Today is Jury Appreciation Day.
From the One Generation Away blog:
Aaron Swartz was an influential man with very important friends, and that’s why this case is getting so much attention. Sadly, this kind of behavior by prosecutors is not an extreme example, but instead par for the course.
“[I]t’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz even more into pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics. What’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices. That’s not to excuse what happened, but rather to direct the energy that is angry about what happened. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.”
That was law professor Orin Kerr. He has a proposal for change: “Felony liability under the statute is triggered much too easily. The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly.” Some have proposed “Aaron’s Law” which would remove terms of service violations from the federal criminal code….
Aaron Swartz knew he was breaking the law when he downloaded those articles. What he did not know, was that if a prosecutor wanted to make his life hell, she could credibly see to it that he was locked up until his mid 50’s. We should make sure that punishments fit crimes, and that when we collectively threaten to remove a human being from society for a generation or two, they actually did something worthy of such a profound punishment.
September 5 is Jury Rights Day!
Here is my blog post from last year:
Today’s date, Sept. 5, marks an important historical event in the development of the right to trial by jury. On this day in 1670, William Penn and William Mead were prosecuted in England for “unlawful assembly,” “disturbing the peace,” and “riot.” These “crimes” arose from Penn having preached near Grace Church to a meeting of several hundred Quakers.
It was a peculiar trial in many respects. The court, for example, denied Penn’s request to simply read the indictment. But the trial was most notable for the way in which the court tried to bully the jury. When the jury did not come back with guilty verdicts, but a verdict that simply said “guilty of speaking to an assembly,” the court refused to accept that outcome and ordered the jury to return to their deliberations. When the jury returned with a verdict that acquitted Mead of all charges, the court ordered the jury to prison! Next, the jurors filed a writ of habeas corpus challenging the legality of their imprisonment.
Soon after, an important legal precedent was set for jury independence: jurors cannot be punished for voting their conscience. That’s the story behind “Jury Rights Day.”
Alas, the jury trial has been in a steady decline here in the United States.
We started out strong. Our Constitution says, “the Trial of all Crimes, except in Cases of Impeachment; shall by by Jury.” And our second president, John Adams, said, “It is not only [the juror's] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
But these days, the government pressures many defendants to enter into plea bargains so fewer and fewer cases go to trial. And the government no longer wants jurors to vote their conscience. Indeed, it goes so far as to arrest people for distributing pamphlets that discuss these matters.
We need policies that will once again honor the role that juries play in securing justice.
Some good news from New Hampshire in this area.
In Charlottesville, Va. (where I spend most of my time) a jury just found Philip Cobbs not guilty of marijuana possession. As the superb local weekly The Hook reports:
Cobbs, a 54-year-old who takes care of his elderly mother, was arrested last summer after a marijuana eradication helicopter flew over his southeastern Albemarle home and spotted two pot plants near his house. A team of approximately 10 law enforcement agents drove up bearing semi-automatic weapons and confiscated the illegal plants. A month later, he received a summons to court.
His case was taken up by the Albemarle-based Rutherford Institute, which focuses on Constitutional issues. Cobb was convicted of possession in October, and appealed the case.
“I feel like justice finally was done,” said Cobbs after a seven-person jury deliberated for about two hours– including a dinner of Domino’s pizza–July 18.
Two plants and ten officers? Really? Evidently aware of the inherent stupidity of the case, the local prosecutor feared jury nullification. The Hook reports how he attempted to forestall that problem:
Before the jury was selected, prosecutor Matthew Quatrara read the opening paragraph of a New York Times Paul Butler op-ed calling for jury nullification: “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.”
That, instructed Quatrara, would not be the proper attitude for those chosen to serve on the jury.
Nevertheless, the judge and prosecutor had a tough time actually seating a jury in this case. The Hook interviewed several people who had been cut from the jury pool on the grounds that they disapproved of criminalizing marijuana use:
“I think this whole thing is a waste of time,” said Richard Merkel, a psychiatrist and potential juror in today’s marijuana possession trial against an Albemarle County man.
Merkel was among five people struck from the first group of 13 – all because they had a problem with this country’s criminalization of people using marijuana.
Aware that this attitude is growing among citizens, the judge ordered up a larger than usual jury pool:
This isn’t the first time Albemarle has had trouble seating a jury in a pot case. Judge Cheryl Higgins, who, during a break, chatted with a visiting gaggle of Rutherford Institute interns told them, “The last marijuana case we tried, we couldn’t even seat a jury because they were so biased against the marijuana laws.”
In any case, the jury decided to let Cobbs go on the grounds that while the plants may have been on his property there was reasonable doubt that he had “dominion” over them and so did not “possess” them.
Another potential juror, University of Virginia psychologist Douglas DeGood, was struck from service because said he would not be comfortable convicting someone of marijuana possession. He added:
“Pragmatically, I don’t think it’s an efficient use of the legal system.”
You think? And I would like to think that there was just a little bit of jury nullification.
With all the buzz and anticipation surrounding the final rulings by the U.S. Supreme Court the past week, there has been little attention to an interesting legal development in New Hampshire: On June 18, Governor John Lynch (no relation) signed HB 146 into law and it becomes effective on January 1, 2013. HB 146 concerns “the right of a jury to judge the application of the law in relationship to the facts in controversy.” It’s popularly known as “the jury nullification bill.” In this post, I will try to explain what impact this new law may have in the New Hampshire courts.