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.
Mike S.:
Your concerns are very legitimate. There is no doubt that jury nullification could be used as a weapon to thwart the law. It happened in Montana just last month. In some respects, I view it as the judicial counterpart to a legislature’s refusal to fund implementation of a statute they do not like but cannot repeal (e.g., health care reform).
Buddha,
In Michigan they have frogs…that are magical…..
http://animals.howstuffworks.com/amphibians/hallucinogenic-frog.htm
Never tried em…but hey…
Yes.
Mind altering drugs would make the situation more entertaining, er, palatable.
See Buddha….Thats the Hell you have to pay….. Its kinda like me in the psych ward with no mind alerting drugs….You know they are crazy….but they tell you you are too…. something just not funny about the parody….I am sure…
Yeah.
Me and my critical eye.
Damn me.
Doh! Too late. I’m in Louisiana already.
Mike A.,
Well done….You have done well….I forgot to thank you at first glance…. Damn Buddha…..He pointed out my deficient….
Against my normal and ethical beliefs, I believe that in this type of case influencing an impaneled jury, via communications needs to be minimized. It is bad enough that media coverage has often influenced many juries prior to trial. Institutionalizing it via allowing free reign to organizations such as this, further degrades our ailing jury system. Just as free speech has had limitations in certain situations like “crying fire in a theater,”
influencing juries in this manner can lead to all sorts of mischief and less than impartial decisions. While I’m not against “jury nullification” in certain instances, I can foresee its’ use in allowing anti-abortion murderers to walk free.
Mike A.,
I think your question is a good one. Anyone should be free to access the courthouse for any peaceful protest or picketing or to disseminate materials, but where do you draw the line. I for one think that Free speech is the answer, but the Courts don’t seem to agree sometimes when they allow free speech zones and restrictions on protestors.
I can only approach this issue from the standpoint of a juror …
“The central problem is that the issue of jury nullification is the proverbial elephant in the middle of the courtroom. Everyone knows it’s there, but no one wants to talk about it.” (Mike Appleton)
Except the juror
“Since verdicts of guilty cannot be directed in criminal cases, and the jury’s decision to acquit cannot be challenged, how can it be constitutional to prevent jurors from being informed about an historical right that the court is not going to mention?” (Mike Appleton)
Jurors are always looking for guidance.
I wonder if some non-profit could get enough funding together for a PSA on nullification.
Interesting development.
Thanks for the info, Mike A.
A very respectable first at bat.
Mike A.,
Defense attorneys want to talk about 😛
Thanks, rafflaw. In my nervousness I forgot to list the sources. The order was issued in the Ninth Judicial Circuit, which covers Orange and Osceola counties (Orlando and central Florida). The order can be found at http://ninja9.org/adminorders/orders/2011-03-order governing express conduct toward jurors.pdf.
The central problem is that the issue of jury nullification is the proverbial elephant in the middle of the courtroom. Everyone knows it’s there, but no one wants to talk about it. It is a much-criticized doctrine, but retains its validity. There is also an inherent conflict between the right of jury nullification and the oath taken by jurors when they are seated.
Since verdicts of guilty cannot be directed in criminal cases, and the jury’s decision to acquit cannot be challenged, how can it be constitutional to prevent jurors from being informed about an historical right that the court is not going to mention?
AY,
Hah!
James M.,
Thanks for the clarification. I do think that it is unconstitutional, but I could see the order surviving in light of what I state earlier along with your clarification. It sounds a lot like free speech zones.
rafflaw,
People that have lost the ability to breath don’t really talk that much…. you know what I mean…
That wasn’t directed just at raff, I had a different comment initially and then changed my mind but didn’t change the heading.
rafflaw,
It seems like demonstrating outside the courthouse with signs about nullification wouldn’t violate the order—you just couldn’t approach prospective jurors.
AY,
I am sure that Texas will catch up quickly! 🙂
So what is the problem….. Oh yes…..Texas does not have all of the lunatics……Yippee….Sounds like Freedom of speech to me…
Mike A,
Great topic!! I agree that a constitutional challenge might be successful. However, I see these pamphlets as one more means for the far religious right to “convince” jurors to stand in the way of people who kill or injure abortion doctors or employees. If a judge sequesters a jury, can he/she still prevent this kind of literature from being received by the jurors? If we can be held in “free speech zones” and our free speech rights are not being squashed, why can’t the judge just cordone off these pampleteers from the court house grounds? I don’t agree with the free speech zones, but it would seem that limiting the access to the court house grounds would be similar to the free speech zones.