WINNING COMBINATIONS by Larry Dodge This issue of the FIJActivist, like the past several, reports on the good, the bad, and the ugly in the way of court cases where "FIJA defenses" have been tried. Big "wins" against arbitrary enforcement of victimless crime laws include acquittals of Rodger Sless for selling GH3, an "unapproved" nutritional supplement, of Dr. Jack Kevorkian for assisting people in suicide, of Brett Stahl for holding a camp-in on behalf of an incarcerated friend, and of Paul Berger for allegedly poisoning eagles on his remote sheep ranch.* But in the same issues, we've had to discuss big "losses", such as the conviction of Bill Lord on bogus gun charges, of Heidi Fleiss for "pandering", of the proprietors of the Southern Lights store, for selling lights which "could be used" in the cultivation of marijuana, and of the Reverend Tom Brown, for growing marijuana for use by himself and his congregation. Because so much is at stake--namely the freedom of harmless people--it has become imperative that we take a hard look at what it takes to motivate a jury to use its power to nullify, and therefore to function as the ultimate citizen check upon government tyranny, as intended by the founders of this nation. One approach might be to go through each case, analyzing every available detail, then derive general observations by comparing these case histories. In fact, it was trying to do exactly that, mentally, which inspired this article. But the data available about each case are uneven in terms of both amount and quality, and no two cases are enough alike that true comparison is possible. But the mental exercise resulted a series of hypotheses based upon five years of experience as FIJA National Field Representative, and many vivid examples which suggest that they may be true. As with any hypotheses, they are at this stage educated guesses, and they deserve further testing. Please do.... A successful FIJA defense (the dependent variable, operationally defined as acquittal via jury nullification) is most likely to result when 1] it's a "nullification case". This is a case where the real issue at stake is not whether the defendant "did it", but whether whatever he or she in fact did should be treated as a crime. In __________________________________ * FIJA counts many other cases in its "win" column where, we found out later, nullification information somehow reached the jury (such as by blanket, routine leafleting, by media discussion, etc.) But here, I'll focus on a few illustrative trials where a jury used its veto power after FIJA activists, interested in seeing justice served in a particular case, gave FIJA information to its members. other words, it's a case where the law or its application deserve to be questioned, not taken as given and presumed correct. In such cases, it can be relevant and effective for activists to try to educate jurors in their power to nullify, and for the defense attorney to find a way to persuade them to use it--up to and including suggesting that the government has ulterior, political motives for prosecuting the case. Likewise in cases where the methods used for gathering evidence against the defendant violated his or her individual rights. But if the law itself, or the way in which it is being applied is not at issue, and the evidence was gathered in a way respectful of the defendant's rights, a successful defense means convincing the jurors that there is sufficient doubt that the defendant committed the act he or she is charged with. That is, when the evidence, not the laws of the land, are at issue, a "nullification" defense is not as appropriate as a "factual" defense. And the two kinds of defense do not mix well: to argue that "he didn't do it", then to follow up by urging "but even if you find that he did, you should acquit because it's a bad law", will not cut much ice with most juries. 2] the defense attorney is at least aware that there may be an attempt to educate jurors in their power to nullify. This is not to say that the attorney should participate or be included in the plans to leaflet or mail materials to the jurors. An attorney who has strategic knowledge of a plan to educate the jury or who actually participates can be held in contempt of court, and possibly lose his or her license to practice law as a result. This is because attorneys are officers of the court, and as such are supposed to communicate with jurors or potential jurors only in the courtroom, and even then are not at liberty to advise them of their powers and responsibilities. Activists outside of the judicial establishment are not held to such standards. But it is neither fair nor wise to expect a defense attorney to try to persuade a jury to nullify unless he or she has at least some inkling that the jurors may be approached by jury power activists. One good way to provide that information is for the defendant to "rumor" it to his or her attorney. That way, the information is not solid enough that an officer of the court could be sanctioned for failing to admit having knowledge of it--and besides, lawyer-client communication is legally privileged, while communication between an activist and someone's attorney is not. Anyway, an attorney is more likely to give jurors a moral excuse