I recently had the privilege of joining three jury nullification heavyweights on a panel hosted by the
International Drug Policy Reform Conference. The discussion focused on how strategic jury nullification can be used to dismantle the War on Drugs.
If you watch this
84-minute panel from beginning to end, you’ll become a jury nullification genius. But if you don’t have the time to spare, I’ve prepared a rough transcription below featuring my favorite quotes and moments. If you want to jump to the the beginning of a specific speaker’s transcript or video presentation, you can do that after the jump.
Audience Q&A addresses important questions about government retaliation against jurors who nullify. It concludes with a frank discussion about the potential for jury misconduct. (Jump to
Q&A transcript or
video timecode.)
Lindsay Lasalle, the panel’s moderator, sets the tone…
“How many of you when you get a jury summons are super-excited? At the end of this panel, that should be your feeling. When you get that jury summons in the mail you should be excited because you know that this is a tool for activism to end the War on Drugs. You as one juror have the potential to change an individual case. And if enough individual cases get changed we can make an impact on the policies and laws that have so failed and are incarcerating hundreds of thousands of nonviolent drug offenders.”
Clay Conrad
What is Jury Nullification?
“Jury nullification is the act of a criminal trial jury in refusing to convict on conscientious grounds in spite of proof of guilt beyond a reasonable doubt, because they think the law is unjust, the law is misapplied, or the punishment is inappropriate.”
“Juries have always had [a political] role. That’s what the founders intended to protect in the
6th Amendment, and that’s what’s guaranteed in the constitutions of all 50 states.”
“The understanding of the phrase ‘judges of both fact and law’ has changed over the years because our understanding of where the law comes from has changed. Back in that period of history, people believed in
natural law doctrine. That was the generally accepted view of where the law comes from. Law was considered part of natural science to be discovered.”
“Today we have a much more technocratic understanding of the law. Natural law doctrine has given way to a positive, formalistic conception of law. But under natural law doctrine when you say the jury is the finder of fact and law, it means they can determine where justice lies, because justice is what the law was. It was the understanding of what was just that was their understanding of the law.”
“Today judges tell jurors to commit injustice in the name of law, and we call that progress.”
Key Historical Cases
“In the 1670 case of William Penn and William Mead the jurors were punished for acquitting the two men of conducting a tumultuous assembly for holding a Quaker meeting. This is important, because it is the only time in history where a Quaker meeting has been deemed a tumultuous assembly. [Audience laughter.]”
“
[Edward] Bushell’s case did not deal with jury nullification. That’s a common misunderstanding. What Bushell’s case dealt with was that a juror could not be punished for their verdict because the judge could not determine how the jurors decided the facts.”
“
The Zenger case was the foundation of both our understanding of where a jury comes from and our understanding of freedom of the press. This is the history the founders knew. This was the background they had in mind when they wrote the 6th Amendment. They understood the powers of the jury as having the authority to acquit in the teeth of law and facts when the law was wrong.”
“[The Zenger jurors] were told by [Alexander] Hamilton, ‘Where a jury does not question the law they become useless if not worse’.”
“The Supreme Court in 1895 determined a murder case,
Sparf vs. US, in which they determined that a court did not have to allow jury nullification to be argued in front of the jury. They didn’t say that a court
couldn’t allow it; they just said they didn’t have to.”
“During the Prohibition era nearly 60% of cases ended in acquittals.”
“That challenge for us a lawyers, and those of you who are lawyers, is to get jurors to act on this [jury nullification] prerogative. Most people are sickeningly obedient to authority. If you’re not familiar with the
Stanley Milgram experiment, let’s talk about that later. But people do what they’re told. As lawyers we have to free them from that obedience to authority. As activists we must educate potential jurors, because they’re not going to learn about this prerogative in court. They have to know it before they come into court if we are going to have any hope of them acting upon it. As citizens we simply need to show up for jury duty. We need to keep our mouths shut during jury selection as much as possible. Not lie but not volunteer anything. And if we just show up we’ll have an outside impact on future cases, because the world is run by those who show up.”
