Jurors Need to Know That They Can Say No By PAUL BUTLER Published: December 20, 2011

Washington Related News Prosecution Explains Jury Tampering Charge (November 28, 2011) Times Topic: Jury System Readers Comments

Readers shared their thoughts on this article.

IF you are ever on a jury in a marijuana case, I recommend that you vote not guil ty even if you think the defendant actually smoked pot, or sold it to another con senting 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. The information I have just provided about a constitutional doctrine called jury nullification is absolutely true. But if federal prosecutors in New York get thei r way, telling the truth to potential jurors could result in a six-month prison sentence. Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry p rofessor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by. Given t hat I have been recommending nullification for nonviolent drug cases since 1995 in such forums as The Yale Law Journal, 60 Minutes and YouTube I guess I, too, hav e committed a crime. The prosecutors who charged Mr. Heicklen said that advocacy of jury nullification , directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred. The prosecutors in this case are wrong. The First Amendment exists to protect speech like this honest information that the government prefers citizens not know. Laws against jury tampering are intended to deter people from threatening or int imidating 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. Jury nullification is not new; its proponents have included John H ancock and John Adams. The doctrine is premised on the idea that ordinary citizens, not government offi cials, should have the final say as to whether a person should be punished. As A dams put it, it is each juror s duty to vote based on his or her own best understandi ng, judgment and conscience, though in direct opposition to the direction of the court. In 1895, the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn t have the power, or that they couldn t be told about it, but only that judges were not required to instruct them on it during a trial. Since then, it s been up to scholars like me, and activists like Mr. Heicklen, to get the word out.

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 j urors to hear the case. (Prosecutors now say they will remember the actions of t hose jurors when they consider whether to charge other people with marijuana cri mes.) There have been unfortunate instances of nullification. Racist juries in the Sou th, for example, refused to convict people who committed violent acts against ci vil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democrati c power; some people may try to misuse it, but that does not mean it should be t aken away from everyone else. How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust jurors a lot. I fir st became interested in nullification when I prosecuted low-level drug crimes in Washington in 1990. Jurors here, who were predominantly African-American, nulli fied regularly because they were concerned about racially selective enforcement of the law. Across the country, crime has fallen, but incarceration rates remain at near rec ord levels. Last year, the New York City police made 50,000 arrests just for mar ijuana possession. Because prosecutors have discretion over whether to charge a suspect, and for what offense, they have more power than judges over the outcome of a case. They tend to throw the book at defendants, to compel them to plead g uilty in return for less harsh sentences. In some jurisdictions, like Washington , prosecutors have responded to jurors who are fed up with their draconian tacti cs by lobbying lawmakers to take away the right to a jury trial in drug cases. T hat is precisely the kind of power grab that the Constitution s framers were so co ncerned about. In October, the Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries in checking governmental power, seemed open to the noti on that jurors can ignore the law if the law is producing a terrible result. He adde d: I m a big fan of the jury. I m a big fan, too. I would respectfully suggest that if the prosecutors in New York bring fair cases, they won t have to worry about jury nullification. Dropping the case against Mr. Heicklen would let citizens know t hat they are as committed to justice, and to free speech, as they are to locking people up. Paul Butler, a former federal prosecutor, is a professor of law at George Washin gton University and the author of Let s Get Free: A Hip-Hop Theory of Justice.

Readers shared their thoughts on this article. Bryan St. Paul, MN Caitlin wrote: "Wouldn't it be great if Mr. Heicklen's case went to trial and th e jury nullified?" No, it would be great if he were found not guilty. Also, Mr. Butler used the word "but" twice in one sentence. Tsk tsk.

Dec. 22, 2011 at 12:34 p.m. Recommended1 Caitlin McArthur Wouldn't it be great if Mr. Heicklen's case went to trial and the jury nullified ? However, it would be interesting to see how that turned out, as the Supreme Co urt has ruled that to educate the jurors on their power to nullify is improper, as Mr. Butler points out. Dec. 21, 2011 at 1:51 p.m. Recommended16 Bruce Brooklyn I've been a juror for criminal cases where the judge has charged the jury. Withi n the charge are the following instructions, "... If the evidence presented, and found to be true, does not prove beyond a reasonable doubt that the accused com mitted the crime they are charged with, they MUST be found not guilty. If the ev idence presented, and found to be true, that the accused committed the crime the y are charged with, they MAY be found guilty..." While all of the text may not b e exact, the "must" and "may" are. The "may" permits a juror to reach a finding of not guilty regardless of facts the juror may have found to be true. Dec. 21, 2011 at 1:51 p.m. Recommended25 Chris M NY Don't forget about judge Kimba M. Wood. She needs to go too! Dec. 21, 2011 at 1:51 p.m. Jeff Pittson New York People are the prime point, not laws, not governments, not judges, not police, n ot ideology, nor any ism of any kind. When we forget that we have power and don't use it, we get abused and subjugated . Having experienced a frame-up by police in my family I always remember what a friend said to me years ago: "I love my country but I keep a deep eye on my government." Vote jury nullification when in doubt. Given the gridlock in our national legislative bodies, the people are duty bound to act if only on a personal basis. Bravo to Msrs. Butler and Heicklen. This is still a free society. Scalia's final words are profound and correct! Dec. 21, 2011 at 1:51 p.m. Recommended19 Bill Mitchell Vallejo, CA Back in the 60's I was backpacking in Big Sur, got caught in a downpour without

a tent, and decided to pull back a window screen and climb into an abandoned hou se on state park property to wait out the storm. Afer ten minutes, a ranger show ed up and wrote me a summons for "illegal camping". I asked for a jury trial, ar gued it myself, and got a hung jury twice. I think juries have always nullified if they think the offense is so slight as t o not be worth the time and effort of a criminal prosecution. Dec. 21, 2011 at 1:51 p.m. Recommended12 Erwin Haas Grand Rapids, Mi Jury nullification is not the jury deciding that the defendant should not be pun ished for a crime, but rather that the law in question does not grow out of the customs and beliefs of the people, should not be a honored as acrime, and should be discarded. Dec. 21, 2011 at 1:51 p.m. Recommended31 Linda CT Right on! Keep getting the word out. Herein CT the prosecutors regularly voir dire jurors asking if they will follow the judges ins truction even if they disagree with the law. I think this should be prohibited, as it intimidates the jury and disqualifies anyone who would dare nullify. Dec. 21, 2011 at 1:51 p.m. Recommended34 Bemused Manhattan Occupy the juries. Dec. 21, 2011 at 1:51 p.m. Recommended32 CA King City CA As someone who has sat on 4 different juries, I can attest that many of the case s that go through our system are the result of prosecutorial overreach. I can al so attest that despite the presumption of innocence, most people are predisposed to the believe the government's side of the story. On 3 of the 4 cases (one set tled before verdict) the first ballots were all majority "Guilty", although even tually, 2 of the 3 were ultimately "Not Guilty". Even if I'm leaning towards Gui lty, I always vote Not Guilty on the first ballot, because I want to make sure t hat no one is convicted without a thorough discussion of the facts and rationale for convicting. On the last trial, I was prepared to hang the jury because I refused to vote gui lty on a case that never should have been prosecuted, even though many of the ju rors were initially saying "but we have to follow the law!". Thanks for giving a name to what I was doing, and for letting me know that I was, in fact, followin g the law. Dec. 21, 2011 at 1:51 p.m. Recommended50

