The Wild and Wonderful World of Jury Nullification

If you've ever been fortunate enough to serve your civic duty as a juror, you've probably sat through hours of meticulously written jury instructions.  Jury instructions, as previously discussed on this blog, are painstakingly detailed directions read by the judge to the jury, guiding them on all aspects of the relevant law that they are to consider in rendering their verdict.  The instructions you heard probably defined various legal terms, outlined the elements of specific crimes charged, and explained the various factors that jurors may / must consider before making their decision.  You probably heard a layman's breakdown of "probable cause", "reasonable foreseeability", "exigent circumstances" and "specific intent".

What you probably didn't hear were the words "jury nullification"...until now. 

"Jury nullification" refers to the traditional power of juries to render a "not guilty" verdict, even when they believe that the defendant committed the crime charged and they believe that the defendant has no legal defense to that charge.  According to Prof. Paul Butler of George Washington University, "The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished".  Think of the movie "A Time to Kill": some bad guys commit unspeakable crimes against a little girl.  The little girl's dad (Samuel L. Jackson), extrajudicially disposes of said bad guys.  Samuel L. Jackson is put on trial for murder.  The jury believes that he killed the bad guys and that he was legally sane at the time he committed the killings.  Nevertheless, they find him "not guilty".  This is jury nullification. 

Jury nullification has historically been put to all kinds of uses, other than simply creating compelling story lines for Matthew McConaughey movies.  The refusal by jurors to convict their neighbors for alcohol-related crimes helped end booze prohibition.  It was also used by all-white juries of the Deep South to insulate the Klan from legal repercussions during the "Reign of Terror" after the Civil War. 

Today, there is a growing movement among drug policy reformists to educate jurors about their right to nullify.  Activists have mobilized to spread the word to prospective jurors that nullification is an option, even if the judge does not include that instruction.  One such activist, Prof. Julian Heicklen, is currently awaiting trial on charges of jury tampering after he stood outside a Manhattan courthouse lecturing passersby on the issue.  The aforementioned Prof. Butler has advocated on  behalf of jury nullification as a means of circumventing draconian marijuana laws. 

Former Baltimore Sun reporter David Simon (perhaps best known for his contributions to HBO's "The Wire") has also joined the chorus of those calling for nullification in drug cases. In a piece written for Time Magazine, Mr. Simon stated:

"'A long habit of not thinking a thing wrong, gives it a superficial appearance of being right,' wrote Thomas Paine when he called for civil disobedience against monarchy — the flawed national policy of his day. In a similar spirit, we offer a small idea that is, perhaps, no small idea. It will not solve the drug problem, nor will it heal all civic wounds. … It doesn't resolve the myriad complexities that a retreat from war to sanity will require. All it does is open a range of intricate, paradoxical issues. But this is what we can do — and what we will do.

"If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will — to borrow Justice Harry Blackmun's manifesto against the death penalty — no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens."

Activists have achieved some measure of success in their efforts.  Last year, Montana prosecutors were forced to dismiss a marijuana case after 5 of the 12 jurors indicated that they would not vote to convict under any circumstances.

The Drug War is not grounded in logic, reason, common sense or sound public policy.  Elected officials from both sides of the aisle are content to stay the course while the nation squanders more resources and lives on the failed social experiment called "prohibition".  If our leaders are unwilling or unable to correct these flawed laws, then our jurors must.  If you're called upon to serve as a juror in a drug case, remember that you always have the right to nullify.  As a juror, our society vests enormous power in your hands.  You have the opportunity to right a wrong.  Use that power wisely and vote to acquit. 

Free Speech Protections and Their Limits

Since the recent raids on various "Occupy" protests around the country, there seems to be a lot of confusion regarding "free speech" rights and their limits.  Protesters have been demanding a platform to express their views on economic injustice.  Private property owners have complained about unauthorized usage of their open spaces.  The Los Angeles City Counsel has grappled with conflicting interests of fostering free expression vs. fostering the lawn around City Hall.  Meanwhile, the guy in the picture above apparently won some kind of medal, presumably for his bongo skills. 

All of these competing interests have led to the obvious question: where and how do the protections of the 1st Amendment come into play?  This post will attempt to shed some light onto that issue.  As always, the following post is intended as a very cursory outline of free speech rights and the limits of those rights.  This should not be read as an academic study of the legal issues involved and I would caution any lawyers and law students against citing to this article. 

We all know that the 1st Amendment to the US Constitution ensures that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."  Since the passage of the 14th Amendment, these prohibitions have been extended to all levels of state and local government, not just Congress.

