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Jury Nullification (War on Drugs)

Old 04-23-07, 11:24 AM
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Jury Nullification (War on Drugs)

Does this right exist?

According to this article, a jury can judge a law and disregard it to find someone not guilty.

http://www.theconservativevoice.com/article/24518.html

“I Don’t Care What the Judge Said!”
April 22, 2007 02:00 PM EST


“Look, Mr. Straun, John, can I call you John? We’ve been at this for 25 days. We’re all sick of this. We all want to go home. You’re the only one left. You’re the one keeping us here. I got things to do at home. I got to go to work and make a living. All of us do. The judge is mad as hell at us. You’re going to hang this jury. You’re going to make this three-month trial into a farce and waste of time. You have no right to vote acquittal. You heard the judge’s instructions. The jury is not allowed to judge the law, only the facts.”

“The fact are clear as day, aren’t they?” Dillard ranted. “You even admitted that to us. The guy was found with marijuana in his car. That’s against the law. And the guy admitted the marijuana was his. What more do you need?” said Raymond Dillard, the jury foreman. Raymond Dillard was tall, beefy, in his 30’s, and he was getting mad, so mad he wanted to beat John Straun’s head in.

Straun was a small, slim man in his 30’s, with a straight back, dark brown hair, large, steady eyes, and a firm mouth. He seemed not to care at all about all the trouble he was causing. And he seemed to be fearless.

John Straun said, “I don’t care what the judge said. I happen to know for a fact that a jury has the right to judge the law. Jury nullification has a long history in this country. A jury has the right to judge the law, not just the facts.”

Raymond Dillard and a few other jurors sneered. Dillard said, “Oh, are you a lawyer, Mr. Straun? You think you know more than the judge? What history are you talking about?”

John Straun said calmly, “No, I’m not a lawyer. I’m an engineer. But in this particular case, I do know more than the judge. When I found out I was going to be on this jury, I did a little research about the history of juries, just for the hell of it. Most people don’t know this, but jury nullification has been upheld as a sacred legal principal in English common law for 1000 years. Alfred the Great, a great English king a thousand years ago, hung several of his own judges because they removed jurors who refused to convict and replaced these courageous jurors with other jurors they could intimidate into convicting the defendant on trial.”

“Jury nullification also goes back to the very beginning of our country, as one of the crucial rights our Founding Fathers wanted to protect. Our Founding Fathers wanted juries to be the final bulwark against tyrannical government laws. That’s why they emphasized the right to a jury trial in three of the first ten amendments to the Constitution. John Adams, second President of the United States, Thomas Jefferson, third President and author of the Declaration of Independence, John Jay, First Chief Justice of the U.S. Supreme Court, and Alexander Hamilton, First Secretary of the Treasury all flatly stated that juries have the right and duty to judge not only the facts in a case, but also the law, according to their conscience.”

“Not only that, more recent court decisions have reaffirmed this right. In 1969, in “US. vs. Moylan,” the Fourth Circuit Court of Appeals upheld the right of juries to judge the law in a case. In 1972, the Washington, D.C. Court of Appeals upheld the same principal.”

Raymond Dillard said, “Yeah, if that’s the case, how come the judge didn’t tell us this?”

“That’s because of the despicable Supreme Court decision in “Sparf and Hansen vs. The United States in 1895.” John Straun said. “That decision said juries have the right to judge the law, but that a judge doesn’t have to inform juries of this right. Cute, huh? And guess what happened after this decision? Judges stopped telling juries about their rights.”

“The judge knows about jury nullification. All judges do. But they hate letting juries decide the law. They hate juries taking power away from them. That’s why judges never mention a jury’s right to judge the law, and most judges squash defense attorneys from saying anything about it in court. Remember when Jimmy Saunders’ defense lawyer started talking about it? The judge threatened him with contempt if he didn’t shut up about jury nullification.”

“And since you asked me,” Straun continued, “I’ll tell you a little more about jury nullification. Did you ever hear of the Fugitive Slave Act? Did you ever hear of Prohibition? Do you know why those despicable laws were repealed? Because juries were so outraged over those laws that they consistently refused to convict people who violated them. They refused to convict because they knew that these laws were unjust and tyrannical, that Congress had no right making these laws in the first place. So, because juries wouldn’t convict, the government couldn’t make these laws stick. They tried for many years, but finally gave up.”

