Man Arrested, Charged with Multiple Felonies for Telling Jurors About Their Rights

[villager]

Denver, CO — Last week, a Denver man was arrested and charged with multiple felonies, but not for stealing, committing fraud, or engaging in violent crime. He was targeted for attempting to educate jurors about their rights in the courtroom.

Mark Ianicelli, 56, set up a table outside of Lindsay-Flanigan Courthouse in Denver in order to educate jurors about jury nullification. Jury nullification is the process by which members of juries can nullify unjust laws by finding defendants charged with them not guilty.

Ianicelli is charged with tampering with a jury, a felony in Colorado that carries a minimum bond of $5,000. He was charged by the Denver District Attorney for seven counts of tampering, and has since bailed out of jail. Ianicelli was in the second day of a planned three-day outreach to educate jurors entering the courtroom about the power of jury nullification. He was handing out fliers when he was arrested. His goal was to inform potential jurors about a vital, centuries-old function of juries.

The practice was first used in America in 1735 to exonerate a man of libel charges after he printed unflattering statements about the Governor of New York (a British colony at the time). Though he had undoubtedly printed them, the jury found him not guilty and set the precedent that members of juries could judge the morality and legitimacy of laws.

The United States’ first Chief Justice, John Jay, once told jurors, “You have a right to take upon yourselves to judge [both the facts and law].” Jurors would seize this right to nullify anti-sedition laws in the early 1800s that attempted to stifle free speech criticizing the newly formed United States government.

Judges first began cracking down on the right to nullify in the late 1800s. By that time, jurors had already used nullification to challenge the Fugitive Slave Act, which imposed heavy punishment on Northerners who aided escaped slaves from the South. Though judges came to discourage nullification, the practice went on to be useful in nullifying Prohibition-era laws.

<snip>

http://theantimedia.org/man-arrested-charged-with-multiple-felonies-for-telling-jurors-about-their-rights/

[BillZBubb]

1. Hopefully his jury will nullify the charges against him.

The beauty is, the jury in his case will have to hear about jury nullification. He can "tamper" with his own jury.

The Denver DA is an ass.

[villager]

2. Exactly! And the man gets to admit his flyer into evidence!

It should be fun....

[Shrike47]

4. I would doubt his pamphlet comes in for the purpose of instructing the jury on the law.

[villager]

5. I would expect it comes in as evidence...

...of what kind of "tampering" he was accused of.

And thus, the jury will see it.

[BillZBubb]

25. Exactly. It will be Defense Exhibit A.

The prosecution will have to discuss it to explain how distributing it merited charges being filed. The defense attorney can slaughter him in front of the jury.

[Downwinder]

12. Hopefully they will refer it to a Grand Jury which

in turn will "runaway."

Would not be the first Denver runaway Grand Jury.

[Comrade Grumpy]

3. Jury nullification has historically been used for some bad things, but...

...it can be useful tool to fight injustice. Like the war on drugs.

In the past, it's been used to not convict racist attackers.

It's like any other tool. It can be used for good or bad purposes.

[closeupready]

7. For what 'bad things' has it been used "historically"?

Don't know enough about it, so your response is appreciated.

[hifiguy]

9. Mostly in the South in Jim Crow days

though it still persists.

A white man could kill a black man in cold blood in front of 50 witnesses and his chances of being convicted of murder, or even assault. by an all-white jury (blacks were not allowed to serve on juries) were about 1 in 10 to the 100th power. That is 1 with 100 zeroes after it. A larger number than that of atoms in the known universe.

[The Velveteen Ocelot]

29. Which is an example of why jury nullification can be a very bad thing.

Why have a trial at all if the jurors feel free to ignore the instructions they are given? Jurors are obligated to weigh the evidence and find the facts to which the law is to be applied. It's all fine and dandy if there's a case that a jury decides it wants to come out a certain way that we might like, regardless of the facts and the law, but what if it comes out in a bad way, as for foregone-conclusion murder trials of black people in the old South, just because a bigoted jury wants to convict the black guy regardless of the evidence? Judges get criticized for ignoring (or skewing) the law to arrive at an outcome they want (see, e.g., Bush v. Gore); why should it be OK for juries to do basically the same thing? You need some certainty in the law and not make trials any more of a crapshoot than they already are.

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

-A Man For All Seasons

[erronis]

31. Thanks for that excerpt. How much we can learn from history - and how little we do.

[Wally Pipp]

36. Hear, hear!

n/a

[rusty fender]

61. The racist juries weren't nullifying the law against murder,

they were just finding white people not guilty of murdering blacks. That's racism, not jury nullification.

