Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by. Given that I have been recommending nullification for nonviolent drug cases since 1995 — in such forums as The Yale Law Journal, “60 Minutes” and YouTube — I guess I, too, have committed a crime.

The prosecutors who charged Mr. Heicklen said that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” The prosecutors in this case are wrong. The First Amendment exists to protect speech like this — honest information that the government prefers citizens not know.

Laws against jury tampering are intended to deter people from threatening or intimidating jurors. To contort these laws to justify punishing Mr. Heicklen, whose court-appointed counsel describe him as “a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse,” is not only unconstitutional but unpatriotic. Jury nullification is not new; its proponents have included John Hancock and John Adams.

The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished. As Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”

In 1895, the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn’t have the power, or that they couldn’t be told about it, but only that judges were not required to instruct them on it during a trial. Since then, it’s been up to scholars like me, and activists like Mr. Heicklen, to get the word out.

Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. (Prosecutors now say they will remember the actions of those jurors when they consider whether to charge other people with marijuana crimes.)

There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.

How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust jurors a lot. I first became interested in nullification when I prosecuted low-level drug crimes in Washington in 1990. Jurors here, who were predominantly African-American, nullified regularly because they were concerned about racially selective enforcement of the law.

Across the country, crime has fallen, but incarceration rates remain at near record levels. Last year, the New York City police made 50,000 arrests just for marijuana possession. Because prosecutors have discretion over whether to charge a suspect, and for what offense, they have more power than judges over the outcome of a case. They tend to throw the book at defendants, to compel them to plead guilty in return for less harsh sentences. In some jurisdictions, like Washington, prosecutors have responded to jurors who are fed up with their draconian tactics by lobbying lawmakers to take away the right to a jury trial in drug cases. That is precisely the kind of power grab that the Constitution’s framers were so concerned about.

In October, the Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries in checking governmental power, seemed open to the notion that jurors “can ignore the law” if the law “is producing a terrible result.” He added: “I’m a big fan of the jury.” I’m a big fan, too. I would respectfully suggest that if the prosecutors in New York bring fair cases, they won’t have to worry about jury nullification. Dropping the case against Mr. Heicklen would let citizens know that they are as committed to justice, and to free speech, as they are to locking people up.

Paul Butler, a former federal prosecutor, is a professor of law at George Washington University and the author of “Let’s Get Free: A Hip-Hop Theory of Justice.”

An intriguing passage states “Mexico has strict restrictions on gun ownership, with most legitimate sales processed through one store on a military base near Mexico City.” This and other elements of the story invite suspicion that a significant portion of the cartels’ weaponry may come from the Mexican military via the US government, including the State Department-authorized Blue Lantern program exposed here.

A vivid report on a journalist’s flight from the Mexican military to the United States. This is the same Mexican military which the Obama Administration and the Democratic Congress are funding even more than Bush did!

“Washington is funding both sides of the drug war. U.S. military aid to this corrupt system has flowed rapidly under the Obama administration.”

Here’s the synopsis:
The July 5 mid-term election in Mexico will continue narcotraffickers’ creeping reach into all sectors of the country’s political life. The army and police are already drenched in narco-scandals, while reports show that political campaigns and government offices have also been infiltrated or co-opted by traffickers. But Mexico is not a failed state, such extensive corruption and illicit wealth creation actually depends on the state.

The rest here.

Through late February and early March, a blitzkrieg of declarations from U.S. government and military officials and pundits hit the media, claiming that Mexico was alternately at risk of being a failed state, on the verge of civil war, losing control of its territory, and posing a threat to U.S. national security.

In the same breath, we’re told that President Calderon with the aid of the U.S. government is winning the war on drugs, significantly weakening organized crime, and restoring order and legality.

None of these claims is true. Instead they are critical elements in waging the hypocritical drug war in Mexico. Read more of this excellent article by Laura Carlsen outlining the disinformation and fear tactics used to strong arm Plan Mexico through a pliant Congress and Senate here

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Note: The Merida Initiative Round II (aka Plan Mexico) was passed by the Congress in February, by the Senate March 10th late in the evening, and signed into law by President Obama(!!!!) March 12th, 2009 (today).

We are now looking forward to stopping the delivery of as much of the military/police ‘aid’ package as we can in order to have those resources properly invested in local and regional economic development programs which recognize the Mexican, Latin American and Caribbean peoples’ right to their own form of developing their economies.

We will continue to inform our elected officials that the funding of a ‘failed policy’ (see GAO November 2008 report on lessons learned from Plan Colombia) is wasteful and – given the record of massacres and systematic abuse by the Mexican, Latin American and Caribbean military and police forces – is incredibly dangerous for the citizens of those regions.

