Mike Appleton (guest blogger)
A Florida circuit judge has issued an administrative order virtually certain to result in a court battle pitting the right of free speech against the duty of courts to protect the integrity of jury deliberations. The order prohibits “the dissemination of all leaflets and other materials to summoned jurors, as well as approaching a summoned juror for the purpose of displaying a sign to, or engaging in oral protest, education or counseling with information tending to influence summoned jurors on any matter, question, cause, or proceeding which may be pending, or which may be brought, before him or her as such juror… .”
The order was prompted by concerns over the distribution of pamphlets by members of the Fully Informed Jury Association (“FJIA”), a Montana based non-profit organization that promotes the concept of jury nullification as a check on government abuse in criminal prosecutions. The organization’s literature encourages prospective jurors to determine guilt or innocence in accordance with their consciences, regardless of the court’s instructions on the law.
Several months prior to entry of the order, another judge in the same circuit felt compelled to disqualify a jury panel whose members were found to be in possession of FJIA educational pamphlets, concluding that the distribution of the materials to prospective jurors was a form of jury tampering under Florida law. Florida statutes make it a third degree felony to influence a juror with the intent to obstruct justice.
The FJIA contends that their information is generic and is intended solely to educate jurors on the historical right to acquit a criminal defendant, even in the face of evidence of guilt beyond a reasonable doubt, if they conclude that the law is unjust or is being unjustly applied. Jury instructions do not include an instruction on nullification and jurors take an oath to render a verdict in accordance with the law and the evidence submitted to them.
The order will undoubtedly be attacked as an unconstitutional restriction on free speech, at least in the absence of evidence that the dissemination of the information created a clear and present danger to the administration of justice. It is highly doubtful that the order as drafted can withstand a constitutional challenge.