Great news from New Jersey! I mean REALLY GREAT!


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Three Link Thursday!

Good evening John,

I am a bad news first/good news last kinda gal, and this week I am happy to report that we actually have some VERY good news! I have organized this Thursday's three links in order of my preference, but feel free to read them in the order that best suits your preference! :-)

1

Orleans County, Vermont has yet to resume trial by jury AT ALL—and is out of half-baked excuses. ([link removed])

As I said last week, I cannot repeat this too much:

Without trial by jury, there is no jury nullification!

Last week I linked to a lawsuit over hundreds of speedy trial violations—many involving people stuck in indefinite, pretrial detention—in San Francisco. This week I point you to Orleans County, Vermont where people have been stuck in indefinite, pretrial detention since before the pandemic started and even the prosecutor is clamoring for the court to restart trials by jury.

Unlike most other courts around the country, this court shut down trials by jury for the pandemic—BUT HAS NEVER RESUMED THEM EVEN BRIEFLY.

The court has had months to correct HVAC system problems that are allegedly not permitting jury trials or find alternative locations to hold them. There does not seem to be any progress on either of those things, despite several suggestions from the prosecutor. Money doesn't seem to be the showstopper here as the Vermont judiciary received $7.3 million in COVID-emergency funds and has been able to spare $60,000 of it on a public relations firm. The court doesn't seem to think that masking, plexiglass, social distancing, and being in the most heavily vaccinated state in the nation are sufficient for getting trials by jury going again here.

So I would like to know what is the endgame supposed to be here, in the view of the court? If none of those things is sufficient for them to resume trials by jury, WHAT WOULD BE? Because I'll tell you it is starting to look to me suspiciously like this is the court testing the waters to see if it can get away with canceling trial by jury altogether.

2

Register for the October-December ([link removed])15 Minutes with FIJA ([link removed])Zoom sessions. ([link removed]) 

You are invited to join us on Zoom most Monday evenings for a brief weekly update on the latest jury-related news such as new jury nullification cases on my radar, court rulings that help or harm prospects for fully informed juries, the status of trial by jury during the pandemic, legislation regarding trial by jury, etc. Each week I also aim to highlight one FIJA project, resource, activity, etc. to keep you updated on how to get involved.

We start on time, pack that 15 minutes with information, and then you can be on your way. Optionally, you can stick around for another 15 minutes for a quick Q&A session afterward.

So that we do not bother people with email they no longer want, we register participants once each quarter and stop emailing the previous registration list. To participate or continue participating through the end of the year, click the link above and get signed up!

3

Great news from New Jersey! ([link removed])

A big win this week in the New Jersey Supreme Court regarding sentencing on acquitted conduct!

What is sentencing on acquitted conduct, and what does it have to do with jury nullification? Here's the skinny: Let us say the jury acquits the accused of 9 charges but convicts them of 1 minor charge. The judge in this case, however, disagrees with the jury's conclusion on the 9 charges. Most people would assume that the judge's hands are tied—that the person can be punished ONLY for the 1 minor charge.

Wrong! It turns out that judges have significant leeway to "enhance" sentences based on conduct other than just the charge itself. In federal courts and more than half of all state court systems, judges can enhance sentences for those charges on which the accused is convicted based on the conduct of which the jury specifically said the accused is NOT GUILTY.

And it's not just limited to charges from the same trial. Judges can look back in the convicted person's criminal history for any conduct that would legally be considered relevant—and count even acquitted conduct from other trials against them to sentence the more harshly.

This means that if a jury exercises conscientious acquittal by jury nullification on some but not all charges in a trial—say they thought the person deserved some punishment but not nearly as much as was at stake—the judge can essenially nullify their verdicts by enhancing the sentence on whatever charges the accused was convicted of based on the acquitted conduct. Or if a previous jury acquitted the accused of all charges, if the judge in the current trial decides it is relevant conduct in this case, the judge can de facto nullify the previous jury's verdict by punishing more harshly in the current trial.

Despite it being obviously unconstitutional, so far this scheme has basically been given a pass by appeals courts... until now! New Jersey is the first state I am aware of to correct this problem—and their supreme court did so with a resounding unanimous verdict! 

I will leave you on that high note for today, and I hope you all are headed into a wonderful weekend!

For Liberty, Justice, and Peace in Our Lifetimes,

Executive Director
Fully Informed Jury Association





P.O. Box 5570 | Helena, MT 59858 US

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