Jury Nullification Ad Appears in Subway Near DC Superior Court

October 30th, 2013

For the uninitiated, jury nullification is a de facto right of jurors under common law, since citizens serving on a jury can vote based on their conscience and can’t have their vote challenged on the basis of their rationale. Throughout history, juries have acquitted defendants who were factually guilty of the crime in question, under the rationale that a particular law or application thereof is unjust. Recently, New Hampshire passed a law allowing defense attorneys to inform jurors of their right to overturn bad laws by refusing to convict, which has been used to attain acquittals for defendants accused of victimless crimes.

However, in most states, judges will instruct jurors to vote only on the facts of the case and not the righteousness of the law itself. As a result, most jurors do not realize that they have the ability to overturn convictions for victimless crimes, even when the defendant is guilty. In an effort to solve this problem, the Fully Informed Jury Association recently placed a billboard, which informs the public about jury nullification, in the Judiciary Square Metro station in Washington DC. Local prosecutors and statists are up in arms about the ad, implying scurrilously that it is an attempt to tamper with juries, particularly in the upcoming trial of freedom activist Adam Kokesh.

An Advertisement Advocating a Political Viewpoint Is Not Jury Tampering

It is illegal to knowingly engage in activities aimed at influencing individual jurors assigned to a specific case. However, this has not been broadly interpreted by the courts. Essentially, if one were to make direct contact with jurors of a specific case in the middle of a trial with the intention of swaying their opinion and causing a mistrial, that would be considered jury tampering. FIJA’s subway ad, on the other hand, simply informs everyone riding the subway in DC about the principle of jury nullification.

The Washington Post quoted US attorney Ronald C. Machen, Jr. as saying, “Jurors who ignore the law or refuse to follow the judge’s instructions embolden criminals who believe that they can get away with breaking the law and do harm to the community without any repercussion.” Since the billboard has been placed, courts have successfully convicted plenty of violent criminals, and judges in some of those cases specifically asked jurors if they had seen the ad. Clearly, FIJA’s jury nullification ad is not causing juries to set free murderers and thieves, nor is any harm being done to the community.

Jury Nullification in the Context of the Adam Kokesh Trial

Liberty activist Adam Kokesh currently awaits trial for a gun charge, as he was arrested for displaying a loaded shotgun on video in Washington DC, an act of civil disobedience aimed at defending Americans’ right to bear arms. Though supporters of Adam Kokesh have called for potential jurors to nullify his conviction, FIJA’s ad does not mention his case at all. In a response to the article by The Washington Post, Kirsten Tynan of the Fully Informed Jury Association noted, “I was VERY explicit that FIJA does not advocate for or against any particular case – we do not ‘target cases’ as Mr. Alexander claims in the article, and I certainly did not say that we do. We generally educate about the traditional, legal authority of the jury to refuse to enforce unjust or unjustly applied laws in order to deliver a just verdict, such as in cases of victimless crimes.”

That said, the alleged crime of Adam Kokesh lacks a victim. He made a YouTube video to express himself under the First Amendment, motivated only by a desire to advocate on behalf of the Second Amendment. No one was harmed by what he did, and, in fact, such acts of civil disobedience, throughout history, have enhanced freedom for all Americans.

FIJA is not engaging in jury tampering. The organization has a First Amendment right to advocate its views, and placing a billboard in the heart of the seat of government is simply effective marketing. For promoting jury nullification, a benchmark check-and-balance that protects citizens from tyrannical laws, the Fully Informed Jury Association wins this week’s Silver Circle Rebel of the Week award.

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About the Author: Barry Donegan

Barry Donegan is a singer for the experimental mathcore band Look What I Did, a writer, a self-described "veteran lifer in the counterculture", a political activist/consultant, and a believer in the non-aggression principle.