Man arrested for encouraging jury nullification wins federal trial

A man has been wrongfully arrested for standing outside a Bronx courthouse handing out flyers about jury nullification, the practice in which juries return “not guilty” verdicts despite overwhelming evidence of guilt, a federal court upheld last week.

Michael Picard, a civil liberties activist, was arrested in late 2017 after police disputed that he was distributing papers telling recipients of “Google Jury Nullification” because law enforcement alleged he had violated a New York law prohibiting people from standing within 200 feet of a courthouse “calling for or demanding any action or decision specified by such court or jury” in connection with a pending case.

But Picard was not referring to a specific trial when he was arrested. He was referring to a general tactic that he sees as a bulwark against government excesses. “There are unjust laws,” he says. “It is a tool that a jury or juror can use to express their disagreement with [those] right[s].”

In other words, Picard was not trying to influence a jury to vote one way or the other by finding a particular defendant guilty of, say, murder, which most people would agree not be an unjust law and should be judged based on the facts at hand. He was simply exercising his right to speak to the public about a tactic that can be vital to preserving liberty and fending off prosecutorial fanaticism. Thus, by arresting and convicting him for promoting the broad concept of jury nullification, the state violated the First Amendment, according to the United States Court of Appeals for the 2nd Circuit.

“An injunction barring the application of NYPL § 215.50(7) in the circumstances presented by the Picard case – in which a single individual defended what he claims to be the correct principles of the legal system,” Judge Gerard wrote. E. Lynch, “unrelated to a specific lawsuit and carried out through non-intrusive, non-disruptive tracts rather than more aggressive, disruptive, or targeted forms of communication – would suffice to justify Picard’s First Amendment right to defend his views regarding jury nullification and to engage in the conduct in which it has engaged in the past and intends to continue in the future.”

Jury nullification has been the subject of heated debate among lawyers and jurists. Such brouhaha concluded in December 2019 after a federal judge was reprimanded by a split 2nd Circuit — the same court that heard Picard’s case — for telling prosecutors and a group of lawyers to the defense that a particular case before him “called[ed] for annulment by the jury.”

In that case, the federal government locked in “child pornography” charges against a 31-year-old man who filmed his sexual encounter with a 15-year-old Connecticut girl. The clip remained private. But because the video equipment was manufactured outside the state of Connecticut, federal prosecutors used this loophole to add the pornography charges – with a mandatory 20-year minimum – on top of the statutory rape case of the state. “I am absolutely amazed that this case…has been brought by the government,” Judge Stefan Underhill told the court.

However, the gist of the decision in the Picard case is that the New York law in question is not unconstitutional on its face—a departure from the conclusion reached by the court below. “The state would clearly have a compelling interest, for example, in prohibiting demonstrations outside a courthouse featuring amplified appeals to jurors to reach a particular verdict in a trial pending in that courthouse that are audible inside the courtroom,” Lynch wrote.

That may be fair enough. But a dissenting judge points out a fairly obvious problem with the conclusion: what did this decision actually rule on? What exactly is constitutional now that was not before?

“It is unclear from the language of the majority what constitutes ‘Picard’s conduct in this matter.’ Is the conduct exactly what Picard was doing when he was arrested – holding the same sign and handing out the same literature, or utter words or distribute publications advocating jury nullification, or utter words or distribute publications outside a palace of Justice?” asks Judge Jon O. Newman. “As to location, is the line standing exactly where Picard was standing when he was arrested, or any location within 200 feet of the courthouse near which he was arrested, or at any location within 200 feet of any New York State courthouse?”

Picard says he will return to his advocacy now that the case is over, although it remains to be seen how the government will respond to the above questions.

About Adam Gray

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