VOTE UNTIL YOU CAN VOTE FOR NONE OF THE ABOVE
Learn about jury veto, jury nullification, jury pardon and the "Fully
informed Jury Amendment."
Jury nullification is now before the U.S. Supreme Court.
The argument that jurors should be able to reject vice laws and acquit is
in a new Petition for Writ of Certiorari. The Petition also argues various
reasons why vice laws are unconstitutional. The nullification arguments and
the entire brief can be viewed at http://rexcurry.net/fijawrit2.html
As an attorney and a libertarian I am urging the nation’s
highest court to recognize jury nullification, also known as jury pardon and
During my legal career, I have often been asked if jurors
can overturn bad laws. The askers fear compulsory jury duty to convict defendants
accused of vices (gambling, prostitution, drugs) or other non-violent charges
(tax non-payment, gun possession).
The fear has risen because many non-violent consensual
acts now carry mandatory sentences of 10 years and even life in prison. Jurors
are not told that their verdict will result in a non-violent defendant with
no prior record going to prison for a decade or more. The jurors won’t know
what they have done and if they find out, then they might be queasy.
Most courts hold that jurors do not have the right to
acquit in defiance of the law, though courts recognize that jurors have the
power to do so, and that nothing can be done about jury nullification when
In history, jury veto has been used
for acquittals against old prohibition laws. Now it is used against modern
prohibition, vice laws and other peaceful behavior.
For more information on jury nullification, jury veto,
and jury pardon see: http://rexcurry.net/fija.html
Below is the jury nullification argument that is before
the United States Supreme Court in a Petition for Writ of Certiorari. The
government did not plead in the indictment, and no jury found, any prior
criminal record of the Defendant. Even so, the government gave notice that
it wanted the defendant to receive a mandatory sentence of life in prison
for the drug charge based on the defendant's prior record, which consisted
of no violent crimes, though some non-violent vices. In the trial court,
the Defendant moved for a bifurcated trial to argue jury pardon/nullification
for both the issue of the charge itself, as well as the for the issue of
the minimum mandatory life sentence. The trial judge rejected the Defendant's
motions. This Petition for writ of Certiorari followed the affirmation of
the conviction and sentence on appeal. For the entire Petition for writ of
Certiorari see http://rexcurry.net/lawwrit.htm
The petition includes other arguments that vice laws are unconstitutional.
JURY NULLIFICATION OF MANDATORY MINIMUMS: Related
to the Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)
issue (previously discussed) is that, even though the government did not
plead, and no jury found, any prior record, the Defendant moved for a bifurcated
trial regarding his prior record and to argue jury pardon/nullification (Doc
47, 77 and 91).
In the types of cases alleged here (whenever there is
audio and video tape evidence and the testimony of an undercover law enforcement
officer in a hand-to-hand transaction) the government often characterizes
the evidence as overwhelming, even suggesting that there is no serious defense
against the facts, only absurd defenses. In such cases, and if this
is one of those cases, then there is only one trial defense left: That the
law is unjust and should be rejected by the jury (the jury pardon or nullification
defense). The Defendant should have the right, should he so decide,
to present a pardon/nullification defense, either alone or in conjunction
with any other defense.
Recent case law indicates that it is ineffective assistance
of counsel for an attorney to admit a defendant's guilt to a jury. In cases
where the government's evidence cannot be rationally disputed, and where the
law prevents the nullification defense, then the law forces defendants to
mount irrational/absurd defenses, or no defense at all. Such predicaments
are a violation of a defendant's right to due process and of a defendant's
right to a meaningful jury trial.
At the very least, the jury should have been informed
of the penalty in this cause, and it should have been possible to argue to
the jury that the penalty is also an independent basis for acquittal.
An analogy can be made to inadmissible hearsay rules
as applied to the defense. Chambers v. Mississippi, 410 US 284 (1973) held
that the right to present a defense entitled the defense to introduce technically
inadmissible hearsay evidence. The rules of evidence can not be mechanistically
applied in such a fashion as to deny defendant a right to present a defense
and a fair trial. As an example, the right to present a defense gives the
defense a firm basis upon which to argue for admission of information
in a police report that might otherwise be inadmissible under a statute restricting
the evidentiary use of police reports as business records.
An analogy can be made to polygraph examinations. If
a Daubert hearing is held in a case in which the defense is trying to get
the polygraph admitted then the rules should be more open for the defense
and more restrictive for the prosecution regarding polygraph results. An academic
psychophysiologist has testified that false negatives were very rare - from
2 to 15%, depending on testing conditions. But false positives were
very common - nearly half the time an innocent person will test guilty. Polygraph
technology is uniquely suited for defensive purposes. It is reliable if it
says innocent, and it is a coin-toss if it says guilty. Yet, there is no
case law reflecting this aspect of the polygraph.
In cases involving crimes of violence and theft, the
pardon/nullification defense is rejected by jurors because crimes of violence
and theft violate the NAP (the Non-Aggression Principle), which is a basic
moral concept to many jurors and to some judges (see e.g. Lawrence v.
Texas, 2003 U.S. LEXIS 5013,*;123 S. Ct. 2472; 156 L. Ed. 2d 508;71 U.S.L.W.
4574 (2003)). But this is a case that does not allege violence or theft,
it is a drug case, and drug cases are in that league of cases where the nullification
defense has potential because the NAP is attractive to some jurors and judges.