Steve R NY Decriminalizing marijuana is dead obvious on in every way except the political. Of course relying on politicians to solve any problem is fruitless. Perhaps jury nullification is the answer... Dec. 21, 2011 at 1:51 p.m. Recommended22 Steve CT Both sides in a jury trial are entitled toa jury whose members are committed to a fair and impartial assessment of the case. Nullification - which might fairly be described as the pursuit of a particular agenda regarding the law in question - is by definition not impartial. And anyone who dishonestly swears to follow t he law in the case cannot be trusted to fairly consider all the evidence, either . Dec. 21, 2011 at 1:51 p.m. Recommended8 David NYC Horrible idea. So my guilt or innocence depends not on settled law but on the op inions of someone who might not have completed high-school? Why the presumption that the juror will always find you innocent against the jud ge's wishes, it could go both ways. Guilty because I don't like your politics or the color of your skin not because of the law. How would one even know what the law was if juries can make it up as they go alo ng? Dec. 21, 2011 at 1:51 p.m. Recommended13 cdc Georgia The way the deck is stacked against jury nullification almost guarantees that it will not be used frivolously. It is one of the greatest strengths of our system that a jury convinced that a law, or it's application in a particular case, is unjust can produce a better result. Dec. 21, 2011 at 1:51 p.m. Recommended12 Tom Georgia Legislatures write the laws, not the courts. If citizens don't like criminal pen alties for small amounts of marijuana possession/use, the place to fix that perc eived problem is not by unleashing the hounds of jury nullification upon the jud icial system. The first amendment does not protect you when you yell "fire" in a crowded theat

er. A juror, in agreeing to serve, gives up some of their rights under the first amendment by taking an oath to follow the the court's instructions even if they disagree with the law. To allow jurors to wrap themselves in the first amendment and "follow their cons cience" is to make every trial a crap shoot dependent upon the whim of those in the jury box. It would make a mockery of the concept that we are a nation of law s, since the men/women in any particular case could ignore the law if they felt like it's the "right thing" to do. Dec. 21, 2011 at 1:51 p.m. Recommended10 Alum Seattle NYT Pick In 1955, Emmett Till, an African-American from Chicago, travelled to Mississippi to visit relatives. One night, three white men kidnapped him, tortured him, mur dered him, weighted him down and threw him in a river. His body was recovered. T he three white men were charged with murder. At trial, the men admitted to the k idnapping, claiming they were punishing Till for speaking to a white woman but d enied the murder. An all white jury acquitted them. That was jury nullification. After the trial, the three men, protected by the double jeopardy clause of the Constitution, bragged that they had committed the murder. In 1946, Isaac Woodard, an African-American who had just been discharged from th e United States Army, still in uniform, was beaten and blinded by a South Caroli na deputy sheriff. Because the state of South Carolina refused to investigate, P resident Truman ordered the Justice Department to do so. The deputy sheriff was charged in federal court.He admitted blinding Woodard. An all white jury acquitt ed him after 30 minutes of deliberation. That was jury nullification. Jury nullification is antithetical to the rule of law. Dec. 21, 2011 at 1:51 p.m. Recommended30 Edmund Dantes Stratford, CT For those who advocate redress from the legislature over nullification (the slop e is too slippery), thousands have worked for decades for the reform of marijuan a laws. Where has that gotten us? 50,000 wasteful, stupid, expensive arrests in one year for marijuana, in NYCity alone! We have to stop the madness, it is dest roying our country. The legislature has turned a deaf ear to our cries, they hav e apparently been bought off by Big Alcohol and Big Pharma. Dec. 21, 2011 at 1:17 p.m. Recommended23 ted Brooklyn Power to the people! Dec. 21, 2011 at 1:17 p.m. Recommended10

The knob South Acworth, nh Thank you. This is a gift of wonderful knowledge. Dec. 21, 2011 at 1:17 p.m. Recommended14 AaronS Florida So, someone wants to make it a crime to EDUCATE a jury? Juries need this freedom in order to correct differences between the law and justice (they are not alway s the same, you know). If a man shoots the child molester that harmed his family...I'm going to vote NO T GUILTY. Why? Because it's right. On the other hand, as noted, some pretty bad things can arise. It seems to me th at there ought to be some sort of understanding that jury nullification is valid ...UNLESS it will result in clear injustice, etc. If an algorithm can replace a judge...then it SHOULD replace a judge. But we are hoping that good judge can di scern when injustice has truly taken place...and not just a valid use of jury nu llification. Dec. 21, 2011 at 1:17 p.m. Recommended4 porcupine pal omaha So, we are a nation of laws but not of men, in all things save the criminal tria l process? Hmmmmmmm. Dec. 21, 2011 at 1:17 p.m. Recommended8 todd New York, N.Y. A Prospective Juror does not have to answer questions about whether he believes a particular law is just. Only that he would be fair and apply the law without p rejudice as best he (she) can. Would consider seriously the facts of the case. I f a juror does not like marijuana laws the juror can just say he does not want t o discuss specific laws. That's MY opinion! Great article THANKS! Dec. 21, 2011 at 1:17 p.m. Recommended2 Steve Bolger New York, NY Technically, you violate the juror's oath of office if you take it going into a case where you are prejudiced to nullify. That's why I've never been a juror on a drug case. Dec. 21, 2011 at 12:22 p.m. Recommended9

common sense Seattle Thank you, Paul, for writing this article. This would be a great classroom presentation for a high school or college course . Students are generally enthusiastic proponents of being fair, yet feel that th ey have no power, would be very interested in learning about jury nullification. Perhaps we could institute voter nullification for the votes that got our curren t Congressional leaders elected and seated ... Dec. 21, 2011 at 12:22 p.m. Recommended16 chrisb Chicago Perhaps Mermelstein will try to prosecute you now too, since according to her de finition you just tried to tamper with thousands of potential jurors, knowing th ey will read the paper in the morning before jury duty today. Or maybe she only harasses crazy old men on the street, not people who can fight back. chrisb Chicago Perhaps Mermelstein will try to prosecute you now too, since according to her de finition you just tried to tamper with thousands of potential jurors, knowing th ey will read the paper in the morning before jury duty today. Or maybe she only harasses crazy old men on the street, not people who can fight back. Dec. 21, 2011 at 12:22 p.m. Recommended23 PJD Guilford, CT A quick google turns up at, of all places, fox.com, this interesting article: ht tp://www.foxnews.com/story/0,2933,163877,00.html Dec. 21, 2011 at 12:22 p.m. Recommended3 JDW Redding, CA Isn't it also called jury review? Juries can rule on the constitutionality of a law rather than being instructed by the judge as to how the law should be interp reted. I believe jury review has a longer history in common law than does judici al review. Also, if one was to espouse jury review/nullification and be held in contempt of court, is that new defendant illegible for a trial by jury--one that hopefully would also use jury review? Dec. 21, 2011 at 12:22 p.m. Recommended2

