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.

How Does the Entrapment Defense Work?

 

Like Miranda Rights (below), entrapment seems to be one of those issues that is misunderstood more often than not. I think movies have given people a false understanding of how the defense actually applies. Here's my feeble attempt at bringing a little clarity to the subject.

Entrapment is a defense to criminal charges when police have essentially overcome your will and forced you to commit a crime that you wouldn't have otherwise committed, given the opportunity. A jury must decide whether or not they believe that you have been entrapped. Before a jury begins deliberating on your guilt or innocence, the judge will spend an hour or two reading instructions to the jurors in order to help guide their legal decision-making. The judge will explain the elements of the crime charged and the facts that the jury may take into consideration in making their findings. If entrapment is an issue, then the judge will read something like this:

"It is a defense to a criminal charge that the commission of the alleged criminal act was induced by the conduct of law enforcement agents or officers when the conduct would likely induce a normally law-abiding person to commit the crime. 


To establish this defense, the defendant has the burden of proving by a preponderance of the evidence that the conduct of the law enforcement agents or officers would likely induce a normally law-abiding person to commit the crime.


In deciding whether or not this defense has been established, guidance will generally be found in the application of one or both of two principles. First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. An example of this type of conduct would be an appeal by the police that would induce a normally law-abiding person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose. Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. This conduct would include, for example, a guarantee that the act is not illegal or the crime will go undetected, an offer of exorbitant consideration, or any similar enticement.


Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the affect it would have on a normally law-abiding person situated in the circumstances of the case at hand. Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the crime, the suspect's response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission." (CALJIC 4.60 et seq.)

We've all seen stings on TV (maybe even in person) whereby the cops pose as drug dealers, prostitutes or underage victims (i.e. To Catch a Predator) and then wait for subjects to take the bait. When cops engage in these kinds of busts, they're (supposed to be) careful ONLY to present an opportunity for their marks to commit crimes, and NOT to encourage otherwise law-abiding citizens to commit crimes that they wouldn't have committed anyway if left to their own devices. 

Example 1: You're a drug addict, you approach an undercover cop at the park and you ask to buy heroin.  The next thing you know, you're under arrest. You have not been entrapped because the police didn't force you to anything that you didn't already want to do.

Example 2: You're a girl scout and an undercover cop offers you some heroin. You tell him that you don't use drugs, but he badgers you, threatens you, and tells you that heroin is legal to possess. You finally give him $20 to leave you alone and you're arrested. You have a good argument for entrapment based on these facts because it appears that police induced a normally law-abiding person to commit a crime that she would not have otherwise committed.

Example 3: You're drinking at a house party and police come to the door. They tell you that your car is illegally parked and that it will be towed unless it is moved. You move the car as instructed and you're arrested for DUI. This is a gray area, but a jury would probably find that you have NOT been entrapped here. The police did not force you to drive the car, they merely informed you that it would be towed unless it were moved. You could have found a sober driver or else agreed to have the car towed. 

A common myth that I've heard repeated on movies is the idea that undercover cops have to tell you that they're cops if you ask, otherwise their actions become entrapment. This is false. Think about how effective undercover operations would be if agents were required to tell subjects that they were cops. Don't expect an undercover cop to identify himself if asked.

The most famous case of entrapment involved John DeLorean (of time-traveling sports car fame). In 1982, Mr. DeLorean's auto business was in serious trouble. He was nearly broke and on the verge of financial ruin. A friend of his (acting as an FBI informant) proposed a deal whereby Mr. DeLorean would help smuggle a load of cocaine and launder the cash. After a series of threats against his family, Mr. DeLorean reluctantly agreed to participate in the plan. Of course, he was arrested and charged for several drug-related offenses. In 1984, a jury found him not guilty because he had been entrapped by the government. Agents had effectively overcome his will and forced him to break the law by threatening his family.

The moral of the story is that entrapment is a very difficult argument for a defendant to successfully make. When in doubt, don't break the law, but if you must, call us for a free attorney consultation.  (714) 449 3335. Ask for John.

Thanks for reading.

Fullerton Criminal Defense Lawyer

Quick Overview of Miranda Rights

I decided to write the following post in response to a question that I hear almost day. It usually goes something like this: "I was arrested for DUI, but the cops never read me my rights. They have to dismiss the case, right?". I wish. My job would be so much easier if Miranda rights were as inviolable as everyone imagines (or as they're portrayed on cop shows).

