To Nullify, You MUST Survive Jury Selection..Submitted by dice on Thu, 12/06/2012 - 04:52
Surviving Jury Selection
In order to nullify the law, you need to survive jury selection (or “voir dire’), and be seated on the jury. When you appear for jury duty, you are a “venire-member.” The venire is the group (or “panel’) of citizens from which a jury is chosen. The jury is chosen by removing members of the venire.
After both sides have removed the venire-members they object to, the first twelve (or six, or eight, depending on the case and the state) venire-members remaining are sworn in as the jury.
Venire-members can be removed in two ways: they can be stricken “for cause,” or through use of a peremptory strike. Both sides can remove as many venire-members “for cause” as they can find lawful reasons to strike. A “for cause” strike is based on a venire-member being legally ineligible to serve, because, for example, he or she has a felony record, is not a citizen, is insane, or, most importantly, has indicated that they are unable or unwilling to apply the law.
Peremptory strikes can be used by either side for any reason other than race or gender. Depending on the case and the jurisdiction, each side may have three to fifteen peremptory strikes (even more in death penalty cases.) Generally, parties strike venire-members they believe are unlikely to vote for their side. The prosecutor and the defense attorney get to question venire-members about their attitudes, opinions and behaviors in order to “intelligently” exercise peremptory challenges.
What this means is that if you show up for jury duty and proudly announce “marijuana should be legal, prohibition is immoral and unconstitutional and I would never vote to convict anyone in a weed case,” you will immediately be removed by the prosecutor “for cause,” and you will have absolutely no impact on the outcome of the case. Similarly, if you say “police do not arrest innocent people,” the defense will strike you. You must appear neutral and fair to both sides to be seated–if you appear to lean too far either way, the other side will strike you off the jury.
Thus, to survive jury selection, you want to appear neutral. However, you may not lie during voir dire. Lying can constitute perjury or obstruction of justice–felony offenses. The clue to survival is to give neutral but truthful answers. This can take some care and serious thought, depending on the exact questions you are asked. However, there are some general rules. One of them is that you should never elaborate on your answers to voir dire questions, or volunteer answers to questions that have not been asked. A typical question is to ask venire-members what organizations they are members of. In anticipation of this question, you may consider resigning from NORML, FIJA and similar organizations when you get your jury summons. (You can always rejoin later.)
Other typical questions, and appropriate unobjectionable neutral answers, include: What magazines and newspapers do you subscribe to or read regularly? (Time to cancel some subscriptions–at least temporarily! And time to start reading Popular Mechanics, PC World, Money and People. Don’t mention U.S. News & World Report or The Economist. People interested in world events tend to be opinionated independent thinkers. You want to appear a neutral, law abiding middle of the road taxpayer.)
Do you know anyone with a drug problem? (Yes, but not well. This is usually true because such people never allow anyone to know them well. Of course, if your spouse, parent or child is in rehab, it’s time to fess up.)
How do you feel about people accused of selling or possessing drugs? (They deserve fair trials, like anyone accused of a crime.)
Do you know anyone who has been accused of selling drugs? (If so, the answer may be “yes, but not well.” If they ask for an example, they will stop after one, so there must be someone you knew distantly who was accused of selling drugs. If you know someone who was acquitted on drug charges, say so–it lets the venire know false accusations happen. Answer in short, to the point sentences, and do not digress, volunteer or elaborate.)
How do you feel about the government’s use of paid informants or informants who are receiving reduced sentences in return for their testimony? (Their testimony has to be examined carefully, but fairly.)
Do you have such strong feelings about drug cases that you would be unable to be a fair and impartial juror? (Of course not! What you want is a fair and just outcome.)
If asked whether you are opposed to drug laws, you can truthfully say you have questions about how effective drug laws are. (Who doesn’t? Even Gen. McCaffrey has had such questions.) If asked if you are able to put your
opinions aside and vote guilty, you can always say yes. (You are also able to shove your arm down a kitchen garbage disposal. That does not mean you are committed to doing so.) Take the questions literally, and answer as briefly and generally as you truthfully can.
Appearing for Jury Duty
Come into court looking like a respectable, law abiding middle-class America n. Think of a perfectly acceptable computer technician visiting a DEA office. Wear clean, business casual clothes. Cover any tattoos and remove superfluous jewelry or piercings. Carry some work related reading material such as a technical manual, a trite apolitical (not classic) novel, or a non-issue magazine such as People or US (not CounterPunch)
Don’t act like you are excited to be there. Nobody is happy to receive a jury summons unless they are either 1) retired and bored to death, 2) insane, or 3) have an “agenda.” If you are insane, you are not qualified to serve. You probably can’t fake being of retirement age. Any excitement will be seen as an “agenda.” Act bored and a smidgeon annoyed that you must waste your time on a case you could not care less about.
