Though it was not the 1st Circuit, which includes New Hampshire, the Federal 2nd Circuit Court of Appeals recently ruled that a New York man was wrongfully arrested for his Jury Nullification outreach. Reason.com has the story. Explaining or advocating the right of Jury Nullification is not “jury tampering” as it does not advocate one way or another how a jury is to respond to any specific criminal case.
This has never been an issue here, as no activist advocating Jury Nullification has ever been arrested in New Hampshire. That said, the ruling is still worth noting.
Last week, in Concord, the senate judiciary committee heard HB 133 which would require judges to read the following jury instructions, if requested by the defendant:
If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.
Rick Naya, NH Hempfest Organizer and State Rep Joe Lachance
The Attorney General’s office in New Hampshire has released a report regarding their investigation of claims that former state representative Kyle Tasker had sold cannabis at the NH state house in Concord, to other state representatives. Several liberty-oriented state reps including Amanda Bouldin, Joe Lachance, Pam Tucker, Ted Wright, and the late Shem Kellogg were all investigated by the AG’s office but none will be charged.
Jury nullification is the long-held right of jurors to vote their conscience, regardless of what the law says and the facts in the case are. Though Lachance clearly broke the law, each juror has the right to acquit simply because they believe the law is bad. It’s a powerful right and courts around the country as well as the federal courts will do everything they can to keep jurors from knowing about it. However, here in New Hampshire is established court precedent that not only can jury nullification information be given to jurors outside the court, but even defendants and attorneys can explain nullification during trial!
NH Jury Rights
The NH attorney general doesn’t like jury nullification, as it’s a threat to their power. They appear however to have realized that the changing political tides regarding cannabis legalization plus jurors’ awareness of nullification would likely mean they were wasting their time prosecuting Lachance. They also say in the report that a jury would likely reject “dry conspiracy” charges for Tasker as well (who is facing various felonies for other victimless crimes) and say his other charges will suffice to, “hold him accountable for his drug crimes”. Of course, there are no victims in those “drug crimes” which include possession and sale of cannabis, MDMA, and mushrooms and so Tasker should also not be charged with them, and neither should anyone else.
That’s really the question here – if the NH AG acknowledges that cannabis charges are likely to not pass a jury due to nullification, then why don’t they treat every person caught with cannabis the same way they did the state reps? The reason is they know most people will quietly take a plea deal and further, if they don’t take the deal, they can drop the charge to a class B misdemeanor which means the defendant can’t get a jury trial, virtually guaranteeing a guilty verdict and hundreds of dollars (per victim) flowing to the state’s coffers. Cannabis prohibition means big money for the state gang, so they’ll keep charging the little people until the law is changed. Hopefully that will happen in 2017 if the new governor doesn’t stand in the way, whoever it ends up being.
NH Jury activists gathered this morning outside Cheshire superior court in Keene to perform jury outreach prior to jury selection for the trial of James Cleaveland which begins tomorrow morning (Tuesday 12/15) at 9am.
James is facing two “Class A” misdemeanor charges with a possibility of up to two years in prison for being arrested while recording video of police at the scene of a suicidal man in the summer of 2014. The charges are “disorderly conduct” (the state’s favorite catch-all charge) and “resisting arrest”.
James has already had a bench trial at Keene district court, the video of which can be seen here, and was found guilty. District court judge Edward J Burke sentenced him to 1.5 years in jail, suspended, plus a $625 fine. After sentencing, James opted for his right to a jury trial “de novo”, which means, “from the beginning”. So now, not quite a year later, he is being given that trial.
This morning was jury selection. Nearly all of the jury pool of about 58 people had received the NH Jury trifold last month. (In Cheshire county, petit juries are empaneled for two months.) Usually the jury outreach process involves handing out flyers and opening the door for folks, but in addition today it included activists holding signs featuring phrases like, “2 Years 4 Filming?”, and “Filming the police is not a crime!”
More activists are expected to be on-the-scene tomorrow morning at 8am for further sign-holding, with the trial starting at 9am and expected to last two days. If you can’t make it in person, live tweets will be available at FreeKeene.com and later the full video will also be posted to Free Keene.