Nope. There are federal misdemeanors:
Guy arrested for handing out pamphlets on jury nullifaction at courthouse. Guilty of jury tampering?
I didn’t know that case, but a quick read suggests it’s about a court’s power to punish contumacious conduct and a newspaper’s editorial inveighing against leniency for a couple of union thugs who beat up a non-union driver.
So the two distinctions I see are: not a violation of a specific criminal statute, but a violation alleged by the court for interference in the orderly administration of justice; and expressive conduct targeted to the public at large, instead of to a specific sub-section thereof.
Closer to being on point, but not (in my quick read, anyway) dispositive.
Isn’t he still entitled to a jury trial, then?
In the fed courts, an accused has a right to jury trial for “serious offenses,” but not for “petty offenses.” As a general rule, a “petty offense” is defined (again, within the federal system) as an offense for which the punishment may not exceed 6 months confinement. If the offense is petty, the accused may be tried before a federal magistrate or a bench trial by the district judge.
A federal misdemeanor might qualify as either a “serious” or a “petty” offense, depending again on the maximum punishment the crime carries, and how its referred to the court for adjudication. (In some cases, a case might be referred to the court with a sentence limitation less than the maximum offense authorized by the statute, in order to keep the offense “petty” and away from a jury.)
If only it were that simple. Unfortunately we live in a system where prisons are owned and run by large corporations being paid taxpayer dollars and making a huge profit. The corporations have a stake in the game and spend millions of dollars in lobbying efforts and campaigns to pass truth in sentencing laws, mandatory sentencing laws for drug crimes, three strikes laws, and lately, immigration criminalization laws. Is this anti-democratic?
In this time where there are vast fortunes to be made it is easy to get bias in the system. The US has a larger proportion of its population in prison than any other country in the world. This percentage has more than tripled since 1980. More than 3% of US citizens are either in prison, on probation or in the parole system. If you wish I can link you to stories of judges imposing harsh sentences because they were getting kickbacks from prisons and stories of legislators passing laws that benefit private prison corporations but don’t necessarily help the state or do much for crime.
Jury nullification is a safeguard against these kind of laws. And it does not really matter if it doesn’t fit into your view of our corporate funded democracy, it is the de facto law of they land that they have this right.
Can’t jury nullification work the other way? Millions of dollars in advertising by corporations who run the prison systems could convince jurors to ignore the fact there isn’t enough evidence in a trial, and convict someone based on nothing but artificially induced fear.
I imagine that they guy is truly quite pleased.
I meant Cohen, as I hadn’t heard of Bridger. Thank you for introducing me to it. My recollection of Cohen was that it was in the hallway of the courthouse, not the court room itself. I think it is a distinction without a difference, as should be clear from my post.
I think that the guy was engaged in pure speech and intended it as a test case. He isn’t talking about any particular case, but rather a doctrine. He isn’t doing it in a courtroom or even hallway, but rather in front of a federal building, not blocking anything.
The federal government has no business prohibiting all speech and leafleting in front of a federal building. If anything is a public square, it is in front of a federal building. I can understand that the feds want nothing going on in front of a federal building, otherwise something and then another thing would always be happening, democracy being so messy and all. But tough.
Next, he picks the deliciously obscure doctrine of jury nullification. Then the perfect place to protest something about the court system.
Nothing gets “the man” all uptight and righteous as one of the citizens pointing out that the government has eviscerated juries far from intent of the founding fathers. (And yes, when jury nullification is used to let the murderers of racists off, I get upset). The government has destroyed the power of juries over two and a half centuries.
The USSC has allowed time place and manner restrictions to be used to regulate speech, but not eliminate it.
Not so much. The double jeopardy clause (a basis of the de facto right of jury nullification) only works one way; once you are found not guilty you cannot be tried again. If someone is convicted on flimsy evidence or due to jury bias, they can get get the case overturned on appeal. This has happened and I can find cases if you like…
Quick question for Bricker: reading about the history of jury nullification and the writings and thoughts of the founding fathers on the issue, it looks to me that majority view in Sparf v. US could be viewed as a case of judicial activism. Do you have any thoughts on this?
I thought the constitution guarantees a right to a jury in a criminal trial and it does not matter how “petty” the crime is considered to be.
How can the Feds sidestep that?
It seems to me – whatever one’s views might be of the wisdom of such laws – that these laws are still largely supported by the public and are popular. To the extent that one might start a movement on a large scale to encourage juries to decline to convict people based on arguable unwise laws, it would be unrealistic to expect any significant results, so long as people on the whole support these laws.
If your objective is to get people to rethink their views on these laws, then it seems to me that legislative reform would be a much more effective and swift way to get them to end. I don’t think jury nullification is a logical, efficient, fair, effective or democratic approach to laws that you individually might disagree with.