[onenote]

74. and if this guy is found not guilty of tampering with a jury

it will not be because the jury "nullified" the law against tampering, they would just be finding a jury nullification advocate not guilty of jury tampering.

Whether its done for good motives or bad motives, jury nullification is still jury nullification.

[rusty fender]

89. So, when someone is found not guilty of murder,

they jury has nullified the law against murder? They've actually ruled that the law against murder is unjust?

[onenote]

90. When a jury refuses to convict in the face of evidence that would warrant a conviction

that's jury nullification.

Whether it's done because the jury doesn't agree with the law or because they are bigots doesn't change anything. A bigoted jury that doesn't think white people should go to jail for harming black people is engaging in jury nullification. A non-bigoted jury that doesn't think anyone should go to jail for violating a particular law also is engaging in jury nullification.

And someone that engages in behavior that falls within the definition of jury tampering but doesn't think jury tampering should cover such behavior, also is engaged in jury nullification.

[geek tragedy]

10. all-white juries in the south would never convict white people

for killing black people or white civil rights activists.

Here's how little they worried even if a case were to go to a jury:

[Comrade Grumpy]

11. Here's the Wiki entry:

https://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States

Jury nullification began in the United States in 1670 when Quakers were acquitted by a jury of violating a law which only permitted religious assemblies under the Church of England.[4] In 1735 a journalist was acquitted by a jury who nullified a law making it a crime to criticize public officials.[4] Later, colonial juries nullified the Navigation Acts which would have forced all trade with the colonies to pass through England for taxation.[4]

Just prior to the Civil War northern juries sometimes refused to convict for violations of the Fugitive Slave Act because jurors felt the laws to be unjust. In 1851, 24 people were indicted for helping a fugitive escape from a jail in Syracuse, New York. The first four trials of the group resulted in three acquittals and one conviction, and the government dropped the remaining charges. Likewise, after a crowd broke into a Boston courtroom and rescued Anthony Burns, a slave, the grand jury indicted three of those involved, but after an acquittal and several hung juries, the government dropped the charges.[5]

During the 19th and 20th centuries, especially in the civil rights movement era, all-white juries acquitted white defendants accused of murdering blacks; however, the problem according to some scholars was: "...not in jury nullification, but in jury selection. The jury was not representative of the community..."[6][7] During Prohibition, juries often nullified alcohol control laws,[8] possibly as often as 60% of the time because of disagreements with the justice of the law.[9] This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition.[citation needed]

Kalven's and Zeisel's study of the American jury found that juries acquitted when judges would have convicted in only nineteen percent of cases, and of these, only twenty-one percent of the acquittals were attributable to jury nullification.[10] Jury nullification sometimes takes the form of a jury convicting the defendant of lesser charges than what the prosecutor sought.[11]

In the 21st century, many discussions of jury nullification center around drug laws that are considered by many to be unjust either in principle or because they disproportionately affect members of certain groups. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification,[9] and a recent rise in hung juries (from an average of 5% to nearly 20% in recent years) is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves (though other reasons such as the CSI effect may also be involved).[12]

In criminal cases, jury nullification arguments sometimes focus on the precise language of the jury instruction on the burden of proof. Many jury instructions on the issue of the burden of proof invite nullification arguments. According to these instructions juries must find the defendant not guilty if the case has not been proven beyond a reasonable doubt.[citation needed] Conversely the jury should find the defendant guilty if the case has been proven beyond a reasonable doubt.[citation needed] The permissive language "should" arguably allows juries to consider nullification arguments. It is also possible to receive a specific jury instruction on nullification, though most judges simply avoid the topic and do not tell jurors of their power to judge the fairness of the law and how it is applied as well as to judge the facts of a case.[citation needed]

During the Vietnam War era, many protestors, including Benjamin Spock, sought jury nullification.[13] Spock was convicted of conspiracy to counsel, aid, and abet registrants to avoid the draft, after the judge instructed the jury to apply the law as he laid it down.[14] However, the U.S. Court of Appeals for the 1st Circuit overturned the conviction because the judge had committed prejudicial error in putting to the jury ten special yes-or-no questions.[15] Eight defendants from Oakland, California were tried in 1969 for conspiracy to disrupt a draft induction center, and the jury acquitted after being told by the judge that it could acquit if it felt the defendants' actions were protected by the First Amendment guarantees of freedom of speech and assembly. Likewise, in a case involving ten Seattle protestors accused of blocking a munitions train carrying bombs destined for Vietnam, the jury acquitted after the judge allowed the defendants to talk about their motives and permitted the defense to ask the jurors to invoke their consciences and object to the war by acquitting.[5]

