver Davis.

I have no estimate of when the court will rule in this case, but looking to other similar cases, I’m not optimistic for an outcome that raises the bar for justice in this way back to its original level.

Consider another recent ruling from the Maryland Court of Special Appeals just a couple of weeks ago. In the criminal trial of Radee Prince, the defense requested that prospective jurors wear clear face shields or be unmasked during jury selection—a request that was denied by the trial judge.

Despite citing a case that asserted “the substantial right of the prisoner to be brought face to face with the jurors at the time when the challenges are made” and claiming that “we acknowledge that an individual’s facial expressions play a role in nonverbal communication,” the panel of judges in this appeal nonetheless gave the government a pass on the masks. The 3-judge panel all agreed that “the marginal diminution of everyone’s ability to see the lower halves of the potential jurors’ faces didn’t affect the answers they gave or the court’s ability to evaluate and rule on motions to exclude them.”

And earlier this year, the Superior Court of Pennsylvania gave the government a pass even on masking of witnesses in the case of Commonwealth of Pennsylvania v. Theodore B. Dixon. The appellant argued that “the jury could not assess the witnesses[’] credibility by observing their behavior because the witnesses were prohibited from temporarily lowering their masks while giving testimony[,] even though the witnesses were more than six feet away from others and guarded by plexiglass.”

But the government gave itself a pass in this case, ruling that the accused’s Sixth Amendment right to confront accusers was not violated because “The jury was able to assess the witnesses’ credibility and demeanor by (1) observing their movements, body language, appearance, eyes, and posture; and (2) listening to the tone of their voices.”

My strong suspicion from what I’ve seen so far is that the bar has likely been permanently lowered regarding what body language the defense can be denied access to when selecting jurors and assessing their demeanor throughout a trial, as well as what information both the defense and the jury can be denied access to when assessing the credibility and demeanor of witnesses testifying.

It is my sincere hope that enough of these sorts of appeals pile up, and with more dissent than so far seems to have surfaced, that the issue may eventually be taken up by the United States Supreme Court and corrected. That, however, is incredibly unlikely I am afraid.

• Did Jury Masks get in the way of a Fair Trial?, Northwest Newsradio, 3 November 2022

• Oral arguments in the case of State of Washington v. Justin Dominic Bell, Division 1 Court of Appeals, 3 November 2022

• Radee Labeeb Prince v. State of Maryland (.pdf), Maryland Court of Special Appeals, 26 October 2022

• In Novel Ruling, Superior Court Finds Mask Mandates Didn't Violate Defendant's Right to Face-to-Face Confrontation, Law.com, 27 May 2022

• Commonwealth of Pennsylvania v. Theodore B. Dixon (.pdf), Superior Court of Pennsylvania, 26 May 2022

Maryland Court of Special Appeals Rules on Speedy Trial Violations

Bad news from the Maryland Special Court of Appeals for two defendants and, presumably, a sigh of relief for one other in the appeals of Garrick Powell, Niran Henry, and Lateekqua Jackson.

The three agreed to have their related criminal charges tried in a single, consolidated trial. A trial date was set at a status conference at which two of the defendants and their attorneys were present. At that conference, a trial date of October 26, 2021 was proposed. One of the defense attorneys expressly agreed to the date while the other attorney remained silent. Later that day, the attorney for the third defendant may or may not also agreed to that trial date, which we’ll discuss a little bit later. Now let’s put a pin in that while I explain speedy trial rules in Maryland.

In Maryland, the rule is generally that the state has 180 days from either the appearance of counsel or the first appearance of the defendant before the circuit court to bring the accused to trial. This date is known as the Hicks deadline after the 1979 case of State of Maryland v. Hicks, which held that dismissal of criminal charges is generally the appropriate sanction for the state’s failure to meet the statutory speedy trial deadline. The ruling, however, carved out an exception saying that the sanction is not proper “where the defendant, either individually or by his attorney, seeks or expressly consents to a trial date” past the deadline.

Now let’s jump back to the three cases in question. It was not until the scheduled trial date, when the prosecution requested a postponement due to the illness of a witness, that the court brought up the issue of the Hicks deadline. Upon doing the math, which was made all the more confusing than usual due to periods of time not being counted against the 180-day clock due to COVID-19 pandemic-related changes, it only then became clear to everyone that the Hicks deadline had passed. Nobody disputed that fact.

However, the prosecution argued that “the trial date, in this case, was agreed upon by all the parties” and that the “defense cannot then go ask for a dismissal based off a trial date they agreed to.” In later arguments, the prosecution also cited the 1981 case of State of Maryland v. Lattisaw, which held that if the defense agrees to a trial date past the Hicks deadline, they have expressly consented to it even if they had no idea it was in violation of the Hicks deadline.

