- The Washington Times - Monday, November 4, 2013

A group of illuminated signs that have popped up near D.C. Superior Court touting the rights of jury members to “nullify” a law they disagree with has sparked a debate over whether the sign is an expression of free speech or an improper attempt to tamper with the legal system.

The Montana-based Fully Informed Jury Association funded the signs, which read: “Good jurors nullify bad laws” and “You have the right to ‘hang’ the jury with your vote if you cannot agree with other jurors.”

The signs are strategically placed so prospective jurors arriving at the city’s downtown Judiciary Square and Archives Metro stops pass right by them as they report for duty, and that has prosecutors and judges worried about their possible impact on jury deliberations.

Jury nullification occurs when a jury acquits a defendant they believe to be guilty by nullifying one or more laws that they believe should not apply to the defendant. Jurors often exercise nullification when they either personally disagree with a law or feel that the punishment mandated by a law is too harsh. In general, jurors are not reminded by judges of their nullification powers.

Officials of the Fully Informed Jury Association, a nonprofit group, say their nationwide campaign is largely targeted at crimes without a direct victim, including gun possession cases and graffiti vandalism.

Mark Ochs, a lawyer with Tully Rinckey PLLC’s Professional Responsibility and Legal Ethics Group, said the debate between free speech and the jury nullification drive presents a tricky legal question.

“While an argument can be made that the entity paying for the billboard is doing nothing more than exercising its First Amendment right, an ethical issue could arise if [a] defense counsel were found to be financially supporting one of these not-for-profit groups for the purposes of aiding in the defense of a client,” Mr. Ochs said.

So far, this issue has not become a problem in courtrooms, he added.

Since the billboard was posted in September, federal prosecutors have worried that it might influence the outcome of their cases. Although jurors have been removed for potential bias during jury selection, local prosecutors in three separate cases in recent weeks have successfully convinced judges to ask potential jurors if they had seen the billboard.

Even if potential jurors have not seen the billboard, the signs still present a conundrum for prosecutors, as juror curiosity about the billboard could be piqued. Although he does not see it as a problem now, Mr. Ochs added, “I think it is something that is going to have to be addressed.”

The Fully Informed Jury Association, meanwhile, argues that its sole mission is to educate, not influence.

“FIJA does not advocate for or against any particular case. We do not ‘target’ cases,” said Kristen Tynan, the association’s national coordinator. “We generally educate about the traditional, legal authority of the jury to refuse to enforce unjust or unjustly applied laws in order to deliver a just verdict, such as in cases of victimless crimes.”

The billboard is part of an ongoing national campaign by the group to advance its campaign to educate all jurors in their rights and responsibilities, including nullification. Up until this point, most jury-nullification advocates have passed out fliers or posted placards, as opposed to taking out large billboard ads.

Last year, a federal judge dismissed a case brought against 80-year-old Julian P. Heicklen, a retired chemistry professor, for passing out brochures that advocated jury nullification outside Manhattan’s federal courthouse.

FIJA plans to later introduce billboards in other cities, including Chicago, Los Angeles and New York.

Association officials did not put a price tag on the Washington billboards, but did say on their website the groups raised the funds through donations of cash and the Internet currency Bitcoin. A fundraising drive for a comparable billboard campaign in Manhattan is seeking between $2,000 and $4,000.

The billboard isn’t the only message from a private group to the judicial system that has been in the news recently. Last Tuesday, civic, political and religious leaders rededicated a monument of the Ten Commandments at the Faith and Action headquarters across from the Supreme Court after vandals toppled the 850-pound granite tablet in September. The monument had been positioned so that the high court justices and clerks could see it on their way to and from work.

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