Rare News Desk
Kurt Wallace for Rare: There’s a growing movement in America that encourages people to serve jury duty and to understand the power of jury nullification. What is jury nullification? It’s when a jury nullifies a law they consider unjust or incorrect, in said case either immoral or wrongly applied to the defendant. In the past it’s been used for the Alien and Sedition Acts, the Fugitive Slave Acts and Prohibition.
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Here to discuss is Ben Swann with JustUs — a collaboration of grassroots and media, encouraging the practice of jury nullification. And Ben, it’s great to have you with us.
Ben Swann: Hey Kurt, thanks for having me on.
Kurt Wallace for Rare: Well, Ben, tell us a little bit about what you guys are trying to do with JustUs?
Ben Swann: So the idea, here, is we kind of pull together a coalition apart from NewMedia, myself, Josh Tolan, Luke Rawzoski, Angela Keaton, Bob Murphy, Joby Weeks, Jordan Paige, Tatiana Murrows, Jeff Berwick, so a number of people here. And what we’re trying to do is really draw attention to this idea of the power that a jury has, and really, on two levels, okay? The first level is the trial jury, where a juror has the power to not only judge the facts of a case but also can change the law itself: That, according to John Jay, the first Chief Justice of the Supreme Court. The Supreme Court in 1789 talked about the specifically jurors, saying they have this, not just ability, but they have the authority and they have the obligation to judge not just the facts of the case but the law itself. But also, on the level of the grand jury, and that’s the other place that we’re very interested in talking about this. It’s that, you know, a lot of folks don’t realize the power that a grand jury has and the importance they have, in deciding whether or not certain charges are even levied against someone.
Kurt Wallace for Rare: Let’s explain what the difference is between a jury and a grand jury.
Ben Swann: Sure. So, a trial jury is obviously what you can see on Law and Order, right? If you’re watching one of those shows, you see, you know, someone who’s essentially as part of a criminal or civil trial — they’re essentially being tried on charges, whatever they might be, so drug possession — you know, murder, rape, whatever it is, and so the jury will hear that case when it goes to trial and judge the facts of the case. But a grand jury essentially decides whether or not an individual will be indicted on charges, meaning that a sheriff’s department or a police department in conjunction with the bishop attorney’s office can charge someone with a crime. But whether or not those charges make it to trial is up to a grand jury. So, a grand jury essentially will decide whether or not the person who is being charged, there is enough evidence against them to actually take the case to trial. So it’s almost like the pretrial, if you will, of someone. And so a grand jury actually has the ability to do something that I think is very important, because one thing that we’re actually seeing across the country, Kurt, is this issue of prosecutors who will take charges against someone. And they’ll just keep piling on more and more and more charges. And in many cases, they are almost creating trumped up charges in order to force the person who’s being charged to take a plea deal. Now we see this happen all the time. And many people are aware that this happened. It’s hardly, you know, shocking to people — they hear me say that. But what we want to do is say, look, as a juror, you have the ability to stop that from happening, because what we see are prosecutors who will bring so many charges and so many kind of trumped up charges that the threat of someone going to prison, for twenty or thirty or life in prison — twenty, or even thirty years or life in prison– scares them into taking a plea deal instead of having their day in court and forcing the prosecutor to argue the case and so more and more we’re seeing the chief of strategy. And jury nullification is the great opportunity for the juror to intervene and say wait a minute, wait a minute, we’re not going to let you just trump up charges against someone. If they’ve committed a crime and charged them with a crime they’d say that have committed, take them to trial and prove that they committed this crime but don’t try to add on all of these other additional charges in order to frighten them into taking a plea deal.
Kurt Wallace for Rare: Let’s talk about examples of jury nullification in recent history. I named some in the past; prohibition being one might be something that has been used recently. There was an op-ed in the New York Times talking about the importance of jurors needing to know that they can say no, referring to the marijuana issue which has become a prominent issue in America. Any specific jury nullification cases that you can point to that are important?