No metrics to allow lawmakers to measure success on the stated goals of this Bush Initiative were included in the spending package guaranteeing that ‘drug war’ profiteers (consultants, security and arms corporations, and U.S. extractive industries benefiting from a more powerful (but still quite unpopular) Mexican right wing President will continue to peddle disinformation with no scientific, public policy counterweight.

We have and will continue to propose that the mainstream D.C.-based human rights organizations join the many organizations which have spoken out against Plan Mexico and take a position against the ‘war on drugs’.

http://www.cndh.org.mx/recomen/2008/050.html
Recommendation 050/2008

National Human Rights Commission issued on September 26, 2008
Translated by Scott Campbell [Spanish original]

Summary: On October 27, 2006, Mr. Bradley Roland Will, video journalist for the business Indymedia, was deprived of life, and due to this, on the 28th of that month and year personnel from the National Commission went to the city of Oaxaca, Oaxaca, to gather pertinent information and documentation, in respect to the beginnings of preliminary investigation 1247/C.R./2006 by the Attorney General’s Office of the state of Oaxaca.

From the analysis of the facts and evidence that make up case file 2006/4886/5/Q, it was verified that the public servants of the Attorney General’s Office of the state of Oaxaca who participated in compiling preliminary investigation 1247/C.R./2006, as well as those in the Federal Attorney General’s Office charged with compiling enquiry 11/FEADP/07, based in the Special Prosecutor for Attention to Crimes Committed Against Journalists, violated fundamental rights of legality, of judicial security, of access to justice, according to information contained in articles 6; 14, second paragraph; 16, first paragraph; 17, second paragraph; 20, subsection B; 21, first paragraph; and 102, subsection A, second paragraph, of the Constitution of the United Mexican States, as well as 21 of the Constitution of the state of Oaxaca.

Regarding preliminary investigation 1247/C.R./2006, is has been noted that the prosecution committed irregularities and omissions during its actions, since it did not allow for the intervention of a criminal specialist, nor did it immediately go to the scene to collect, preserve and package evidence, as well it did not dictate measures to preserve the scene, nor did it complete a chain of custody regarding the blanket the journalist’s body was wrapped in, failing to preserve and take into account the blanket; carrying out, in an inadequate manner, a visual inspection of the scene, as well as the description of the t-shirt worn by Mr. Bradley Roland Will.
Likewise, it failed to complete in-depth interrogations of the witnesses, as well as failing to summon other individuals who were associated with the events, in spite of the fact that they were mentioned in testimonies and newspaper reports, as well as in images that were shown on television.

Nor did the investigation delve into events that witnesses made reference to; that there were people shooting from a house on Juarez Avenue, the two people that were presented as the probable material authors of the homicide were not interrogated, the number of Municipal Police that turned out at the scene of the crime, the weapons they carried and the time they were in the area, nor did it carry out actions to investigate the names of the subjects who accompanied them, nor did it execute an investigation to identify the people who carried weapons and who appeared in various photographs and videos that were made public by various print and television media outlets.

On November 15, 2006, in the press conference given about the completed investigation, then-Attorney General of the state of Oaxaca indicated that the shots which killed the reporter came from a short distance by people who were near the reporter, or during his transport to the Red Cross, without the prosecution working diligently to obtain the greatest amount of evidence that would permit them to locate and subsequently present those people situated at the scene, concretely, near the victim, and therefore gather the corresponding testimonies and, in this case, to contribute to the elements of the enquiry in order to reinforce or distort the version that the offender was located near the journalist at the moment the events occurred.

In the same press conference she mentioned that expert investigations were conducted in audiometry, audiology, sound tests and audio and video examinations of the video recorded by Bradley Roland Will’s camera; however, in the evidence listed in preliminary investigation 1247/C.R./2006, there is no record of the experts she referred to, nor to the sound tests she said were performed on the video.

Also, is it considered that deficiencies existed in the performance of the public servants who involved themselves in the various reports produced for preliminary investigation 1247/C.R./2006, such as the medical lawyers who signed off on the external medical examination of the body, the autopsy report, the ballistics reports, of the comparative criminology report, of the criminology report, of the mechanics of injury and of the facts and position of the victim-offender.

The conduct and omissions by personnel in the Attorney General’s Office of the state of Oaxaca, violated the set standards in articles 2, part II; 12, parts II, III and V; 15, 16, 17, 18, 19 and 31, of the Code of Criminal Proceedings for the Free and Sovereign State of Oaxaca, as well articles 49, 51, 53, 73, and 75 of the Constitution of the Attorney General’s Office of the state of Oaxaca, as well as the obligations laid out in part I of article 56 of the Public Servants of the State and Municipalities of Oaxaca Administrative Responsibilities Law.