The Camden 28 were able to gain an acquittal despite the overwhelming evidence of their guilt. In at least one case, the judge allowed the jury to hear testimony about the Pentagon Papers and the nature of the Vietnam War. In one Vietnam-era case, the defense compared the defendants' actions in breaking into a government office to the Boston Tea Party, saying that no one "would say that breaking into a ship shouldn't be criminal, shouldn't be a crime," but that it was justified under the circumstances.[16] There was also a case in which a jury voted 9-3 to acquit peace activists despite their admission that they poured blood in a military recruiting center.[17]

Several cases that were speculated to be instances of jury nullification included the prosecution of Washington D.C.’s former mayor, Marion Barry; the trial of Lorena Bobbitt; the prosecution of the police officers accused of beating Rodney King; the prosecution of two men charged with beating Reginald Denny in the resulting riots; the trial of the surviving Branch Davidian members; the trial of the Menendez brothers for the murder of their parents; and perhaps most famously, the O.J. Simpson murder trial.[18] In the days preceding Jack Kevorkian's trial for assisted suicide in Michigan, Kevorkian's lawyer, Geoffrey Fieger, told the press that he would urge the jury to disregard the law. Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger's statements had already been extensively reported in the media.[19]

In a 1998 article, Vanderbilt University Law Professor Nancy J. King wrote that "recent reports suggest jurors today are balking in trials in which a conviction could trigger a three strikes or other mandatory sentence, and in assisted suicide, drug possession, and firearms cases."[20]

[Go Vols]

32. I tend to believe it was the good ol boy system

the problem according to some scholars was: "...not in jury nullification, but in jury selection. The jury was not representative of the community..."

Your friends are the jury= not guilty

[d_r]

20. another example

http://www.cbsnews.com/news/mississippi-burning-murders-resonate-50-years-later/

"During the six-week search, the bodies of nine black men had been dredged out of local swamps. Though numerous African-Americans had been missing and presumed dead with little media attention in Mississippi during that time, the murders of Goodman, Schwerner and Chaney rocked the nation.

Said David Goodman, who was 17 years old when his brother was killed: "It took two white kids to legitimize the tragedy of being murdered if you wanted to vote."

It took four decades - and a determined reporter - to achieve a measure of justice in the case.

In 1964, the Justice Department, then led by Attorney General Robert Kennedy, knew they were up against segregationist authorities who would never charge the alleged attackers as well as all-white juries who would refuse to convict the suspects of murder. So the feds prosecuted the case under an 1870 post-reconstruction civil rights law. Seven of the 18 men arrested - including the Neshoba County deputy sheriff who tipped off the KKK to the men's whereabouts - were convicted of civil rights violations, but not murder. None served more than six years in prison. Three Klansmen, including Edgar Ray Killen, were acquitted because of jury deadlock. "

[Adrahil]

71. It has also been used to protect killer cops.... nt

[WDIM]

6. Free speech is dying in this country.

Even defendants in criminal trials are not allowed to say certain things. Like the MJ patient that cannot mention their medical need for cannabis. This is a complete violation of the right to free speech. No time is free speech more important than testifying.

Jury nullification needs to be part of the jury instructions.

[Go Vols]

8. +1

[grasswire]

13. today is a good day to join the Fully Informed Jury Association

http://www.fija.org.

[Qutzupalotl]

14. Mentioning the FIJA is a good way to get out of jury duty.

http://fija.org

[csziggy]

15. I've got to report to jury duty Monday - for selection, not service

I think I will read up on FIJA over the next few days!

Thanks!

[villager]

17. And be sure to let your fellow jury panel members know!

[csziggy]

22. Not sure if I will be selected.

Last time I was called, selected and wasted an entire day when the defendant finally made a deal with the prosecution. Got paid $15 for the day out of which I paid $7 for parking (since the handicapped accessible parking was taken up with construction equipment and the free handicapped parking spaces were twice as far away from the entry) plus had to buy lunch and pay for gas for the 15 mile (one way) trip into town. I figure jury duty cost me about $10 without even the entertainment of getting to sit in the courtroom at all.

