Drug War

If You Are a Potential Juror, Do Not Read This Post


Writing in The New York Times, George Washington University law professor Paul Butler, a former federal prosecutor, defends jury nullification as a response to drug prohibition and other unjust laws:

If you are ever on a jury in a marijuana case, I recommend that you vote "not guilty"—even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer….

Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn't think he could find enough jurors to hear the case. 

Butler notes that the power of the jury to judge the law as well as the facts has a long and venerable pedigree, defended by the likes of John Adams and John Hancock, although it is understandably unpopular with judges and prosecutors. In fact, federal prosecutors argue that simply talking about this power is a crime if the message is aimed at potential jurors. Butler cites the case of Julian P. Heicklen, the activist who was indicted last February for distributing leaflets about jury rights outside courthouses. The prosecutors in that case argue that "advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred"—meaning that Butler himself is guilty of "jury tampering," since he has been "recommending nullification for nonviolent drug cases since 1995—in such forums as The Yale Law Journal, '60 Minutes' and YouTube." Not surprisingly, Butler takes issue with this reading of the law:

Laws against jury tampering are intended to deter people from threatening or intimidating jurors. To contort these laws to justify punishing Mr. Heicklen, whose court-appointed counsel describe him as "a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse," is not only unconstitutional but unpatriotic. 

Brian Doherty profiled Heicklen in the June issue of Reason and has been following his case here. Last December I noted the Montana marijuana case that Butler mentions. More on jury nullification here.

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  1. I knew Butler when I was at GW. He is fucking great. His big thing back then was that since police were incapable of protecting poor people, those people had a right to arm themselves and form their own militias to do so.

    He is very pro gun and pro liberty. So he is in many ways the epitome of the scary black man to both liberals and conservatives.

    1. John,

      In attacking the freedom of the judiciary he is attacking liberty because unelected, unaccountable dictators are the ideal way to bring about libertopia.

      1. “freedom of the judiciary” What does that even mean?

        1. And he is not attacking the freedom of the judiciary. Jury nullificatio is an ESSENTIAL part of the rule of law, and our legal system

      2. Unelected and unaccountable – sounds like a Justice of the Supreme Court to me?

  2. “A Hip-Hop Theory of Justice”?


    1. I suppose you’d prefer “An Emo Theory of Revenge”?

    2. Does horrible phrasing and/or marketing preclude worthwhile ideas?

    3. Does horrible phrasing and/or marketing preclude worthwhile ideas?

  3. The prosecutors in that case argue that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred”?

    I’m thinking that the appropriate remedy for these prosecutors – tar and feathers, followed by cleansing fire – would probably smell absolutely horrible. But, gagging on the stench is a sacrifice I’m willing to make. It wouldn’t be the first time these people made me gag, but it would be the last.

    1. no… they should be drawn and quartered.

      1. OK, here’s our 5 step plan:

        (1) Tarred and feathered (in that order, people!), then

        (2) Drawn and quartered, and only then

        (3) Cleansing fire.

        (4) ????

        (5) Untold riches.

        1. He can ARGUE it, but it’s utter rubbish

        2. (4) Pay per view footage

  4. Prof. Butler sounds pretty cool. The thing with American hyper-legalism is that it focuses on the rule, not justice. Because we are so rules-based now, and because there are so many rules added to the local, state and federal books each year, justice gets forgotten. And that’s precisely what a jury of your peers is supposed to enable you to obtain — justice. After all, just because it’s a law doesn’t mean it’s just. In law school we learned that juries were only triers of fact while judges could try both fact and law. That sort of elitist way of administering justice is a large part of why we live in the police state we currently live in.

    I am so sick of these Esther Randolphs who wage holy crusades againstall of our petty little crimes.

    1. In law school we learned were taught that juries were only triers of fact while judges could try both fact and law.


      1. We all love a pedant.

        1. Nobody loves a lawyer.

          1. Except for those whose lawyer helped acquit them from a crime they didn’t commit. And except for those whose lawyer helped them adopt a child. And except for those whose lawyer helped them save their house from foreclosure. And except those whose lawyer helped them recover damages from being injured by a plant explosion.

            Ahh, who cares. The vast sum of your intellectual output consists of correcting grammar and discussing the finer points of Battlestar Galactica.