Given this, the Maryland Special Court of Appeals ruled that Henry’s attorney gave up his speedy trial rights by expressly consenting to the trial date with the statement that “[s]tarting on the 26th; that’s fine, Judge.”

Jackson’s attorney denies agreeing to the October 26 trial date, but that didn’t matter, says the Court. The Court ruled that the defendant can, without the participation of the attorney, expressly consent to a trial date that unwittingly forfeits their speedy trial right. It further ruled that Jackson did so in answering questions from the judge, after she had missed a scheduled hearing, about whether she knew what future dates she was to appear:

THE COURT: What’s your August date? * * *
MS. JACKSON: August the 10th, and—
THE COURT: Okay.
MS. JACKSON:—the other one was October the 20 something—I looked on Case Search.
COURT CLERK: Twenty sixth.
THE COURT: Twenty sixth.
MS. JACKSON: Twenty sixth, okay.

Only Powell received the appropriate remedy of dismissal of his charges in this case because his attorney happened to be the one who did not say anything at all. All three were in the same position, but only one, but sheer luck, had his supposedly Constitutionally- and statutorily-guaranteed speedy trial right upheld.

What’s going on here? Two things stand out for me.

First, in my reading of this, Jackson wasn’t agreeing to the trial date so much as just acknowledging it at the judge’s prodding, probably to assure the judge that she was going to be appearing at the times demanded by the government after having missed a court date that morning. But the court bent over backward to interpret this in the way most favorable to the government and against upholding Jackson’s rights.

Second, once again, here we have the government saying basically that we have designed a legal system so complex that you would more or less be a fool to represent yourself without professional legal help. Yet at the same time, the government suggests, it does not matter that it is so complex the average person can’t navigate it effectively by themselves. The government claims it is your responsibility, as the accused, if your professional attorney screws up and agrees to something past the deadline, or if you yourself are misled into agreeing to it. That’s all on you. That’s not the government’s fault.

As I have said repeatedly over the last few years, without trial by jury, there is no jury nullification. One of the ways that government has chipped away and continues to chip away at the benefit of trial by jury that is the potential for jury nullification or other lenity extended to the accused by the jury is to keep people out of trials by jury as long as possible.

The longer people are left in limbo with unresolved criminal charges hanging over their heads, the more likely they are to forfeit their right to trial by jury and take a plea just to be able to move on with their lives. Each time the government gives itself yet another pass on these types of speedy trial violations, it is adding to plea bargain culture and detracting from the culture of Constitutional trial by jury.

• Waiver of 180-day trial deadline requires clear statement, Md. appeals court says, The Daily Record, 28 October 2022

• State of Maryland v. Niran Marquise Henry, et al., Maryland Special Court of Appeals, 25 October 2022

• State v. Lattisaw, 48 Md. App. 20, 28–29 (1981)

• State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979)

• Maryland Code, Criminal Procedure § 6-103

FIJA Features

• Illegality of the Trial of John W. Webster by Lysander Spooner, 1850

• Vices Are Not Crimes: A Vindication of Moral Liberty by Lysander Spooner, 1850

• Quotes from Lysander Spooner

Thank you for joining us for 15 Minutes with FIJA. For more information on any of the items covered this week, you can find detailed show notes, complete with links to source material, at FIJA.substack.com. You can help ensure educational information like this continues to be provided to the public at no charge by making your donation at FIJA.org/give. We look forward to you joining us again next week.

Most Mondays FIJA hosts a brief Zoom session covering highlights of recent jury-related news and how it intersects with jury nullification as well as FIJA resources, events, etc. and other related items of interest we come across. This week being Halloween, in lieu of a live session, this is recorded as a podcast episode only.

We will return to live sessions next Monday, November 7. Keep in mind that Daylight Saving Time ends on Sunday, November 6, and our sessions will revert to 6:30 pm Mountain Standard Time. If you live in a location that does observe Daylight Saving Time, please check what time this translates to where you are.

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Florida Study Documents Exclusion of Black Jurors

The Death Penalty Information Center reported this week on a study conducted by University of Central Florida criminal justice professor Dr. Jacinta M. Gau for the American Civil Liberties Union. The ACLU had appealed the murder conviction and death sentence of Dennis Glover, a client in Florida who had been convicted of first-degree murder for the death of a neighbor and sentenced to death by a non-unanimous jury on a 10-2 vote.