Tim Lynch
The Power of Jury Instructions
“At the conclusion of every criminal trial just before the jury goes off to deliberate, the judge gives them a set of legal instructions. These instructions are very, very important, because the jurors who show up for service want to do the right thing. And while they listen to the attorneys for the defense and the prosecution, they turn to the judge for guidance on what they can and cannot do.”
“The typical instruction that jurors hear goes something like this: ‘Your job is to determine the facts. My job is to instruct you on the law. It is your duty to follow the law as I’ve explained it to you, even if you disagree with it.’ So you get the idea? You’re to leave your conscience and your opinions and your convictions outside the courthouse.”
Why Jurors Convict Medical Marijuana Defendants (even if they hate the law)
“You can understand what happens in these drug cases we all read about. Take a case that goes into federal court where somebody is on trial for marijuana possession and the defense wants to say ‘My client has a medical condition. She was using marijuana for medical purposes. She has cancer. She was using marijuana to help her appetite, because she’s undergoing chemotherapy treatment. The federal prosecutor would say ‘This evidence shouldn’t even come into court, Your Honor. There’s no medical exception under federal law, so all that information is irrelevant. Tell the jury their duty is to follow the law.’ So what’s going to happen in that case? It’s very likely the jurors are going to think ‘I don’t like this, but we have to follow the law’ and they’re going to bring in a conviction.”
Why Jurors Might Convict for Marijuana (even when it’s legal)
“Yesterday
Ethan Nadelman mentioned that even as the momentum for reform swings over into our favor, we do have some odd regulations that are on the books. Here in Colorado you can grow marijuana at home. But there are limits, right? Up to six plants. So what happens if the police arrest someone and they find eight to ten plants in their possession? What’s going to happen to them? Maybe the prosecutor is going to make an example out of this person. ‘We’ve got rules. We’ve got to follow them,’ so what’s going to happen when the jury hears those instructions? Again, they’re likely to get a conviction in that case when those are the jury instructions.”
Why New Hampshire’s Jury Nullification Law is Important
“New Hampshire has a new law that makes it unique among the 50 states. Here’s what the new law there says:
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 those facts in controversy.
“This is big. This New Hampshire law is different. In all of the courthouses in all the other states, public defenders and defense attorneys are not allowed to inform the jury of these things. You’ve seen it on TV when the judge gets angry and threatens to hold the defense attorney in contempt of court. That’s the power judges use to keep them from arguing the justice of a law in court.”
“So we’ve had this new law on the books since January [2013]. How’s it working out so far? It’s not the easiest thing to find out because jurors are not organized. At the end of trials they don’t hold press conferences and say ‘This is what we did. This is why we did it.’ There’s no institutional support behind jurors the way there is behind prosecutors and police. When the case is over they go home and back to work.”
How is New Hampshire’s Law Working?
“I called some defense attorneys in NH to give me their impression of how the new law is working. They say it’s been a mixed bag so far. When they’re able to argue jury nullification they get an acquittal or at least a hung jury mistrial. And I said ‘What do you mean when you canargue nullification?’ It turns out some of the judges are fighting back and are basically ignoring the new law. They are doing this in two ways…
“First, sometimes the judge might say ‘I’m going to decide if this is a nullification case or not. If I think it’s a nullification case, then you can argue nullification. If I don’t think it’s a nullification case, then you can’t argue nullification.’ It goes right against the spirit of the law.
“The second way judges have undermined the law is by allowing the defense to make their jury nullification argument to the jury, but then they give a misleading instruction to the jury right before they go into deliberations. This is what happened in
the case of Rich Paul who was convicted of selling marijuana to an undercover agent. This case is pending appeal by the Supreme Court of New Hampshire. There should be a ruling within the next six months.
Jury Nullification Legislation Forecast
“I think we’re in a pretty good place. If the New Hampshire Supreme Court orders a new trial for Rich Paul, and slaps down what this trial judge has done then we’re back in business and we’re even stronger than we were before. But if the New Hampshire Supreme Court approves the shenanigans of what this trial judge did, I think it’s going to prompt a reaction from the legislature. And then we’ll have a chance to write an even stronger and more explicit law on what should be the nullification arguments and procedures in trial courts.