The Supreme Court has weighed in, in it’s self-appointed role as “ultimate arbiter” of the Constitution. Per their dictate, the right to jury trial is not all-extensive, and they made the distinction between those criminal charges which trigger the right (“serious”), and those which don’t (“petty.”) Per their definitions of “serious” and “petty,” of course.
I don’t think so, but perhaps if you expanded upon your argument a little?
In general, I use “judicial activism” to refer to the courts creating a law out of whole cloth, rather than finding it in the text of the relevant statutory or constitutional framework.
What aspect of the decision, specifically, do you believe can be characterized as activist?
You should read Baldwin v. New York. It seems that 6 months in prison has somewhat arbitrarily been determined to be the cutoff line between what is petty and what isn’t. I agree with Justice Black who concurred that Baldwin deserved a new trial even though he disagreed with the majority’s rationale.
[QUOTE=Justice Hugo Black]
Many years ago this Court, without the necessity of an amendment pursuant to Article V, decided that “all crimes” did not mean “all crimes,” but meant only “all serious crimes.”[1] Today three members of the Court would judicially amend that judicial amendment and substitute the phrase “all crimes in which punishment for more than six months is authorized.” This definition of “serious” would be enacted even though those members themselves recognize that imprisonment for less than six months may still have serious consequences. This decision is reached by weighing the advantages to the defendant against the administrative inconvenience to the State inherent in a jury trial and magically concluding that the scale tips at six months’ imprisonment. Such constitutional adjudication, whether framed in terms of “fundamental fairness,” “balancing,” or “shocking the conscience,” amounts in every case to little more than judicial mutilation of our written Constitution. Those who wrote and adopted our Constitution and Bill of Rights engaged in all the balancing necessary. They decided that the value of a jury trial far outweighed its costs for “all crimes” and “*n all criminal prosecutions.” Until that language is changed by the constitutionally prescribed method of amendment, I cannot agree that this Court can reassess the balance and substitute its own judgment for that embodied in the Constitution.
[/QUOTE]
I cannot speak for him but I would submit that judicial activism need not only “create” a law but could also be thwarting existing laws.
For instance, what if the Supreme Court said guns were legal but the government is free to levy a $100,000 tax on all sales of firearms? Guns are still “legal” but for all intents and purposes rendered unobtainable except perhaps to a very few.
Clearly the founding fathers liked the idea of juries rendering judgment not just on the facts but on the law itself. Despite the dislike for nullification in the judiciary they have not seen a way to actually ban it or make it illegal.
So, instead, they create an atmosphere which makes it very difficult for a jury to know it can judge the law as well as the facts. It seems they have done everything possible to stop it without it actually being illegal.
That would seem a form of judicial activism to me.
As regards the OP:
If this guy is guilty of jury tampering then why am I not guilty of it as well? I am writing on a public message board supporting jury nullification. Someone reading this might be starting jury duty and could be swayed by what is here. I have “tampered” with the jury as much as this guy. Hell, most adults in the US are eligible for jury duty. So even if you (generic “you”) are not one today you might well be in the future and this thread could be deemed tampering.
It was used when people refused to prosecute abolitionists for harboring runaway slaves.
It was used when people refused to prosecute people for possession of alcohol during prohibition.
While neither may be considered a sole cause for political change in those cases they almost certainly played a role.
It is currently used (with some minor degree of regularity) opposing draconian drug laws. If more people knew they could do this it might help spur legislative action to revisit those laws and adjust them.
Juries don’t decide when to prosecute.
Fair enough but did you misunderstand my point?
It’s a distinction without a difference when viewed in the context of the First Amendment and all its cases. The court can’t cut and dice the content at all. The fact that he picked the public square most likely to reach potential jurors about the general subject of juries is hogwash. What is he supposed to do? Leaflet the local public pool? Just because he has put enough thought into it to leaflet the best location doesn’t mean they can abridge speech at that location. That means that a private funeral has less protection against public protest than the federal government. The whole point of the First Amendment is to communication freely about government to other citizens and to government. He would be within his rights to hold a sign saying “Free Mr. Smith” in front of the courthouse trying the case while they are trying it. Saying that the First Amendment only applies to Rupert Murdoch isn’t what the founders intended. Peaceful communication was what was intended.
It will be interesting to see what the courts do with this.
I agree that the government has no business regulating what he says based on content- and that the courthouse steps are the right place for him to say it. In this particular case, however, even the defendant admits that people often think he is a court official. It doesn’t make it clear whether he makes a point of telling them he’s just a private citizen (or even plays on it deliberately, for that matter). For me, that’s the real issue.