            1. And they also love those who help acquit them of a crime they did commit,

              1. Lawyers don’t do that. Shitty evidence that fails to prove guilt does.

    2. What about all that blah blah blah about a nation of laws, not men? Doesn’t a culture of juries who focus on justice (which is really just an opinion, isn’t it?) instead of fact lead to jurors who convict and acquit based on whether the accused or the victim is likable or part of his identity group?

      1. Well, juries have always been prone to convicting because they don’t like the accused or like the victim, so that doesn’t change.

        All nullification does is give a defendant who is the target of an unjust law (in the opinion of the jury) a way to avoid being unjustly convicted.

        You got a problem with that, mitch?

        1. Exactly. Jury nullification is an essential component of the rule of law.

          Period. Full stop.

          Jurors are ULTIMATELY the finders of fact and that includes their ability and responsibility to discard unjust law

      2. which is really just an opinion, isn’t it?

        No, no it isnt.

        1. Exactly. Juries are the ultimate check against unjust law

    3. See my link below: you werent taught that case?

  5. So has Gingrich announced yet that he will also start hauling jurors before his Congressional committee?

    1. In a Gingrich administration, Newt himself would serve as Judge Judy and Executioner.

      1. And we’d have space lasers.

        1. And lots of “blue dress” type stories.

      2. Ha! I always say Newt looks like an old lesbian anyway.

        1. Then, what does his gay stepsister look like?

      3. He is not Judge Judy and Executioner!

  6. You are a good man, Mr. Butler.

  7. Anyone who isn’t smart enough to get out of jury duty is too stupid to be on a jury.

    1. So I take it you will be sitting on a jury in the near future?

      1. Unlike you, no.

        1. Now THIS is hypocrisy. If you believe in jury nullification, and you avoid jury duty, you are avoiding a sacred civic responsibility . Im not saying this as a gotcha. Imo, this is fundamental. To shirk that desponsibility to right a wrong is morally bankrupt

          1. My first comment was an expression. An idiom.

            I will not be serving anytime soon because I have not been given the opportunity.

            I never said anything about avoidance.

            You’re lying. Again.

            1. I hate to get all clintonesque, but it depends on how one defines “soon”

            2. You make a statement about avoiding jury duty, then claim it was simply a clich?, then claim you never said anything about avoiding jury duty, then accuse dunphy of, uhm, lying?

    2. At least in California, saying that you couldn’t vote to convict a defendant against your own conscience does get you out of jury duty.

      And this appears to be a permanent effect, since I haven’t been called back in 15 years.

      1. So if legislation and morality conflict, and you would choose morality over legislation, you are not fit to be on a jury.


        1. Yep. And it’s not like the judge even asked, “Having heard the basics of this case, do you think you would have a problem convicting this defendant according to the facts as you determine them and the law as I determine it?” I was booted for even voicing the thought that I might not convict according to his instructions.

          Meanwhile, the judge couldn’t even pronounce Marc Andreessen’s name. But the prosecutor could: He was tossed with the first peremptory challenge.

      2. Throwing jury summons in the trash seems to work pretty well, too, and without having to interact with government officials.

    3. I love that if you serve on a jury, a place where your vote actually counts, then you’re stoopid. However, if you vote in an election, even though your say is statistically meaningless, then you’re civic minded.

      If you were to believe that 10% of the population is libertarian minded then every jury should have at least one person on it that would nullify a drug case. Ideally.

      1. The only way a libertarian could get through the jury selection process would be to lie, which would open themselves to being charged with perjury.

        1. No…not really…you can survive the voir dire process without lying. Refer to “Surviving Voir Dire ~ How to Get on The Jury”: http://fija.org/download/BR_YY…..r_dire.pdf

          1. Perfect. I just got 3 months of jury duty. I’d been hoping to be able to do some good.

  8. Linking to the Times is internet-rude, yo. Pages there (e.g., the one you’ve linked to) have a habit of randomly deciding they’re subscriber-only for some people (e.g., me) and not for others. This can make your comments fill up with “DON’T LINK TO THE TIMES BITCH NOBODY CAN READ IT” / “WORKS FINE FOR ME TARDSHIT GET A WHITE PEOPLE COMPUTER”-type junk, instead of being about what the post is about. And that annoys everybody.

