To view this email online, paste this link into your browser:
[link removed]





Three Link Thursday!

Hello John,

Today is my 51st birthday, and as it falls on a Thursday, I wanted to use this milestone as a chance to revive Three Link Thursday emails!

I would say the most exciting news is that Supreme Court Justice Elena Kagan seemed to suggest during oral arguments in a recent case that jury nullification is a right (not merely a power as many in the courts try to suggest).  

1

Sentencing for Acquitted Conduct ([link removed])

If you have been acquitted of a criminal charge, you cannot be punished for it. Right? Right???

You might be surprised to find out that is not, in practice, the case. If a jury finds you guilty of some but not all charges against you, but the judge thinks you were ALSO guilty of some of the charges for which you were found not guilty, the judge may use their opinion about the conduct of which you were acquitted to "enhance" your sentence for the other charges.

Take a minute if you need to in order to process that, but I assure you it is true.

While juries' not guilty verdicts can easily be circumvented with sentencing enhancements, our right to show mercy via jury nullificaiton is being undermined.

It seems a very blatantly unconstitutional and unjust practice. The Supreme Court knows it, Congress knows it, and the U.S. Sentencing Commission knows it. But they have been taking their sweet time fixing it. 

As Reason's C.J. Ciamarella reports, at the moment the Sentencing Commission seems the most likely to act:

Sentencing Commission Again Proposes Restricting Judges ([link removed])

2

McElrath v. Georgia ([link removed])

Recently a Supreme Court case with the potential to dramatically undermine in yet a new way our right to show mercy via jury nullification showed up on my radar. The state of Georgia is asking the Court to invent a loophole to the prohibition against double jeopardy when a jury returns mixed not guilty and guilty verdicts that don't seem consistent.

In the case at hand, jurors found defendant Damian McElrath not guilty by reason of insanity on the most serious charge of malice murder but guilty on a less serious charge of causing a death in the commission of a felony. Georgia wants both the acquittal and conviction thrown out so it can have a second chance to get the more serious conviction.

Thankfully, from oral arguments it looks like the Court may not be too friendly to this idea. Indeed, none other than Elena Kagan seems to have acknowledged jury nullification as a right, if not in so many words!

As Ronald Mann of SCOTUSblog reports, during oral arguments Kagan commented on the case that “[o]ne possibility is that the jury made a humdinger of a mistake. And another possibility is that the jury made no mistake at all but instead decided to compromise something out or decided to show leniency of a kind that it is within the right of a jury to show." (emphasis added by me)

Read his full article on the case here:

Justices skeptical that double jeopardy clause allows retrial based on inconsistent verdict of acquittal ([link removed])

3My 51st Birthday Fundraiser ([link removed])

Today is my 51st birthday! I am writing this as I take a break from working today on getting the calendars into the mail. But I will be celebrating this evening with tamales at one of my favorite Mexican restaurants just a short way from my house. It's a good incentive to get the day's work done as soon as I can!

This year after Facebook changed everything around again, I completely gave up trying to use their fundraising tools. One of those tools was birthday fundraisers. Fortunately, we already had a backup in the works. No reason we couldn't do that on the FIJA website, though, and we can share the link much more widely! 

Based on your kind support last year, I set the goal at $1500. Although this started a bit later than I usually do, just the folks on Facebook have gotten us 27% of the way to the birthday goal! And FIJA is 85% of the way to making our overall fundraising goal for all of 2023. This would go a good ways toward closing that last little gap.

If you would like to help me celebrate my 51st birthday this year by supporting the Fully Informed Jury Association, please feel free to make your donation at the link below. THANK YOU!

My 51st Birthday Fundraiser ([link removed])

(If you would like to host a birthday fundraiser on the FIJA website next year, please email me a month in advance of your birthday. We'll work together to set up a personalized campaign on the FIJA website, and I'll share with you some helpful hints for sharing it around.)

And with that, I will wrap up this edition of Three Link Thursday. Happy holidays to you all during this festive season, and if you are a FIJA donor, be on the lookout for your calendar to arrive in the coming days!

For Liberty, Justice, and Peace in Our Lifetimes,

Executive Director

Fully Informed Jury Association





P.O. Box 39 | Corvallis, MT 59828 US

This email was sent to [email protected].
To ensure that you continue receiving our emails,
please add us to your address book or safe list.

manage your preferences ([link removed])
opt out ([link removed]) using TrueRemove(r).

Got this as a forward? Sign up ([link removed]) to receive our future emails.