“What do you think this mad War on Drugs is that we’ve been fighting the last sixty years? It’s the same as Prohibition in the 20’s. It’s the same principle. A tyrannical government is telling people that they can’t take drugs, just like in the 20’s they said people couldn’t drink liquor. What’s the difference? A tyrannical law is telling people what they can or can’t put in their own bodies. Who owns our bodies, us or the self-righteous politicians? Does the government own your body, Mr. Dillard? Do you smoke, Mr. Dillard? Do you drink beer?”

Dillard nodded his head, “Yeah, I do.”

“Well, how would you like it if they passed laws telling you that can’t smoke or drink a beer anymore. Would you like that, Mr. Dillard?”

Dillard looked at John Straun, thought about the question, then admitted, “No, I wouldn’t, Straun.”

John Straun turned to the others around the table. “You, Jack, you said you’re sixty-five years old. You like to play golf, right? What if they passed a law saying anyone over sixty-five can’t play golf because the exercise might give him a heart attack? You, Frank, you said you eat hamburgers at McDougals all the time. What if they passed a law saying fatty hamburgers give people heart attacks, so we’re closing down all the McDougal restaurants in the country, and they make eating a hamburger a criminal offence? You, Mrs. Pelchat, I see you like to smoke. Everyone knows that smoking can give you lung cancer. How would you like it if they passed a law banning all cigarettes? What if they could crash in the door of your house without a warrant to search for cigarettes in your house, like the SWAT teams do now, looking for drugs? Mrs. Pelchat, how would you like to be on trial like Jimmy Saunders because they found a pack of cigarettes you hid under your mattress?”

“Do you all see what I mean? If they can make it a crime for Jimmy Saunders to smoke marijuana, why can’t they make golf, hamburgers, and cigarettes a crime? If you think they wouldn’t try, think again. They had Prohibition in the 20’s for almost ten years, till they finally gave up. The only reason they haven’t banned cigarettes is because there are thirty million cigarette smokers in this country who would scream bloody murder. They get away with making marijuana and other drugs illegal only because drug-users are a small minority in this country. Drug users don’t have any political clout.”

Raymond Dillard sat down in his chair. The others started talking among themselves. John Straun started seeing heads nodding in agreement, thinking about what he had said.

“OK, Straun,” Dillard said. “Maybe you’re right. Maybe Jimmy Saunders shouldn’t go to jail for smoking marijuana. Hell, probably most of us tried the stuff when we were young. Clinton said he smoked marijuana in college. Bush said he tried drugs in college. Probably half of Congress and their kids took drugs one time or another. O.K. we agree with you. But what about the judge. He said we can’t judge the law.”

John Straun stood up. He was not a tall man, but he stood very straight, and he looked very sure of himself. He looked from one to another of them.

He said, “If you agree with me, then I ask you all to vote for acquittal. You are not only defending Jimmy Saunders’ liberty, but your own. You are fighting a tyrannical law that is enforced by a judge who wants the power to control you. I told you that many juries like us in the past have disregarded the judge’s instructions. They stood up for liberty against a tyrannical law. Are you Americans here? What do you va!ue more, your liberty, your pride as free men, or the instructions of a judge who doesn’t want you to judge the law precisely because he knows you’ll find the law unjust? Will you stand with those juries who defended our liberty in the past, or will you give in to this judge?”

“Here’s another thing to think about,” John Straun said with passion. ”What if it was your sister or brother on trial here? Do you know that if we say Saunders is guilty, the judge has to send him to prison for twenty years? I understand this is Saunders third possession charge. You know the “three strikes and you’re out” rule, don’t you? The politicians passed a law that if a guy gets convicted three times on possession, the judge now has no leeway in sentencing. He has to give the poor guy twenty years in prison. What if it were your sister or brother on trial? Should they go to jail for smoking marijuana, for doing something that should not be a crime in the first place? Do we want to send Jimmy Saunders to prison for twenty years because he smoked a joint, hurting no one? Can you have that on your conscience?”

