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Courts can't censor jury rights flyers

Corey Friedman on

Activists can't be jailed for telling jurors they're free to acquit defendants who break unjust laws, a federal court recently confirmed.

U.S. District Judge Denise Cote struck down a jury tampering provision of a New York criminal contempt statute on July 29, finding that Michael Picard was exercising his First Amendment right when he distributed literature on jury nullification outside a Bronx courthouse in December 2017.

Picard handed "No Victim, No Crime" flyers to several passersby without asking whether they were currently serving on a jury or discussing any specific cases, Cote noted in her opinion. A state court officer arrested Picard under a criminal contempt law that banned the display of placards or signs "concerning the conduct of a trial" or "demanding any specified action or demonstration" by a court or jury within 200 feet of a courthouse.

While the flyers encouraged jurors to "nullify" laws with which they disagree by refusing to vote for a conviction, his sign bore only the words "Jury Info." An assistant district attorney declined to prosecute Picard, but he sued to invalidate the state law anyway.

Cote ruled that defendants "have not shown that the state must criminalize speech in this way to protect the integrity of ongoing trials" and concluded the law couldn't survive Picard's constitutional challenge.

The case was resolved five weeks before Jury Rights Day, observed each year on Sept. 5. That date marks William Penn's 1670 acquittal in London after a judge instructed jurors to convict him on a charge of unlawfully preaching the Quaker faith.

 

Jurors' act of defiance infuriated the judge, and he ordered all 12 men jailed along with Penn. But the jury eventually prevailed in a case that established nullification rights in English common law.

Across the pond, the practice struck a blow for free speech more than a half-century before the First Amendment was set to parchment. In 1735, a New York jury acquitted journalist John Peter Zenger on a criminal libel charge for criticizing public officials. Zenger was guilty of something that shouldn't have been a crime, so his peers in the jury box chose to spare him the consequences.

Today, jury nullification exists in a delicate dance between judges, prosecutors and jurors. Federal courts acknowledge that juries can judge the law as well as the evidence, but they've also decided judges must withhold this information and instruct jurors to apply the law as it's explained from the bench.

"If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision," 4th Circuit Court of Appeals Judge Simon Sobeloff wrote in the 1969 case U.S. v. Moylan.

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