Get a haircut. Do not argue that getting your dreadlocks cut infringes on your personal expression. (The author of this article used to be able to sit on his hair, too.) Getting a haircut may give you a chance to express yourself in the jury room where it counts. Hair grows back. A term in prison leaves permanent scars. Let us hope nobody reading this is so vain that their hairstyle is more important to them than the freedom of one of their brothers or sisters.
When All Else Fails
Jury selection is not the time for speeches. Generally, the less you say, the more likely you are to get on the jury. The only time to proselytize during voir dire is when you know you will not be on the jury (the prosecutor has recognized you from a drug law debate or demo, or he asks a question you just cannot answer truthfully without giving your position away.) Then speak quickly, in calm, rational sound bites. “I could not convict a young man for a harmless act. It would ruin the rest of his life. That’s immoral.” Then sit down and be quiet. Make the prosecutor or defense attorney follow up by asking you more questions. Don’t rant. If they ask a follow up question, give a similarly short, to-the-point answer. The more polite, respectful and reasonable you are, the more you will influence (and perhaps empower) remaining venire-members.
What you must avoid is having the judge cut you off before your message gets out. You want to appear candid and honest–not like you are trying to send a forbidden message to (or, as courts consider it, “contaminate”) other people on the venire. If the judge blows up after you politely sit down, he risks looking like a tyrant. After all, if citizens cannot speak their mind, why ask them questions? (That would be a fair question to ask a judge who would ridicule or chastise a venire member in front of the rest of the venire.)
In the Jury Room
Once on the jury, do not mention nullification during deliberations unless the “not guilty” votes are in the majority. If the judge believes a juror is nullifying he may remove her, causing a mistrial or allowing the remaining jurors to decide the case. First, however, the judge must question the juror. If the juror has doubts on the facts, she cannot be dismissed. If she justifies her “not guilty” vote by saying “I can’t convict a young man for smoking a joint,” she’s gone. If she says “I think Officer Krupke lied” the judge will return her to deliberations.
The inability to discuss nullification openly encourages hung juries. If you must, hang. Reasonable people may disagree. You have a right to hang–you do not have a right to compromise someone else’s life away. Vote your conscience even if other jurors browbeat you. Your principles are at stake. Principles cannot be compromised–only abandoned. Vote your conscience. Hang with pride.
Just Say No!
I know of a case in which a prosecutor was offering a twenty year sentence as a plea bargain in a methamphetamine case. The defendant rejected the offer and took the case to trial. A marijuana activist was on the jury, and refused to convict. The jury hung 11-1. When the case came back, the prosecutor reduced the charge to a misdemeanor with a four month sentence. The defendant is free today–and with no felony conviction–because one independent American stuck to his principles and followed Nancy Reagan’s sage advice–Just Say No! That is the power of a juror.
American juries have a proud and heroic tradition of standing up to tyranny and saying “no” to oppressive, unjust or misapplied laws. Now, with the horror of the war on marijuana becoming apparent to a broad cross-section of society, we have an opportunity to make prosecution of marijuana laws an exercise in futility. Only when the likelihood of convicting and sentencing harmless pot smokers becomes minimal will our opponents begin to rethink their positions. We know what happens when they begin that process. They join our side.
A jury summons is not just another form letter from a government clerk. It is an invaluable gift from our Founding Fathers, a gift intended to keep our government true not just to the letter of the Constitution, but to its principles. Justice, our forefathers knew, requires eternal vigilance. Vigilance takes more than reading the papers and casting a ballot at election time. It requires that government be subject to continuous oversight by its subjects. Trial by jury was meant to ensure that citizens maintained a peaceful but powerful and effective means to exercise that vigilance–regula ting, monitoring and when necessary, vetoing tyrannical government actions.
Decades of attempts by judges, prosecutors and legislators to weaken trial by jury have limited but not removed the ability of juries to perform their intended task, by keeping jurors ignorant of their nullification prerogative. Jurors, however, still have the same powers they possessed in 1776–if they only know about them. Too many harmless people have suffered at the relentless hands of the drug warriors. Jury service is our best chance to fight back. And once we do, our victory, while slow, will be assured.
CLAY S. CONRAD, author of Jury Nullification: The Evolution of a Doctrine (Carolina Academic Press, 1998) is a shareholder in the law firm of Lamson & Looney, P.C., 11767 Katy Freeway, Ste. 740, Houston, Texas, 77079. He is the Chairman of the Fully Informed Jury Association and can be reached at firstname.lastname@example.org