The Florida Supreme Court upheld Glover’s conviction in 2017, but ordered him to be resentenced following a United States Supreme Court case and a subsequent Florida Supreme Court case that invalidated the state’s previous death sentencing procedure. The ACLU then asked the prosecution to forego pursuing the death penalty a second time in light of numerous mitigating factors. The state reportedly refused to do so unless Glover admitted guilt—something he refused to do even to save his own life.

Dr. Gau was asked by the ACLU to evaluate 12 capital jury trials in Duval County, Florida regarding the impact of jury selection in these cases on prospective jurors by race. She analyzed two parts of the process in particular: both the death qualification process and the use of peremptory strikes.

Death qualification is a screening process unique to capital cases. It is designed to eliminate from the jury anyone who would under no circumstances either (a) consider a penalty of death or (b) consider a penalty of life without parole. In practice, hardly any prospective jurors refuse to even consider the option of life imprisonment with no possibility of parole, while many people adamantly oppose putting another human being to death and outright refuse to consider it. Consequently, such screening removes far more potential jurors who oppose the death penalty.

A peremptory challenge is a request to have a person excused from jury service without giving or having to justify a reason they would be an unsuitable juror. Each side gets a limited number of such strikes. A major exception to the rule is that peremptory challenges cannot legally be used to remove jurors on the basis of their race. However, this exception is easily circumvented by making up a non-race-based reason to excuse a juror if the other side believes a peremptory challenge has been illegally exercised.

Gau found that “in these 12 trials, conducted from 2010 to 2018, death qualification disproportionately excluded people of color, and Black people, who make up roughly 30% of this county, in particular. In every model examined, Black people, as were other jurors of other color, were excluded at rates more than twice of White jurors. This effect only became more concerning when the prosecutors’ peremptory strikes were
assessed for their cumulative likelihood of excluding jurors of color: fully two thirds of Black women otherwise eligible, qualified, and willing to serve were excluded by the combination of death qualification and prosecutor peremptory strikes, as were 55% of Black men.”

The ACLU reports that on October 21 of this year, the state relented in its pursuit of the death penalty. Glover has been resentenced to life without parole, thereby rendering moot the ACLU’s legal challenge to the racially-discriminatory process of jury selection in his case. However, other defendants have adopted an ACLU motion in Glover’s case, based on Gau’s study, to ban Florida’s death qualification process.

Banning Florida’s death qualification process would have implications well beyond the issue of skewing the composition of such juries to disproportionately exclude people of color. It would also reduce exclusion of other cognizable groups with more members who oppose the death penalty such as women and members of religions that conscientiously object to the death penalty.

Evidence also suggests that ending this process would reduce the potential for wrongful convictions by juries that are not only more likely to consider the death penalty, but are more likely to convict in the first place. And it would stop weeding out the prospective jurors most likely to consider exercising sentencing phase nullification in capital cases.

• Florida Study Documents Disproportionate Exclusion of Black Jurors in Jacksonville Death Penalty Cases, Death Penalty Information Center, 28 October 2022

• Racialized Impacts of Death Disqualification in Duval County, Florida (.pdf), Jacinta M. Gau, Ph.D. for the ACLU, October 2022

• What is a "death-qualified" juror or jury?, Fully Informed Jury Association

• What does jury nullification refer to in capital cases?, Fully Informed Jury Association

• State of Florida v. Dennis Glover, ACLU

• Court orders new sentencing for convicted Jacksonville killer, The Florida Times-Union, 14 September 2017

Hawaii Grand Jury Update

I also have a couple of updates this week on the grand jury situation in Hawaii. Recall from previous 15 Minutes with FIJA back in September that the Hawaii Supreme Court ruled that the only entity under current Hawaiian law that can indict someone of certain serious felonies is a grand jury.

Numerous Hawaiian government officials have gone on a tear clamoring about how much chaos and crime will result if the government is required to obey the law as it expects the rest of us to do. Noise has even been made about calling a special session to pass legislation to do something—though no specific proposals seem to have yet been floated publicly.

Though that has not changed as of yet, nor has a special session yet been called, there have been some developments. First, the state reportedly requested that the Hawaii Supreme Court reconsider its ruling in the case in of State v. Obrero, which ignited this firestorm to begin with. The Court denied the request.

Additionally, the Court is poised to take up the issue of a court rule allowing the state to imprison people for as many as 90 days under Hawaii Rules for Penal Procedure Rule 12 (g ) while they seek grand jury indictments. Again, I want to stress that such grand jury indictments have long been a requirement in these cases, but only recently have prosecutors faced any enforcement of this law in their work.

This appears to be another potential violation of Hawaii law by the government that is busy prosecuting others for violating the laws it actually wants enforced. Hawaii state statutes reportedly require that someone be charged within 48 hours in order to continue to hold them.