“Do you know that there are almost a million guys like Jimmy Saunders in federal prisons right now, as we speak, for this same so-called “crime” of smoking marijuana or taking other drugs? These men were sent to prison for mere possession. They harmed no one but themselves when they took drugs. How can you have a crime without a victim? When does this horror stop? It has got to stop. I’m asking you all now to stop it right here, at least for Jimmy Saunders. The only thing that can stop tyrannical laws and politicians is you and me, juries like us. If we do nothing, we’re lost, the country is lost.”

“I’m asking you all to bring in a not-guilty verdict, because the drug laws are unjust and a moral obscenity. I’m asking you all be the kind of Americans our Founding Fathers would have been proud of, these same men who fought for your liberty. That’s what I’m asking of all of you.”

John Straun sat down and looked quietly at Dillard and all the others around the table. They looked back at him, and it seemed that their backs began to straighten up, and they no longer complained about going home. They were quiet. Then they talked passionately amongst each other.

Fifteen minutes later, they walked into the courtroom and sat down in the jury box. When the judge asked Raymond Dillard what the verdict was, he was stunned when Dillard, standing tall, looking straight at the judge, said “Not guilty.” Over the angry rantings of the red-faced judge, all in the jury box looked calmly at John Straun, and felt proud to be an American.

Last edited by CRM114; 04-23-07 at 11:28 AM.
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Old 04-23-07, 11:25 AM
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Yes, it exists.
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Old 04-23-07, 11:29 AM
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There is nothing that forces a juror to vote a certain way, so yes, it exists.
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Old 04-23-07, 11:31 AM
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That should be part of the instructions to the jury then. The article says that a judge does not have to instruct the jury in this regard. Lame.
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Old 04-23-07, 11:32 AM
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Originally Posted by CRM114
That should be part of the instructions to the jury then. The article says that a judge does not have to instruct the jury in this regard. Lame.
They'd get a lot more aquittals, so it's no wonder they don't instruct the jury that they have this right.
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Old 04-23-07, 11:34 AM
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Originally Posted by Tracer Bullet
They'd get a lot more aquittals, so it's no wonder they don't instruct the jury that they have this right.
Acquittals on bogus laws, yes.
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Old 04-23-07, 11:37 AM
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Originally Posted by CRM114
Acquittals on bogus laws, yes.
No disagreement here.
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Old 04-23-07, 11:40 AM
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Originally Posted by Red Dog
There is nothing that forces a juror to vote a certain way, so yes, it exists.
But the juror violates his 'oath' if he does not follow the judges instructions as to the law - doesn't he?
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Old 04-23-07, 11:43 AM
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Originally Posted by classicman2
But the juror violates his 'oath' if he does not follow the judges instructions as to the law - doesn't he?
I wouldn't think so. Judges never say anything forbidding jury nullification, so jurors wouldn't be violating any oath by voting to nullify.
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Old 04-23-07, 11:44 AM
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Originally Posted by classicman2
But the juror violates his 'oath' if he does not follow the judges instructions as to the law - doesn't he?
Apparently, this is part of the law which the judge doesn't tell you. From the article:

Sparf and Hansen vs. The United States in 1895.

“That decision said juries have the right to judge the law, but that a judge doesn’t have to inform juries of this right."
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Old 04-23-07, 11:47 AM
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Originally Posted by Tracer Bullet
I wouldn't think so. Judges never say anything forbidding jury nullification, so jurors wouldn't be violating any oath by voting to nullify.
How many times have you been a juror?
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Old 04-23-07, 11:48 AM
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Originally Posted by classicman2
How many times have you been a juror?
How is that relevant?

Once, for the record.
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Old 04-23-07, 11:50 AM
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Did you hear the judge charge the jury?
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Old 04-23-07, 11:52 AM
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Whatever c-man, I'm not playing your game.

Why don't you answer my question?
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Old 04-23-07, 11:55 AM
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Then simply retract post #9.
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Old 04-23-07, 11:56 AM
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Originally Posted by classicman2
Then simply retract post #9.
And again, I'll ask, how is it relevant?