to find their client not guilty if they're aware that the jury has been advised of its power to nullify by activists. The attorney may then find a way to complete the education package, perhaps by whetting the jurors' curiosity about the materials given them by those activists, giving those materials more legitimacy than if no one in the court were to mention them. Or, the attorney might choose to weave in some reasons why the jurors ought to trust the "little guys"--the defendant and his attorney--instead of the "big, bad government". This can be particularly effective when unnecessarily brutal, deceptive or morally questionable methods were used to gather evidence--it gives the jury both an emotional, conscientious reason and a "legal hook" upon which to hang a nullification verdict, such as "the government went too far, even if the guy is guilty." Additionally, if the attorney is aware that the jury has been "fully informed", he or she may spend time building up the role of the jury in the American justice system, perhaps by quoting the Founding Fathers on the subject of jury power and its importance to the maintenance of a free society, governed by the citizens, during closing arguments; or may build some leading questions into the voir dire in order to identify and hopefully to empanel some jurors who may have qualms with the law, or who will likely take pride in their duty and try to do a very conscientious job. 3] it's a case in which the law or its application or enforcement to the defendant in the case at hand is viewed as problematic by the public, or at least a large segment thereof. Despite every effort of both the defense team and the prosecution--or even the judge--to "stack" a jury in their own favor, most juries tend to end up representing mainstream values after all (to the point where many attorneys now advocate abandoning the voir dire process altogether, and trying cases in front of the first twelve randomly selected jurors who do not have a compelling reason why they should not serve, as has been the practice in England since 1988). In any event, it is unrealistic to expect that merely informing jurors that they have the right and power not to convict if they believe the law is wrong, or wrongly applied, will be sufficient to convince them to leap out of conformity with mainstream wisdom and acquit. There needs to be a serious, demonstrable problem with the law, a problem which will be exacerbated if the letter of the law is applied to this defendant--hopefully a serious, otherwise socially acceptable person. In most cases, because the judge will only rarely allow the defense team to question the merits of the law in front of the jury, the emphasis will have to be put on the character of the defendant. As noted Houston attorney Michael Minns puts it, the attorney has to be able to convince the jury that "this good person deserves better" than to be made into a criminal by finding him guilty of this (silly) (unfair) (archaic) (special-interest) (arbitrary) law. Indirectly, the law itself is thereby questioned, because if it shouldn't apply to this "nice guy", then it shouldn't apply to anyone. But that kind of logic may be several trials into the future. The first order of business is to get this jury not to convict this "good person" under a particular, possibly morally questionable statute. Remember, while the judge may pay lip service to the "presumption of innocence" that juries are supposed to maintain until persuaded otherwise, the prosecutor can be expected to capitalize on the fact that many jurors will be actually be thinking, "He/she must be guilty of something, or this trial wouldn't be taking place." Often, therefore, whether arguing fact or nullification, the only useful ammunition the defense can bring to bear is how this decent person's life will be destroyed, without benefit to the community, if the letter of the law is applied. Now let's look back at some cases which led to these hypotheses. In the case of Rodger Sless, acquitted of selling the "unapproved" nutritional supplement GH3, virtually every one of the "winning combination" of elements was present: It was the quintessential "nullification case", where Rodger indeed "did it", but the law was unclear, and the defense attorney went to great pains to depict the government as a politically motivated monster. Sless "rumored" to attorney Nancy Lord that FIJA activists would have the courthouse surrounded, and would probably be giving out literature to absolutely everyone, but she herself did not become involved. She actually told Rodger she didn't want to hear any more about it. Then, in the courtroom, she supplemented the literature the jurors had received--by doing everything but spelling out the power of the jury to nullify, building up the jurors as defenders of the rights of the accused, exposing government intrigue and dwelling upon its unnecessarily abusive arrest tactics, bringing in expert witnesses to counteract the FDA's assertions about the alleged dangers of GH3, calling up good character witnesses for Rodger, and choosing his jurors with great care. Similarly in the "assisted suicide" trial of Dr. Jack Kevorkian, there was no question about the facts of the case, but FIJA activists gave most of the