Every defense attorney knows that even if the jury thinks the defendant is guilty there is one last chance for an acquittal. Sometimes the jury doesn’t care that the defendant committed the crime. Sometimes the jury would rather put a guilty person back on the streets then send them to jail.
I mentioned one of the earliest examples of this that I know about in my paper on Felony Murder, Regina v. Serné (see: My Article On Felony Murder Is Online).
A more recent and famous case in point: OJ Simpson. Jurors admitted that they let him off the hook in the criminal trial because it was their way of fighting against the oppressive criminal justice system.
When this happens, it is called jury nullification.
The judge warns the jury that they MUST follow the law, not their emotions. But if they follow their emotion instead of the law there is nothing anyone can do about it. The jury’s decision is final.
Quite the silver bullet.
Of course it is improper for a lawyer to explicitly argue for jury nullification. Lawyers are bound by the rules of the courtroom and if they don’t follow procedure they can be sanctioned or disbarred. But maybe a lawyer could wear one of those buttons above…? 😆
But what if an activist is handing out information to potential jurors urging them to nullify?
Technically it’s legal. The activist is not telling people to break any law and his speech is protected by the First Amendment. In fact, many Law Review articles have recommended jury nullification in all cases until the justice system becomes more fair to minorities. The authors of theses papers may be hated by prosecutors, but there is nothing they can do to silence them.
The NY Times is reporting that a jury nullification activist named Julain P. Heicklin was handing out his materials outside a court house. Prosceutors had him indicted on the grounds that these pamphlets were tantamount to jury tampering. If found guilty he could go to jail for up to 6 months.
I am not sure that the prosecution will be able to convince a jury that a 78 year old man handing out pamphlets is guilty of jury tampering and even they did, who says they won’t nullify!?
But the real issue here, as Eugene Volokh writes, is the First Amendment issue. Even if speech is going to cause criminal activity, unless the criminal activity is IMMINENT the speech is protected under Brandenburg v. Ohio. The only way Heicklin’s speech is likely to be unprotected would be to say that free speech is somewhat suspended in a court or on court house steps. This is a viable argument but Heicklin was on the sidewalk not the court property.
It will be interesting to see what happens to the criminal case and if Heicklin is found guilty, you can be certain it will be appealed on First Amendment ground.