I mean, I know you never answer direct questions, but I'm not going to sit here and let you get away with your standard nonsense.
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Old 04-23-07, 12:16 PM
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Originally Posted by classicman2
But the juror violates his 'oath' if he does not follow the judges instructions as to the law - doesn't he?


Have you ever heard of a juror who nullified being prosecuted for violating that 'oath?'

BTW, my Circuit (the 4th) has explicitly affirmed the right of jury nullification (although no instruction is required).
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Old 04-23-07, 12:30 PM
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BTW, my Circuit (the 4th) has explicitly affirmed the right of jury nullification (although no instruction is required).
A return to the good ole days, huh?

Texas has had juror nuillification for years: 'The son-of-a-bitch deserved killing.'

Last edited by classicman2; 04-23-07 at 12:32 PM.
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Old 04-23-07, 12:35 PM
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Well, considering the applicable ruling was in 1969, you could say that it's always been 'the good ole days' 'round these parts (VA, NC, MD).
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Old 04-23-07, 12:38 PM
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Jury nullification, IMO, is a bad idea that can lead to even 'badder' things.
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Old 04-23-07, 12:54 PM
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The courts walk a fine line with jury nullification.

On the one hand, there's no doubt that it's an important part of our legal tradition, and juries clearly have a right to vote for acquittal for any reason.

On the other hand, the job of the jury is to judge the facts and apply the law to those facts. That can only be done fairly if all juries are applying the same law. We don't want the relevant law to change depending upon which 12 people happen to get picked for the jury.

At its worst, jury nullification can lead to things like acquittals for whites accused of murdering blacks simply because of the races of the people involved (a not uncommon occurrence in the south as recently as 40 or 50 years ago).

At its best, jury nullification leads to a repudiation of unjust laws. See, for example, the trial of John Peter Zenger.
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Old 04-23-07, 06:31 PM
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“The judge knows about jury nullification. All judges do. But they hate letting juries decide the law. They hate juries taking power away from them. That’s why judges never mention a jury’s right to judge the law, and most judges squash defense attorneys from saying anything about it in court. Remember when Jimmy Saunders’ defense lawyer started talking about it? The judge threatened him with contempt if he didn’t shut up about jury nullification.”
If I were a judge, I wouldn't hate jury nullification because it takes power away from me. It doesn't. I would dislike it because it takes power away from democratically elected legislatures that passed the law in the first place. Twelve jurors shouldn't unilaterally overturn the will of the people, as represented by the legislature. Jurors are supposed to decide the facts. If the law is unconstitutional, that is a matter of law to be decided by an appellate court.

That said, I am not a judge, and I would not vote to convict someone of a possession offense.
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Old 04-23-07, 07:38 PM
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Twelve jurors shouldn't unilaterally overturn the will of the people, as represented by the legislature. Jurors are supposed to decide the facts. If the law is unconstitutional, that is a matter of law to be decided by an appellate court.
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Old 04-23-07, 08:18 PM
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Originally Posted by Red Dog
Have you ever heard of a juror who nullified being prosecuted for violating that 'oath?'
This was a prosecution for jury nullification (not exactly for violating her oath):

http://www.fija.org//index.php?page=displaytxt&id=127

Ultimate Irony - Juror Denied Jury Trial

ULTIMATE IRONY: JUROR DENIED JURY TRIAL

February 13, 1997

Statement of Harvey Wysong, National Spokesman for the Fully Informed Jury Association.

====================================

The prosecution and conviction of Laura Kriho is an attempt to destroy the independence of the jury system in Colorado. It should not be allowed to stand.

Kriho served as a juror in the trial of a young woman in Gilpin County in May of 1996. The young woman was accused of violating Colorado's drug laws.

During jury deliberations, Kriho expressed skepticism about the State's evidence and expressed opposition to the drug laws. But instructing the other jurors about "jury nullification" is probably what enraged the presiding judge.

When informed of Kriho's remarks during jury deliberations, Judge Kenneth Barnhill immediately declared a mistrial. He later filed contempt of court charges against Kriho.

