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15 Minutes with FIJA
15 Minutes with FIJA - 5 December 2022
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15 Minutes with FIJA - 5 December 2022

Jury nullification and other jury-related news as well as FIJA features and other items of interest for the week of 5 December 2022.

Welcome to 15 Minutes with FIJA for the week of December 5, 2022. I’m Kirsten Tynan, executive director of the Fully Informed Jury Association.

If you have any questions about this episode, I invite you to post them in a comment on this episode’s page on Substack, and I will do my best to answer them for you.

Civil Asset Forfeiture in Georgia

We begin this week in Georgia to discuss a report recently released on civil asset forfeiture there.

To quickly introduce civil asset forfeiture to those not familiar with it, civil asset forfeiture is an underhanded tactic concocted by the government that undermines Constitutional guarantees by circumventing them with a legal fiction. Rather than accusing a person of wrongdoing, the government accuses property of being involved in wrongdoing.

This legal fiction pulls the rug out from under the property owner. Protections they would have had were they accused directly—such as the presumption of innocence, right to an attorney, a high burden of proof laid squarely on the government’s shoulders, protection against self-incrimination, the right to trial by jury, and more—are said by government not to apply to property which doesn’t have Constitutional rights.

Of particular interest to FIJA is that because the accused property has no right to a trial by jury, the government need not worry about the owner’s peers protecting them whether by finding them not guilty due to their actual innocence, due to reasonable doubt, or by way of jury nullification. The potential for circumventing jury nullification is a real eyebrow raiser here because many of the cases the government claims to be using asset forfeiture in are alleged drug cases—a category of cases that tends to be more likely to benefit from jury nullification by sympathetic jurors.

Approximately two years ago, the Georgia Advisory Committee to the U.S. Commission on Civil Rights decided to look into the impact of civil asset forfeiture in Georgia on people of color. In November, it published a report entitled Civil Asset Forfeiture and Its Impact on Communities of Color in Georgia.

Among its findings, the Committee found that “Most cases of civil asset forfeiture in Georgia are not targeting high-level, organized criminal activity as intended but are instead impacting low-income individuals who are rarely charged with any crime.” The report specifically cites Dan Alban of the Institute for Justice, who informed the Committee that between 2015-2018, 58% of the forfeited property at the state level in Georgia was cash, half of that worth less than $540.

The Committee further found that “Civil asset forfeiture is disproportionately deployed against poor people and people of color.” It points to disproportionately high rates of police contact with these communities and the higher likelihood of people in these communities to conduct their financial transactions in cash as two contributing factors to this problem.

Most important among its recommendations is that the Georgia legislature should eliminate civil asset forfeiture. This is then followed by a long list of potential reforms the legislature could implement to civil asset forfeiture if they will not do away with it entirely.

Crypto 6 Trial, Now Down to 1, Begins This Week

Next up is news of a trial on my radar to watch for potential jury nullification.

The trial of the last remaining Crypto 6 defendant to have held out for a jury trial begins this week in New Hampshire. Last year the federal government charged six New Hampshire residents for various offenses allegedly related to operation of a cryptocurrency exchange without government-required permission slips.

As trial begins this week, only one of the group held out for a trial by jury with the other five having taken plea deals. The holdout defendant is Ian Freeman, best known as a libertarian activist in New Hampshire and co-host of the Free Talk Live radio show. He is also known for his advocacy of jury nullification over the years, leading to speculation about whether jury nullification might play a role in this case.

Freeman is represented by defense attorney Mark Sisti, who has some experience with jury nullification. About a decade ago, Sisti represented cannabis defendant Doug Darrell in a criminal trial that ended in acquittal after a judge instructed the jury that “even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.” Cathleen Converse, a member of that jury , reported after the trial that Sisti’s acquittal was delivered after some of the jurors convinced the others to conscientiously acquit him.

Whether or not Sisti will be angling for jury nullification in this case is unclear. Judge Joseph Laplante has reportedly rejected a request to instruct the jury on their ability to engage in jury nullification. However, a post on the Free Keene blog, of which Ian Freeman is a member, claims that jury nullification was never part of the defense strategy. And Freeman himself was quoted by The Keene Sentinel in September as saying, “I don’t believe we broke any of the laws in this case and I believe this trial is a sham.”

I’ll be keeping an eye on this trial and will let you know if anything related to jury nullification develops.

Biden Admin Wants to Seize Crypto without Charge or Trial

We’ve talked civil asset forfeiture. We’ve talked crypto. Now we’re going to talk crypto and civil asset forfeiture.

Though this item is about a month old, I just discovered it in recent days. Nick Sibilla, a writer and legislative analyst at the Institute for Justice, reported on the Forbes website in late October that President Biden wants to expand the federal government’s abusive and unconstitutional civil asset forfeiture scheme to make it easier to go after cryptocurrency without having to prove anyone guilty of a crime.

He points out that the Department of Justice took two concurrent steps in this direction. It released a report entitled The Role of Law Enforcement in Detecting, Investigating, and Prosecuting Criminal Activity Related to Digital Assets. At the same time, it announced the establishment of the nationwide Digital Asset Coordinator Network.

