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Judge: Jury Nullification Still Lawful

May 10, 2012 by  

Judge: Jury Nullification Still Lawful
It is still lawful to encourage jurors to reach a verdict based on conscience.

A Federal judge ruled last month that jury nullification, a legal concept dating back to 17th century England and accepted in the U.S. Constitution, is still lawful in the Nation.

Nullification is a concept that allows jurors to acquit criminal defendants who are technically guilty if they believe the person does not deserve to be punished. Prosecutors, however, have argued that promotion of this right to jurors constitutes a violation of 18 U.S.C. § 1504, which prohibits influencing a juror by writing.

In the case of 80-year-old Julian Heicklin who stood outside the Federal courthouse in Manhattan with a sign that said “Jury Info” and handed out pamphlets from the Fully Informed Jury Association before being arrested by the FBI, U.S. District Court Judge Kimba Wood said no laws had been broken.

The FBI charged Heicklen with criminal jury tampering after he handed one of the pamphlets to an FBI agent posing as a juror.

Wood’s 24-page order states:

The statute thus prohibits a defendant from trying to influence a juror upon any case or point in dispute before that juror by means of a written communication in relation to that case or that point in dispute. It also prohibits a defendant from trying to influence a juror’s actions or decisions pertaining to that juror’s duties, but only if the defendant made that communication in relation to a case or point in dispute before that juror. The statute therefore squarely criminalizes efforts to influence the outcome of a case, but exempts the broad categories of journalistic, academic, political, and other writings that discuss the roles and responsibilities of jurors in general, as well as innocent notes from friends and spouses encouraging jurors to arrive on time or to rush home, to listen closely or to deliberate carefully, but with no relation to the outcome of a particular case.

Accordingly, the court reads the plain text of the statute to require that a defendant must have sought to influence a juror through a written communication in relation either to a specific case before that juror or to a substantive point in dispute between two or more parties before that juror.

Nullification played a role in guaranteeing freedom of religion when William Penn was prosecuted for preaching Quakerism, and in freedom of the press in the trial of John Peter Zenger when he was charged with criticizing the king during Colonial times. With more than 4,500 Federal laws on the books and an ever-growing legal bureaucracy, nullification may be vital to reducing harmful prosecutions.

Sam Rolley

Staff writer Sam Rolley began a career in journalism working for a small town newspaper while seeking a B.A. in English. After learning about many of the biases present in most modern newsrooms, Rolley became determined to find a position in journalism that would allow him to combat the unsavory image that the news industry has gained. He is dedicated to seeking the truth and exposing the lies disseminated by the mainstream media at the behest of their corporate masters, special interest groups and information gatekeepers.

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  • Vicki

    The OP writes
    Nullification is a concept that allows jurors to acquit criminal defendants who are technically guilty if they believe the person does not deserve to be punished.

    The more important element of the concept is that jurors are to judge the LAW itself and not just the facts of the case. Is the law constitutional in the eyes of the jurors. Is the law a good law at all.

    Or as the puts it.
    Inform potential jurors of their traditional, legal authority to refuse to enforce corrupt laws:

    Inform potential jurors that they cannot be required to check their conscience at the courthouse door.

    Inform potential jurors that they cannot be punished for their verdict

    Inform everyone that juror veto-juror nullification- is a peaceful way to protect human rights against corrupt politicians and government tyranny.

    • GALT

      That juries have the right to judge both fact and law, is not another element of “jury nullification”, Vicki…… is THE ELEMENT…….. ( see Georgia v. Brailsford ) which both
      this ‘writer’ and the judge carefully manage to “sidestep”……..although you will note the
      federal Statute cited, and a reality which is far worse, in that juror’s are both instructed
      and required to swear by oath, that they are “triers of fact” only, and must follow the instructions of the judge as to the law.

      This ELEMENT, can not be raised by lawyer’s or defendant’s in any way, since they will be
      cited for contempt and in the case of a self represented defendant, removed from the proceedings…….essentially tried in absentia.

      People in the fully informed jury movement are continually harassed, to prevent this information from being distributed…….and even if a “juror” is not ignorant…….in order to
      actually pull this off…… mention of this can occur in deliberations…… do so, would result with the juror being removed and replaced with an alternate……..and subsequent conviction. ( on the facts alone )

      Of course “jury deliberations” by themselves constitute another “problem” with the “justice
      system”……..and the principle that you have the presumption of innocence and it is the burden of the prosecution to prove guilt “beyond a reasonable doubt”, which requires a unanimous verdict to convict. Unfortunately, it also takes a unanimous verdict to be acquitted, and a “hung jury” is simply a “mistrial”…..which can result in a re-trial.

      Just for fun let’s take the typical jury stereotype scene familiar to most…….after the appt of a foreman…….who says…….”Let’s see where we stand”……and the votes are recorded.
      Essentially, that vote………is the VERDICT…..and if it is not unanimously guilty, then the prosecution has failed to meet it’s burden…………yet, what happens from this point is a second trial……….which will now depend on strength of personality, ball game tickets, and any number of other factors………to accomplish what the prosecution “failed to do” at
      trail………( and this is all based on interpretation of facts )

      That any of this has to do with “justice” or equal justice under the law is absurd.

