In my previous diary, Smells Like Legal Pot - The Jury Nullification Tour, I discussed the case of Edward Forchion, aka NWeedman. He was successful in using jury nullification to avoid conviction on a charge of intent to distribute marijuana. He had earlier been convicted of simple possession but the jury deadlocked on the distribution charge. He had planned to tour the country with his "Weedmobile" to spread the word about jury nullification. Unfortunately, there was some confusion regarding the terms of his probation, and he has ended up back in jail in New Jersey.
For those new to the topic, jury nullification happens when jury members choose to follow their conscience and sense of personal morality rather than the letter of the law by voting "not guilty" despite ample evidence to the contrary. It has a checkered past in terms of some of the ideology and causes to which it has been attached. Much of our country's racial history has been affected by this. For years it was impossible to convict a white person for the murder of a black person in many parts of the country. At the same time, many of those who helped escaped slaves were also saved from conviction of violating the runaway slave laws by jury nullification. It was also used often during alcohol prohibition, as many Americans disagreed with prohibition and refused to convict people for violations.
There is nothing in the law that requires juries to only consider the narrow question of whether the evidence points to guilt beyond a reasonable doubt. Otherwise we would have no need for juries. At the same time, judges and prosecutors hate jury nullification because it takes power away from them. The prosecutor wants to get a conviction and therefore their opposition is understandable. Judges want to have their take on the law to be given precedence, and use their positions of authority to insinuate that it is the jury's duty to follow the law. But they are not being fully honest when they do so. This all makes it tough for jury nullification to work unless the cause is exceptionally popular. By asking the right questions during jury selection, they can weed out those who might support jury nullification without letting the cat out of the bag regarding its possibility and legality. And if a cause only has a small part of the population behind it, then those supporters can be dismissed from the case.
It is when a cause breaks out into the general population that jury nullification becomes more likely. There are two conditions that need to be present for it to be a possibility. One is to have a large enough number of supporters in the jury pool that they can't all be filtered out. The other is that at least one of the jury members needs to be aware of their rights as a juror to ignore the law and what the judge says about the need to follow the law. While some are renegade enough to do so without encouragement, most folks need to be informed that they have this freedom.
We may be reaching that point now regarding the laws against marijuana. Current nationwide polls put support for legalization at right around 50%. And with the opposition largely coming from older segments of the population, support is growing daily as the opposition literally dies off. And since our politicians continue to lag behind the times on this issue, the conditions are becoming ripe for the public to take this into their own hands. If it becomes impossible to get a conviction from a jury in a pot case, what choice will the government have left? At that point it becomes necessary to change the laws to preserve the respect for law in general - much like the situation with alcohol prohibition.
Now in Edward Forchion's case he was actually acquitted of the intent to distribute charge because all twelve jurors voted not guilty. That level of support is not needed for this approach to have an impact. Only one holdout juror is enough to cause a mistrial and avoid a guilty verdict. The government can either continue retrying at the expense of court time, etc. Or they can drop the charges.
The Morality of Nullifying Pot Laws
There is so much that could be included under this topic heading. The entire concept of marijuana prohibition is immoral. It is highly immoral how the current and historic legal status of marijuana has stifled medical research into the cannabinoids in the US, and research on marijuana in general. But there are two facets of this immorality on which I'd like to focus. One is as it relates to the states where marijuana has been legalized, and the other as it relates to the for-profit prison industry.
In response to the voter initiatives in Washington and Colorado, the federal government has stated plans to enforce federal law on the growers and distributors in these states. These are people who are operating under guidelines established by their state governments in accordance with the will of the citizens of those states. As they are operating under official sanction they should have a reasonable expectation of being legally protected. Lacking that expectation, it would seem difficult to even put into place the market structures to support these voter initiatives. It is my belief that jury nullification can provide that protection.
I suspect it might already be somewhat difficult for the federal government to get convictions in WA and CO. If a state-approved grower were busted and taken to trial, it would be big news and pretty much impossible for the feds to hide the fact that the grower was a state grower. That was what they did years ago in the case of Ed Rosenthal. He was a medical grower in CA who was licensed by the city to grow. The feds wouldn't allow him to mention this fact in court, and he was found guilty. Upon learning the facts that were withheld from them, several members of the jury held a press conference in which they denounced the trial and their verdict, saying that if they had known all of the facts they would have voted for acquittal.
The other great moral justification for jury nullification is the need to cut off the flow of prisoners into American labor camps aka private prisons. There are so many levels on which this system is evil. Just the idea of adding a profit incentive to incarceration is wrong. Add to that the use of prison labor at minimal compensation to the worker, and the use of lobbyists to push bills to increase the prison population, and you have a formula for widespread injustice. And like many injustices in our society, there is a strong class and racial element to this one. Those feeding the prison-industrial complex are by and large young dark-skinned males, and poor young males in general. Those with the money to afford lawyers and rehab can avoid jail time. Others aren't typically so lucky - especially now that the jail industry is pushing to fill beds.