Ben Swann: There’s a couple of things that I think, you mentioned, about you know, in the past, the Fugitive Slave Act. There have been a number of cases where we have seen — and by the way — it’s been misused in a number of cases, as well. So, you have very positive things like the Fugitive Slave Act where juries have used that nullification. But you also have cases in the South where you would have lynchings of black Americans and the jury would nullify, well — we would see the victim as the crime — but we think the law as a bad law, so we’re going to nullify. And the reason that I bring this up…and the point being, there is — jury nullification is a tool, and it could be used in terrible ways and it could be used to rob people of justice, but it can be used in correct ways and rightful ways and be a tool to bring justice. And so, I’ll give you a couple of examples in our modern time of where jury nullification can be especially effective. You mentioned the case of marijuana. So, if you have someone who is charged with having a narcotic in their home, they’re charged with having their kids around narcotics, but, you know, the drugs were actually nowhere actually near the children. There was no one injured as a result of this. It’s someone caught with, you know, a baggy in their pocket. And so, again as I mentioned, in the grand jury scheme of things, lots of charges are added on, you have the ability to say, listen, if there’s no victim, there’s no crime. No one’s been harmed by this; I’m not going to find this person guilty, committing the crime that’s going to ultimately land them in prison. I don’t believe that’s worthy of that. But I’ll give you another example. So, you have all these young people, right, these, you know, teenage girls who snap selfies of themselves, and sometimes they do it in their underwear and sometimes they’re not wearing anything. And so some girl who’s, you know, fifteen, sixteen years old will send this picture to her friends or to her boyfriend, whoever. So, we have cases where those teenagers are charged with possession of and distribution of child pornography. And as a result of that, a lot of times these teens are not only being charged, but ultimately, when they are found guilty, they’re being forced to register as sex offenders for the rest of their lives. Now, you’re telling me that — whether you agree or disagree — with the poor choice that a young woman makes or some teenage boy makes in receiving this picture and sharing it with his friends. The poor choice they make — should that result in them being labeled a sex offender, which automatically carries the, you know, connotation of being a child molester with them for the rest of their lives? And so jury nullification works in that a juror could say, look, you know, media says all the time, well, there’s nothing we can do about this, this is the unintended consequences of the law. But that’s not true. A juror has the ability to say, “Listen, I may not like the decision they made, but the law stinks when it requires them to register as a sex offender. They’re not a sex offender. So, I’m going to nullify the law.” And that’s a great example of how, you know, we can restore common sense to the judicial system but right now it seems to be lacking in a lot of areas.
Kurt Wallace for Rare: Now, when a jury does attempt to do jury nullification, there are cases where the judge may want to punish the jury. They want to overturn what the jury has done. Can you speak to that?
Ben Swann: Yeah, and there was a case where I believe the jury was held in jail for 18 days, because they nullified, and the judge kept them in there and wanted them to change their decision and ultimately they wouldn’t and they won out in that. But, you’re right, there are judges who absolutely refused to accept the idea of jury nullification, because they don’t believe that the jury has that power, even though clearly, again, and I want to encourage your listeners, Kurt, to go to FIJA.org, because they have a lot of great information. They have been working on this project, I think since the mid ‘90s, and so they are way ahead of me on that. And this is not about me being the expert on this issue — I’m just trying to use whatever voice I have to promote it. So, go with the guys who are experts like FIJA — they have a lot of great, great information there, but what I would say is there are, you know, judges that don’t believe that you should have that right as a juror and will work very hard to take that right from you or to frighten you away from it. And the fact is you don’t have to…you don’t have to declare as a juror why you are nullifying. You don’t have to say, “I’m going to judge not just the facts of the case, but I’m judging the law and I nullify.” You never have to say those words. But you have the power to do so. You have the power to say, “I find this person not guilty, because of the fact that I believe that I believe this is a bad law.” But you don’t have to justify that to any judge — you don’t have to justify that to other jurors.
Kurt Wallace for Rare: There was a case in Texas recently where a judge got very upset with the jurors, thinking and accusing them of jury nullification in a DWI case. But actually the jury was concerned about the results of the test that was conducted on the defendant. And that’s why they let him go, but it created a big stir. This doesn’t necessarily have to apply to a specific law; it can apply to certain evidence in the case and that would appear to be jury nullification.
Ben Swann: Yeah, absolutely. It can appear that way. Look, my guess is that over the next couple of years — what we’re going to see happen is a huge pushback, especially from judges who really don’t like this idea of prosecutors, who don’t like the idea…who are really going to fight it on a lot of levels and so, I think, the key to that is, again, is that you don’t have to show all your cards, and as a juror, you have the most power in the court room. The judge does not. You actually do. You are there as a citizen who has the ability to hear and judge the facts of the case. And so, what I would really, you know, push to people is that you don’t have to make it clear what you’re contained to do. You’re there to listen to the facts of the case. You’re there to judge what you’re hearing. But you don’t have to fall into this cookie cutter response of, you know, all crimes must be treated the same way — if the law was written this way, then you must adhere to it. You actually, as the sovereign individual, have the power to override that. And that’s where the power is.
Kurt Wallace for Rare: Ben Swann, we appreciate you spending some times with us on Rare. And if people want to go to your website for JustUs, where would they go?
Ben Swann: Yeah, so you would go to BenSwann.com/Justus, and you can find a lot of information there that we’ve put up. And we’re building up some things right now. We’ve had a great response from this. And folks who really want to get involved with it and help us to build it out into a much bigger campaign. So, we’re working through that right now. But right now you can get some good information there. You can also sign up for our newsletter there. In addition, you can check us out on Facebook; we’re establishing a Facebook page here. And it is JUST US Jury Nullification on Facebook. That’s where you can find us there. And you can like the page and learn more about it.
