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A man was wrongfully arrested for standing outside a Bronx courthouse handing out flyers about jury nullification, the practice where juries render "not guilty" verdicts despite overwhelming evidence of guilt, a federal court confirmed last week.
Michael Picard, a civil libertarian activist, was taken into custody in late 2017 after police took issue with him passing out papers telling recipients to "Google Jury Nullification," as law enforcement alleged he was in violation of a New York law barring people from standing within 200 feet of a courthouse "calling for or demanding any specified action or determination by such court or jury" in connection with an ongoing case.
But Picard was not referencing a specific trial when he was arrested. He was referencing a general tactic he sees as a bulwark against government overreach. "There are unjust laws," he says. "This is a tool that a jury or a juror can use to express their disagreement with [those] law[s]."
Put differently, Picard was not trying to sway a jury panel to vote one way or the other in finding a particular defendant guilty of, say, murder, which most people would agree is not an unjust law and should be adjudicated based on the facts at hand. He was simply exercising his right to tell the public about a tactic that can be vital to preserving liberty and pushing back against prosecutorial zealotry. So, in arresting and booking him for promoting the general concept of jury nullification, the state violated the First Amendment, according to the U.S. Court of Appeals for the 2nd Circuit.
"An injunction prohibiting the application of NYPL § 215.50(7) in the circumstances presented by Picard's case—in which a single individual advocated for what he contends are the correct principles of the legal system," wrote Judge Gerard E. Lynch, "unconnected to any specific trial and effected through non-intrusive and non-disruptive leafletting rather than more aggressive, disruptive, or targeted forms of communication— would suffice to vindicate Picard's First Amendment right to advocate his point of view regarding jury nullification and to engage in the conduct in which he has engaged in the past and intends to continue in the future."
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