I'm torn about whether I want to be on a jury. I know I should do my service but I am not used to a regular schedule or wearing 'real' clothes all day. I've been retired for a while now and since I stopped working I've had numerous operations and recoveries. So my schedule is erratic as can be and I am used to wearing casual clothes (think nearly pajama type clothing) with no bra and no shoes. Just wearing a bra hurts (scars in one breast) and shoes make my feet swell up. Sitting all day with my feet down makes my legs and feet swell, so that is a health issue.

They call for 'business casual' for dress. The closest I can come to that are better quality tee-shirts with pretty pictures of birds on them and clean jeans or khakis - and I only own one pair of each kind of pants. I don't dress up - well, I have one pair of black slacks and one gray button up shirt that I wore to my father's funeral but I'm not wearing those to court. When I was called to federal jury I wore my horse show outfit - black jeans, button up western shirt, cowboy hat and boots. That's as dressy as I got in those days, but I'm long since retired from that and don't even own those clothes anymore. My last good western shirt got made into a teddy bear, LOL.

[WinkyDink]

24. I, too, am retired, and I am SO with you, csziggy! Especially the "no shoes," And I was ALL about

Last edited Tue Aug 4, 2015, 07:45 PM - Edit history (1)

colorful high heels once!

[csziggy]

26. I never dressed up - no high heels, no dresses, no suits

I raised horses and ran a farm. Most days I wore shit stained jeans or shorts and tee-shirts with pockets to put tools in. When I went to town I wore clean jeans and tee-shirts with pictures on them. That is still my 'dress up' attire though I introduced khakis to my wardrobe fairly recently for the summers.

I had one pair of high heels bought for a special occasion - gave them away after spend most of a year on crutches after badly spraining one ankle then having a horse fall on the other ankle. I'm happy to have my joints work, not pushing it with tortuous shoes!

Growing up in Florida I was barefoot most of my childhood and never got in the habit of wearing shoes in the house. If the weather isn't wet I have moccasins I can wear to be comfortable but with Florida summer weather I don't know if I can count on being able to wear those all day and I don't want to get them wet.

[WinkyDink]

33. Ah! I taught h.s., and wore the blazer/skirt/heels "uniform." But I never, ever wear shoes in my

house, and my 91-yr-old mother still tells me to! I just say I'm a peasant!

[csziggy]

38. Oh that makes a huge difference!

I trained to work in a library or museum and if I had gone that route I would have worn suits with slacks and flats. By the time I got out of college I was adamant that I would never wear dresses or heels ever again.

Mom gave up on making us girls wear shoes long ago and doesn't say anything about it now that I am in my 60s and she is 94. When we were kids my parents were happy they didn't have to pay for shoes for us to ruin in the Florida swamp next to our house. Most years we got two new pairs of shoes a year - one for Easter and one for the beginning of the school year. Those were supposed to last all year so going barefoot was a financial bonus!

[mountain grammy]

37. In my county, getting dressed up means wearing the good sweats

[csziggy]

40. That's about what I wear, except this time of year it's shorts

The juror instructions only specifically forbid shorts and flipflops so I'm wearing my tee-shirt and jeans on Monday. If the court doesn't like that, they can exclude me from jury duty.

[SoLeftIAmRight]

16. Kick Kick Kick

Everybody should know about this - There is almost place where a person has as much power than when on a jury

[Omaha Steve]

18. Thanks for posting

[villager]

19. You're welcome, OS!

I think jury nullification could've brought our government to its senses even earlier, about the whole misbegotten War on Drugs, if people knew they had in their power.

[gregcrawford]

21. Whoa!

If a jury has not yet been impaneled, Ianicelli is not tampering with anything. That law applies only once the jury is chosen and is hearing evidence.

This is blatant intimidation, and the DA could get himself in serious hot water, assuming, of course, that there is an honest human being anywhere in Denver's court system, which I seriously doubt.

And this jerk-off DA passed the bar?!!? Justice isn't blind; she just can't stand the sight of corrupt assholes.

[Nuclear Unicorn]

49. So, if no other prosecutors decide to charge the DA with abuse of office is that

prosecutor nullification?

[gregcrawford]

76. Nah...

... that's just the predictable outcome.

[WinkyDink]

23. Oh, the just compensation he will reap!

[bemildred]

27. Sounds like a political prisoner to me. nt

[villager]

28. What!? In *America!?*

[doxyluv13]

30. A decent attorney could get him off pretty quick.

Beside having a first amendment right to tell his fellow citizens whatever he wants, it's dubious that the people walking into the courthouse constitute a jury that could be tampered with.

Having served on a couple juries, I always knew I could vote to "do Justice" rather than follow the Law. However, if you take the process seriously, and my experience is just about everyone on a jury does, it would have to be a pretty extraordinary situation for most people to take justice into their own hands like that.