“And then once we have this jurisdiction where nullification procedure is solidly in place for a while, we’re going to demolish one of the primary objections we’ve heard over the years. (This is the same dynamic going on with legalization in Washington and Colorado) We’ve finally got some jurisdictions to break this wide open and say ‘Look now we’re going to find out if there are problems or if things will work out fine.’ Then we can go to other states and say ‘Look, we’re doing it in New Hampshire. It affects some cases, but it’s not a big deal. The sky isn’t falling.’”
Top 3 Common Objections to Nullification
1) Doesn’t jury nullification undermine rule of law?“No. Jury nullification is a part of our law. It’s part of the checks and balances in our constitutional system. Just as pardon power is used by governors and the president, juries have the power to bring back acquittals.”
2) Can’t jury nullification blow back on the defendant?“We can set it up in such a way where the defense will be in control. It will be up to the defense to make a jury nullification argument to the jury. Or it’s up to the defense to ask for a jury nullification instruction from the judge. It’s a tactical decision, just like whether or not the defendant will testify or not in court. It’s totally up to the defense to exercise the option or not.”
3) Doesn’t jury nullification violates the jurors’ oath?“If there’s any problem, the problem is the way with which these oaths are written. The problem is not with the ability of jurors to vote according to their conscience.”
How Jury Nullification Advances Drug Reform
“In Washington and Colorado we won through the initiative process by going around politicians. Jury nullification is another mechanism to go around the politicians by going directly to the people in the community. My role on this panel has been to report on developments in New Hampshire and the prospect for [changing laws in other states]. But in the meantime, before these state legislative battles, we can accelerate the pace for reform by simply spreading the word about jury nullification.”
“There aren’t many people here who have close ties to politicians. But I bet everybody here has a family member, a friend, an acquaintance, a neighbor, or a coworker who has received—or is going to receive—a jury summons. Don’t let these opportunities slip by. In ten minutes you can share important information about jury nullification from your laptop or iPad. Blast this information to all of your contacts. When we win an acquittal through jury nullification that’s an opportunity to start this cycle all over again. Take that news story and blast it to all your contacts, planting the seeds again for a future case by reminding people that the nullification prerogative is out there and they can use it when the situation is right.”
Kirsten Tynan
Tynan opens with the 1928 case of George Bevin, a defendant on trial for an alcohol violation. In pursuit of investigating the facts, the jury drank up all the evidence. (They had to be certain Bevin was in violation of the law.) With the evidence gone, the prosecution was forced to acquit.
“This jury gave prohibition laws all the respect they were due, and that was none at all!”
Alcohol Prohibition vs. Drug Prohibition
“Alcohol prohibition was passed during a rigorous constitutional amendment process, but the War on Drugs was much more easily instituted by presidential edict and statutory law. Alcohol prohibition, like the drug war, was a huge failure, but it was repealed in just over 13 years. Whereas we’ve had 40-plus years of the War on Drugs.”
“The court system was heavily clogged with alcohol violation cases and prosecutors leaned heavily on the plea bargain to clear the system. They were relatively generous with those pleas. On the other hand, now 90% of felonies, many of which are drug cases, never even get to a jury trial, and that is because prosecutors are maliciously stacking charges. We’re seeing
mandatory minimums. We’re seeing drug courts and other elements that are tilting the playing field, bullying defendants into forgoing their right to trial by jury and taking a plea bargain—and those plea bargains are much harsher than they would have been during prohibition.”
Drug War & Race
“We’re also seeing a two-tiered system just as we did during prohibition. Back then, prominent members of the community, often government officials, would have their own private entrances to speakeasies so that they could violate the law in privacy and comfort. In the current situation we actually have adults alive today who have never had a president who hasn’t violated a drug law, yet none of these presidents have ever been prosecuted under the laws that are typically used to ruin other people’s lives—and especially used against low-income individuals and and people of color.”
