Turney v. Pugh is a very interesting case that pits two vital interests (free speech and right to a fair trial) against each other. The facts are as follows. During a 1994 Alaska state court jury trial, Mr. Turney (a proponent of jury nullification) approached the jurors and handed them cards asking them to call the toll-free number of the Fully Informed Juror Association. At least one juror called and found out, from a recorded message, that the jury had an unfettered right to nullify, regardless of the law, and it could not be punished for it. The juror so informed other jurors and, eventually, the judge was forced to declare a mistrial. In turn, the state convicted Mr. Turney under a jury tampering statute, which prohibits knowing communications with the jury, intended to influence outcome of a trial.
On appeal, Mr. Turney contended that Alaska jury tampering statute facially violated the First Amendment because it was overbroad. The Ninth Circuit affirmed the state appellate courts' and the district court's rejection of this argument. The court reasoned that the statute, at least as interpreted by the Alaska Supreme Court, narrowly applied only to traditionally unprotected speech - speech directed to jurors outside the courtroom, during a pendency of a trial, with the intent to change the outcome of that trial. While the court acknowledged that the statute might, in some extreme circumstances, be stretched to apply to innocent speech protected by the First Amendment, it was not enough to facially invalidate the entire statute.
Two editorial observations: One - habeas corpus is not the greatest forum to deal with the First Amendment issue because lower federal courts could reverse the state court's federal constitutional interpretation only if it clearly violates established Supreme Court precedent. What this means is that a federal circuit court of appeals cannot reverse the state court's ruling on federal constitutional issue just because the circuit court wants to make some novel interpretation on that issue, which the state court declined to make.
Two - it would be interesting to find out how other states deal with jury nullification issue. As far as I know, California adopts the "don't ask, don't tell" approach, which seems very practical and in line with the purpose of the power. It seems that jury nullification works as intended in our system of government only if the jurors fear non-compliance with the law, yet, cannot, in good conscience, vote to convict. But if the jurors know in advance of their right to nullify, their nullification would not be an act of civil disobedience, but an easy out of any case the juries whimsically cannot or do not want to decide based on existing law.
Don’t ask, don’t tell is pretty difficult in this case, because the defendant made a point of trying to obstruct the court, and was given a a letter (produced in the record) telling him to cut it of. In fact, Mr. Turney can be said not to know the meaning of “don’t tell” because his entire life has been devoted to “telling.” In this case, a lawyer actually turned him in.
Also, Frank hates the ACLU and most lawyers, so he probably alienated all except the OPA lawyer who (quite ably) represented him.
Posted by: Scotus | March 16, 2005 at 12:17 PM