[jtuck004]

34. Lucky he didn't try that in Everett, WA. The sheriff would shoot him off the boat for trying to

tell people about their rights.

That was 1916. Some things never change.

[villager]

35. You don't want to confuse Americans with the notion that they *actually* have "rights"

It just complicates things for our betters.

[Uncle Joe]

39. One would think that cases could be overturned if judges didn't instruct

jurors that they did have this right?

Is the judge tampeing with juries by denying this information?

Thanks for the thread, villager.

[struggle4progress]

41. He's charged with jury tampering, in talking to seven specific jurors

at a booth he set up with a sign "Juror Info"

He is, of course, free to roam the world at large, explaining to folk generally his views about whether or not they need to obey the law

But if he's down at the courthouse, telling actual jurors that they can ignore the law, then he's crossed a bright line that's been drawn with a clear public interest purpose in a limited and well-defined circumstance

Laws against jury tampering have the entirely defensible aim of protecting the integrity of the courts

There won't be much wiggle room in statute interpretation here: trying to influence a juror's vote, opinion, decision, or other action in a case, outside of the regular judicial proceedings, will be regarded as tampering

[villager]

42. The specific jurors came up to his booth of their own free will?

And he advised them of the long American tradition of jury nullification?

It'll be interesting to see what a jury thinks of that.

[struggle4progress]

43. These statutes are drawn to protect the integrity of the process

and won't allow much opportunity for quibbling

If the case is prosecuted, the issues will be something like these: Did he intend to sway jurors? Did he proceed in a manner that a reasonable person might expect could result in direct or indirect communication with jurors? And did his acts produce any direct or indirect communication with jurors, outside the usual judicial process?

His principles and motives won't matter, nor will his theories of the law governing juries, and it will be irrelevant whether he actually swayed anyone

[villager]

45. Is it tampering to inform them of public information?

Thankfully, a prosecutor's best friend such as yourself won't necessarily be seated on the jury that he'll get. We'll have to see how this case proceeds.

But I certainly know which side I'm on.

[struggle4progress]

48. Jury tampering laws protect not only prosecutors but also defendants and jurors

A typical statute will run something like this: A person is guilty of jury tampering when, with intent to influence a juror's vote, opinion, decision or other action in a case, he communicates or attempts to communicate, directly or indirectly, with a juror other than as a part of the proceedings in the trial of the case

Language like this prevents much quibbling about what constitutes tampering, including the question of whether any juror was actually influenced

And "intent" might be gauged by what "a reasonable person" could foresee as a possible outcome

Thus somebody -- who stands at the front door of a courthouse and distributes "Information for Jurors" fliers saying "Almost all major crimes are committed by negroes!" -- might IMO reasonably be convicted of jury tampering, without discussion of the alleged statistics

Similarly somebody -- who stands at the front door of a courthouse and distributes "Information for Jurors" fliers saying "National studies show that jurors who vote to convict are often involved in a major accident after the trial" -- might IMO reasonably be convicted of jury tampering, without discussion of the alleged studies

[villager]

50. Luckily they won't be going by language that's "something like this."

But here's a profounder question for you: You always come to DU threads to defend cops, prosecutors, the state in its zeal to carry out Javert-level punishment for minor offenses.

When, specifically, have you ever sided with defendants? Seriously.

[struggle4progress]

52. The full 2014 version of CRS 18-8-609 reads

18-8-609. Jury-tampering. (1) A person commits jury-tampering if, with intent to influence a juror's vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.
(1.5) A person commits jury-tampering if he knowingly participates in the fraudulent processing or selection of jurors or prospective jurors.
(2) Jury-tampering is a class 5 felony; except that jury-tampering in any class 1 felony trial is a class 4 felony.

What I posted in #48 above as typical statutory language was: A person is guilty of jury tampering when, with intent to influence a juror's vote, opinion, decision or other action in a case, he communicates or attempts to communicate, directly or indirectly, with a juror other than as a part of the proceedings in the trial of the case

The differences seem to be:

I: Colorado says "commits" rather than "is guilty of";
II: Colorado says "if" rather than "when"; and
III: Colorado says "communicates or attempts to communicate" rather than "communicates"

The first two differences are immaterial IMO; the third makes the Colorado statute broader than the typical language I posted in #48 above, by removing the possibility for argument over whether any actual direct or indirect communication occurred

[villager]

53. When have you ever sided with a defendant? Seriously.

In our struggle for progress, I think the woman in your avatar pic might have a word or two with you about your unchecked enthusiasm for the state and its prosecutions.