The Supreme Court has recognized that the purpose of the jury is "to prevent oppression by the government" (Duncan v. Louisiana, 391 US 145) and "to guard against the exercise of arbitrary powers" (Taylor v. Louisiana, 419 US 522).

Anything which prevents the jury from fulfilling its purpose is an obstruction of justice. Jurors should not vote to enforce bad laws. Juries exist to protect us against such laws.

"Voir dire" is the process in which jurors are questioned about their attitudes. It was designed to protect the defendant against prejudiced jurors. It is now a tool used by the Government to cleanse the jury of any jurors who may be inclined to think independently.

During voir dire, jurors are frequently asked if they object to the enforcement of certain laws. Jurors who object to bad laws or harsh punishment are excused from jury service. There is no Constitutional basis for such a dismissal.

The real criminal in the original trial was Judge Barnhill. Barnhill was guilty of jury tampering/obstruction of justice. He permitted improper questions regarding the jurors' attitudes about the law. He forced the jurors to swear an unauthorized, unconstitutional oath. And he lied to the jury about their authority. In so doing, he denied the defendant due process of law.

Laura Kriho was accused by Judge Barnhill and tried by Judge Henry Nieto. She was not convicted of lying during voir dire. She was convicted of failing to volunteer information which the prosecution would like to have known, but didn't ask.

Kriho, through her attorney Paul Grant, demanded trial by jury. But Judge Nieto denied that demand.

Even though the plain language of the Federal and State constitutions guarantee a right to jury trial for all crimes, courts routinely violate those guarantees. The courts have recently "discovered" that the words "all crimes" mean "some crimes."

In the case of Laura Kriho, the court decided that the possible punishment (18 months) was not sufficient to guarantee her a jury trial.

The trial and conviction of Laura Kriho was a thoroughly corrupt process. It is hard to believe that it will withstand the appeals process.

Posted by: FIJA
Posted on: 2006-04-30 21:33:30
More on this case:

http://www.fija.org/index.php?page=d...&display=files

Last edited by movielib; 04-23-07 at 08:31 PM.
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Old 08-18-08, 11:14 AM
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http://www.boston.com/news/local/art..._issue?mode=PF

Juror's challenge raises legal issue
By Jonathan Saltzman, Globe Staff | August 10, 2008

It started with a note from the jury barely an hour into deliberations, an unusual question that went way beyond the scope of the federal drug-trafficking trial.

Given that it took the 18th Amendment of the US Constitution in 1919 to pave the way for Prohibition, a juror wanted to know from the judge, where "is the constitutional grant of authority to ban mere possession of cocaine today?"

To a casual observer, the question in the Boston courtroom might merely have been the musing of a juror with some knowledge of American history. But US District Court Judge William G. Young said the note and others that followed represented something he had never seen in 30 years as a judge: a rogue juror challenging the legitimacy of a criminal law used to prosecute a defendant.

Young was so alarmed by the actions of Thomas R. Eddlem, a 42-year-old technology coordinator at a Catholic high school and former John Birch Society official, that he recently wrote a 43-page memorandum plumbing the history of "jury nullification" and how it threatens democracy.

Nullification refers to a controversial concept that jurors have a duty to disregard a judge's instructions and acquit a criminal defendant - even one guilty under the letter of the law - if they disagree with the law.

Juries in the United States have sometimes exercised this power admirably, particularly in the 18th and 19th centuries, but it has been all but repudiated by the courts. Still, it attracts an eclectic group of advocates who encourage juries on the Internet and elsewhere to acquit defendants if jurors find laws unconscionable, including drug laws, tax laws, and motorcycle helmet laws.

Young, a 68-year-old Harvard-educated jurist whose stern bearing recalls his days as a US Army captain, said he questioned Eddlem in his office and the Taunton man insisted that the drug prosecution was unconstitutional. The judge then replaced him with an alternate juror. Shortly afterward, the reconstituted jury convicted Robert C. Luisi, a reputed Mafia lieutenant, of three cocaine-related charges.

Young wrote that Eddlem's actions in March, which went unreported, marked the first time he "has encountered a juror who has attempted to arrogate to himself the power that our Constitution places in the elected branches of government."