While the text of the 1st Amendment reads like a blanket prohibition against any type of restrictions on free expression, it has not been interpreted that way by the courts.  Obviously, some types of speech can be prohibited or limited.  Blasting a car horn in a residential neighborhood at midnight to protest against water rate hikes, burning crosses on people's lawns to intimidate them, making criminal threats and lying on your taxes, for example, are all prohibited forms of expressive conduct.

Other types of reprehensible speech are plainly protected.  Courts have upheld the right of the Ku Klux Klan to march through the predominantly Jewish community of Skokie, IL.  Individuals in the US are free to tattoo their own faces with swastikas (this would be illegal in most parts of Europe).  Profanity is also protected (except on broadcast TV and radio, but that's another issue).  In the famous case of Cohen v. CA (403 U.S. 15), the court upheld a man's right to wear a jacket with the words "Fuck the Draft" emblazoned across the back.  We're also free to lampoon our elected leaders and flip the middle finger to the police.

So where do we draw the line between protected and unprotected speech?  Put very generally, the validity of speech restrictions turns on whether, by prohibiting certain expressive conduct, the government is essentially trying to silence an idea or whether they are attempting to place reasonable restrictions on the time, place and manner of that speech.  The first step in any free speech analysis is to determine what exactly the government is trying to control: is it the idea itself or merely the manner in which the idea is being expressed?

When the government is attempting to silence an idea because the idea itself is inflammatory or offensive, any restrictions on that speech are going to be ruled unconstitutional almost every time.  No matter how ugly a particular idea might be, the Framers of the Constitution intended for the value of that idea to be judged by the People themselves rather than by the State.  That's why citizens are free to wave signs that say "God Hates Fags" and "Thank God for IEDs".  No matter how stupid you might look engaging in these activities, the State has no right to silence your message.

On the flip side, the government MAY take reasonable measures to regulate the time, place and manner of expressive conduct.  As mentioned above, you definitely have a right to protest against water rate hikes, but you may not do so by blasting your car horn at midnight in the middle of my neighborhood.  The city may require permits for parades and demonstrations as long as those permits are issued without regard to the message of the demonstration.  They might allow parades on certain streets at certain times of day and deny permission for parades on other streets in the middle of the night, as long as those rules are applied neutrally to everybody. 

This brings us to the "Occupy" protests.  Protesters have demanded the right to pitch tents overnight on public and private property while they raise awareness to economic disparities and various financial issues of public import.  Local governments have tried (with mixed success) to evict the protests by citing laws against urban camping.  Protesters have argued that their free speech rights are being trampled, and police have countered by arguing that tear gas burns like hell.

So who has the 1st Amendment on their side in the "Occupy" fight?  That depends on whether the government is (A) suppressing an idea, or (B) enforcing reasonable rules regarding the time, place and manner of expressive conduct.  In my eyes, the real question is whether or not the act of sleeping in a tent on a public sidewalk has expressive value in itself.  If so, what message is being expressed by sleeping in these camps?  If protesters were forbidden from sleeping in public, are other alternative channels available for protesters to express the same ideas?  I don't have the answers to these questions, but I would invite readers to share their opinions in the "comments" section, below.

Killer Cops Appear for Routine Hearing

(Alleged) Killer Cops Manny Ramos and Jay Cicinelli appeared before Judge Erick L. Larsh this morning in Department C-55 of the Orange County Central Court in Santa Ana.  The matter came on for a routine pre-trial conference, at which the status of discovery was discussed and more hearings were scheduled. 

Several members of "Kelly's Army" began congregating in the hallway outside the courtroom by 8:15 AM.  Some held signs reading "J4K Justice for Kelly".  Ramos and Cicinelli walked into the courtroom at 9:00 AM, flanked by family, security and their defense team. Both were dressed in dark suits and sat quietly at the back of the room until their cases were called.  At one point, it appeared that Cicinelli made eye (singular) contact with Kelly's supporters. 

The case was set for a Pre-Preliminary Hearing (referred to by attorneys as a "Pre-Pre") on December 16.  The Pre-Pre is another brief appearance at which attorneys will meet to discuss their readiness to proceed to the Prelim stage and estimates re: how long the Prelim should take.  For more discussion of the Prelim and its significance, see "Killer Cops Due Back in Court", below. 

The defendants spoke little during the quick appearance, answering "Yes sir, your honor, I agree" when asked if they consented to the continuance. 

Ramos held his wife's hand as deputies escorted him from the building.  On the way out, he was seen joking and laughing with his family.  Apparently, something about the whole situation is hilarious to him.  Well, it's about to get a lot funnier.

