NY Times: Jurors Need to Know That They Can Say No

By PAUL BUTLER
New York Times
Dec. 23, 2011

IF you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.

The information I have just provided — about a constitutional doctrine called “jury nullification” — is absolutely true. But if federal prosecutors in New York get their way, telling the truth to potential jurors could result in a six-month prison sentence.

Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by. Given that I have been recommending nullification for nonviolent drug cases since 1995 — in such forums as The Yale Law Journal, “60 Minutes” and YouTube — I guess I, too, have committed a crime.

The prosecutors who charged Mr. Heicklen said that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” The prosecutors in this case are wrong. The First Amendment exists to protect speech like this — honest information that the government prefers citizens not know.

Laws against jury tampering are intended to deter people from threatening or intimidating jurors. To contort these laws to justify punishing Mr. Heicklen, whose court-appointed counsel describe him as “a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse,” is not only unconstitutional but unpatriotic. Jury nullification is not new; its proponents have included John Hancock and John Adams.

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