A New Hampshire bill would require state courts to inform juries that a defendant who has been shown to have committed a crime can be declared not guilty if a guilty verdict would “yield an unjust result,” a concept known as jury nullification.
The plan, approved 184-145 by the state House of Representatives, would have the courts state tell jurors: “Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”
The concept traces back to the country’s founding.
John Adams explained in a brochure about jurors, “It is not only his right, but his duty – to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Prosecutors and judges generally dislike jury nullification, and several people who have tried to inform the general public about it have faced legal opposition.
WND reported a Michigan man was charged with felony obstruction of justice and jury tampering for handing out a leaflet on the subject in front of a courthouse.
His defense counsel has argued that opposition to the concept by a prosecutor and a judge doesn’t make talking about it illegal.
Keith Wood, a former pastor, was arrested Nov. 24, 2015, on the order of Mecosta County District Court Judge Peter Jaklevic while Wood was handing out leaflets published by the Fully Informed Jury Association on public property.
Wood was charged with felony “obstruction of justice” for giving members of a jury pool what prosecutors described as “a pamphlet that encouraged the jurors to violate their oaths and directly contradicted the instructions the jurors would be given thereby tainting the entire jury panel.” He’s also charged with attempting to “influence the decision of a juror in a case by argument or persuasion that was not a part of the proceedings in open court in the trial of the case.”
In a brief, Wood’s attorney, David Kallman, contends Mecosta County Prosecutor Brian Thiede’s response to a motion to dismiss all counts against Wood was based on “a standard all but abandoned almost 50 years ago” as well as “irrelevant” out-of-state court cases.
Kallman argues there is “not a single published or non-published case in Michigan where a defendant was charged with, or convicted of, statutory jury tampering or common-law obstruction of justice for allegedly tampering with a jury pool.”
“To be sure, if there was such a case, Prosecutor Thiede almost certainly would have cited it. Instead, he claims to have found a new, never-before-discovered crime that was unknown to all prosecutors and courts before him.”
Kallman contends that contrary to Thiede’s opinion, precedent holds that “nothing can be a crime until it has been recognized as such by the law of the land.”
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.”
“The pages of history shine upon instances of the jury’s exercise of its prerogative to disregard instructions of the judge; for example, acquittals under the fugitive slave law.”
The New Hampshire bill gives several proposed requirements for courts to instruct jurors.
It requires judges to “inform the jury of its right to judge the facts and the application of the law in relation to the facts.”
Further, if the jury has a “reasonable doubt. … You must find the defendant not guilty.”
“If you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty,” the law would require.
But then it adds, “even if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”
Legal expert and commentator Eugene Volokh said: “As you can see, the third sentence of the instruction is in tension with the second: The second says that jurors should find the defendant guilty if all the elements of the crime are proved, but the third says that jurors may find the defendant not guilty.”
He pointed out that in 2012, the New Hampshire Legislature adopted a law stating, “In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”
The law went up to the state’s highest court, he noted, which said it wasn’t really addressing jury nullification.
The court said the statute “merely delineates the jury’s traditional function of determining how the law applies to the facts as it has found them.”
That court previously found, Volokh noted, “the jury are not the judges of the law in criminal cases.”
WND previously reported a judge in Denver dismissed all charges against Mark Iannicelli and Eric Brand, who were accused of jury tampering for handing out similar informational booklets.
But before Denver District Court Judge Kenneth Plotz dismissed the charges, a federal civil rights lawsuit was filed in which U.S. District Judge William Martinez argued the pamphlets are protected speech and the men had the right to hand them out on courthouse grounds.
In a commentary at Complete Colorado, Jacob Sullum wrote about Denver DA Mitch Morrissey’s prosecution.
“Morrissey continued to pursue those charges even after conceding that such activity is protected by the First Amendment. When I asked Lynn Kimbrough, Morrissey’s public information officer, what Iannicelli and Brandt had done that crossed the line from constitutional protected speech to felonious jury tampering, she refused to say. That’s probably because Morrissey had no case.”
He continued: “Contrary to what Kimbrough claims, there was never any evidence that Iannicelli or Brandt were trying to influence the outcome of any specific case. … What happened here is pretty clear: Morrissey abused his office to punish people for speech that offended him. He persisted in that effort even after it became abundantly clear that the charges were unconstitutional, as when a federal judge in Denver ruled that activists have a First Amendment right to do exactly what Iannicelli and Brandt were arrested for doing: passing out literature arguing that jurors have the authority to judge the law as well as the facts.”
In the Michigan case, WND reported when, at a court hearing, the prosecutor said he didn’t want jurors to use their own consciences to decide cases.
“We could have a juror that thinks jihad is righteous,” he warned. “There are some consciences out there I don’t want voting that way.”
WND also reported last July when a Florida judge banned people from criticizing the court on its property then quickly backtracked.
WND reported Judge Mark Mahon of Florida’s Fourth Judicial Circuit didn’t move quickly enough, and a lawsuit was filed over his decision to order the arrest of anyone outside the courthouse, including on certain public sidewalks, who questions “the integrity of the court or any of its judges.”
“Demonstrations or dissemination of materials that degrade or call into question the integrity of the court or any of its judges (e.g., claiming the courts, court personnel or judges are ‘corrupt,’ biased, dishonest, partial or prejudiced), thereby tending to influence individuals appearing before the courts, including jurors, witnesses and litigants, shall be prohibited on the Duval County Courthouse grounds,” the judge had written.
Violators would be arrested, he ordered.
Legal experts immediately declared the order likely was unconstitutional, and the day after WND’s report, Mahon issued another order to replace the older one. But the new order focused on a ban on photography of secure locations, security systems and people in those locations.
However, in the interim, two photographers, Thomas James Covenant and Jeffrey Marcus Gray, filed a lawsuit against the judge.