On Wisconsin Racine County, WI I'm curious why every defense attorney, at every jury trial, would not start his argument by educating the jury about their right to nullify. Even if the USSC h as ruled that the jury has no RIGHT to know about nullification, it seems like i t would benefit the defendant if every jury were to learn of nullifcation as an option. Dec. 21, 2011 at 12:22 p.m. Recommended24 c37725 Wichita, KS Has NYC always been like this? It seems to me that, since September 11, 2001 bot h the police and prosecutors have been pushing the city towards becoming a polic e state. Dec. 21, 2011 at 12:22 p.m. Recommended16 EJS Granite City, Illinois Oops, my earlier comment cleary establishes that one should actually read the ar ticle before commenting on it. Dec. 21, 2011 at 12:22 p.m. Recommended2 Petronius Miami, FL When, do you think, this government will come to its senses and decriminalize ma rijuana? And for prosecutors to bring a 79 year-old man to trial for distributing pamphle ts, is criminal in its very essence. Dec. 21, 2011 at 12:22 p.m. Recommended30 Steve CT Agree strongly with the commenters who pointed out that jurors are required to s wear an oath pledging to follow the law in the case. Nullification violates that oath. The jury box is the wrong place to rewrite the law. Dec. 21, 2011 at 12:11 p.m. Recommended10 DemocracyNow East Coast Sure, let's just relieve all Americans of their obligations to obey the law. Why not? People are walking away from the mortgage contracts that they signed. Memb ers of Congress routinely absolve themselves of responsibility for the mess in W ashington. Financiers are not prosecuted for their crimes. Corporations leave a

mess behind and don't take responsibility, leaving government to clean it up. Ke ep it up and the law, contracts and a person's word will mean nothing. Jurors have no business determining which laws should be enforced. The law is th e law. If you don't like it, change it through the legislative process. If you'r e selected for a jury, tell the judge about your doubts and try and get dismisse d. Obeying the law is what we do in a civilized society. The alternative is far wor se that Mr. Heicklen's problem. Dec. 21, 2011 at 12:11 p.m. Recommended11 Kevin Flatbush While I was unaware of the term "jury nullification" i voted against many minor drug indictments and encouraged my fellow grand jury members to do the same, in direct opposition to the Assistant D.A.'s instructions that we could only judge the facts of the case. If I had known the term I would have convinced a few more of my fellow jurors, and perhaps prevented more needless, expensive and raciall y biased drug prosecutions. Dec. 21, 2011 at 12:11 p.m. Recommended9 obscurechemist Columbia, MD When I am on jury , I have all the power. I will do whatever I like. No one, no judge, no barrister, no law enforcement officer, no tradition, and no law, will exert any power whatsoever over me. And on one can stop me. Furthermore, if the only charge is possession of weed, I vote not guilty. And I always will, because I, the juror, have the power; and I am happy to use it. Dec. 21, 2011 at 12:11 p.m. Recommended16 Daniel Bernstein Iowa City While the fellow handing out literature o nullification has a First Amendment fr eedom of speech right, the jury does not have the right to make law. Legislative power belongs to the State and the Federal governments under the their respecti ve Constitutions. While I believe that the laws regarding marijuana are foolish, jurors are not legislators. This remains the case no matter how much we may agr ee or disagree with their findings in hindsight. In fact, jurors in Iowa are ins tructed that they do not have a nullification right in civil and criminal court. This is in conformance with the notion that we are supposed to be a nation of l aws, not of men or women. The author seems to misunderstand the danger of revers ion to the opposing principle. Dec. 21, 2011 at 12:11 p.m. Recommended7 CR SI, NY The author, in my opinion, conveniently frames the argument around a rather symp

athetic issue (i.e. non-violent drug offenses) while offering only a brief parag raph outlining what can go wrong wtih jury nullification (i.e. racist juries in the south during the civil rights era). Similarly, he partially quotes John Adams (ah, don't you love when people on bot h the left and right convieniently quote the Founders to make their points for t hem while ignoring what doesn't?), but fails to recognize the fact that Adams, t hrough no fault of his own, was talking only about the right of jury nullificati on when it came to men. Thus, in this instance, two and two do not equal four. The point is, this may very well be an issue worth discussing, but it's going to take more than an 855 word opinion article to undo hundreds of years of jurispr udence. Or maybe it's just me. Dec. 21, 2011 at 12:11 p.m. Recommended3 jng54 rochester ny Slightly off the main point, but as a defense attorney I'm dismayed that Mr Heic klen's "court-appointed counsel describe him as 'a shabby old man distributing h is silly leaflets from the sidewalk outside a courthouse.' There are occasions wh en a "drooling idiot" defense might be the only one available, but this is plain ly not one of them. They represent a retired professor who's making a legitmate constitutional argument. Not only should they be ashamed for publically traducin g their client, but the tactic amounts to an unseemly and self-defeating groveli ng before the prosecutors, since the implicit message is that Mr. Heicklen shoul d be forgiven because he's an old fool, not acquitted because he has broken no l aw. Dec. 21, 2011 at 12:11 p.m. Recommended67 Guido New York Most of the discussants seem to forget, or not noticing, that jury nullification is not even something that can be truly argued, is something logically implied by the very institution of the jury. Since the way jurors votes cannot be questi oned they will always and forever have the power of disregarding current law if so they wished. By the way, in processes without a jury, the very same power is wielded by the j udge. Since at a certain point there always will be a final judgment with no fur ther appeal, the possibility of disregarding current law will always be there. I ndividual (and group) judgment, with all its contingency, cannot be wished away, it is called the human condition, make peace with it. Dec. 21, 2011 at 12:11 p.m. Recommended13 Ben Graham's Ghost New Mexico Mr. Butler, why not advocate judicial nullification, too? As Adams put it, it is each juror s [judge's or Supreme Court Justice's] duty to vot e based on his or her own best understanding, judgment and conscience, though in direct opposition to the direction of the court [law].