So What's the Plan?
My intention is to take on the job of making this happen. And to be able to do that, I must find a funding source, or sources. as I don't have the resources to do this on my own. My plan is to approach various pro-legalization groups with an introductory letter explaining what I want to accomplish and requesting funding for the project. If anyone reading this diary has better ideas of how to approach this, or has contacts who might be helpful, please relate this either in the comments or via Kosmail, whichever seems appropriate. Here is my draft of the letter:
It was 18 years ago this month that I started a chain-letter movement aimed at getting pot legalized nationwide. Dated March 21, 1995, The Legalization Letter attempted to organize a letter-writing campaign aimed at Congress. I sent copies to every potentially supportive group and individual for whom I could find contact information. And while this plan ultimately failed, it did get a response from Speaker of the House Gingrich that July, shortly after we began writing to Congress. During a general press conference he said something like, "And as far as these people who want to legalize marijuana go, you need to put it out to the voters - have a referendum. I don't think the voters of the United States want marijuana to be legal."
And quite frankly he was right. America in 1995 was not ready to legalize marijuana. But just 16 months later the voters of California chose via referendum to legalize medical marijuana, and the movement has now reached the point where 18 states plus the District of Columbia have legalized medical use and 2 have outright legalized it for adults. And while I claim no credit for what the organizers accomplished in California in 1996, I'm fairly certain that my 1995 effort was the first significant attempt to push for legalization in the post-Reagan years. And as such, I believe it helped move the so-called Overton Window in the direction of legalization after years of "Just Say No" and ever-harsher drug laws from politicians of both parties. I would now like to have the opportunity to finish what I started in 1995, and I need your help.
What I want to do is launch a nationwide campaign to use jury nullification as a way to end the war against pot. You may be familiar with the case of Edward Forchion, aka NJWeedman. He was recently acquitted on charges of intent to distribute and featured jury nullification as a significant part of his defense. (He had planned to do a "Jury Nullification Tour" but has been sidelined due to some misunderstandings regarding the terms of his probation from another charge.)
Essentially, the term jury nullification comes from the right of any jurist to refuse to support unpopular laws by voting "not guilty" regardless of the facts and law. The jury nullifies the law. This tactic has a checkered past in the United States, having been used for both good and bad ends. One constant is that for it to work, the laws must be highly unpopular. That is pretty much the case right now with our nation's pot laws.
And if the federal government starts to interfere in the administration of the legalization laws in Washington and Colorado, then there will be many more who oppose them due to resentment over the intrusion on the will of the voters. What is needed is to educate the public regarding their rights as jurists, and to encourage people to take their pot arrests to a jury trial. This will require a good bit of trust on the part of those facing charges. But at the same time, they only need one jurist who refuses to vote guilty to avoid a conviction.
Prosecutors will bluster and threaten, and defense attorneys may have reservations, but if enough people take their cases to a jury we can end this war fairly quickly. The mistrials and resulting retrials, combined with a higher volume of new jury trials will all work to grind the system to a halt. And at a time when budgets are shrinking across the board, the financial aspect alone will force legislatures to rethink prohibition. Add to that the inability to get a guilty verdict on a pot bust and their choice becomes defined for them.
What I wish to do is spearhead this movement. I want to use a variety of media to get the message out in a cost-effective manner. Methods will include various articles on the internet and in counter-culture publications, newspaper editorials, college radio station interviews, and targeted efforts when and where high-profile cases are being heard. I particularly want to target Washington and Colorado where I see jury nullification as the means of fighting back against the feds if they choose to intervene. This is a battle we need to win.
In CO/WA I envision an approach which empowers state law and disempowers federal law. We make it clear that state laws regulating the industry are acceptable and supported, and that it is only the antiquated federal laws that we are targeting. At the same time, IF the feds shut down the state-based distribution system then jury nullification will be considered acceptable to combat state charges against growers and distributors as well. In the other 48 states, all marijuana charges will be considered fair game, federal, state, and local. This work will also lay the groundwork for the next legalization battle, per se DUI laws, as it is predictable that the prohibitionists will use that approach to continue to try punish and penalize users.
What I need is the organization and financing to help bring this project into being. This can be done fairly inexpensively, a modest salary and travel expenses being the main requirements. If your organization might have any mechanisms for something like this, or if you know of other possibilities then please get back to me. I am open to various possible approaches as long as they allow me to focus on the task at hand, instead of having to spend significant amounts of time chasing funding and doing related administrative tasks. Thank you for your time.