It is pertinent to note that the irregular compilation of preliminary investigation 1247/C.R./2006 violates the right of the relatives of Mr. Bradley Roland Will, in their role as victims of a crime, of access to justice, provided for in articles 17, second paragraph; 20, subsection B, parts I, II, and VI, of the Constitution of the United Mexican States; 25, of the American Convention on Human Rights; and the beginning of the fourth article of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

Moreover, in relation to the expert investigations performed for preliminary investigation 11/FEADP/07, on behalf of the Federal Attorney General’s Office of the Special Prosecutor for Attention to Crimes Committed Against Journalists, it is noted that they were done in an isolated manner, that is, without taking into consideration the evidence gathered by each expert in particular and without informing, as well, a complete, coordinated, and detailed analysis of the corresponding evidence; nor was a convincing conclusion provided as to how the events occurred, principally, with respect to the circumstances in which Mr. Bradley Roland Will received the second gunshot and the distance from which the deadly shots were fired.

Likewise, the Federal Attorney General’s Office has avoided requesting an audio study of the gunshots, which would help to establish their rate and sequence, and assist in determining the number of shots fired at the scene, their sequence and which were fired at short, medium, and long distances.

Even though the actions of the Federal Prosecution, charged with compiling preliminary investigation 11/FEADP/07, based in the Federal Attorney General’s Office of the Special Prosecutor for Attention to Crimes Committed Against Journalists have continued, to date it has not issued the respective decision, it has not been able to identify those likely responsible for the wounds that caused the death of Mr. Bradley Roland Will, as well as the motive and causes of their aggression, or other relevant circumstances, because very likely the mentioned prosecution and the experts that have issued the questioned reports may have violated their duties outlined in articles 2, part II, of the Federal Code of Criminal Procedures, as well as articles 4, part I, subsection A), clause c) and part V; 54, parts I and II, of the Constitution of the Federal Attorney General’s Office, which establish that, in preliminary investigations, the Federal Prosecution has the obligation to order the completion of all necessary actions to certify the body of the crime and the likely responsibility of the accused, as well as to safeguard the principles of legality, efficiency, professionalism and respect for human rights in the fulfillment of their duties, in addition, their actions should be congruent, timely and proportional to the incident investigated.

Moreover, it is also noted the hindering and denial of the Municipal President of Santa Lucia del Camino, Oaxaca, in providing information that would allow this National Commission to complete its investigation of the case, which has still not received any answer to its requests for information, which is in violation of part XXXII of article 56 of the Public Servants of the State and Municipalities of Oaxaca Responsibilities Law.

As a result of the above, on September 26, 2008, this National Commission issued Recommendation 50/2008 which directs the Federal Attorney General’s Office, so that it instructs the Federal Prosecution, to expedite the investigation and complete it with due diligence in a manner that guarantees a comprehensive analysis of the clues, evidence and proofs that are relevant to the inquest, as well as the contents of this recommendation, along with considering what experts belonging to the International Forensic Program of Physicians for Human Rights have provided, the proposals of this National Commission, and those proposals that allow, in a clear, objective, comprehensive, and collegiate manner the determination of the mechanics and dynamics of the wounds that caused the death of Mr. Bradley Roland Will; likewise, that the head of the Internal Control Body of the Federal Attorney General’s Office hold a hearing to determine, from the beginning of the administrative proceedings, the public servants who could have been responsible for the delays and neglect in investigating the events that caused the death of Mr. Bradley Roland Will.

Likewise, it is asked that the Governor of the state of Oaxaca have the head of the Comptroller Department of the government of the state of Oaxaca hold a hearing in order to determine, from the beginning of the administrative proceedings, the police and prosecution officials who participated in compiling preliminary investigation 1247/C.R./2006, for the violations and deficiencies described in the “Observations” section, and that the Attorney General of the state of Oaxaca hold a hearing in order to determine the probable criminal accountability of the State Prosecution; as well as instruct the head of the Comptroller Department of the government of the state of Oaxaca to hold administrative accountability proceedings regarding the experts who participated in the various reports produced for the inquest and to hold a hearing on the State Prosecution to determine its probable criminal accountability.

Finally, it is asked that the President of the Great Commission of the Honorable Congress of the state of Oaxaca remit the respective instructions, to whom they correspond, in order to hold administrative accountability proceedings regarding the then-municipal president of Santa Lucia del Camino, Oaxaca, for the failure to provide information requested by this National Commission and for hindering its work in defense of human rights.

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