The Public Defender’s Office recently filed a petition asking the state supreme court to strike down the rule. The petition was filed on behalf of Scott Deangelo, who was improperly charged via a preliminary hearing instead of a grand jury. Charges against him were dropped after the ruling in State v. Obrero made clear that only a grand jury could indict him. Nonetheless, the state is using the rule in question to detain people like Deangelo even though charges have been dismissed while they try to properly charge them via a grand jury.

The state opposes the motion because numerous cases are now clogging up a system that has not traditionally provided a commensurate amount of grand jury capacity. However, Jon Ikenaga of the Public Defender’s Office points out that:

The prosecutors’ answer to our writ fails to explain why it is constitutional for a court to incarcerate an unconvicted, uncharged defendant for an extended period of time due to an error by the prosecutor’s office in charging.

The prosecutor’s response failed to take responsibility for the fact that the reason the complaints in the cases are being dismissed is because the prosecutor’s office failed to follow statutory requirements in charging. It is unfortunate that the prosecutor’s office is blaming the Public Defender’s office and the Supreme Court for its own errors in charging.

• Hawaii Supreme Court denies state’s motion for reconsideration on State v. Obrero, KITV4, 28 October 2022

• Prosecutors and defense at odds before Supreme Court, KHON2, 28 October 2022

• Hawaii's high court is asked to strike down 90-day hold rule, Honolulu Star-Advertiser, 18 October 2022

• 15 Minutes with FIJA - 26 September 2022

• 15 Minutes with FIJA - 12 September 2022

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Most Mondays FIJA hosts a brief Zoom session covering highlights of recent jury-related news and how it intersects with jury nullification as well as FIJA resources, events, etc. and other related items of interest we come across. It is followed by a short Q&A session to address any questions about the session topics or other jury-related questions. This is an abbreviated summary of the presentation on 24 October 2022, not including the Q&A.

Click here to register for the live sessions through the end of December 2022.

A quick reminder that we are in the midst of our fall fundraiser. If you would like to support juror rights education made available to the public at no charge through projects such as this, please visit FIJA.org/give to make your donation. THANK YOU for your support.

Discussion of Jury Nullification in Darrell Brooks Trial

The trial of Darrell Brooks is coming to a close with closing arguments and jury instructions being discussed today outside of the presence of the jury. Brooks is charged with six counts of first-degree intentional homicide, 61 counts of recklessly endangering safety, six counts of hit-and-run causing death, two counts of bail jumping, and one count of misdemeanor battery with regard to the deaths and injuries that resulted after an SUV barreled into the Waukesha Christmas Parade in 2021.

Wisconsin abolished the death penalty in 1853, so Brooks faces a mandatory life sentence if convicted on at least one count of first-degree intentional homicide. Brooks is representing himself and has, to put it very mildly, behaved rather eccentrically in the courtroom throughout the trial.

During the discussion of closing arguments today outside of the presence of the jury, a heated exchange took place between Brooks and the judge, with Brooks arguing that, “I should be allowed to tell the jury what they need to know, which is the truth. That they have the power. They have the power to nullify laws that they don’t agree with.”

Judge Jennifer Dorow responded emphatically that, “You are absolutely not allowed to tell the jury that. There’s a jury instruction that I will have ready to go if you even ATTEMPT to raise the issue of jury nullification, sir. You have absolutely no right to raise that. That is clear under the law.”

Brooks responded in part that “I can raise what I want to raise... I don’t care what you’re talking about. I’m going to let them know that they can nullify any law that they don’t agree with, which is my right.”

After the judge again stated that it is not Brooks’ right to raise jury nullification, Brooks began yelling and the judge opted to mute him. She stated for the record that if he chooses to violate the court’s rules, she may put him in a separate courtroom where she can mute him during his closing argument if his behavior is not consistent with the rules she has laid out.

Obviously, we disagree with the judge's claim that a defendant does not have the right to inform jurors about jury nullification. This is a clear illustration of why FIJA exists and why jurors need to know about their right of jury nullification BEFORE they ever enter a courthouse.

That said, this would be an odd case for a defendant to try and mount a jury nullification defense, and I’m not even sure that Brooks is seriously trying to do so. This is far from a poster case for jury nullification.

Usually, if people believe someone is guilty of intentional mass homicide, killing several people by hit-and-run, or something like that, they do not want to nullify. If they don't believe it has been proven beyond reasonable doubt that the accused is guilty of those things, then no jury nullification is needed. They just vote not guilty because it has not been proven.

I am not an attorney, but I am not thinking it very likely that this will not prove a successful way to raise a jury nullification defense. Nonetheless, I share this video so that folks can see what will most likely happen in court if you try to address jury nullification to the jury head on. It usually takes a bit of finesse to get these sorts of ideas in front of them, and this is probably not a good way to do it.