Smoke & Mirrors in Long Beach: CA's Backward-Ass Medical MJ Laws

Long Beach is the latest California city to find itself embroiled the mess surrounding CA's inconsistent, arbitrary system of regulating (or, rather, failing to regulate?) collectives that provide medical marijuana to seriously sick patients.

In 1996, California voters overwhelmingly passed Prop. 215 (codified as section 11362.5 of the Health & Safety Code, known commonly as the "Compassionate Use Act", or the "CUA").  The CUA removed criminal penalties for qualified patients who use, possess and cultivate marijuana with a doctor's recommendation.  After a few years, the shortcomings of the CUA became apparent: while it legalized possession for qualified patients, sale or transfer of medical marijuana remained illegal, essentially leaving most patients with no way to access their medicine unless they grew it themselves.

In 2003, the state legislature enacted SB 420 (yes, it's seriously called "SB 420", commonly known as the "Medical Marijuana Program Act" or "MMPA").  The MMPA expanded upon the CUA to allow collectives and cooperatives to distribute medical marijuana to their members on a non-profit basis.  Keep in mind that marijuana "sales" are still illegal in CA, but that might be news to you if you've ever walked into a medical marijuana dispensary.  Dispensaries may provide Rx to their members, who pay a fixed price for a fixed quantity (i.e. $50 for 3.5 grams) as "compensation for services", or "reimbursements of costs", but don't call that a "sale".  Proceeds of these transactions may be used to pay salaries, rent, overhead, etc, but the dispensary may not "profit" thereby (???).  This system has created a multi-billion dollar legal gray area here in California, clogging the courts and saddling cities, tax-payers and dispensary operators with millions of dollars in legal bills and court costs.  Throw in conflicting federal laws and indecipherable zoning ordinances and you start to get the picture. 

Since the passage of of the MMPA, storefront dispensaries have sprouted like weeds (pun intended) across Southern California.  Individual cities have grappled with how to control the spread of these shops through various zoning ordinances and licensing schemes. The City of Brea has recently blown over $300,000.00 fighting to shut down 2 small dispensaries (as of the time of this writing, Brea Alternative Medicine and the Brea Patient Association are still open and operating).

The City of Long Beach is the latest municipality to find itself ensnared in the web that is California's screwy-ass medical marijuana system.  Like many other local cities, Long Beach had enacted a licensing system for its dispensaries, including restrictions on where / when the shops could operate and imposing a $15,000 application fee for new dispensaries.  When LB threatened to shut down a dispensary that had been operating without the proper licenses, two members sued the city, claiming that the licensing ordinance violated federal laws prohibiting possession and distribution of marijuana.  Since federal law trumps California law, an appellate court ruled that the city's system of licensing and regulating dispensaries was unenforceable.

The plaintiffs' successful lawsuit has had the unintended consequence of rendering ALL dispensaries in LB (arguably) illegal since the city's licensing scheme has been struck down.  It has also armed anti-pot crusaders with a new weapon to overturn dispensary licensing systems in other California cities.  Nick Schou of the OC Weekly calls the decision "a legal 'victory' most pot activists seem to wish had never happened".  The suit was opposed by groups like NORML, the ACLU, and Americans for Safe Access. 

Medical marijuana activists gathered last night to protest outside of Long Beach City Hall while the city counsel met to discuss their options going forward. 

It's become apparent that the whole mess is going to get a lot messier until Americans start to adopt a more common-sense-based approach to marijuana in general.  Until Congress and the White House come to the (gasp!) realization that marijuana prohibition causes more harm than the drug itself, we're going to keep fighting the same battle over and over again.  States like California have had their hands tied by an archaic, illogical, racist, wasteful, federal "War on Drugs" (dumb).  Recent polls show that a majority of Americans now favor legalizing and regulating the plant, similar to alcohol (smart!).  But, alas, the will of the majority continues to be hijacked by the whims of a few.

Contact your Congressman (or Congresswoman) today and let them it's time to reconsider the Controlled Substances Act (CSA), which classifies marijuana in the same schedule as heroin among drugs with no known medicinal value.

If you or a loved one is accused of a crime involving drugs or medical marijuana, contact the attorneys at Rizio & Nelson for a free consultation.

Photo stolen from the OC Register.

What to Do When Stopped for a DUI

Driving Under the Influence (also referred to as "Drunk Driving", "DUI/DWI") is one of the most commonly charged crimes in California.  It's the kind of thing that we've all done, but we haven't all been caught.  A conviction can be expensive and can carry some nasty penalties that will really make your life difficult for a while.  The following post describes what you should do, (and what you should NOT do) if you are stopped on suspicion of DUI.