      Of course this probably doesn’t mean much to those who have not been caught up in it…..
      but even those who don’t are aware of the reality……..which is enough to stop, those who might want to DO something…… the gentleman in our story…….have second thoughts?

  • Witsend

    I’ve long believed that jury nullification is the reason for the “not guilty” verdict when President Clinton was impeached. Congress did not have the courage to call it that, but there can’t be many of those men and women who believed he was not guilty of lying under oath.

    • isBubba

      What? You thought they didn’t have the “courage” to call it “jury nullification,” but had the nerve to take a stand against the moral values of the majority of their constituents?
      No, I don’t think so. I think most of them simply didn’t have the courage to do it because they had too many skeletons in their own closets.

    • eddie47d

      Jurists should never be intimidated by other folks on the jury to find someone guilty or innocent. Too many rush to judgement just to get home for tonight’s dinner or some other excuse. There is much information that is excluded from those on juries and their final decision isn’t always made on the complete truth. The prosecution and the defense lawyer both keep things to themselves. Some who are guilty go free and some who are innocent become incarcerated because a lack of transparency. I also don’t like the fact that jurists can’t vote for a lighter sentence but have to accept let’s say 1st degree murder without parole vs reckless manslaughter.

      • daniel

        How about jurors being told to find the person guilty of one charge or another charge? In some cases jurors are not given the option of a not guilty vote by the courts. Jurors are threatened with contempt charges should they try to vote not guilty against court wishes. Kind of sucks huh?
        Jurors should know that they are the most important people besides the plaintiff and defendant in that court. They have the right to nullification, they have the right to ask questions. The judge is merely a referee to ensure all parties play fair. Certain people do not want jurors to know this.

      • 45caliber


        There was a case not long ago where a jury found a defendent guilty. When one was asked why he determined the guy was guilty later, he said, “The judge told us to find him guilty so we didn’t have any choice.”

        Personally, if I was on a jury and the jury was told that by the judge, I’d hang that jury even if I was convinced the guy was guilty.

    • Diana

      Most people don’t know but Clinton made a plea bargin with the Federal Court his last day in office. He was going to be hauled into court but paid a big fine instead.

  • diana

    well i never knew this and i served on jury’s but it should be let out like when a woman kills husband because of abuse, many not all should not be in jail, we have a right to protect ourselfs when you have a protection order and the man and even cops don’t care seen it happen many times, there hws even been movies about it. GOOD TO KNOW

    • dan

      better be sure when you judge someone….I figure that if they’re punished unjustly in this life they might not be in cast into the flames in the next…and don’t believe ANYthing you see in the movies. They’re PRETEND.

      • 45caliber

        That’s true. Several years ago there was a hung jury in a murder trial. Eleven said guilty; one said innocent. When later asked why the woman was so certain the accused was innocent, her replay was, “He didn’t get up in court and admit he was guilty! The criminals always do that on Perry Mason so he had to be innocent.”

    • CJ

      Although I have been called for jury duty several times, I’ve never been selected, I can only assume that influencing the jury this way is no different than the judge directing them to give guilty-or-not verdicts, or when answers during questioning are limited to yes/no responses. Seldom are answers so binary, and juries should have the courage to demand more choices, and not be limited.

      • independant thinker

        I have served on more than one jury. One was a capital murder case one was a neglegent homicide case (DUI involving death). The closest the judge came to saying the jury must find the defendent guilty was when he said “If you believe the prosecutor has proven his case then you must find him guilty and if the defence has proven his innosence then you must find him not guilty”

  • joe

    Too bad more people don’t know this. No one growing pot should ever go to prison, period! Too many really good hearted, freedom loving souls are suffering the evils of incarceration. Try a year or two yourself if you don’t believe me.

    • Steve E

      I agree. I would use nullification in a drug possession case. I also would us it on a DUI if the person was stopped during a police road block because the police do not have the right of search and seizure without a warrant.

  • ourlittleacres

    Not just juries but all Americans need to be informed. It is important to know that we have the right to judge the laws that are being passed in this country. Pass the information about jury nullification to everyone you know. I plan to.

    • vicki

      Not just the right to judge the law but a DUTY to do so.

      • craig wettstein

        I’ld like to find an Attorney with big enough “Kahoonies”, to take on my case of being excluded from a jury, by a judge, (not one of the attornys involved), for explaining to him my constitutional right to 1st judge the law in question.

      • ourlittleacres

        Amen! In our “Me” society nobody wants to take the time or get involved. I can understand the feeling because it so often feels like it doesn’t matter and that what we do doesn’t change anything!

  • Jaesun

    Every “victimless crime” should be nullified, but US juries consist mainly of spineless sheep that follow judges’ instructions.

    • vicki

      They are NOT spineless. They are merely ignorant of their right as jurors. Tell everyone you know about the more people that know the harder it will be to keep us off the jury.