I don't have a problem with a juror nullifying, as long as the juror honestly be lieves he or she is following the law. I think Mr. Butler fails to understand how the law demands the interplay of prec edent, statute, conscience and, yes, evolving morals. It's often not black and w hite. Shame on him for making it sound as though it is. Dec. 21, 2011 at 12:11 p.m. Recommended4 dmckj Arizona I'm all for jury nullification. I wish I had understood back when I, unfortunately, helped to put a woman behind bars (here in my whacky home state of Arizona) for no good reason. I took a pol l of the jurors as to whether we would find her guilty if we knew she was going to jail -- not one juror put a hand up. Nevertheless, we found her guilty and th ought the judge had discretion. He didn't, and she went to jail. If I had unders tood jury nullification I would have hung the jury. Conservatives love to argue about freedoms and the rights of States to retain co ntrol over all powers that are not ceded to the Federal government. Yet, this of ten enshrines the states' powers to take away citizen's rights, as they characte ristically do in more conservative states. I say that judges should have very limited powers in telling jurors what they sh ould or shouldn't do in terms of educating themselves about the law. Further, I would argue that the federal government should establish a jurors Bil l of Rights, which would demand that state's fully inform jurors about punishmen ts and sentencing guidlines based on the outcome of jury decisions. To not do so smacks of 'justice' as was meted out on communist Russia and China. Dec. 21, 2011 at 12:11 p.m. Recommended10 Tom New York Could it be any other way? Are jurors to sit by and endorse state action they fi nd morally reprehensible? The Nuremberg defense has long been discredited. Jurors can't just throw up thei r hands and say the law requires this verdict when morality denies it. Often times when juries engage in nullification they come up with hair brained t heories to acquit. They need to know they do not need to be contortionists befor e they can do what is morally required. Nullification is an important bulwark ag ainst an overreaching state. Dec. 21, 2011 at 12:11 p.m. Recommended19 Michael Los Angeles, CA Prosecuting someone for advocating an unpopular position is wrong, unless that a

dvocacy presents a real and imminent threat to the well-being of others. Advocating that juries make decisions based on personal interpretations of the l aw and without regard to the facts is wrong. Individual conscience does have its place in the legal process, but jurors swear to abide by the process. Those who cannot decide impartially based on the law and the facts should say so beforeha nd and not serve on the panel in specific cases. Dec. 21, 2011 at 12:11 p.m. Recommended2 R.O. Wilson New York Having two US Supreme Court decisions that clearly support jury nullification, t he matter is settled law. Judges and prosecutors who are flouting this law, thre atening persons who advocate or practice jury nullification, are properly to be arrested and charged with a felonious violation of their oath of office. Dec. 21, 2011 at 12:11 p.m. Recommended22 kehammel Madison, WI Were Mr. Heicklen standing outside a courthouse handing out leaflets promoting a certain verdict in a particular trial, that would be an attempt at jury tamperi ng. But to hand out leaflets promoting nullification in general, without referen ce to any specific pending case, is merely an expression of free speech rights. And it's irrelevant whether judges or lawyers inside the courthouse agree that n ullification is acceptable the fact that it's not prohibited by law means that Mr. Heicklen is not publicly advocating anything illegal. The authorities should ge t off this man's back, no matter how inconvenient they may find his activities. Dec. 21, 2011 at 12:11 p.m. Recommended15 Glenn NYC One does not have to support jury nullification (and, frankly, Paul, I think you far too blithely dismiss the problem represented most notoriously by racist jur y nullification in the South) to understand that prosecution of Mr. Heicklen is a clear affront to the First Amendment. Dec. 21, 2011 at 12:11 p.m. Recommended11 zugzwang Phoenix Whether you liked him or not, Senator Ted Stevens was convicted by extreme misco nduct by the US Justice Department. They lied and concealed favorable evidence i n order to get a WIN. As an empire declines, the pursuit of justice is overtaken by careerism and poli tical ambition. Jury nullification was wisely added to the Constitution in anticipation of this eventuality. Dec. 21, 2011 at 12:11 p.m.

Recommended13 Robert San Francisco NYT Pick Another major historical instance of jury nullification imposed employer liabili ty for worker injuries and led directly to creation of the workers' compensation systems in each state. Under the common law in the 1800s, employers had no liability for injuries to th eir workers under the "fellow servant rule", which said that no employer (or lor d) was liable if one servant harmed another. Juries refused to accept this immun ity when confronted with clear examples of injuries caused by employers putting employees in unsafe working conditions. The workers' compensation laws restored employer immunity if they maintain workers' compensation coverage, otherwise the y can be sued in tort. It is shameful for prosecutors and judges to claim jury nullification is illegal ; it is a key source of vitality in our democracy, especially when individuals a re confronted with injustices created by big government and big business. Dec. 21, 2011 at 12:03 p.m. Recommended37 Paul Zorsky Maryland Who knew? This is great information and adds to my appreciation of the framers of the Cons titution. Citizens do have the right to take corrective action when Congress is incompetent and implement oppressive laws. Excellent and useful information. Dec. 21, 2011 at 11:17 a.m. Recommended26 Edmund Dantes Stratford, CT Great article. At last, something both the left and the right can agree upon. It's long past time to end the failed "war on drugs." We no longer have the mone y to waste on this unproductive nonsense. When the politicians prove unresponsiv e, the people must themselves rebel and nullify these foolish laws. Dec. 21, 2011 at 11:17 a.m. Recommended34 Cassandra Sacramento This is dangerous stuff. What if a juror in a death penalty case decides tha t the evidence is not legally sufficient to justify a death sentence, but choose s to override the instructions given and sentence the defendant to death "as a m atter of conscience". That leaves the juror feeling fine, and morally justified, but leaves the defendant improperly sentenced to die.

Jury nullification sounds fine when there seems to be government over-reachi ng, but white jurors "nullified" many proper prosecutions of white defendants ac cused of crimes against African-Americans in the civil rights era and before - t hose who nullify are not always going to be right. Campaign to change the law, r ather than encouraging lawlessness, seems to me a better path. Dec. 21, 2011 at 11:17 a.m. Recommended4 Read All 4 Replies common sense Seattle 'A juror' is only one person. I feel that nullification is going to be used more and more frequently i n the next few years. Interesting times. Dec. 21, 2011 at 1:17 p.m. Recommended6 tomP eastern Massachsuetts In some states (all?), capital cases involve a second jury deliberation regarding the penalty, Dec. 21, 2011 at 1:17 p.m. Recommended2 GL Arizona Jury nullification was practiced for years in the segregated South. Whites w ould be charged with crimes against blacks, but were often acquitted by all-whit e juries regardless of the evidence. Dec. 21, 2011 at 11:17 a.m. Recommended8 EJS Granite City, Illinois Wasn't some man arrested and charged with some crime involving jury tamperin g because he made this same argument? I guess the difference, if there is one, i s that he was passing out leaflets making the argument outside an actual courtho use, where he might influence specific jurors in specific cases. Having said tha t, I agree 99% with the substance of the Op-Ed. Dec. 21, 2011 at 11:17 a.m. Recommended2 Bemused Manhattan I guess you didn't read the article. Dec. 21, 2011 at 1:17 p.m. Recommended3 richard albany I had the same experience described by many of you. During the jury selectio n procedure I said that the jury should protect individuals from over-zealous en forcement of the law. I was rejected by the prosecutor. A believer in jury nulli fication can get empaneled only by subterfuge. Dec. 21, 2011 at 11:17 a.m. Recommended11 TJohn NY