potential jurors leaflets explaining their power to vote according to conscience. This was done with the knowledge, but without the participation of attorney Geoffrey Fieger. It was a good thing, too, because in open court, the judge waved the FIJA brochure at the defense team and blasted them for engaging in such tactics, but the attorneys were truthfully able to deny being involved. Again, the ban on assisted suicide constituted morally questionable legislation in the eyes of much of the public, which put the government on the defensive about the law and its application, while the defense team kept pointing to Kevorkian's great service to mankind and drawing upon testimony from admiring witnesses as to the value of his services and the excellence of his character. Both in and out of court, the defense made much of the politics behind this prosecution, and Dr. Kevorkian even helped himself out by discussing jury nullification with the media, so that the concept had achieved some legitimacy by the time jurors were selected. Likewise in the "trespassing" case against Brett Stahl, in San Marcos, Texas: the jury was well leafleted, the political motives of the state were brought into question, and the jury was very skillfully selected by attorney Paul Velte. He treated its members to a series of quotations from Adams and Jefferson with respect to the power and duty of the jury to preserve liberty by judging the law itself, if necessary. He kept bringing up Brett's right of freedom of speech, and how only the jurors could preserve it, which they did. Much the same "combination" came together in the case of Montana sheep rancher Paul Berger, except that neither he nor the attorneys who defended him were apprised of our intentions ahead of time. But they did make the most of the fact that the government had performed a brutal, if virtually fruitless raid on the property of a feeble old man, badly scaring him, his wife, and everyone else by roaring around, fully armed, in jeeps and helicopters looking for evidence that Berger had been protecting his flocks by poisoning eagles. In the Berger trial, I was able to participate with M.J. "Red" Beckman and several others in leafleting the federal courthouse in Billings, Montana. I was ultimately escorted into the courtroom, then the judge's chambers by a federal marshal after he took one of the leaflets I gave him to the judge, and came back with orders to bring me back alive... I then met with his honor, the defense and prosecution attorneys, and an official court recorder to discuss the issue. The upshot was that I agreed we would move across the street, if we continued at all--which was a moot point, since practically everyone in the building already had a brochure in hand, and many had read it. Whatever the effort lacked in the way of advance notice to the attorneys it made up for in publicity, because Red called a news conference upon my emergence from the building, and the Billings Gazette, the Big Sky Business Journal, and TV Channels 2 and 8 gave the event--including the concept of jury veto power--great play, at least some of which had to have reached the jury. That was very fortunate, because the judge confiscated all our literature from jurors and spectators alike, which angered some of them, and added credence to the attorneys' portrayal of the Bergers as the victims they indeed were, as "good Montana folks who deserve better treatment from the federal government than this". Now, let's have a look at cases where leafleting the jury was "not enough", and harmless people have gone to jail as a result. In the case of Bill Lord, everything went wrong. First, although it was indeed a "nullification case", where Lord actually did sell guns to an Hispanic woman, but was prosecuted for "willful ignorance" of the fact that her boyfriend would subsequently smuggle them into Mexico, no one showed up to leaflet at his trial. Secondly, Bill's attorney Paul Zimmerman didn't even know that FIJA had intended to leaflet, so even if some activists had been there, he would not have learned about their efforts unless he were given a leaflet, or the issue came up in court--and even then it would have been mighty short notice for him to try to dovetail his efforts with theirs. And according to Bill, he got a lousy bunch of jurors anyway, most of them apparently more worried about their next cigarette break and getting home for dinner than in doing the right thing. Then there was the case of Heidi Fleiss, the "Hollywood Madame" tried for pandering and sale of drugs. FIJA was definitely there, but with 60 courtrooms in the Los Angeles courthouse, and trials underway in most of them--including O.J. Simpson's--just reaching the right jurors may have proved too much for the small crew which showed up with the literature. All we know for sure, having not yet succeeded in reaching those jurors for interviews, is that they tried to effect their own form of nullification. Five have already admitted discussing the case out of court, in hopes of finding a way to slap her wrists, but not send her to jail. Not knowing that in California, conviction of pandering carries a mandatory jail sentence, the jury decided to find her not guilty on the drug charges, and "just" find her guilty of