Miranda rights, as we've all seen on movies, are intended to warn suspects in criminal cases that they have a right not to incriminate themselves when they are subjected to police interrogation. The right not to incriminate yourself includes the right to have an attorney present during questioning. That being said, Miranda rights apply ONLY in a very narrow set of circumstances: if you are in custody and being interrogated by police, you confess and the prosecutor wants to introduce your confession as evidence against you at trial, the DA must show that the confession was not tortured out of you. The way they do this is by showing that you had been advised of your Miranda rights, that you understood that you had a right NOT to confess, and that you knowingly, intelligently and voluntarily waived those rights.

When a suspect is in custody and he unequivocally states that he does not want to speak to the police, the interrogation must immediately stop (smart). After a short period of time, the police may ask the suspect whether or not he has changed his mind. 

If, instead of simply saying he doesn't want to talk, the suspect clearly demands to speak with an attorney (even smarter), the interrogation must immediately stop and the police MAY NOT attempt to re-interview the suspect without an attorney present.

Now that we all know when Miranda rights apply, let's talk about some common situations where they DON'T apply. Since they only come into the picture if you're IN CUSTODY, they do not apply if you're voluntarily answering questions at the police department and you're technically free to leave. This can be tricky because most people don't feel free to abruptly terminate an interview with the cops by walking out of the room. If you're not sure whether or not you're free to leave, try leaving.

Miranda rights also don't apply to "spontaneous statements". Spontaneous statements are things that you just blurt out when you're NOT being interrogated. If you start talking voluntarily or you shout out a confession while you're handcuffed in the back of a cop car, that statement will be read to the jury.  When in doubt, think of Dr. Evil and zip it.

The remedy for a violation of your Miranda rights is exclusion of the confession from evidence. Contrary to what most people want to believe, a violation of your Miranda rights does not automatically mean that the case against you must be dismissed. In a vast majority of criminal cases, the cops never bother to read Miranda rights because they don't need your confession to convict you. If you're caught driving while under the influence of alcohol, you're not going to be interrogated under a single light bulb in an otherwise-darkened room while investigators do the good cop / bad cop routine, like the scene in Menace 2 Society. No need for Miranda warnings in most DUI cases.

Long story short: don't ever say anything to the police that you wouldn't want printed in the New York Times or repeated to a jury. If you're arrested, don't try to explain yourself by telling the cops your side of the story. I guarantee that there's nothing you can say to get yourself into any less trouble than you're already in. The only thing you should ever tell the police is "I'm not answering any questions without John Bussman here", and leave it at that.

If you or a loved one has questions about Miranda rights, call us for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Orange County Criminal Defense Lawyer

Turd Stew Update

Sorry I've been lagging a bit on this update.  I've been out of the office the past few days crusading for truth and justice.

This past Tuesday, plaintiffs published the text of the latest lawsuit challenging the Obama Administration's crackdown on California's Medical Marijuana Program.  As previously reported here, a coalition of medical marijuana growers, patients and collectives is seeking injunctive relief to block enforcement of federal marijuana laws as they relate to individuals who comply with California's voter-approved medical marijuana system.

Attorneys Matthew Kumin, David Michael and Alan Silber filed the case of Marin Alliance for Medical Marijuana v. Eric Holder, et al. in all 4 of California's federal judicial districts.  Read the 30-page motion in support of the preliminary injunction here.

A preliminary injunction is an order from a judge to stop doing something until the legal issues can be more definitively decided by a court.  In this case, the plaintiffs are asking a federal judge to order the DEA to cease raids against medical marijuana growers and collectives until the law can be more clearly settled.

As anticipated, plaintiffs are relying on at least 5 distinct arguments in support of their injunction: collateral estoppel, the 5th / 9th Amendments, the 10th Amendment, the 14th Amendment and the Commerce Clause of the US Constitution.

Bear with me as a try to break these arguments down --

Collateral estoppel is the idea that a party to a lawsuit shouldn't be allowed to change his or her mind to the detriment of someone else.  Once you've staked out a position on an issue in a case, you can't shift your position if by doing so you screw over the other party.  Once you have argued position X and other parties act in reliance on your position, you are "estopped" from later arguing position Y.

In the 2009 case of Santa Cruz v. Eric Holder, the Justice Department assured a federal judge that the DEA would not expend federal resources to prosecute medical marijuana providers who act in compliance with state law.  In reliance on that officially stated position, marijuana dispensaries proliferated across the Golden State.  Cooperatives invested time, money and resources to expand their operations under the faith that they would not be attacked by a flip-flopping DEA.  Without warning or explanation, the Justice Department abruptly shifted its position re: medical marijuana within the past couple months.  Long story short: dispensaries got shafted by acting in reliance on the officially stated position of the DEA's lawyers. 