The law is clear- nullification is simply not the function of trial jurors, whose job is to decide whether or not an individual defendant committed the acts which form the basis of the charged crime. It is true that no one can question the basis of an acquittal, but the opinions of 12 people as to what should be or not be a crime is not a proper basis for one. Otherwise, the defendant in court room A gets convicted, while the one in courtroom B is acquitted. The question o f what should be criminal is for the Legislature. Dec. 21, 2011 at 11:17 a.m. Recommended8 Alex New York If your argument is correct, they why do we bother with juries at all? D efendants in different courtrooms get different verdicts all the time, it's call ed buying justice. Jury Nullification gives the poor man a chance to "buy" justi ce by appealing to civilians, as opposed to overzealous, evidence-planting, raci st, thug cops. (Take a look through YouTube for the video of the cop deliberatel y blocking the New York Times photographer from talking pictures and then lying about it, and tell me you think those things in uniforms should be allowed in a courtroom at all unless it's in chains.) Dec. 21, 2011 at 12:11 p.m. Recommended5 JDW Redding, CA "The question of what should be criminal is for the Legislature." Doesn' t _Marbury v. Madison_ leave it up to the judge to determine what the law is? Th en couldn't the judge in courtroom A interpret the law (and sentencing) differen t than the judge in courtroom B? Dec. 21, 2011 at 12:11 p.m. Recommended3 Sal DC Our entire government is moving towards drone assassinations, financial theft on an in off-shore prisons. The End is Near, and d ask God for mercy, but both God and Elvis Dec. 21, 2011 at 11:17 a.m. Recommended10 Rachael Minneapolis voter nullification. Secret juries, historical scale, murder and torture it ain't gonna be a happy ending. I' have left the building.

Where in the Constitution does the author find the right to jury nullificati on? The First Amendment might cover discussion of the topic, but I'm hard-presse d to see how it supports a juror ignoring a duly-enacted law. Dec. 21, 2011 at 11:17 a.m. Recommended4 French Boston The framers had jurors make the ultimate decision precisely to allow che cks on "duly-enacted law." Otherwise, why not just have a judge or panel of expe rts decide cases? Dec. 21, 2011 at 12:22 p.m. Recommended8 Alex New York

Rachael, Where in the constitution do you find the right to privacy? It's not there. And did you know that the basis for Roe v. Wade is a PRI VACY one? See? It isn't cut and dried all the time. A jury would be able to arrive at that conclusion. Assuming it isn't just filled with mouthbreathers who keep mumbling: Must follow instructions. Must follow instructions. Dec. 21, 2011 at 1:17 p.m. Recommended2 JDW Redding, CA Where in the Constitution does anyone find judicial review? Dec. 21, 2011 at 1:17 p.m. Recommended1 Leila lieberman Morningside If jury nullification is when a juror votes no, what is it called when a jud ge decides that a guilty verdict by a jury is wrong and gives a directed verdict of not guilty? Dec. 21, 2011 at 11:17 a.m. Recommended4 nynynyny new jersey A jury I was on in New Jersey some years ago tossed out an assault case. Two guys who had worked together in the same factory for about 10 years had a fight . It happens. We found the defendant not guilty. The prosecutor had a stomping h issy fit. Don't make people sit on juries to hear stupid cases, please. It costs us more to drive to court to do our civic duty than we receive in "pay." Get re al, people. Dec. 21, 2011 at 11:17 a.m. Recommended22 Peter Lynn New York, NY As wonderful as it sounds, jury nullification is a very dangerous, bad idea. It allows twelve people to overthrow the law of the land. There is already a me chanism in place to change laws; campaign against them, get elected, convince a majority, pass a different law. The idea that a small number of citizens should be able to modify the law ar bitrarily is, on the face of it, silly. If I could find eleven people who agree with me that I should be able to take some of Mayor Bloomberg's money (he would hardly miss a million or two), does that mean that I should be able to walk into his bank and walk out with his money? Not really. For all the anecdotes that there may be about injustices righted using this tool, it is a dangerous and uncontrolled mechanism that should not be allowed. L et me make a far-out analogy in comparison: Robin Hood was a hero and a benefit to the country. Because of this anecdote, should everyone be allowed to rob the rich at swordpoint? I think not. Dec. 21, 2011 at 11:17 a.m. Recommended9 chrisb Chicago

The idea that the law of the land is written by lobbyists and people out of touch with the common man is also silly. Dec. 21, 2011 at 12:22 p.m. Recommended10 Bob NY There's a group of nine people who regularly overthrows the laws of the land. Can you guess what it is? Dec. 21, 2011 at 1:17 p.m. Recommended7 common sense Seattle So you believe that the Wall Street group and financial institutions who get rich at 'pen point' (signatures) is a better group of heros? I would have agreed with that, if the people signing on the dotted line had full disclosure. Instead, they were deliberately mislead, and lied to. Wheth er by sword, gun or pen ... deliberate lack of disclosure or half representation al truth deserves prison sentences and prison time. Dec. 21, 2011 at 1:51 p.m. Recommended1 Ramblwrk68 Atlanta, GA The counter-balance to jury nullification is judicial override. If the judge feels strongly that the sentence should be guilty, then they can set aside the jury verdict. The appeals process then sorts it out, and the legislative process can define the law more clearly. Dec. 21, 2011 at 11:17 a.m. Recommended2 Bemused Manhattan Once a jury votes not guilty, that's it. A judge cannot overturn that. Dec. 21, 2011 at 1:17 p.m. Recommended6 Dean Henry Michigan I was on a Grand Jury and voted not to indict on a federal marijuana case; m ost of the other jurors were flabergasted that I would do such a thing. Dec. 21, 2011 at 11:17 a.m. Recommended9 Adam Bevelacqua Brooklyn NYT Pick Legal experts and attorneys will watch Mr. Heicklen's case closely because i f the federal courts allow a prosecution for distributing information to the pub lic, it would be a major new exception to an individual citizen's First Amendmen t protections. Generally, the Supreme Court has held as sacrosanct the individual right to protest the government through spoken or written word. The Court only allows con tent-neutral time, place and manner restrictions to political speech, and the Co urt subjects all such restrictions to strict scrutiny. If the federal courts and , eventually, the Supreme Court allows this prosecution and/or conviction, it wo