Fugitive Slave Era: Jury Nullification’s Finest Hour
1850s-style rights flexing
Kirsten displayed
this pre-Civil War know-your-rights flyer, urging Northern abolitionists not talk to police tasked with enforcing fugitive slave laws. She highlights famous
Shadrack Minkins fugitive slave case and others where Northern prosecutors repeatedly failed to secure convictions under these onerous laws.
Re: “Disingenuous Fact Finding”
“I’d like to reframe something that Clay [Conrad] said. He referred to jury nullification as ‘disingenuous fact finding.’ I’d like to suggest an alternative framing. I consider it a genuine finding that a law applied in a case at hand is wrong. The true disingenuous of the system is from laws that redefine vices, which harm nobody, as crimes. Crimes are actually things that harm people or property. And further disingenuousness comes from judges who explicitly misinform jurors of their rights.”
“With all of these parallels [between alcohol prohibition and the fugitive slave era], there is a notable missing parallel. Mass jury nullification undermined the Fugitive Slave Act and the Compromise of 1850, contributing to bringing emancipation. Mass jury nullification made a laughing stock of prohibition, but we’re not seeing those things now. Jury nullification really should be a tool that we use to provide relief from the War on Drugs and to protect all of our rights. And the fact that we’re not makes me a little nuts. It boggles my mind. But it is indeed a tool for policy change, and we can see that because two constitutional amendments were helped along to their final passage through jury nullification.”
“The highest and best purpose of the independent jury is to protect each other from the unjust laws and abusive prosecutions imposed by government.”
What’s at Stake?
“What is at stake is huge. You can save reputations. You can save relationships. You can save people’s livelihood or property. You can save their educations, because they might not be able to get a student loan if convicted. You can save their freedom, and you can in fact save their life. (Even if it’s not a death penalty case people get killed in prison.) You cannot be required to check your conscience at the courthouse door. No victim means no crime. If there is no victim, then the law is wrong. The person is not guilty.”
Steve Silverman
Hero Inspiration by Norman Rockwell
“This is a Norman Rockwell painting called The Jury. It debuted on the cover of The Saturday Evening Post in 1959. At that time women were prohibited from serving on juries in three states and their jury service was restricted in eighteen states. The predominant sexist attitude of the time suggested that women jurors would crumple too easily under the intense psychological pressure of the deliberation room. This painting is Rockwell’s response to that.”
“One thing that strikes me about this young woman is that she could fit perfectly inside a jury deliberation room today. Maybe today she’s a punk rock chick hiding scene tattoos underneath her blouse. Or maybe she’s a hippie Burner who cut off her dreads and removed a facial piercing or two after receiving her summons.”
Viral Disruption of The War on Drugs
“The possibility for profound systemic disruption of the War on Drugs is exactly why Flex Your Rights is now taking on jury nullification as the subject of
our next big film.”
“This project will be different. For one thing, each and every time one of our viewers is able to either secure an acquittal for a drug drug defendant or even simply hang the jury because they refused to vote ‘guilty’—this creates the potential for a viral media event, especially if the juror decides to speak out. If we can inspire hundreds or even thousands of these jury nullification events within a short period of time this will shock the shit out of police, prosecutors, judges and lawmakers. And when these jury nullification events continue to happen with no end in sight, they will take notice that ‘We the people’ will no longer tolerate Drug War policies that violate our American values of liberty and justice for all.”
Who will see this movie?
“The first thing our hero does after getting her summons is Google ‘jury duty.’ This gets to the heart of the question a lot of smart people are asking me. And that is: How are you going to get people to see this film? If you Google ‘
police searches‘ or ‘
my rights‘ you will see that Flex Your Rights is the top search result. We will do the same thing for jury duty.”
Jury Duty Tips
“For starters, [a jury] hero simply shows up for service. Instead of tossing the summons in the trash like about 70% of us do, she seizes the opportunity to do what is perhaps the single most important and powerful thing an individual citizen can do to stop the War on Drugs. To put it another way, being a trial juror is the most important and powerful political position any of us will likely hold in our entire lives.”