I’ll be keeping an eye on the trial tomorrow as jury instructions and closing arguments are expected to take place then. I’ll be interested to see if Brooks attempts to present any jury nullification information and, if so, how successfully or not he does so.

• Darrell Brooks Says He'll Tell the Jury Whatever He Wants, short clip of this exchange, Law and Crime Network, 24 October 2022

• Darrell Brooks mocks & rants at judge, angry he can't write the jury instructions, longer video with this discussion starting around 17:40, LiveNOW from FOX, 24 October 2022

Louisiana Supreme Court Refuses to Apply Ramos v. Louisiana Retroactively

Disappointingly, albeit, unsurprisingly, the Supreme Court of Louisiana has officially refused to retroactively apply the requirement recently restored by Louisiana voters and the Supreme Court of the United States that jurors be in unanimous agreement to deliver a guilty verdict.

According to news reports, only about 100 incarcerated people in Louisiana whose cases were still in progress at the got relief from the SCOTUS ruling restoring the unanimity requirement, while an estimated 1500 or so people with no remaining appeals are stuck behind bars despite their convictions being invalid because the ruling has not been applied retroactively.

In Ramos v. Louisiana (2019), SCOTUS upheld the long-established principle that a verdict taken from eleven is no verdict at all, restoring the requirement in all courts that a guilty verdict must be unanimously agreed by all jurors. But in 2021, it turned around and contradicted itself in Edwards v. Vannoy, holding that, for thousands of people who were already convicted with their appeals process exhausted, verdicts from 11 or other non-unanimous verdicts were just peachy. They did not, however, restrict the states from providing a remedy in those cases.

By a 6-1 vote, however, the Supreme Court of Louisiana has refused to correct the vast majority of the faulty verdicts in its state. Instead, it has kicked the matter over to the legislature for a legislative remedy if they choose to provide one, or to the governor if the governor should choose to grant clemency.

I’ll be keeping this situation and the similar situation in Oregon on my radar and update you with any news as it develops.

• Louisiana Supreme Court: People sent to jail by racist jury rule not owed new trials, Shreveport Times, 21 October 2022

• Non-unanimous jury ban isn't retroactive, Louisiana Supreme Court rules, NOLA.com, 21 October 2022

• Louisiana v. Riddick (2022) (.pdf), Supreme Court of Louisiana, 21 October 2022

• Edwards v. Vannoy (2021) (.pdf), United States Supreme Court

• Ramos v. Louisiana (2019) (.pdf), United States Supreme Court

Colorado Supreme Court Opens Comment Period for Proposed Rule Change

A peremptory challenge is made by an attorney who wishes to have a person excused from jury service without giving or having to justify a reason that they would be an unsuitable juror. Race-based peremptory challenges were banned by the United States Supreme Court in its ruling in Batson v. Kentucky in 1986. The ruling, however, provided very little means in practice to enforce this and courts have been struggling with this ever since.

At its July 2022 meeting, the Colorado Supreme Court’s advisory Rules of Criminal Procedure Committee determined that a proposed rule to combat implicit bias in the selection of jurors was advisable. According to an October 4 email from John Daniel Dailey, Chair of the Criminal Rules Committee, after discussion of a variety of possible rules, the committee voted 8-4 to recommend adoption of the proposed rule attached to the email.

To hit the highlights, the proposed rule:

• allows the Court to raise the issue of improper bias with regard to a peremptory challenge on its own, in addition to either party being able to raise such issue,

• provides that “The court shall then evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances. If the court determines that an objective observer could reasonably view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge. The court should explain its ruling on the record.”

• lists a number of specific circumstances the Court should include in its considerations,

• specifies a list of presumptively invalid reasons for a peremptory challenge, including having prior contact with law enforcement officers and expressing a distrust of law enforcement, and

• new rules for citing certain types of behavior as reasons for exercising peremptory challenges.

The Colorado Supreme Court is accepting written comments from the public and requests to speak at the public hearing. Details on how to submit comments or speaking requests and deadlines for doing so are listed in the Speak Out section of the FIJA website.

• Notice of Public Hearing and Request for Comments, Colorado Rules of Criminal Procedure - Rule 24

• Crim. P. 24 Submission and Supporting Materials (.pdf), Rules of Criminal Procedure Committee

• Lawmakers urge Supreme Court committee to address racial bias in jury selection, Colorado Politics, 20 October 2022

• Colorado's jury selection process: Does 'implicit' bias create injustice?, The Gazette, 20 November 2021

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