uld be the first content-based restriction on speech upheld in over a generation of case law. Allowing this arrest to stand would be a frightening precedent against free speech. Dec. 21, 2011 at 11:14 a.m. Recommended44 Horst New York NYT Pick Is jury nullification illegal in certain states? I recently served on a jury in NYC criminal court, right where Mr. Heicklen passed out pamphlets. For both of the jury selection processes I went through (neither for a "minor" alleged cr ime), the judges specifically discussed the principles of jury nullification wit hout actually using those words, and then said that it cannot be used. I have no training in law, and that was my only exposure to the legal system other than "Law and Order." But I tend to strongly disagree with the idea of ju ry nullification. For starters, a juror would need to lie during the selection p rocess-- at least in the two cases I went through, it was specifically asked if you could deliver a guilty verdict even if you disagreed with the underlying law . Even if this question isn't explicitly asked, it would be completely unethical not to make this known during jury selection, that no matter what is presented during the case, you will automatically be handing down a verdict of "not guilty ." The second reason I disagree is it places undue burden on the juror. It's no t a light task to determine the fate of another human being. I found it much eas ier when told that our only job was to determine whether the defendant was guilt y of the laws as they are written, without regard to the punishment. If you intr oduce the idea that the juror is responsible for punishment, rather than the leg al system, you're putting an undue burden on a small group of people. Dec. 21, 2011 at 11:14 a.m. Recommended18 Sarah A. New York, New York Beautifully-put. Dec. 21, 2011 at 12:22 p.m. Recommended4 Ken C New York NYT Pick Jury nullification is indeed the law and the 100 year by our courts to judic ially write it out of the constitution is an unconstituional outrage. Our Consti tution, in its sixth amendment, provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jur y of the State and district wherein the crime shall have been committed, ..." No te, by an impartial jury, not by an impartial judge. The founders provided this right because, having endured unjust Judges, imposed on them by the "mother coun try," they understood the need for a check on the courts, they trusted the desir e of most citizens to find a just resolution and they wished to provide for just resolution of individual cases while promoting development of a consistent body of legal precedent. As to this last point consider that a judge's decision must both follow precedents set by previous decions of other judges and itself becom es a pecedent for future courts to follow. The decision of a jury, on the other hand, is determinative for that case only and sets no precedent at all for futur e cases. The public should see the persecution of Mr. Heicklen for what it is -

a naked grab for additional and unconstitutional judicial power that, if success ful, will strip all Americans of yet another "constituionally guaranteed" right. Dec. 21, 2011 at 11:12 a.m. Recommended36 tomfromdennis Dennis,Ma I have been telling my undergrads about nullification for years, & emphasize d that it is one of the few "citizen checks and balances" other than voting. Dec. 21, 2011 at 10:09 a.m. Recommended7 David Flushing Persons serving on juries are usually required to take an oath that they wil l conduct themselves in a certain manner: Typical oath for a federal juror: "Do each of you solemnly swear (or affirm) that you will well and truly try, and true deliverance make, in the case now on trial and render a true verdict a ccording to the law and the evidence, so help you God?" Frequently these oaths require the jury to follow the judge's interpretation of the law. It would seem that jurors are not permitted by these oaths to ignor e the law or its official interpretation. Dec. 21, 2011 at 10:09 a.m. Recommended5 Alex New York David, A typical oath involving God. And you wonder why jury nullification is n ecessary? Dec. 21, 2011 at 1:17 p.m. Joan Brooklyn You don't like the marijuana laws? Great, neither do I, but I don't think it 's fair to demonize prosecutors for enforcing the laws as they are. Prosecutors shouldn't be choosing which laws to enforce. As for jurors, they are going to vo te how they voter for whatever reasons they deem important. That's just the way the system works, for better or worse. Dec. 21, 2011 at 10:09 a.m. Recommended3 Read All 6 Replies John F Brooklyn, NY Prosecutors decide every day what laws they are going to enforce. I also overheard a prosecutor (assistant D.A.) state that they "don't pr osecute false testimony in unimportant cases". Unfortunately, it was in the days before cell phones had cameras. If you truly believe there is equal and fair enforcement of laws and tre atment of citizens, regardless of position or connections, you are truly ignoran t of the daily machinations of our "justice system". *That's just the way the system works, for better or worse.* After wasting a week and a half on a ridiculous civil case, prolonged by

a completely incompetent lawyer, the judge came into the jury room when the cas e was finally settled "out of court" to thank us "for our service"... a woman ju ror who had to close her business for the week and a half called it a waste of t ime, and the judge said "that's the system". She told him that was "his system" and he was responsible for the mess it was in. Not part of the solution, you are part of the problem. Dec. 21, 2011 at 1:51 p.m. Recommended2 Caitlin McArthur He is not "demoniz[ing] prosecutors for enforcing the laws as they are." He is advocating that they not try to add new (and patently unconstitutional) i nterpretations to laws that are inconsistent with their purposes. Jurors will only use the power to nullify if they are aware of it, preci sely because of what David explained in the comment above yours. It is not true, as you suggest, that "they are going to vote however they voter (sic) for whate ver reasons they deem important." Respectfully, Caitlin Dec. 21, 2011 at 1:51 p.m. Gary Taustine NYC Great article. 50,000 marijuana arrests last year, that's about 137 arrests every single da y. If we simply decriminalized marijuana the city could reduce the number of pol ice officers and give those who remain a better salary. This would result in les s corruption and a better class of career oriented police officers - instead of wannabe soldiers who pepper-spray women for speaking their minds. Dec. 21, 2011 at 10:09 a.m. Recommended62 Carolyn Egeli Valley Lee, Md. Welcime to more destruction of our basic civil rights. Thank you for highlig hting this. Dec. 21, 2011 at 10:09 a.m. Recommended7 LBarkan Tempe, AZ Thanks for this article, Professor Butler. When i was recently called to jur y duty, one of the questions the judge asked prospective jurors was would we fol low the law even if we disagreed with it. Something sounded fishy about that, bu t I said nothing. I was excused on other grounds. The next time I'm called, I in tend to speak up and I'll have your article with me. Dec. 21, 2011 at 10:09 a.m. Recommended8 Technic Ally Toronto So if someone hands out this op-ed on the steps of a courthouse, can she be arrested? Or is she, as should be the above contributor to the Times, protected by the Constitution?

Dec. 21, 2011 at 10:09 a.m. Recommended13 Eric R Tucson, AZ Without the war on drugs, what would we do with the institutionalized behemo ths draining our treasury, such as the Border Patrol, DEA and the BATFE? We coul d, and would, still illegally intervene in Colombia and Mexico, while spending b illions to "liberate" the single biggest source of heroin, Afghanistan. The mili tarization of these agencies, and local police, should tell us all to be very wa ry. Combined with the power grabs describes in this article, we should be downri ght frightened. The concept of nullification should be trumpeted far and wide. Americans may need to be reminded it's we who hold the reigns, but only if we exert our power . Dec. 21, 2011 at 10:09 a.m. Recommended24 Richard M. Waugaman, M.D. Chevy Chase, MD As special interests and the 0.1% increasingly control the levers of power i n the U.S., jury nullification is one of the few means we have left of exercisin g our democratic rights. Dec. 21, 2011 at 10:09 a.m. Recommended21 Lynn New York "only that judges were not required to instruct them on it" actually, my impression is that judges instruct them on the opposite: if you find X to be true then you must do Y. Is that grounds for an appeal? I'm not, however, convinced it's a great idea for a single juror to be able to stand in the way of enforcing a law when the facts of the case are clear. Dec. 21, 2011 at 10:09 a.m. Recommended2 tomP eastern Massachsuetts It is the duty and object of a jury to decide the facts of a case based on the evidence presented. It's the job of a judge to decide the law, including what evidence can be admitted. As for the case "when the facts are clear," I humbly suggest that you wa tch the movie "12 Angry Men." Dec. 21, 2011 at 12:11 p.m. Recommended7

ebbolles Ny,NY Having served on four juries, I'd say that arguing for nullification would b e a hard slog. Many opinions are aired and the only thing jurors unanimously agr ee to support is the law. If that peg were to disappear, if a juror argued that everybody should ignore the law, I'm not sure how they would come together in ma king a decision. Dec. 21, 2011 at 10:09 a.m. Recommended5 Michael Wolfe