The best way to guarantee that you won't be arrested for DUI is by designating a driver.  You've heard this before and I don't mean to sound like your mom, but seriously: don't plan on driving after you've been drinking.  That's sometimes easier said than done, though.  It's hard to tell when a few beers is actually a few too many.  Keep in mind also that you can be arrested on suspicion of DUI even when your blood alcohol concentration (BAC) is below the legal limit of 0.08.  There are a couple reasons for this:

First, DUI actually consists of 2 separate crimes in California, VC 23152(a) and VC 23152(b).  The (a) count applies when a person is impaired by alcohol, drugs, or the combined effects of alcohol and drugs.  To be convicted of the (a) count, it must be proven that the driver was not able to operate a vehicle with the skill and care of an ordinary sober person.  You can be convicted of the (a) count even when your BAC is below 0.08 if the officer has enough evidence to convince a jury that the effects of alcohol, drugs or both rendered you unsafe behind the wheel.  Some people are probably unsafe behind the wheel when they have a BAC of only 0.07.  Observed bad driving, coupled with poor performance on field sobriety tests (FSTs) and an officer's subjective observations (i.e. "He smelled like alcohol and seemed to have difficulty following directions") can spell bad news, even for someone below the legal limit. 

The (b) count is the crime of operating a motor vehicle with a BAC of >0.08.  When you have a BAC >0.08, you are presumptively impaired (and therefore presumptively guilty of the (a) count).

Second, remember that you can get a DUI even with a BAC of 0.00.  That's because, as previously mentioned, the (a) count can apply when someone is impaired by drugs.  This includes legal drugs like over-the-counter sleeping pills, prescription drugs like Xanax (even if you have a valid prescription -- that's not the issue), medical marijuana, chemotherapy drugs and illegal street drugs.  I've seen cancer patients who've been arrested for driving under the influence of their cancer drugs. 

Once you've been pulled over, remember that it's the police officer's job to gather evidence to be used against you in court.  He or she is not your friend and they're not interested in evidence that helps your defense.  They are working for the prosecution and they're doing everything they can to help the DA build a solid case against you.   A lot of the most incriminating evidence will come right out of your own mouth ("Yes, officer.  I was drinking at the bar and I just stopped here by the side of the road to rest my eyes for a minute").  That being said, you have no legal obligation to speak to the officer except to identify yourself.  You should politely refuse to answer any other questions and decline the field sobriety tests.  Do not voluntarily submit to a breathalyzer at the scene.  If you've been involved in a collision, simply tell the officer that you don't want to talk about the accident without an attorney present.  Do not lie to the officer, but don't do his or her job for them by providing them with evidence against yourself. 

Now you can probably expect to enjoy an all-expenses-paid night in jail, courtesy of your local police department.  This does not mean that you've been charged with a crime (remember: the police don't decide who's charged with what; that's the DA's job.  The police just gather evidence).  Once you get to jail, you will probably be given your choice of a breath test or a blood test.  You must submit to one or the other after you've been arrested (distinguish: at the scene of the arrest, you have no obligation to take the breathalyzer, and you should not submit to the breath test at the scene.  AFTER you are transported to the station, you must submit to a chemical test, however). 

There is a real split of opinion among attorneys regarding whether you should choose the breath test or the blood test.  There are advantages and disadvantages to each.  A blood test is more accurate and reliable.  A sample will be preserved for your attorney to retest in the future.  You may have a defense based on mishandled blood, improper use of anticoagulants / preservatives, etc.  A blood test will also find any drugs, legal or illegal, in your system that could tend to show that you were under the influence (i.e. the marijuana you smoked yesterday). 

The breath test, on the other hand, does not preserve a sample for retesting.  It is considered less reliable than the blood test.  You may have a defense based on improper maintenance of the breath machine and it will not detect any drugs other than alcohol.  For these reasons, I would personally opt for the breath test if I were in that position. 

Keep in mind also what police call the "attitude test".  Your demeanor can make a world of difference in the way you're treated.  I know that you're probably upset, angry, scared, confused, etc., but do your best to be polite and courteous (and that's harder than it sounds).  Having a bad attitude doesn't necessarily prove that you're drunk, but the officer will definitely note in the report if you're mouthy, crying, screaming, threatening to sue everybody, etc.  Having a bad attitude will also earn you a couple more hours of "sobering up" time in a holding cell. 

Once you're released from custody, you will have 10 days to contact the DMV and let them know that you plan to challenge the license suspension.  If you fail to do so, your driver's license will automatically be suspended for 120 days.  An experienced DUI attorney can help you fight the DMV and increase the chances of saving your license. 

If you or someone you know is arrested for DUI, call the attorneys at Rizio & Nelson for a free consultation.