pandering. Jury forewoman Sheila Mitrowski poured out her misgivings on the Geraldo show when she found out about the sentencing. Now, the best Ms. Fleiss can hope for is another trial--and a fully informed jury! Again, however, the attorney did not know about the leafleting attempt, but did attempt a type of nullification defense, arguing that Heidi had been entrapped. Some of the jurors did come to the conclusion that the government had evidently infringed her rights (i.e., set her up) in order to gather evidence--as came out in news coverage about the jury's out-of-court attempt to match the punishment to the crime. So to that extent, he was apparently effective. Still, several who saw the Geraldo show called me to say that "if only these jurors had known that they could have judged the law itself...", but apparently they didn't. As with Bill Lord, the politics behind the arrest and prosecution of Heidi Fleiss were hot and heavy, but no one told the jury it could and should pay attention to such intrigue, nor did attorney Anthony Brooklier make much of it. Some sources say it's because he is also the attorney for a rival madam named Alex, who allegedly used her connections to have Heidi arrested in the first place, so he could hardly be expected to give Heidi's defense his best shot. But I digress. The point is that, for many of the reasons outlined in my hypotheses, plus a few more, the opportunity for acquittal via nullification in the Fleiss trial was lost. Another opportunity was lost in Atlanta, Georgia, but for entirely different reasons. I'm referring to the "Southern Lights" case, a hydroponics shop whose owners, Gary and Steve Tucker, and Gary's wife Joanne, were prosecuted for selling equipment which "could be used" to grow marijuana, although its usual use is to home-grow vegetables--by people who aren't happy with the unripe, chemically treated produce that most markets offer. The very effectiveness of the leafleting effort is apparently what caused the problem--so many potential jurors received the FIJA literature that Judge William O'Kelley sent federal marshals out, apparently with instructions to try to intimidate FIJA activist Harvey Wysong and others, then dismissed the entire jury pool, shut the courthouse down, and set a new trial date, complete with dire warnings against a repeat performance. At the next trial, FIJA and hemp legalization activists again distributed brochures, despite a court order against so doing, and the prosecutor was heard to shout "Judge, they're out there again--in force!" The judge questioned prospective jurors, "Do any of you know Harvey Wysong?", and disqualified any who said they did. The defendants were convicted, and received sentences of 10 to 16 years. Some have opined that they didn't curry sufficient sympathy among the jurors, but attorney Nancy Lord's best estimate is that once the judge found out there was no legal way to stop Harvey and company from leafleting, he did everything he could to tailor the case in favor of convicting, including putting pro-prosecution spins on his answers to questions from the jurors during their deliberations, and refusing to let Nancy call witnesses who would have undermined the credibility of the government by describing how their homes were raided for no reason, or that they'd been badgered and intimidated into implicating the Tuckers. Hopefully--for both the Tuckers and the fully informed jury effort--some of the judge's actions may serve as a basis for successful appeal. Without being able to give the jury evidence that the government had overstepped its legal bounds to get a conviction, it was impossible for Lord to give them a hook on which to hang a nullification verdict. Even more pathetic, if less highly publicized, was the conviction of Reverend Tom Brown of Our Church, based in Arkansas, on charges that he cultivated marijuana and peyote in violation of federal law. Brown ended up defending himself pro per, after dismissing each of a series of court-appointed attorneys who had been assigned to him, because none of them would argue the case his way. Brown, who'd actually told local authorities when, where, and why he was planting his crop, wanted his attorneys to ask the judge to disqualify himself because of some evidence Tom had obtained which could possibly implicate the judge himself in alleged illegal drug trafficking at the now-infamous Mena, Arkansas airport. None of them, of course, would do so. I attended his trial for two days, and did a fairly effective job of getting materials to the jury, leafleting them as they entered the courthouse. But I was surprised when Tom handed me a huge box of FIJA postcards the night before the trial--postcards that were already supposed to have been sent to all potential jurors by members of Tom's congregation. I stuffed them into mini-JPIK's and handed them out the first morning of the trial. Judge Franklin Waters denounced the mini-JPIK's in front of the jury as "loaded with half-truths and lies", and though Brown stood up to say he'd not seen them (true), and asked the judge to point out any factual problems in them, the judge ignored him. The judge did place the materials into evidence, and for awhile I wondered why Brown never brought them to the attention of the