“Instead of using jury selection as an opportunity to expound on her views as a proud drug policy reformer, our hero chooses a path that is more likely to help set free a drug war prisoner and make a powerful public statement.”
“Our movie will borrow lots of tips from these articles which show you how to answer prosecutors’ and judges’ question truthfully and improve your odds of getting selected. My favorite tip is from Clay’s article. He says if, for example, you’re asked in a drug case ‘Would you be able to put your opinions aside and vote guilty?’ The correct answer is ‘yes.’ Of course you ‘could’ vote guilty. Just like you ‘could’ shove your arm down a garbage disposal, that doesn’t mean you’re legally committed to doing so! [Audience laughter.] You can always change your mind later.”
“The key to improving your odds of getting picked for the jury is to always present yourself as having an open mind, or perhaps even a mind that maybe hasn’t yet given a whole lot of thought to the issue.”
Just Say “Not Guilty”
“The judge and jury won’t make it easy [to vote 'not guilty']. Our hero will have to stick to her guns and she’s going to have to resist saying anything that smacks of any knowledge of jury nullification.”
“So what can our hero reasonably do to persuade other jurors to vote ‘not guilty’ when there doesn’t seem to be much reasonable doubt about technical guilt? Maybe she could try to open up some doubt about the trustworthiness of witness who cut a deal with the prosecutor to betray their partner? Or maybe she could even try to cast doubt on the political motivators of the ambitious lead prosecutor? But even if she can’t convince anybody to change their mind. Even if she’s all alone, our hero will stick to her guns and vote her conscience and calmly repeat ‘Not Guilty.’”
Audience Q&A
Dorothy Gaines: Drug War Prisoner
Former drug war prisoner
Dorothy Gaines recounts her heartbreaking story story of prosecutorial misconduct leading to a 19-year prison sentence for crack cocaine conspiracy. (She eventually received a commutation by Pres. Bill Clinton.) She’s a powerful of example of the type of defendant jury nullification should be used to protect.
What if the government retaliates against me for nullifying?
Jesse Stout: How would you advise someone who has been contacted by the government after nullifying. I have a close friend who recently successfully hung a federal drug sales jury. He called me and I congratulated him on exercising this constitutional right. And only a few weeks later he called to say “The FBI is called me. They want to talk about my jury service,” and I was curious what our experts on the panel would advise we tell people who are concerned about the government tampering, interfering, or trying to retaliate against someone who’s exercising this important right?
Clay Conrad: First, nobody should ever talk to the FBI unless you are subpoenaed to a grand jury. [Audience applause.]. And even then you should talk to a lawyer before you do so. Anything you say can be used against you, of course. Not only that, but any statements you make might be deemed a false statement and then can be used to indict you. That’s how they got
Martha Stewart, and she can probably afford better lawyers than anybody in this room. So when the FBI comes knocking at your door, unless your child has been kidnapped, you probably want to say “No comment.”
Lindsay Lasalle: Is it the case that people who’ve nullified and have been public about it, has there been any legal repercussions for any of those individuals?
Clay Conrad: The short answer is “no.” There was a woman named
Laura Kriho that some of you might know about. She’s from Colorado. She was charged after her jury duty with perjury for allegedly not being candid during jury selection. That case was thrown out on appeal because she was honest in answering the questions she was asked. She didn’t lie. They were upset that she didn’t volunteer information that the prosecutors felt she knew they wanted to know.
Audience Heckler: So they suck at voir dire and it’s her fault?
Clay Conrad: Exactly! They didn’t ask the right questions, because they were afraid A) they were going to put ideas into the minds of the jurors and B) they didn’t want to offend anybody. So they didn’t ask penetrating questions. She didn’t volunteer information. That’s okay. You don’t have to volunteer anything. During jury selection you have to tell the truth. You don’t have to volunteer anything. You don’t have to be any more specific than the question demands.