    Unlawful-ish alternate link, for the randomly rejected. Caution: burnout site.

  9. Cue leftists calling him an Uncle Tom in . . .

  10. No shout-out to the FIJA?

    1. Just posted one of their links on “How to Survive Voir Dire”

  11. In his Times piece, Mr. Butler writes:

    “In some jurisdictions, like Washington, prosecutors have responded to jurors who are fed up with their draconian tactics by lobbying lawmakers to take away the right to a jury trial in drug cases.”

    Anyone else read anything about this?

    1. fucking sixth amendment… how does it work?

      1. As little as possible.

  12. (4) ????

    Heads, more or less neatly stacked.

    1. Seeing as they will be covered with smoking tar and burned feathers, I’m going with “less neatly.”

  13. a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse

    Well, I guess we know which side his counsel is on. “Your honor, my client … pardon me. Your honor, for the sake of clarity, can I just refer to him as ‘that bastard?’ Thank you, your honor.”

    1. Sounds like his counsel is on his side, and is trying to portray his client as being so inept that even a judge opposed to jury nullification should not let the guy be prosecuted.

      Not the most ringing defense of liberty, but I think the defense lawyer is trying to win this particular case for the particular client, not defend the constitutional rights of everyone.

  14. Would one get in trouble if, during voir dire, one brought up jury nullification? The remarks would probably “contaminate” the entire jury pool sitting there (which may be a victory in itself) but can one be held in contempt for truthfully answering during voir dire?

    1. Since the concept of “contempt of court” is a thoughtcrime and entirely subjective, I’d say that if you drew the wrong judge you ran the risk of winding up in a jail cell if you pissed the judge off enough and didn’t knuckle under when they threatened you with that.

    2. Yes – the judge would probably hold you in contempt of court.

  15. Would one get in trouble if, during voir dire, one brought up jury nullification?

    If, by “trouble” you mean “excused”….

    My one “chance” at jury duty ended this way.

    I had, at the time, no clearly formed ideas about nullification; however, I left unanswered a question on the little pre-selection questionnaire, because I interpreted it as asking, “Do you faithfully swear and promise to convict any defendant brought before you?”

    When the prosecutor quizzed me about this, I said there were too many stupid laws to answwer with no further information. When he pressed, I told him we could start with all the drug laws, and work our way outward from there.

    I was, unsurprisingly, told I could leave. I suspect they turned everybody else in the room loose, as well.

    1. If my gambit of throwing out jury summonses fails at some point in the future, the next step is to take the Fifth and refuse to participate in voir dire, since it is an unconstitutional attempt for the government to create a jury favorable to the government, and not a jury of one’s peers.

      1. to be fair, the defense participates in voir dire as well.

      2. Tell the judge that you support the Fully Informed Jury Association and you’ll fly out the door so fast your head will spin!

    2. I am often conflicted on this one. On one hand i feel it’s my duty to sit through a drug trial and let the guy off. On the other hand, I have no patience for dealing with this system so I’ll probably crack and get thrown off the jury anyway.

  16. I did jury duty last summer; I may have made some posts here detailing my adventure.

    I thought it was fun. During voir dire they asked about trusting cops and cases that I couldn’t be unbiased towards. I told them truthfully that I couldn’t convict someone for drug crimes because of ethical reasons. I also told them that due to past experiences I did not trust the police to testify honestly. I did say that I believed that I could judge the facts of ‘victimed’ crime in a non-biased manner, so they put me as an alternate on an assault case.

    I found the whole process fascinating and didn’t mind doing it at all.

    1. I told them truthfully that I couldn’t convict someone for drug crimes because of ethical reasons. I also told them that due to past experiences I did not trust the police to testify honestly.

      And they didn’t tell you to screw?

      I am quite honestly shocked.

      1. I said those things, but I also told them how a close female family member was recently assaulted by a man; the case I was put on was a man accused of assaulting a woman.

        Also, in that case the officer’s testimony was not crucial. It came down to one group of friends saying one thing and a second group of friends telling a different story. The cops didn’t arrive until everything was well over with.