Meanwhile, since our defendant was not trying to influence a specific case, and jurors approached him of their own free will, to learn information that was freely available anywhere outside of the courtroom, it's a pretty weak case.

But I would really love to know when you've not been on the side of the prosecutors?

[struggle4progress]

57. It seems to me that you attempted to complain about my typical statutory language,

that I demolished that complaint by pointing to the actual Colorado statute, and that you therefore turn instead to entirely personal accusations

[villager]

58. Your interpretation won't be what they use in court. It will be up to that jury.

But in fact, can you recall ever siding with a defendant?

You have a prosecutor's worldview, is what I'm saying. No arrest is too small, no charge overblown (you seriously support this being a felony arrest?)

You haven't demolished a thing. Just dodged questions.

[struggle4progress]

62. No -- the standard view is that the JUDGE interprets the LAW, while the JURY

determines the FACTS of the case.

[villager]

64. Of course, the defendant -- among the many you've thrown under the bus --

cites much precedent (including Supreme Court judges) who say that often, the law itself is what's on trial, as well.

That's the terrifying concept that this man was actually arrested for.

Which brings up another question you won't answer: Do you personally believe in jury nullification?

[struggle4progress]

70. You won't like what I say about jury nullification, because I regard all the ideals

that I cherish as being necessarily inconsistent with each other in some circumstances; and for this reason, I will not find a clear and simple answer to the question

The notion of a jury is very ancient, pre-dating the Magna Carta; and the possibility of challenging jurors to ensure impartiality was well-established by the modern era

The independence of juries, under English law, is often traced to the famous Bushel's Case (1670): jurors, who had been imprisoned for contempt because they refused to return a guilty verdict as directed by the judge, successfully sought a writ of habeas corpus from a higher court

There are, of course, subsequent well-known cases of juries refusing to convict, despite the facts of the case

In Crown v. John Peter Zenger (1735), the publisher of the New-York Weekly Journal was charged with seditious libel, the elements of the crime being that simply he had published material blameful of Governor Cosby, the question of truthfulness of the allegations being immaterial under the law. The defense admitted that Zenger had published the material but then asked the jury to consider as well whether the material was factual. The judge then instructed the jury to consider only the question whether Zenger had published the material. The jury promptly acquitted

I consider "rule by law rather than by persons" an excellent ideal. Under the jury system a prosecution, that the community finds unconscionable, is less likely to produce a conviction. And I quite often approve of people following conscience. I expect that the acquittals in the 1851 Christiana Riot case probably resulted from community abhorrence of slavery; and I myself might have been voted similarly for acquittal, had I been a juror

In reality, however, "conscience" itself is not always the product of impartial ethical reflection on our duty to love our neighbors: it can be an unpleasant result of social context. The acquittal of Roy Bryant and J. W. Milam for the murder of Emmett Till is widely regarded as a case of jury nullification: frankly, I find this example less inspiring than the Zenger case, though it might have resulted from the convictions of "conscience" by white jurors believing sincerely in the inferiority of the victim and quite "shocked" by claims that a young dark-skinned boy whistled at a pale-skinned woman

A judge, instructing jurors that they are free to apply the law or not as they see fit, would undermine "rule by law rather than by persons." And "rule by law" can be inconsistent with "conscience" in various ways, some of which lead to me admire "conscience" and some of which lead me to abhor it

There are related technical issues, regarding specific trial issues, where I find more conflicts between ideals, but I'll stop here

[villager]

72. That's not unreasonable, even if there are parts I don't entirely agree with

Or rather, I see the system increasingly skewed by judges and prosecutors who are not "balanced" -- and zealous in terms of wanting to make careers, revenue for the state, and prosecute unjust laws (see: drug wars).

Therefore, I view jury nullification as a necessary tonic to such overreach.

I personally do not think this man was guilty of anything other than informing jurors of something embedded in jury tradition that they are otherwise never informed of, or taught in school.

Luckily, his trial will not be conducted in a DU thread!

But, I'm glad to see an actual considered opinion there, when we can each get past the usual reactive DU stuff....

[wildbilln864]

79. "standard view "

isn't law!

[struggle4progress]

84. Most states publish model instructions to juries. Here's the Colorado page:

https://www.courts.state.co.us/Courts/Supreme_Court/Committees/Committee.cfm?Committee_ID=9

It seems to me to clearly indicate that judge-as-interpreter-of-law and jury-as-tryer-of-fact is indeed the law in Colorado, as shown (for example) by the following excerpts: ... It is my job to decide what rules of law apply to the case ... Your sole interest is to ascertain the truth from the evidence in the case ...