In the former Soviet Union under Stalin it was said that
“the accused was given a trial but no defense.” If the government has
the power to prevent a defendant from arguing that the law is wrong, then
the government has the power to prevent the defendant from having any defense
whatsoever, because the government can legislatively deprive the defendant
of every other defense. The so-called "strict liability," laws are one
example. Many drug cases are also examples.
Witchcraft was illegal in the U.S. and still is illegal
in other parts of the world. Our criminal justice system would not allow
anyone to argue to a jury that a witchcraft law should be rejected because
witches do not cast spells that make children fall into fits. Jurors
would be instructed to determine the facts based on the testimony and to
follow the law, just as they did in the Salem Witch Trials. And
the defendant would be sentenced to life in prison or even to death.
Some people incorrectly argue that for any defendant
to argue that drugs should be legal under any circumstances, is a foolhardy
defense. But those arguments are made by people who make sure the public never
hears the comparison of modern prohibition to old prohibition, and the similar
corruption, violence, and irresponsible behavior that is caused by the government,
and perpetrated and perpetuated by the government.
Some defendants are deprived not only of their only defense,
they are deprived of the best defense. It might be the best defense
because it is the defense that the government has already abjectly lost in
old prohibition, and that the government has already arguably abjectly lost
in modern prohibition, though the government persists in digging its hole
ever deeper. Today, defendants are charged under modern prohibition,
and the government prevents them from presenting the exculpatory proof that
has already been established under old prohibition.
Most case law rejects the right to present a jury pardon/nullification
defense. However, U.S. v. Datcher, 830 F. Supp. 411 (M.D. Tenn. 1993), cites
the political history of jury nullification, and Datcher held that the defendant
was entitled to argue the issue of punishment to the jury, which the defendant
argued was draconian, hoping the jury would deem the penalty too great and
thus acquit pursuant to power of jury nullification. The court based
its ruling on the importance of allowing the jury "to decide whether a sentencing
law should be nullified." Id. at 412.
Shocking news? It may be a misconception that rape is
a “crime against women.” America’s criminal justice system has probably resulted
in more rapes being committed against men - men in prison.
One of the first significant American events of the
new millennium took place on February 15, 2000. According to The Justice
Policy Institute, the prison and jail population in this country reached
2,000,000 for the first time in our history. More than half of those imprisoned
are nonviolent offenders. The largest category of prisoners, by a wide margin,
are drug law violators.
No other nation on earth, nor any nation in history
has ever incarcerated so large a percentage of its citizens. Not only is
the raw number growing, but the rate of increase is growing as well.
The so-called “war on drugs” is reviving interest among
jurors in the libertarian idea of jury nullification -every juror’s power
to ignore criminal laws (such as drug laws and their draconian sentences)
and to declare “not guilty” any defendant. Many jurors are fed up with
the war on drugs and with the number of people in prison.
The real crime is being committed by those who put into
violent prisons all the non-violent adults who engage in non-violent behavior
with other adults. It is not a war on drugs. It is a war on the bill
of rights and upon all citizens.
2 MILLION IS TOO MANY!
President’s Day (the third Monday each February)
presents a secret way for everyone to be President for a day!
The secret is that juries can veto acts of Congress
-just as the President can. It’s known as a jury veto, jury nullification
or jury pardon. It is related to the "Fully informed Jury Amendment."
To learn more visit http://rexcurry.net/fija.html
Being a juror is like being President for a day, because
juror’s can veto the criminal laws of congress, and can grant any defendant
a pardon, like the president can!
Every juror is more powerful than the president, because
Congress can override the president’s veto, but Congress can’t override
a jury veto. The defendant goes free.
It’s like telling your congressman to go jump in a lake.
Even if a jury thinks a defendant is factually guilty,
they can declare the defendant not guilty, and they won’t be questioned
about it, and the “not guilty” verdict won’t be overturned. It’s a
way that juries fight antidisestablishmentarianism.
It is a way to stop the growth of the record the 2
million people in prison
There are only two normal ways that any person can
restrict the government: elections and jury duty. By voting at the
ballot box, or by voting on a jury.
The reason that jury nullification is secret is because
it isn’t mentioned in the government schools, in the mainstream media,
and definitely not on your local TV. And the judges won’t tell
the jurors, and the judges won’t let the defense attorneys tell the jurors
either. So people on the jury don’t realize that they each have the
power to veto criminal laws and acquit.
Jurors don't realize that they can be president for
a day, every day.
for more ideas on liberty see http://rexcurry.net
28 October 2008
Editor, Washington Post
1150 15th St., NW
Washington, DC 20071
We're supposed to be inspired by your report of high-school kids becoming
politically active - working, in one case, for the Obama campaign, and in
another for the McCain campaign ("Too Young to Vote, But Electing to Care,"
I'm not inspired; I'm saddened. Why applaud young people who are
attracted to the opportunistic compromises, platitudes, distortions, and
exaggerations of party politics? These kids either lack the maturity
to understand that party politics is chiefly about winning office (rather
than about pursuing truth and justice), or they DO understand this fact.
In neither case is this juvenile political involvement admirable.
Donald J. Boudreaux
Chairman, Department of Economics
George Mason University
Fairfax, VA 22030