Interestingly, the report has since disappeared from the DoJ website, and I have not been able to track it down. But Sabilla’s write-up seems to be consistent with other articles on the topic—specifically an October article by Carol Alexis Chen, partner and trial lawyer in Winston & Strawn LLP’s Los Angeles office, and a September article by Nicholas Anthony, a policy analyst in the Cato Institute’s Center for Monetary and Financial Alternatives.

All I could tell from these articles about the report is that its main recommendations with regard to asset forfeiture seem to be to expand the government’s authority to engage in it and to raise the dollar amounts up to which it is allowed to do so.

But we don’t need a lot of details to understand that such things are, of course, going to expand the government’s likelihood, frequency, and magnitude of looting people without even accusing them of a crime, let alone having to prove that beyond a reasonable doubt to a jury of their peers. This is EXACTLY the sort of government corruption trial by jury was meant to protect us against, but that is not possible as long as the government can simply bypass trial by jury.

San Francisco’s Trial Backlog Continues to Grow

Finally, we go to San Francisco for an update on a situation I’ve reported on previously.

Recall that I shared with you back in September that folks from the San Francisco Public Defenders and other community leaders and community members publicly staged a mock trial on the steps of the Hall of Justice. On trial was the San Francisco Superior Court, for violations of speedy trial deadlines and a continuously growing backlog of criminal trials.

In conjunction with the mock trial, attorneys filed numerous motions challenging the continued incarceration of people beyond their speedy trial deadlines and asking for dismissal in several cases. At that time, The Davis Vanguard reported more than 550 cases had dragged out beyond their speedy trial deadlines without going to trial and more than 150 people were stuck behind bars past their speedy trial deadlines without trial, let alone conviction.

Now in December, The Davis Vanguard is reporting that the San Francisco Public Defenders and others have again brought the issue to public attention, this time at the annual meeting of the California Judicial Council. The Council is composed of state judges who make policy for the state courts. Presumably, they could take action now—and they could have taken action LONG ago—to remedy this unconscionable situation if they actually cared to.

The San Francisco Public Defenders Office reports that there are “770 individuals who have seen their Constitutionally-mandated trial deadlines pass, including about 180 people trapped in jail beyond their trial deadline.” Compare this to the 550 cases that had exceeded their speedy trial deadlines and 150 individuals trapped in jail past their speedy trial deadline without trial back in September. The pandemic is essentially over, yet the backlogs continue to grow at alarming rates.

San Francisco Public Defender Mano Raju says that “It is shameful and inexcusable that San Francisco stands alone in refusing to honor Constitutional speedy trial rights of hundreds of community members. While other counties cleared their backlogs, San Francisco’s has grown by more than half since it ‘fully reopened’ back in June 2021. San Francisco’s court system has failed its residents badly for months upon months, and has exacerbated the humanitarian crisis in our jails.”

His description of the situation as a humanitarian crisis is not an exaggeration. The San Francisco Public Defenders Office points out that “Many of the people in custody in San Francisco County Jails are subjected to 23-hour-a-day lockdown conditions, have had no exposure to sunlight, very limited in-person family visits, and few opportunities to attend programs.”

What accounts for this continuing increase in the trial backlog? Aside from the fact that the government is, of course, not giving itself any consequences for these mass Constitutional violations, the Public Defenders Office reports that San Francisco has:

  • not been prioritizing criminal trials above civil trials as required by law,

  • it is not making use of all its currently available courtrooms,

  • nor has it sought any alternate venues to hold trials as other counties who have been reducing their backlogs have done.

The pandemic is no longer even a sort of plausible excuse for increasing backlogs. At this point it is clearly the fault of government mismanagement and lack of accountability. As long as the government permits itself to violate Constitutional rights with no consequence, there will be no remedy.

It’s hard to know what more to say about this situation except that one of the most liberal cities in the United States rightfully should now be stained with a reputation as one of the most prolific violators of civil rights in the country.

We’ve talked asset forfeiture. We’ve talked speedy trial issues. Why do I cover these things? Just as a reminder, if there is no trial by jury—if you cannot get into court in front of a jury and have your day before them to let them judge you—there is no possible way you can benefit from jury nullification. And that’s why I harp on this so much.

And on that kind of angry note, that wraps it up for this week. Thank you for joining me for 15 Minutes with FIJA. For more information on any of the items covered this week, you can find detailed show notes, complete with links to source material, at FIJA.substack.com. You can help ensure educational information like this continues to be provided to the public at no charge by making your donation at FIJA.org/give. I look forward to seeing you next week. Take care.

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Fully Informed
15 Minutes with FIJA
A roughly weekly update from the Fully Informed Jury Association on jury nullification and other jury-related news, plus highlights of FIJA resources and goings on. Join us for the live Zoom presentation followed by a brief Q&A session on most Monday evenings or listen to the presentation only on the podcast on most Tuesdays.
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Kirsten Tynan