[wildbilln864]

85. show me the clear statute. n/t

[struggle4progress]

93. Not all law is statutory: the US, in its founding days, generally adopted, without much explanation,

the established customs and precedents of England

The English judges, over a period of centuries, managed to re-craft the traditions and laws of England in important ways, beginning as a a series of procedural limitations on the arbitrary power of government in the era following the Norman conquest. One can see the men-in-powdered-wigs gradually freeing serfs; stripping local lords of the right to try and execute tenants; or limiting the reach of a monarch's statutes-contrary-to-long-practice to the lifetime of that monarch, so that ancient rights and privileges would resume with the monarch's decease. Tools, such as the writ of habeas corpus, which began as a power of the realm, slowly converted into more general powers of the courts

The notion of a common law, consisting of established black letter, originating in precedent and tradition, persists; and without an understanding of that, no one can understand contemporary American jurisprudence

[wildbilln864]

94. so where might I find this unwritten "law"?

thanks in advance.

[struggle4progress]

97. I wrote that it was non-statutory, not that it was unwritten

There is little hope of making sense of much current law by merely reading statutes, but an ability to read accurately will be essential

[wildbilln864]

98. so show me the written law please?

[struggle4progress]

99. Go visit a law library, where you will find volumes of court cases from various states

and from the federal courts, together with volumes of material on state and federal administrative and regulatory law

[Nuclear Unicorn]

51. Having read what you provided --

1. Doesn't tampering imply trying to gain a specific result in a specific case as opposed to making general statements in public?

2. Could someone be arrested for tampering if they protest pot laws outside a courthouse where possession of marijuana cases are heard?

[struggle4progress]

56. I'm a mathematician, not a lawyer, so do not know the statutory or judicial history here

But it seems to me the language "a case" is ambiguous and could mean either "a specific case" or "some case"

The hypothetical examples, that I gave, suggest one might sometimes want the broader reading

Suppose, for example, there are only two trials in progress, one with a pale-skinned defendant and one with a dark-skinned defendant, both being charged with major crimes. And suppose someone stands at the front door of a courthouse and distributes "Information for Jurors" fliers saying "Almost all major crimes are committed by negroes!" I would be unhappy, as prosecutor of the pale-skinned defendant, that this could be an attempt to sway jurors in that case towards acquittal; and I would be similarly unhappy, as counsel for the dark-skinned defendant, that this could be an attempt to sway jurors in that case towards conviction. What should be the reaction is the foreman of one of the juries informs the judge that several of his jurors have copies of the flier? Or if both foremen similarly report to their judges that several jurors have copies of the flier? There might be good reason there to read "a case" as meaning "some case" rather than "a specific case"

[Nuclear Unicorn]

66. Per your example

The accused tamperer would be making statements that refer to specific qualities of given cases, whereas a more general statement that could not be construed as appealing to any particular hearing would pass 1A muster, I would think.

I could see a time, place and manner argument potentially leading to a requirement to remain X feet of distance from portals employed by jurors but absent specific law mandating as much I would hope any presiding judges rule in favor of the minimally intrusive standard for protecting rights.

Just for the record -- thank-you for the conversation. It's refreshing when people can discuss things (especially here) without resorting to barbs (and I'm just as guilty).

[struggle4progress]

73. Dunno. Suppose the person handing out nullification literature

were a good friend of someone currently on trial and handed out many copies of the literature that day but could not be shown to have discussed specifics of that particular case with anyone: is there a case for jury tampering?

[Nuclear Unicorn]

75. G. K. Chesterton said morality is an art -- it involves knowing where to draw the line.

What you describe makes things less certain but as to the OP I haven't seen anything such as you describe. That's an assertion of nothing save my own ignorance about the particulars.

[rusty fender]

63. But the Judge so often interferes with the jury with his/her

jury instructions. In many cases, the instructions tell the jury to ignore evidence and testimony already presented in order to sway the jury to rule in favor of the judge's opinion of what the outcome should be. That is just wrong.

[villager]

65. Of course. But the uncritical defenders of state overrreach in this thread....

...will never honestly discuss such a thing.

[rusty fender]

67. Yup.

On the couple of juries that I served on, I was gobsmacked by the bias of the judges and how they manipulated the trial to help insure their desired outcomes.