The 5th / 9th Amendment arguments relate to the "fundamental rights" to ameliorate pain and to act upon a doctor's recommendation.  Among other rights enshrined in the 5th Amendment is the right to Due Process, which has been interpreted to ensure "fundamental rights".  Fundamental rights are those rights which aren't explicitly enumerated in the Constitution, but which the Framers must have assumed exist without needing to be specifically mentioned.  Fundamental rights include things like the right to raise your own children, the right to enter into contracts and the right to travel freely throughout the country.  The 9th Amendment ties in with the 5th Amendment because it states that citizens hold rights beyond those expressly enumerated in the Constitution. 

When the courts need to decide whether or not a right is "fundamental", they look at whether or not the right is "deeply rooted in the nation's history and tradition" and whether or not the asserted right is "implicit in the concept of ordered liberty".  Plaintiffs are now arguing that the right to take medicine and to act under a doctor's recommendation are "fundamental" and that they are implied under the 9th Amendment.  

The 14th Amendment assures, among other things, equal protection under the laws.  It prohibits arbitrary distinctions and capricious enforcement where those distinctions are not founded on some "rational basis".  The argument here is based on the fact that, among the 16 states that allow for the medical use of marijuana, California is seemingly being singled out for heavy-handed enforcement.  California's system is more stringent and less permissive than other states, where marijuana consumption is allowed at dispensaries (Oregon) and where for-profit sales of marijuana is permitted (Colorado), which creates the impression that the current crack-down is political in nature and not "rational".

The Commerce Clause and 10th Amendment arguments are outlined under "The Turd Stew Thickens", below.

This is certainly going to be an up-hill fight for the plaintiffs, but a preliminary injunction isn't out of the picture.  It's foreseeable that a progressive California Federal District Court could block enforcement until such time as the laws can be more clearly established.  The Commerce Clause arguments have been roundly rejected before, but the collateral estoppel angle is novel.  Stay tuned for updates as they become available.

The Turd Stew Thickens

A coalition of medical marijuana patients, collectives and their landlords announced a lawsuit this morning against Attorney General Eric Holder, the Department of Justice and the DEA, among other federal agencies.  The suit seeks to enjoin the feds from taking further legal action against medical marijuana growers and dispensaries who are in compliance with CA state law.  Challenges will be brought simultaneously in the Northern, Southern, Eastern and Western judicial districts of the state. 

Early reports suggest that the plaintiffs will rely on a novel variety of legal theories, including the 9th and 10th Amendments, collateral estoppel, equal protection and due process.  The cases are being coordinated by attorneys Matt Kumin, David Michael, and Alan Silber of the NORML legal committee.

The 9th Amendment to the US Constitution broadly states that the People carry rights beyond those specifically listed in the rest of the Bill of Rights.  Just become some rights are listed should not be construed to suggest that other rights DON'T exist, just because the Framers ran out of page space or didn't think to include them.  It's kind of a catch-all that the Founders threw in to make clear that the first 8 Amendments weren't intended to be an exhaustive list. 

Similarly, the 10th Amendment says that states have the power to do the stuff that isn't specifically included among the federal government's responsibilities.  While the Constitution includes a lot of things that the feds can / must do (raise an army, make immigration policies, tax / spend, conduct diplomacy, govern interstate commerce, etc.), everything else is generally left to the states.  Historically, medical laws, licensing and policing are the business of the individual states.  That's why a California Driver's License looks different than a Wyoming Driver's License and why Arizonan frat boys can buy 190-proof Everclear. 

Of course, federal laws trump California's state laws where they conflict, but ONLY if the feds actually have the constitutional authority to govern the thing they're trying to regulate.  In past challenges, the Supreme Court has ruled that the feds may overrule CA medical marijuana laws under their "interstate commerce" powers, even if the marijuana is grown, sold and consumed entirely within the Great State of California (Gonzales v. Raich 545 US 1).  As counter-intuitive as this sounds, the reasoning was based on the idea that production and consumption of marijuana ANYWHERE affects production and prices of marijuana EVERYWHERE.  If Californians are growing their own, then they're probably importing less from other states, which means Oregonians are growing less of their famous Oregon Big Bud.  Since laws that apply solely within CA may have ripple effects in other states, the feds have successfully argued that their interstate commerce powers grant them authority to reach into your nug jug. 

For more commentary on medical marijuana in California, see "CA's Backward-Ass Medical Marijuana Laws", below).  It remains the position of this blog that marijuana prohibition has been far more harmful than the drug itself.  Our federal government continues to waste billions of our tax dollars fighting an unwinnable war based on an ill-conceived, Puritanical, paternalistic ideology.  Despite President Obama's campaign promises not to expend federal resources fighting to keep seriously ill patients from obtaining their medicine, the administration continues to subvert the will of California voters. 

More details to follow once the text of the suit is released publicly. 

As always, please feel free to comment below, if it's just to tell me that you disagree. 

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.