Jury Nullification on Jury Rights Day 28-Aug-2014

If you happen to be lurking around the Manhattan courthouse where Ross Ulbricht’s trial began on Tuesday, you may notice one of about a dozen signs urging you to Google something called “jury nullification.” Walk a little further, and you may just encounter activists handing out jury nullification leaflets. But if you ask them to explain what it is, they may refuse—because doing so could land them in jail. Jury nullification is one of the oldest legal concepts in the world. It means that jury members have the right to find a defendant innocent, even if they believe he’s guilty of the crime with which he’s charged. They would do so, theoretically, if they believed the crime shouldn’t actually be labeled a crime. Some of the most famous examples came in the mid-1800s, when Northern abolitionists, sitting on juries, refused to convict slaves for fleeing their masters under the Fugitive Slave Act.
More recently, a jury in New Hampshire acquitted a man in 2012 who openly admitted that he was growing marijuana in his backyard. “He grows for his own personal religious and medicinal use,” one of the jurors said after the case. “[A]fter chewing on all of the possibilities…we all decided that the only fair thing to do was to vote with our consciences and acquit the defendant of all charges.”
Jury nullification has become a popular tactic among activists, academics and lawyers as the government’s $51 billion-per-year drug war has heated up. Many of these people believe it’s crazy that a person can get thrown in the slammer for 10 or 20 years simply for using or selling drugs. Some of these same people believe that Ulbricht, who is accused of being the mastermind behind the drug site Silk Road, should be set free regardless of his guilt—because simply operating a website shouldn’t land you in prison. Nicholas J. Sarwark, chair of the Libertarian National Committee, the official group that manages the United States Libertarian Party, called on Tuesday for outright dismissal of the charges against Ulbricht, saying that trial “grossly oversteps the bounds of a properly limited government.”

This week, I spoke with James Babb, the activist who raised the money for the jury nullification ads—and who is personally handing out leaflets at the New York City courthouse. “I’m reminding people that you’ve got a conscience—use it, don’t just rubber-stamp the prosecution,” he says.Babb won’t explicitly say he’s there for the Silk Road trial. He’s cagey because jury nullification activists have a history of being sent to jail for jury tampering. Perhaps the most famous case came in 2011, when an 80-year-old retired chemistry professor named Julien Heicklin was jailed for standing outside a Manhattan court where he distributed jury nullification pamphlets. Heicklin, whom Babb calls his personal hero, was eventually acquitted, with the judge remarking that it’s only jury tampering if someone tries “to influence a juror’s decision through a written communication ‘made in relation to a specific case pending before that juror.'”

To make sure that no jury nullification activists breaks jury tampering laws, the Fully Informed Jury Association has recently put out several guidelines.
They include: Stick to the public sidewalk in front of the courthouse.
Offer literature to everyone without regard to who they are and do not try to single out jurors in any way.
Go the extra mile to be friendly and courteous, and to avoid being perceived as belligerent, profane, harassing or a nuisance.

Anticipation has built for months around the Silk Road trial. Earlier this week, I wrote about the prosecution’s task of connecting Ross Ulbricht, a real person, with the anonymous online persona “Dread Pirate Roberts” that ran Silk Road. The trial began Tuesday, and right off the bat, there was a surprising twist: The defense now readily admits that Ulbricht founded Silk Road, though they claim he passed off the keys to the site to someone else before it gained popularity. And jury nullification has already gotten a mention at the Silk Road trial. The prosecution has tried to ban any evidence regarding Ulbricht’s personal political beliefs, saying it would “serve only to invite jury nullification.” The prosecutors are afraid that the jurors would become sympathetic to Ulbricht’s libertarian beliefs and view him merely as an entrepreneur who operated an e-commerce website—not a drug kingpin.

To be clear, the odds of Ulbricht being acquitted because of jury nullification are slim. He has a better chance of walking free if his defense can successfully prove that he wasn’t operating the site when most of the drug deals were going down. Regardless, jury nullification is what Babb and his cohorts (there are about six of them in total) are fighting for, even if they walk a fine line when talking about it. Right now, they’re allowed to stand on the sidewalk and hand out their pamphlets, but if the Silk Road jurors ever walk up to them, the activists will refuse to speak to them. “Just to be on the safe side, I wouldn’t want to talk to them,” Babb says. “I’d say there’s an 800 number to call.”