Henderson, Texas I couldn't find the reference, but in school we were told that a very poor m an whose family was starving stole a pig from a rich man. The jury said, 'Not gu ilty if he returns the pig.' The judge refused to accept that verdict, so the ju ry reconvened and returned with, 'Not guilty and he can keep the pig.' Dec. 21, 2011 at 10:09 a.m. Recommended66 Larry Davidson Ridgefield, Wa. The Inquisition of the Roman Church was energized and sustained by misguided fanatics, and by the spoils produced by that ecclesiastical war on all, where t he property of the "heretic" financed that wars perpetuation. Nowadays it is the same with The War On Drugs - which feeds off its victims to finance the pursuit of still more victims, and which likewise is sustained by misguided fanatics. This drug war must end. Evermore Americans are coming to this view. And to t his end, jury nullification is a citizens right which should be known to all, an d used whenever conscience says. One day soon surely, drug use will be freely av ailable for medicine, for pleasure; and drug abuse, treated appropriately/humane ly. The hundreds of billions expended on the drug wars to date, need not be hund reds of billions spent again in time to come. That treasure might instead be app lied to making this a better world. Jury nullification... YES! Dec. 21, 2011 at 10:09 a.m. Recommended33 Ted Morgan Baton Rouge Gee, I did not know that I am a criminal for sharing this conviction, but I do share it. Dec. 21, 2011 at 10:09 a.m. Recommended8 Demeralda Flint, MI Thanks for this information! I consider myself fairly well-educated, and did n't know about this. I have never been called for jury duty, unbelievably. I will be keeping this in mind if I am. Can they now charge you with jury tampering? Dec. 21, 2011 at 10:09 a.m. Recommended5 Jim Harrington San Diego, CA Often the prosecutors are the real criminals. Dec. 21, 2011 at 10:09 a.m. Recommended18 ed connor camp springs, md Bravo, Bravisimo, Bravolingus! The state exists at the whim of the people. If the people think the "crime" is not a crime,

"let justice be done, though the heavens may fall." Dec. 21, 2011 at 10:09 a.m. Recommended10 Rita California Trusted The state may exist at the whim of the people (although I'd like to thin k that the Constitution is more than a whim) but that is different than saying t hat it exists at the whim of a single individual. If you don't agree with a law, work to change it through the legislature not through a single act of false bra vado. P.S. It's bravissimo. And bravolingus is an interesting combination of L atin and Italian. Dec. 21, 2011 at 12:20 p.m. Recommended1 Nicholas Johnson Brookline, MA 50,000 arrests in NYC for what is now a violation, and treated like a parkin g ticket, in Massachusetts. Sounds like over-aggressive prosecution - largely of minorities - to me. The expense, in both the cost of incarceration and the dama ge to people's lives, is mind-boggling. Dec. 21, 2011 at 8:36 a.m. Recommended83 Rob Philly If the ninety-nine percenters wanted to make a stand for justice they would be on the court house steps protesting on behalf of Mr. Heicklen and jury nullif ication. Dec. 21, 2011 at 8:35 a.m. Recommended36 Thomas St. Louis The case against Mr. Heicklen is a farce, an overreach, and precisely the ty pe of prosecutorial abuse that our constitution is concerned with protecting aga inst. It should be dismissed, not merely on First Amendment grounds, but on grou nds that he is not guilty of the crime with which he is charged. Unless the Time s has omitted to report material facts, Mr. Heicklen's conduct does not appear t o fit the elements prescribed in the law against jury tampering. As much as dismissal is the proper disposition for this case, it might be ju st the right poetic justice to have a jury decide Mr. Heicklen's case. Dec. 21, 2011 at 8:34 a.m. Recommended61 Dan A. Arlington, VA I would go further and ask that the prosecutors be charged with miscondu ct for even charging him, since they are just wasting the systems time and perse cuting an innocent citizen. Alternatively, they should be fired for incompetence if they were ignorant of the nullify right. Dec. 21, 2011 at 11:17 a.m. Recommended16 LR Virginia

One can't help but consider the role of for-profit prisons and detention cen ters in the precipitous rise of incarceration rates in the United States. We've got 5% of the world's population and 25% of the world's prisoners. What's wrong with this picture? The War on Drugs continues because it is big business and pro vides a continual flow of fresh meat to the beast, the prison industrial complex . Dec. 21, 2011 at 8:32 a.m. Recommended110 lynchburglady Lake Oswego, Oregon This is the most honest and true thing I've read in a long time. When in carcerating a person became profitable, incarcerating that person also became in evitable. For-Profit, private prisons should be totally illegal. The State has t he responsibility of proving guilt, the State should also have the responsibilit y of carrying out a guilty verdict...in a State-run prison. There is no recourse in a privately run prison. Dec. 21, 2011 at 11:17 a.m. Recommended11 steve Ky. What a marvelous idea. Like so many tragically logical things, however, I do n't see it working in America. If we were that honest, would we really have tens of millions of people making a living feeding off the government, or have a med ia and entertainment-dominated society at all? jus' sayin' Dec. 21, 2011 at 8:32 a.m. Recommended5 JRH Carmel, CA Prosecutors wary of this tactic will simply exclude jurors who do not believ e in upholding the laws they disagree with. Juries are part of the problem in th e US, not the solution, and should be replaced by panels of experienced, certifi ed professionals that can objectively evaluate and challenge evidence. Our laws should be changed through the democratic process or massive civil disobedience, not by encouraging rogue jurors who sympathize with the plight of a guilty crimi nal. Many are beginning to agree with decriminalizing drug use. Vote for candida tes willing to change the law. Dec. 21, 2011 at 8:31 a.m. Recommended11 tomP eastern Massachsuetts "Massive civil disobedience" can begin with one person, perhaps a prospe ctive juror, standing up for what he believes in. Dec. 21, 2011 at 11:17 a.m. Recommended9 Jacob New York, NY "Our laws should be changed through the democratic process or massive ci vil disobedience, not by encouraging rogue jurors who sympathize with the plight of a guilty criminal." Really! I thought jurors were ALWAYS dealing with people who were presumed innoc ent. They are only "guilty criminals" after the jurors have reached a guilty ver dict.