I've also been outraged when an appeal judge cuts a jury's monetary award in lawsuits for damages. The jury decided that x amount was the proper award, and that shouldn't be nullified by a judge.

[villager]

68. Right. But who are we to take any of that power back from our betters?

Many here would prefer to continue with our wooden bowls thrust out, hopefully begging (so to speak).

[rusty fender]

69. No more, "Please sir, can I have some more?" pleadings;

we need to kick 'em in the shins and take back our rights!

[lonestarnot]

44. Did he tamp a juror?

What bullshit. Courts are a freaking money racket where the "war on drugs" is concerned.

[villager]

46. From traffic court to drug charges, it's all a shakedown operation...

...to wrest money from those who can least afford it.

[bemildred]

47. Yep, it's a racket.

They want dumb, obedient jurors, who do what they are told. They blabber on about the "integrity of the process", and then themselves proceed to manipulate the heck out of it to win no matter what.

[lonestarnot]

82. don't leave out justice courts and their landlord tenant shakedowns.

[villager]

83. Was involved in that myself -- had I not had a flexible schedule and a means to get across L.A.

...in the middle of the day to the one (of two -- nothing local or convenient) court that heard such matters, my landlord would have simply won a series of "default" rulings against me (which I eventually got them to settle on, once I kept amassing proof how neglected the house repairs had been).

They will reschedule for landlords and owners, but never tenants...

[lonestarnot]

88. In AZ they allow raw sewage. You would have been homeless. Slum lords keep on doing nothing.

[WillowTree]

54. Yeah, jury tampering has been frowned upon for awhile now.

What this guy did isn't significantly different from someone electioneering outside a polling place.

Which is also illegal, by the way.

[villager]

55. When it gets to a jury who gets to read about jury nullification as part of the proceedings...

...the results should be interesting.

Since of course prosecutors "tamper" with outcomes of jury decisions all the time.

[WillowTree]

59. Just because nullification can't be prevented from taking place.......

.......doesn't mean that it's an established element of the legal process. No judge is going to instruct a jury that it's Okey Dokey for them to ignore the law. S/he wouldn't stay in the bench very long. Probably be gone before lunch, as a matter of fact.

Write a book. Start a blog. Open a Jury Nullification page on Facebook. (Actually, there are already a bunch of those FB pages.) But campaigning for jury nullification in front of the court house as jurors and potential jurors are walking in isn't legal. Sorry if that cramps a few people's style, but it's just the way it is.

[villager]

60. There's no specific statute against it, sorry.

Since jury nullification is an easily obtainable concept to find out about, and since this man wasn't talking about specific cases, the "jury tampering" charge -- which was all they had -- is specious at best.

Now we will see what happens to these charges in an actual court (with, hopefully, an actual jury)

[KamaAina]

77. What a crock of crap.

Jury tampering (in most states) involves people (usually attorneys) directly involved in a particular case. These were only potential jurors who had not even been empaneled. Case dismissed!

[villager]

78. Good point that they weren't even empaneled yet.

I was already thinking there was no actual "case" he was possible tampering with....

[onenote]

91. How do you know that the material wasn't distributed to any empaneled jurors?

According to the statement of probable cause, the materials in question were distributed to "actual and potential state and city jury members"

[villager]

92. I suppose the fact that each juror came up to his table voluntarily..

..meant he had no cognizance of which cases they were on. So: Is it "tampering" if a juror learns about nullification -- by whichever means -- when s/he is outside the courtroom?

[onenote]

95. obviously it is possible, and common, to tamper with a juror outside the courtroom

[villager]

96. obviously, people shouldn't be convicted of felonies for what might be "possible"

n/t

[ladyVet]

80. I doubt it will come to trial,

once the DA realizes he'll have to let evidence about what jury nullification is in.

I had jury duty last week, and this post reminds me of the odd way the judge was instructing the jury about the "beyond a reasonable doubt thing". He almost got into the area where the jury could make up their own minds about whether the DA had even a case. I should have taken notes about his exact words, because I can't remember how he phrased it, just that I thought he was almost telling the jury they could refuse to convict if they thought the law was wrong.

[wildbilln864]

81. k & r & thanks! n/t

[bluedigger]

86. As a tactic to generate awareness of nullification, he has already won.

He can expect his case to be covered extensively by the local media if the DA persists in going to trial.

[ileus]

87. It's our right to judge the law as it applies to each case, as well at the defendant.

Sure it's easy to think only republicans end up on trial, but think about the dozens of times you've found yourself upset with a verdict against one of our own.