If they say, “Could you do something?” Yeah. “Would you do something?” I don’t know; I haven’t seen the evidence yet. But you don’t have to be any more specific than the question demands. You don’t have to volunteer anything. Now if they ask “Have you ever attended a drug reform conference,” you would have to say “yes.” My personal feeling is if I were on jury duty I’d continue to be vague. If they did nail me then I’d probably make a short two or three sentence speech in order to infect the rest of the juror pool.
What about racist juries?
Retired District Court, Judge John Delaney: I’m a member of
Law Enforcement Against Prohibition (LEAP). I’ve been a trial court judge in the state of Texas for 30 years and a lawyer for 40 years. As you can imagine I have some mixed feelings. I’m a drug reformer, but I labor in the garden of law. I’m had about 570 jury trials, and I’m concerned that this whole notion of jury nullification has the potential for some mischief—unintended consequences.
I think about the prosecutions in Mississippi in the 1960s where white men killed freedom riders, and loyal members of the community refused to convict. I think about the movie To Kill a Mockingbird, which we have the flip of your argument where the government’s case was aided by the racial prejudice of the twelve white men on the jury. I know from quite a bit of experience that jurors are not always driven by the highest moral values. There’s some evil that lurked there in the community just as it does in the halls of government.
Enough editorializing, I want to ask a technical question about that New Hampshire law. When it says that the defense is entitled to argue, what does that do about the defense’s rights during voir dire and the government’s rights during voir dire to take people off the panel?
Tim Lynch: Clay Conrad has in his book an entire chapter addressing the problem of racist verdicts, which is a common objection that does come up, and I’ll let Clay address that. But the quick response is that to use Clay’s words, juries are sometimes scapegoated because there’s a potential for abuse there.
We have to remember that police officers have discretion to make arrests. Sometimes that discretion is abused. Prosecutors have discretion about whether they bring charges and how many types of charges, so prosecutorial power can also be abused.
We don’t take away the government’s power, because their powers have the potential for abuse. But when people talk about juries and their potential for abuse they want to take away the jury’s prerogative for leniency, so we have to put that into perspective.
Going back to your question about voir dire, my understanding is that the voir dire procedures haven’t changed because of the New Hampshire law. So whatever the voir dire procedures were before, there hasn’t been much change there.
Clay Conrad: If you have a malevolently-racist community, what kind of sheriffs are they going to elect? What kind of judges are they going to elect? What kind of district attorney are they going to elect? If you have a malevolently-racist community, there ain’t no way you’re getting justice.
In the Byron De La Beckwith trial in Mississippi—the first trial—two police officers got up and testified that Beckwith was hundreds of miles away at the time
Medgar Evers was “getting himself shot”—their words. In the
Emmett Till murder trial the sheriff would stand at the door and greet the black congressmen and black journalists that came to the trial with catcalls of “Hello nigger!”
What kind of justice are you going to get in that community? But it’s easy to blame the jury for what the sheriff and the prosecutor and the judges have done, because the jury doesn’t exist after the trial. So you can “Oh, it was the jury’s fault.” But you know a grand jury from that same community indicted. And then we have the federal civil rights trials that followed after the state acquittals, and those ended in convictions! Juries from the same community. They convicted! What was the difference? It was the judges. It was the prosecutors. It was the investigators. But you can always blame the jury, because they don’t exist after the trial is over.
Now are juries perfect? Of course not. Is jury nullification perfect? Of course not. Any power, any prerogative can be abused. But I will say that a panel of twelve diverse citizens acting through deliberation are less likely to abuse their power than the judge, or the prosecutor, or the police. That they are more likely to act in the interest of justice than one person or a small group of like-minded people acting in the privacy of a closed office that would be my judgement.
So I would say out of all the actors in the criminal justice system, the jury is the least racist—and that is backed up in death penalty cases. Where it has been shown that a black man is more likely to be sentenced to death for killing a white man than in any other situation because he’s more likely to be prosecuted and charged with a capital offense, the discretion is almost always on the part of the prosecutor. Maybe a small percentage [of the discretion] is on the part of juries, but it’s very small compared to the discretion the prosecutor tends to have and the impact the prosecutor has in that disparity.
