In a series of retrospectives on 1968, NPR reports on a sort of jury nullification that took place in Long Island and created a pre-Stonewall victory for gay rights and sexual freedom. In the summers, gay men would come out from New York City and elsewhere for sunbathing, house parties, and in some cases anonymous sex in a wooded area between the towns of Cherry Grove and Fire Island Pines. And some were arrested, fined, or even imprisoned. Then in 1968 some decided to fight back and hired a lawyer willing to fight for them:
In the autumn of 1968, close to two dozen gay men were acquitted of consensual sodomy charges in a series of criminal trials on Long Island. The trials and acquittals marked a pivotal moment in what eventually became the gay rights movement. They demonstrated to the larger gay community — then mainly closeted — that gay people could band together to resist police harassment....
In late August, 1968, police arrested 27 men in Cherry Grove. A few pleaded guilty to consensual sodomy and payed a fine of $250. But 22 men fought the charges in court.
Benedict Vuturo, a prominent Long Island criminal defense lawyer, was retained by the Mattachine Society. In the fall of 1968 Benny Vuturo, as he was known, demanded jury trials for all of the gay men he was defending.
"Benny said there's terrible crimes on the mainland of Long Island, murders and rapes, and here the cops go and they beat the bushes and try to find these gay fellas who are not harming anyone," said reporter Karl Grossman, who covered some of the trials for the Long Island Press.
"The juries, one after another, concurred, and they found the defendants not guilty, not guilty, not guilty. And that was the end of the police raids on Fire Island. To me, it really was a testament to the common sense of eastern Long Island residents who served on those juries, and to the jury system."
Vuturo was hoping to lose one of the trials so he could challenge New York's sodomy law but he won every case.
The state's sodomy law was overturned in 1980, 12 years after the Fire Island trials.
There wasn't much doubt that the men had been doing what the law prohibited. Yet Long Island juries found them not guilty. That's a phenomenon often called jury nullification, defined by the Legal Information Institute as "A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness." Read more about jury nullification in this Cato Institute book and in a Wall Street Journal article discussed here. It won't surprise you to hear that judges and prosecutors don't want juries to know their rights. I wrote about Stonewall here.
It turns out that NBC News covered the 1968 Fire Island story four months ago.
From the Washington Times:
Jury nullification is rarely discussed by lawyers at the bar, either the courtroom bar or the bar on the corner, but jury nullification has been with us since the time of the Founding Fathers. Alexander Hamilton wrote in the Federalist Papers that trial by jury is the “very palladium of free government,” serving as a check against “arbitrary methods of prosecuting pretended offenses” that are the “engines of judicial despotism.” There’s no better example than juries nullifying the effects of the Fugitive Slave Act of 1850, which required that slaves captured in free states be captured and returned in chains to their owners. Juries often preserved the freedom of these slaves by refusing to convict runaway slaves....
Jury-nullification activists in New Jersey and Florida have paid for their advocacy of jury rights. Several have been arrested and charged with “jury tampering” for distributing handbills at the courthouse that essentially publish the text of the New Hampshire law. This demonstrates clearly the responsibility of juries to serve as a check against judges and prosecutors who may think they’re the last word in all matters of the law. Respect for the law and the courts is necessary for the good of all in a free society, and sometimes, as the number of frivolous and oppressive laws multiply, a little nullification can be a tonic, and a reminder to the lawyers, including judges, of who’s really the boss.
Cato is set to republish our book, Jury Nullification: The Evolution of a Doctrine soon.
One story lost in all the Obamacare coverage last week, was the new law concerning jury nullification in New Hampshire. In a post over at our police misconduct site, I try to explain what impact that new law will have in the New Hampshire courts.
Yesterday, Federal Judge Kimba Wood dismissed the jury "tampering" indictment against a peaceful jury nullification advocate. Julian Heicklen, an 80-year-old retired chemistry professor, had been indicted for standing outside a Manhattan federal courthouse handing out pamphlets explaining the legal theory that jurors who disagree with a law may acquit a defendant accused of violating that law.
Whew! It's safe to hand out pamphlets again.
Rachel Barkow, law professor at New York University, says, "I don't think sensible prosecutors should have even brought this case." Right, but since this case was publicized, we know there's no sensible supervision of these prosecutors either---so the problem is deeper.
Previous coverage here.
Federal prosecutors told a federal judge that they're prosecuting an elderly man because his actions constitute a " significant threat" to the legal system.
Guess what he did?
(a) He smuggled stolen FBI documents to a suspected Al-qaeda prisoner in the NY jail.
(b) He attended court hearings and made belligerent outbursts.
(c) He wrote nasty letters to prosecutors and judges accusing them of corruption.
Actually, all he did was distribute pamphlets outside the courthouse. And in the view of federal attorneys, if such pamphlets express an opinion, or quote our second president saying jurors can and should vote according to their conscience, then the distributor must be arrested and jailed---at least if he gets too close to the courthouse.
Previous coverage here.
This month's Wisconsin Lawyer has an article entitled "Nullification: A Jury's 'Secret' Power," by Erik R. Guenther. Here is an excerpt:
When “[t]he purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge,”should the jury be kept in the dark about its fundamental power to decide the justness of the law as applied in a particular case? Should the power remain a secret (which is referred to only by a pejorative – nullification) rather than be acknowledged as an inherent, appropriate, and recognized part of the jury function?
Federal prosecutors are pressing their case against Julian Heicklen, the elderly man who distributed pamphlets about jury nullification. A lot of things are said about jury nullification and much of it is inaccurate. But whatever one's view happens to be on that subject, I would have thought that the idea of talking about (and that includes advocating) jury nullification would be a fairly simple matter of free speech. We now know that the feds see the matter very differently. (FWIW, my own view is that in criminal cases jury nullification is part and parcel of what a jury trial is all about.)
In response to Julian Heicklen's motion to dismiss his indictment on First Amendment grounds, federal attorneys have filed a response with the court. Here is the federal government's position: "[T]he defendant's advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred" [emphasis added]. This is really astonishing. A talk radio host is subject to arrest for saying something like, "Let me tell you all what I think. Jurors should vote their conscience!" Newspaper columnists and bloggers subject to arrest too?
If Heicklen had been distributing flyers that said, "I Love Prosecutors. Criminals Have No Rights!" there would not have been any "investigation" and tape recording from an undercover agent. Any complaint lodged by a public defender would have been scoffed at.
First Amendment experts will know more than I about the significance of the "plaza" outside the courthouse and whether or not that's a public forum under Supreme Court precedents. The feds make much of the fact that the plaza is government property. Well, so is the Washington mall, but protesters have been seen there from time to time. The plaza, however, is not the key issue. Activists like Heicklen would simply move 10-20 yards further away (whatever the situation may be) and the prosecutors seem determined to harass them all the way back into their homes, and even there if they blog, send an email, post a comment on a web site, text, tweet, or use a phone to communicate with others. After all, so many people are potential jurors.
Judges and prosecutors already take steps to exclude persons who know about jury nullification from actual service. And the standard set of jury instructions says that jurors must "apply the law in the case whether they like it or not." But the prosecution of Heicklen shows that the government wants to expand its power far beyond the courthouse and outlaw pamphleteering and speech on a controversial subject. Once again the government is trying to go over, around, and right through the Constitution.
For previous coverage and additional info, go here, here, and here.