      • Jaesun

        My experience with US Citizens and juries is that they are afraid to stand up to any law enforcement or judicial authority figure. They readily waive their rights in favor of fitting in to Big Brother’s scheme of justice. In the case of juries, I call that spineless, when other peoples’ lives are at stake.

        • Diana

          Most people who serve on juries now are not aware of the right of nullification because 1) they have not read up on their rights as a jurer and 2) the judges do not address that issue when they give the jury their instructions.

          • craig wettstein

            Diana….Stop and think about what you said…”Judges don’t address that issue”…Holy Crap woman……They most certainly do address it. By telling you you have to waive it, by swearing under oath that you will “only judge the facts”!!! That HE and ONLY HE will instruct you in what the Law Is, Means, and that you have NO say so what so ever in that part of it.!!!!!!!!!

      • Vicki

        IF they knew their power and duty as jurors they would not be so easily cowed by authority figures like judges.

      • Vicki

        @Diana Which is the whole point of the Fully Informed Jury Amendment. :)
        To FORCE judges to tell the jury the truth, the whole truth and nothing but the truth.

      • Jaesun

        That Amendment is not in the best interest of government, in general. They would loose considerable control over the people. Jury Nullification, in essense, is the people’s right to veto laws passed by Congress or other legislative bodies.

        Considering that the actual root cause of problems in American society is the fact that government claims the exclusive right to initiate force against those who disobey it’s commands, relinquishing that “right” to nullification is not likely. Government would become subject to people’s opinions, rather than the other way around.

  • craig wettstein

    The problem arises during jury selection. The Judges questions during this process “ALWAYS”, end up excluding you from the selection process, (that is…if you’re answering his questions honestly), And his dismissal of you, usually includes a sneer!!

    • Bert Cundle Sr.

      Looks like the NEXT problem will be: Instructions given in 144 Different Languages.

    • vicki

      actually they do not always ask unless the meaning of the questions are well hidden.

  • Pilot

    I’ve been to three jury selections and was excused each time as soon as the lawyers found out my job and education level. They don’t want people on the jury that can think for themselves. They are looking for people who are easily influenced.

    • Bert Cundle Sr.

      When I went through Jurer Qualificaition: I told them I would do all I could, to destroy a CRIMINAL Case they put me on! Beacuse I’m CIVIL… I Would do my Very Best to Decide Fairness on a Civil Trial! { EXCUSED }

    • 45caliber


      Years ago, we had a prosecutor in our Sunday School class. We asked him one day about how they selected jurors.

      He stated that the ideal defense juror was one who didn’t work and stayed home and watched daytime tv all day. They tended to make their decisions based on emotion and many times on what they had seen on tv. The defence lawyers did NOT want engineers since engineers tend to think logically and paid strict attention to evidence. He, on the other hand, preferred people who did pay attention to evidence since he only tried people who he was certain were guilty.

  • Bert Cundle Sr.

    Or: just call it “Justifiable”!

  • RichE

    That’s funny.

    • craig wettstein

      NOTHING “FUNNY” about it. The judge is canceling out my right to judge the vaildity of certain laws as they stand on the books. Without that ability, we’re doing nothing more than caving into the “Kangaroo Courts”

      • vicki

        Quite true which is one of the reasons for as one of the puroposes is to get an amendment passed that REQUIRES judges to inform every jury of their duty to judge the law as well as the facts of the case.

        Imagine how popular that would be with the criminal court system. Interesting double meaning there. :)

        • RichE

          Maybe two verdicts,
          1. The defendant is guilty or not guilty of breaking the law
          2. The law wrong or not wrong.

          That shouldn’t influence the juror.

      • RichE

        Yes, it’s not funny. It’s sad that I wasn’t aware of jury nullification. The reason given in the article seemed the contrived plot of a tragic comedy. That’s why I sad it was funny, a tragic laugh.

  • craig wettstein

    What’s sad Vicki, is that it’s like asking the Fox to give up “SOME” control of the hen house that he has spent the last 80 years trying to get control of!!!

  • 45caliber

    There was a case in Arkansas many years ago that I still laugh about. A man shot and killed his wife. When it went to court he agreed that he had killed her … and insisted she deserved it. The jury found him guilty and sentenced him to a one day suspended sentence. The judge and prosecutor both almost had heart attacks. When the jury was questioned, they all agreed that the woman deserved it. (I met her; she did deserve it.) Talk about jury nullification!

  • 45caliber

    When I was in high school Civics class (no longer taught), the teacher made a big point of this. The jury is considered more powerful than Congress since they can judge the law. Needless to say, the justice system and Congress don’t like this and are careful to keep the jury from knowing.

    I disliked Civics at the time but now I believe that it was very important. I want to see it again required for all students, particularly since it also carefully covered the Constitution and what it meant to your freedoms.

  • cawmun cents

    There will be railroading.-CC.

  • Ron Paul

    All state governments need to nullify every law coming from the bankster run federal government.

  • Cody

    Case cite, please.


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