        1. Which is thencase with many alleged assault … He said/she said bullshit, so to speak

          1. Yup, it was a bar brawl. The guy that supposedly did the assaulting was huge, like 6’6″ >350lbs and his face was messed up from the lady hitting him with a bottle.

            The pictures of the lady showed virtually no trauma after supposedly being brutally beaten by this gigantic dude.

            He was acquitted.

            The prosecutor seemed to overplay his hand with the exaggerations, without having the pics/medical evidence to back it up.

  17. I’ve read some of the comments against jury nullification on the NY Times. They encompass the usual:

    Southern whites used it to acquit other whites who had murdered black people because black people needed to be kept in their place, thus we shouldn’t use it.

    They don’t like the idea of twelve unelected jurors failing to uphold a law passed by the representatives of the people (saying nothing of course of the nine who already do so).

    It can just as easily be used to convict someone contrary to the evidence as to acquit.

    That last one is interesting, but since jurors aren’t required to defend their votes publicly, who would know their motivations?

    1. The last one is also false. Jury nullification is about judging the law itself. Convicting someone contrary to evidence has nothing to do with judging the law and everything to do with a jury biased and prejudiced against the defendant.

      1. I am for jury nullification, but it can alsomresult in acquitting somebody contrary to evidence… E.g. OJ

        1. Yes, in fact that’s the entire point, but we were talking about convicting, not acquitting.

          Jury nullification is a tool, and like all tools, it can be misused, but not in the way that commenter was saying.

        2. I don’t think the Simpson trial is an example of nullification. As I recall, those that voted “not guilty” did so because they had reasonable doubt.

          In Vincent Bugliosi’s book about the trial, he put the blame on the prosecutors. He pointed out numerous mistakes made by the prosecutors that made it easy for some jurors to latch onto reasonable doubt and vote to acquit.

          And Simpson’s celebrity status certainly worked in his favor too.

          1. The Rodney King trial is a much better example of nullification that libertarians wouldn’t like.

            I wonder why dunphy didn’t bring it up? 😉

  18. I used to know a guy that sold weed and he always said that he was going to start putting a piece of paper explaining jury nullification into each bag he sold; that way it would have to be introduced into evidence.

    Don’t know how legally sound that theory is.

    1. I’m sure it would be conveniently discarded.

    2. That’s genius. I love it!

  19. Wait a moment here,

    They wish to charge a man with jury tampering by way of his advocating jury nullification. The prosecutor is going to have bring it up in the course of the case there by directly affecting the jurors in the case. The prosecutor will be guilty of the same crime.

    1. The prosecutor will be guilty of the same crime.

      Oh, pish. Only the Little People can be guilty of crimes.

      Now, if the defendant were to take the stand and testify about his beliefs, they could charge him again for trying to tamper with the jury in his own case. Pretty sweet.

      1. Maybe he’ll put the justice system into some sort of recursive loop that eventually causes a stack overflow.

    2. To avoid this, the prosecutor wants to try the case before a judge.

      1. Wow, he’s trying to see how many enumerated rights he can violate at once.

    3. It’s not tampering to attempt to influence the jury’s vote as part of the trial proceedings.

  20. So is this guy still behind bars?

  21. As a juror, you have this power under the Bill of Rights


    if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer….

    Like the local KKK member jurors acquitting lynchers on the rare occasions they were put on trial in the Jim Crow South.

    Laws against jury tampering are intended to deter people from threatening or intimidating jurors.

    That’s a subset of what they’re supposed to prevent. Bribing a juror also constitutes tampering, so it’s clearly not only directed at threats. Any attempt to influence the vote of a known likely juror, other than through the trial proceedings, is tampering. It ain’t hard to understand.

    1. 1) “Black people got lynched, so FUCK YOU if you have a joint” makes no sense whatsoever. This was addressed upthread.

      2) You really think judges would allow FIJA lawyers as professional witnesses during the trial? They don’t care about tampering, only loss of control.

  22. If you support the minimum wage, you become part of a proud tradition of Americans who helped make our wages fairer….

    Like the local union members supporting minimum wage laws on the rare occasions black people managed to get a fair shake in an industry.

  23. Can someone link to an article about the Washington attorneys lobbying to strip the right to a jury trial in drug cases? I can’t find one to verify that statement.

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