But Eddlem said last week that he opposes jury nullification and that it was the judge who subverted the legal system. Eddlem, a self-described right-winger and research director from 1987 to 2000 for the John Birch Society in Appleton, Wis., said Young distorted the plain language of the Constitution to justify a prosecution that had no basis in federal law.

"I was like Alice talking to Humpty Dumpty in 'Through the Looking Glass,' " he said, referring to his confrontation with the judge.

American history has shining examples of jury nullification, including the acquittals of the publisher John Peter Zenger of seditious libel in 1735 and of defendants who helped slaves escape to freedom in the 19th century. Nullification has also drawn support in recent years from activists on both ends of the political spectrum. In March, the writers of the TV show "The Wire" championed jury nullification in a Time article as a way to protest an ineffectual war on drugs.

But Young wrote in his July 25 memorandum that examples of "benevolent nullification" are bygone "exceptions to an otherwise abhorrent strain of lawlessness." In the civil rights era, he wrote, nullification led to notorious acquittals in the South of white defendants by all-white juries in cases such as the 1955 slaying of Emmett Till.

The trial that prompted Young's memorandum was far less memorable.

Federal prosecutors presented evidence that Luisi orchestrated drug sales in the Boston area. Luisi had been tried and convicted of the same charges in 2002 before another federal judge, but the US Court of Appeals for the First Circuit reversed the conviction and ordered a new trial.

In the retrial, the case went to the jury just before noon on March 11. About 1 p.m. the jury, which had taken an oath to consider only the evidence and to heed the judge's instructions, sent out its first note, Young wrote. Young brought the jurors into the courtroom, told them they could not consider constitutional questions and sent them back to deliberate.

Two hours later, Young wrote, the jury sent two more questions: If a juror denies the constitutionality of the prosecution, "preempting consideration of the facts," can he participate? And can the jury deliberate?

Young brought the jury in, assured them that the laws at issue were constitutional and sent them home for the day, he wrote.

The following day, the jury sent a note saying the problem had persisted. Young then interviewed each juror, one by one, in his office, in the presence of federal prosecutors and Luisi's lawyers. When the judge got to Eddlem, whom Young calls only Juror No. 2, Eddlem said he was the juror in question, Young wrote.

Eddlem told Young that he did not believe the Constitution contained language banning cocaine trafficking within a state, the judge wrote. Young told him that the US Supreme Court had interpreted the Commerce Clause as prohibiting it. But the juror said he saw nothing like that in the clause even though the Constitution is "written to the 11th grade vocabulary level," Young wrote.

After several minutes of wrangling with the juror, Young told the lawyers that Eddlem was "engaged in juror nullification" and threw him off the jury, over the objections of defense lawyer John H. LaChance of Framingham. LaChance said he does not intend to appeal.

Last week Eddlem said he would have voted to convict Luisi in a state court; he simply felt there were no grounds for a federal prosecution. He opposes nullification, he added in an e-mail, but judges who ignore the Constitution pose a far greater threat than a "handful of 'nullification' radicals."

In an interview, Young, who was a state Superior Court judge before his 1985 appointment to the federal bench, said he thinks virtually all judges oppose nullification even if it is well-intentioned.

But his colleague US District Judge Nancy Gertner of Boston said it depends on how one defines nullification. Gertner, who had no comment on the Luisi case, said a juror who informs a judge that he or she will not follow the law as instructed, is engaging in flagrant nullification and should not participate.

Judges recognize, however, that juries sometimes engage in a subtler form of nullification when they acquit in a criminal case, perhaps because of mitigating circumstances, even though the evidence and law support a conviction, Gertner said.

"We say jurors should not nullify, but we tell them to use their common sense, and we allow them in a criminal case to have a general verdict, which is to make a decision without giving a reason," said Gertner. "So we say they shouldn't do it, but we give them the space to do so."

Eddlem, for his part, was unapologetic for his actions. "I think when I look back at my life, it's going to be one of the things I'm most proud of," he said.

More here from Cato-at-liberty:
http://www.cato-at-liberty.org/2008/...-the-ointment/


to Mr. Eddlem.

Last edited by Red Dog; 08-18-08 at 11:21 AM.
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