A federal appeals court in Denver has affirmed a ruling allowing the distribution of pamphlets about jury nullification – defined as a verdict on the law itself rather than on the defendant – to their “intended audience,” the jurors.
But the ruling April 8 by the 10th U.S. Circuit Court of Appeals also made clear that a number of unresolved issues still must be decided when the case returns to a lower court.
As WND reported, the case arose when a prosecutor filed a felony count, which later was dismissed by a circuit judge, against a Michigan man for handing out pamphlets about jury nullification at a courthouse.
WND also has reported on the overarching issue of how much power a jury holds in the American justice system.
The Denver case was brought by Eric Verlo, Janet Matzen and the Fully Informed Jury Association, which is among the groups that publish informational pamphlets about jury nullification.
At the lower court, a judge had granted a preliminary injunction halting enforcement of one part of an order from Judge Michael Martinez, who had prohibited “all expressive activities within an area immediately surrounding the Lindsey-Flanigan Courthouse in Denver.”
The judges in the courthouse appealed.
“Based on the arguments made and evidence presented at the preliminary injunction hearing, we hold the district court did not abuse its discretion in granting plaintiffs’ motion in part,” the appeals court wrote.
However, the court said it was expressing an “opinion” about a potential permanent injunction.
“Instead, we provide guidance to the district court and the parties regarding the factual inquiry and the applicable legal standard relevant to that question on remand,” the judges wrote.
Part of the problem is that while the court district runs courtrooms in the building, the city of Denver also has offices there and entered a joint stipulation with the plaintiffs determining several of the areas in question were “a public forum.”
The appeals court said: “The district court also accepted a proffer of plaintiffs’ testimony, indicating that their intent was to approach people entering the courthouse to discuss quietly the concept of jury nullification and to distribute their literature. Plaintiffs asserted that proximity to the front door of the courthouse was key to their message because otherwise their intended audience – ‘people who are going to serve or are in fact serving on juries’ – will ‘very frequently just bypass them’ in the designated free speech zone by” walking by.
The order, which the appeals court upheld, would have “effectively prevented them from reaching their target audience,” the ruling said.
As soon as the injunction was entered, the Denver courthouse judges appealed.
But the federal judicial panel said the injunction still allows action “against protesters who obstruct courthouse entrances, damage the courthouse landscaping, or erect structures. All of this behavior remained prohibited by the order after the issuance of the injunction.”
The judges pointed out that the U.S. Supreme Court has determined that the loss “of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
The appeals court ruling said the lower court will have to decide on First Amendment issues, the status of various approaches to the courthouse and what restrictions might be appropriate, as well as the conflict between the city’s ownership of the property and the court district’s use of the building.
But the ruling, written by Carolyn McHugh for a three-judge panel, offered guidance: “On the existing record, the judicial district has not demonstrated that plaintiffs’ First Amendment activities interfered with the ability of the judicial district to carry out its essential functions.”
In the Michigan case on jury nullification, Mecosta County Circuit Judge Kimberly L. Booher dismissed a felony count, leaving behind in the case only a misdemeanor charge of alleged jury tampering pending against former pastor Keith Wood.
David Kallman, a lawyer working on behalf of Wood, said the remaining misdemeanor is hard to fathom considering a jury “did not exist.”
“It comes down to how the word ‘juror’ is defined, i.e., does it include the jury pool or is it only a sworn in jury?”
He told WND the judge left open the defense’s request to also dismiss the remaining charge.
The felony was an obstruction of justice charge that was filed by prosecutors after Wood was arrested, Kallman said, “for simply handing out informational pamphlets on a public sidewalk about the power of jurors to vote their conscience in any case, as permitted by Michigan’s Criminal Jury Instructions.”
A report on jury nullification by the University of Missouri-Kansas City explained it occurs “when a jury returns a verdict of ‘Not Guilty’ despite its belief that the defendant is guilty of the violation charged.”
“The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding,” the report said.
Such decisions were common during the era of slavery in the United States, when juries acquitted activists who helped runaway slaves.
“Juries clearly have the power to nullify; whether they also have the right to nullify is another question,” the report said. “Once a jury returns a verdict of ‘Not Guilty,’ that verdict cannot be questioned by any court and the ‘double jeopardy’ clause of the Constitution prohibits a retrial on the same charge.”
Early in the nation’s history, “judges often informed jurors of their nullification right.”
“For example, our first Chief Justice, John Jay, told jurors, ‘You have a right to take upon yourselves to judge [both the facts and law].’ In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.”
However, over the generations the judiciary reversed its position, and in 1895 a defendant’s conviction was affirmed even though the trial judge “refused the defense attorney’s request to let the jury know of their nullification power.”
Now, prosecutors and judges routinely oppose even discussion of the concept, and judges tell jurors “it is their duty to apply the law as it is given to them, whether they agree with the law or not,” the report said.
Ilya Somin, professor of law at George Mason University, wrote that a jury’s “discretion” actually “has much in common with prosecutorial discretion,” in which prosecutors use their own judgment to pursue some cases and not others.
He noted legal scholar Glenn Reynolds pointed out that while “the power of juries to let guilty people go free in the name of justice is treated as suspect and called ‘jury nullification,’ the power of prosecutors to do the exact same thing is called ‘prosecutorial discretion,’ and is treated not as a bug, but as a feature in our justice system.”
“There’s no obvious reason why one is better than the other,” he said.
The Fully Informed Jury Association, which publicizes the issue, recently noted that U.S. Supreme Court Justice Sonia Sotomayor has indicated she accepts the idea.
“The Second Circuit, where Justice Sotomayor once sat, said … in U.S. v. Thomas that a juror’s attempt to nullify the law and instead find in favor of their conscience is grounds for dismissal from the jury. … Sotomayor said the Second Circuit may have been wrong to so assiduously close off nullification,” the report said of her recent presentation to a law school.
“There is a place, I think, for jury nullification – finding the balance in that and the role judges should play,” she reportedly said.
The leaflet Wood distributed says judges “only rarely ‘fully inform’ jurors of their rights, especially their right to judge the law itself and vote on the verdict according to conscience.”
“In fact, judges regularly assist the prosecution by dismissing prospective jurors who will admit knowing about this right – beginning with anyone who also admits having qualms with the law,” it says.
The brochure states: “You may, and should, vote your conscience; You cannot be forced to obey a ‘juror’s oath’; You have the right to ‘hang’ the jury with your vote if you cannot agree with other jurors.”
The brochure says Americans colonists “regularly depended on juries to thwart bad law sent over from England.”
“The British then restricted trial by jury and other rights which juries had helped secure. Result? The Declaration of Independence and the American Revolution.”
It explains that in 1972, the D.C. Circuit Court of Appeals found a jury has an “unreviewable and irreversible power … to acquit in disregard of the instructions on the law given by the trial judge.”