Malheur v. DAPL: Jury Nullification or Prosecutor Overreach?

Steve Russell

Ammon and Ryan Bundy, sons of the man who set up the Second Amendment right to go armed as a defense to failure to pay 20 years of grazing fees, have walked away from conspiracy and weapons charges after a very public armed takeover of a bird sanctuary. How could this be?

It’s a clinic on why people who were not in the jury box should be modest with criticism of jury verdicts. It could be a case of jury nullification or it could be a correct application of the law to the facts. The same thing will happen when the Water Protectors in North Dakota go on trial.

Political cases bring hard choices to prosecutors and to jurors.

Prosecutors have splendid tools like conspiracy, usually defined as an agreement to commit an illegal act with an overt act (even if not criminal in itself) in furtherance of the conspiracy.

In this case, the illegal act was keeping the federal employees at Malheur Wildlife Refuge from doing their jobs by threat.

At least one occupier testified that if park rangers had come to work the armed mob would have stepped aside and let them work. This does not jibe very well with some of the actions the occupiers reportedly took with the federal machinery and ongoing projects, but we don’t know how much of what was reported got to the jury.

If the occupiers used the weapons in commission of a crime, that could cost them five years in the Club Fed. If they simply possessed the weapons, then only one year.

If there was no conspiracy, there was no five-year possession case. If the jury was not instructed on “lesser included offense,” then it could not consider the one-year possession case.

I understand, dear readers, that you find the theory that the law was applied correctly to the facts unlikely. I agree, but unless we were in the jury box, we should go easy on those who were.

Just as prosecutors have the discretion not to charge guilty people, juries have the power not to convict guilty people.

At the disreputable end of our legal history, all white juries routinely turned loose Klansmen for crimes up to and including murder.

On the side of freedom, there is the famous case of John Peter Zenger, who printed news stories accusing the royal governor of criminal behavior and found himself charged with criminal libel. At the time, truth was not a defense to libel. If the charge was defamatory and you printed it, you were guilty.

The judge instructed the jury correctly, but Zenger’s lawyer, Andrew Hamilton, spoke directly to the jurors over the head of the judge: “It is not the cause of one poor printer, but the cause of liberty!”

When I am the fellow in the black nightgown playing the part of the most powerful person in the courtroom, I must instruct the jury that they are the judges of the facts but they must get the law from me. That’s not exactly so.

Should the jury ignore the law, what is to be done? The government cannot appeal a not guilty verdict. I cannot punish a juror for having an opinion that does not match my own. Theory be damned, the only practical way to stamp out jury nullification would be to stamp out juries.

Justice Oliver Wendell Holmes, as skilled a man who ever wore the robe, stated the reality: “The jury has the power to bring a verdict in the teeth of both law and fact.”

Take it from a judge that we have juries to protect us from both overbearing judges and crackpot legislators. When used in the limited circumstances that justify it, jury nullification is the conscience of the community.

Agree with it or don’t, the power of jury nullification is real and essentially unreviewable. Soon, that power will be addressing the action of the Water Protectors among the Standing Rock Sioux and their allies

A common charge against the Water Protectors appears to be “riot.” Watching from a distance, it appears that law enforcement officers just tell people they are a riot and start arresting them.

When the Water Protectors come to court, riot will be defined as “a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function.”

There are plenty of places in that definition with room for good faith differences of opinion. Prosecutors have shown they might overreach into some bad faith interpretations, as they did when they charged Amy Goodman with riot for taking pictures of what was going on for her TV show, Democracy Now!

It is worth noting that the prosecutor did not back off charging a reporter with riot. The judge threw the case out. Therefore, the Water Protectors have some hope that a jury can be aroused to use of its nullification power by the need to put down a mad dog masquerading as an attorney for the public interest.

Even assuming that the mad dog representing the government has quit frothing, and assuming that the government can actually prove a riot and connect each Water Protector with the riot, the power of jury nullification remains coiled and ready to strike.

The jury could decide based on anything from the prosecutor’s attitude toward a particular person to a sense of personal responsibility for climate change that riot is the wrong charge at the wrong time against the wrong person.

Jury nullification is a dangerous amount of power concentrated in a small group that may be politically biased, stupid, uninformed—anything ordinary people might be.

Prosecutorial discretion is a dangerous amount of power concentrated in one person who may be politically biased, stupid, uninformed.

Power carries the possibility of abusing power, and even if the jury might possibly use its power mistakenly, don’t we sometimes need protecting as much as our water does?

John Peter Zenger got charged with a crime for exposing the government’s bad behavior in 1735. From where I sit, it looks like the same thing happened to Amy Goodman in 2016. Had the judge not acted, Goodman would be relying on the power of the jury, a power that cannot be checked.

The jury must be persuaded to act, and nullification is a heavy lift, but the fact is that if the prosecutors remain as aggressive as they have been, the best hope for the Water Protectors will be the jury’s role as Liberty Protectors.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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Sammy7's picture
Your informed analysis is a pleasure to read Steve, wado. Now that a DAPL security contractor appears to have attempted to act as a provocateur, and also another secretly imbeded in the camp who likely started a wild fire, it appears that the cops are increasingly ramping up their efforts to provoke a reaction. Add to that attorney general Loretta Lynn not responding to the Standing Rock Sioux request for observers, it’s shaping up like another Wounded Knee scenario. The bozoization of the police makes it more likely than not.
Robert Riversong's picture
While the prosecution may have presented too narrow a charge, there is little doubt that jury nullification was the reason for acquittal, since Juror #4 successfully removed Juror #11, who was apparently the one holdout against nullification.
Robert Riversong
stanleyheller's picture
Steve Russell on Democracy Now! talks about the Bundys and jury nullification http://www.democracynow.org/2016/10/31/bundys_vs_nodapl_armed_white_militia