Dec. 21, 2011 at 1:51 p.m. Recommended6 KT NYC NYT Pick Several years ago,, I was in a jury pool in New York State Supreme Court tha t was put through voix dire regarding a marijuana possession charge. One after a nother, the prospective jurors told the judge that they could not find the defen dant guilty because they believed that marijuana possession should be decriminal ized. Finally, in exasperation,the judge said, "Well, if you don't want to sit o n this jury, we have a nice ax murder downstairs for you." I suppose that what we in the jury pool did wouldn't count as "jury nullific ation," because none of us got on that jury; we were all disqualified. On the ot her hand, it was a kind of pre-nullification: What if they gave an illegal war, and nobody came? Dec. 21, 2011 at 8:31 a.m. Recommended72 jonrysh Oakland CA NYT Pick If a juror votes to acquit on the grounds the the law in question is a bad o ne, can they be removed from the jury? If they fail to answer a questionnaire ab out the law truthfully and in full, can they be charged with a crime? These are not idle questions: The last time I was summoned for jury duty it was for a case in which drugs were involved. I gave my (very low) opinion of the drug laws in response to just such a questionnaire, and was struck from the jury. Suppose I h ad kept my peace and been seated. What then? Dec. 21, 2011 at 8:30 a.m. Recommended50 jonrysh Oakland CA I'm don't see how lawmakers could "take away the right to a jury trial in dr ug cases", since the U.S. Constitution reads (in part): "The trial of all crimes , except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed". Maybe this claus e applies the the Federal Government only; but even so, we can see pretty clearl y what the framers of the Bill of Rights thought about jury trial. Dec. 21, 2011 at 8:29 a.m. Recommended14 CB Martinez, CA This Op-Ed is irresponsible and ignorant of the proper role of citizens in o ur constitutional framework. Nullification is irresponsible when an abuser keeps quiet during voir dire a nd later convinces other jurors "by his own experience" that the People have not met their burden to convict on spousal battery. It's irresponsible when a juror fails to hold another citizen responsible for driving under the influence becau se she does the same and wouldn't want to be punished. Nothing distinguishes the se examples from the nullification mentioned above except the subjective whim of the nullifier. Following this author's advice, the abuser and drunk driver go f ree to beat and endanger fellow citizens, without deterrence or accountability. Jurors swear an oath to uphold the law "as the judge gives it," not to the l aw as each subjectively decides it. There's a reason for this oath. The proper p

lace for a citizen to change law is through the Legislative and Executive Branch . There are numerous ways to do so, e.g. voting, lobbying, financial support of causes and candidates, education, and persuasion. However, when a citizen swears the oath to be a juror, he or she accepts a unique role in our democracy. Juror s must decide "the facts," absent bias, sympathy, or prejudice and without allow ing public opinion to influence the decision. By deciding "the facts," jurors no t only help hold fellow citizens accountable for all of us, but they protects de fendants from mob rule. Dec. 21, 2011 at 8:29 a.m. Recommended18 Read All 6 Replies Jim Boynton Beach, Fl. If we had politicians concerned about injustice what you post would make sense but when republicans only pass laws that they're paid to pass- you're all wet. Dec. 21, 2011 at 12:22 p.m. Recommended7 E MA I suppose had you been on a jury in the antebellum South in a case about a slave revolt, you would be force to punish anyone who helped the slaves escap e? After all, it would be your duty to uphold the law as it was written. Fealty to authority for authority's sake is feudalism, not justice. Dec. 21, 2011 at 1:17 p.m. Recommended13 Laughingdragon SF Bay Area And if this prosecutor tries this case this it must be appealed all the way to the Supreme Court. Let's have some clarity here. Dec. 21, 2011 at 8:28 a.m. Recommended2 wim NY Are the prosecutors really arguing that it's always a crime to talk about ju ry nullification if your intent is for potential jurors to learn about it? How c ould such a case even go forward on its merits? Dec. 21, 2011 at 8:27 a.m. Recommended37 lynchburglady Lake Oswego, Oregon Shouldn't jury nullivication be taught to us all in school in the first place? Shouldn't this be something that we, as citizens, are aware of anyway? Dec. 21, 2011 at 12:22 p.m. Recommended4 John F Brooklyn, NY This would be great... arrest the prosecutors for mentioning "jury nulli fication" when presenting the case. Would make a great Monty Python skit. Dec. 21, 2011 at 1:51 p.m. Recommended4 vermontague

Northeast Kingdom, Vermont THANK YOU! I wish I had known this earlier, when I was priviliged to serve o n a jury. Perhaps many of us will be emboldened to imitate Mr. Heichlen, and per haps the government will feel the scorn of the people for stupid "war on drugs" laws. Dec. 21, 2011 at 8:20 a.m. Recommended21 Paul Bellerose Terrace Like Nancy Reagan used to say: "Just say no." Dec. 21, 2011 at 8:19 a.m. Recommended12 Joey Houston, TX Fantastic article! Its our duty as Americans to stand up the same way our fo unding fathers did. If something is wrong, its wrong. I don't care where its wri tten, or who wrote it. Hiding behind ridiculous statements like "its against fed eral law", or "its illegal that's why" might pass the smell test in our society of scared little sheep, but historically people who hid behind unjust "laws" wer e identified by another term, "COWARDS". Dec. 21, 2011 at 8:19 a.m. Recommended40 vklip Pennsylvania I know that many people don't, and that many people do use marijuana, both m edicinally and recreationally. I strongly disapprove of recreational use of mari juana. I particularly disapprove of selling or giving marijuana to minors. That said, I do believe the prosecutors are over-reaching (which is not unus ual). I believe Mr. Heicklen was exercising his First Amendment rights. I do bel ieve a juror has the Constitutional right to ignore what a judge tells the jury is the law, and vote to acquit if that juror believes the law is wrong (Patriot Act, anyone, speaking of the First Amendment). Unless the prosecutors can show t hat Mr. Heicklen was specifically targeting jurors - not might be, could be, pro spective jurors, but persons actually selected for a jury pool or jury - I belie ve their case should fail. Given the number of people going into a courthouse ev ery day, only a limited number can be prospective jurors. As I understand this op-ed and the background story, Mr. Heicklen was handin g out his brochures to anyone who would take them and speaking to anyone who wou ld talk to him. I suggest that hardly falls within the description of jury tampe ring. I hope a judge dismisses this case, very quickly. I, for one, would be hap py to contribute to the cost of Mr. Heicklen's defense and the defense of the Fi rst Amendment. Dec. 21, 2011 at 8:19 a.m. Recommended27 Rob DL Connecticut Trusted Unfortunately rogue prosecutors and draconian sentencing laws are the norm i n America today, and the fight for Marijuana legalization has illustrated that b etter than any other example. The most disturbing aspect to this article was the mention of how prosecutor s have more power than judges. I can't quite understand how a country that suppo

sedly values freedom and individualism as we do, can ever have let things get th is far. If I'm ever in a position to serve on a jury in a marijuana case there is no way I'd vote to prosecute. It is an insult to everyone who has been a victim of real crime that the state attorneys could still attempt to justify prosecuting individuals over simple marijuana use. Dec. 21, 2011 at 6:47 a.m. Recommended83