jury. Then I learned why. Brown's self-defense was a hopeless mixture of factual challenges and a half-hearted nullification effort, the latter based mostly on his contention that the Religious Freedom Act of 1993 protected him and his church from prosecution. But after the judge determined, in a pre-trial hearing, that his actions were not thus protected, and that Brown would not be allowed to argue "religious freedom" to the jury, Brown's defense went totally offensive, in both senses of the term. From then on, instead of defending himself as a harmless, well-meaning local citizen who was being victimized by an overbearing federal government (which might have flown in Arkansas), his major thrust was to try to implicate the government, to slip forbidden arguments to the jury that marijuana laws were designed to sustain high profits to a corrupt government drug monopoly, and were thus selectively applied only to small, harmless growers like himself. The prosecutor was amazingly tolerant of all this, patiently and politely objecting to each descent into sermon, each attempt to turn the trial into a political expose and/or debate. And the judge, equally patiently, sustained each objection, regularly admonishing Reverend Brown to discontinue preaching his gospel of unfair intrigue. But the jurors were not so tolerant. They grew visibly restless and, in my opinion, resentful. They were never convinced of Tom's good character, nor were they ever given good reason to, coming in nicely dressed every day only to be proselytized by a zealous, admitted lawbreaker complete with pony tail, hemp-legalization t-shirt and blue jeans. If they didn't start with a presumption of guilt, they soon acquired one. It didn't have to be that way. Despite the fact that the FIJA postcards were never mailed to the venire panel, the jury may well have been sufficiently educated by leafleting (and by the judge's reaction) to have applied its power--if only it had been given sufficient reason to do so. But the nullification concept was never reinforced by an attorney, nor ever mentioned again by the defendant. It just went begging, wounded by a hostile judge, and abandoned by a self-defendant who put practically no energy into ingratiating himself to the jury, showed no humility, and provided no reason why "he deserved better" than to be convicted. Instead, Tom tried to get the jurors to adopt his zealous disdain for "the system", tried to convert them, as though they were a congregation, there because they wanted to be, anxious to learn about and correct errors in their way of thinking. Wrong. None of them had come there to be told what to think. The most that Tom could have hoped for, from a random selection of ordinary citizens, was sympathy, but he never gave them reason to be sympathetic. Seeing how it was going, at the end of the first day I urged Tom to skip the conspiracy theory, bag the paranoia, and admit that he had grown the plants. Then, in closing, he could probably get away with saying that he didn't learn until the day before his trial that the government was not going to accept his sincere belief that his actions were protected as free expression of religion--and end by asking the jury to give him "another chance" by acquitting him. Specifically, I encouraged him to say to the jury "Look, I'm not going to argue about the evidence. I told the authorities what I was up to, in good faith, and they did their job in good faith, too, when they arrested me. So, if I'm not going to contest the evidence, why did I ask for a jury trial? Why am I taking up your valuable time? Well, it's because I need your understanding. I'm placing myself at the mercy of the conscience of the community, vested in you, and I trust you to judge me in those terms." I even advised Tom, if acquittal didn't seem likely after making such an appeal, to motion the judge to instruct the jury on its power to find him guilty of a lesser included offense, and to explain each of those offenses to the jury. None of the above happened, and Reverend Tom Brown is now looking at several decades behind bars. This is sad, not only for him, but for the public good. Here was a case where acquittal could have done serious injury to an escalating disaster known as the War on Drugs. The point here is not to criticize Brown, nor any of the defendants in these and several other cases that have been lost despite the best efforts of FIJA activists and/or the defense attorneys and/or the defendants involved, because I can personally appreciate how hard it can be to think and act strategically when under extreme pressure. No, the point is that others of us can learn and profit from the kinds of mistakes that Tom Brown, along with many other defendants and jury-power activists, have made. By knowing what not to do, what doesn't work, and what the limits of a nullification defense are, we can find less tragic ways to test the hypotheses I've advanced here. In sum, by being realistic and strategic--paying attention to the kind of case at issue, working with instead of against an attorney, and appealing to public opinion instead of trying to reshape it--we can both line some of our darkest failures with silver, and greatly improve our chances for future success. Let's do it. ??