Mr Bearded Truth – 47 – The Power of the Jury with Tom Gallagher

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Hello everybody welcome back you guys didn’t hear any of that that’s terrible
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hmm you guys didn’t hear any of my intro so I gotta fix all my audio you guys saw it
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just had an episode not even two hours ago but nonetheless could not get the audio to function through both of the
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episodes so I will get Steven on that as well darn you Stephen
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we need to pay him more of course but we are not going to but today’s guest we have an incredible
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guest is Tom Gallagher from the uh Minnesota area of this country he is a
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criminal defense lawyer so he is defending people against the system and uh if of course
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if they’re innocent defending them against the guilty charges so it’s an incredible thing that he is doing he is
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also working on uh medical marijuana and or just around cannabis reform uh
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working with normal he is working tirelessly and is doing an amazing job
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at being the activist that he is and I’m so incredibly excited for the conversation today that we’re going to be talking about jury of course a jury
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of your peers we’ve all heard it some of us have been selected for it some of us have been selected to be on the juries
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but what is it how does it function and of course what are the powers that they
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have and we’re going to be talking about a very special uh term called jury nullification so there’s a lot to it and
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I’m so incredibly excited for today’s conversation around this I hope you guys are ready for that as well but before we
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get into that we gotta do a little bit of housekeeping so before uh just let Spike know don’t tread on my internet
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capable devices but on a serious note November 8th election night what are you planning to
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do well I am planning to be down there in Brevard County Florida if you guys want to come down there Spike Cohen uh
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Jordan Marlow and myself will be speaking at the 2022 golden Liberty Gala
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there in Brevard County Florida down at the Brevard Zoo there in Melbourne Florida come on out there join up with
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us LP brevard.org Gala and when you guys get out there you guys are going to have
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an incredible time you’ll also see Shelly the Brazilian porcupine it’s going to be an incredible night we are
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going to be reigniting those torches of Liberty getting people passionate about changing the culture and society around
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us to be more in all of our interests not just those corporate interests not
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just a couple cronyiest not just the corporations but everybody’s interest so
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come on out there join us that night lpbovard.org Gala also if you’re looking to get become a sponsor and help out and
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make this thing shine even more brightly head on over to lprevard.org Gala hyphen
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sponsors and of course I want to give a shout out and a thank you to Kelsey lion designs
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of you guys head over there use the code muddied Waters when you guys sign up and she will give you a nice fat discount
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um you guys are not going to regret that some of the people that have used that Spike Cohen Joe Jorgensen Natalie Bruno from Oklahoma
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uh Ashley shade oh man I can I I don’t even know all the people but she is hit
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I I think she’s worked for somebody in all 50 states now it’s incredible so make sure you guys are getting a part of
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that join in on that but without further Ado I do want to bring on our guests for today Tom how’s it going tonight man
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great oh I’m so glad that you were able to take some time out to join us uh it’s
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gonna be it’s one of those conversations that I think is necessary because I think a lot of people have heard about
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this stuff but they don’t know the intricacies of it and that’s why I was really excited about hearing about you in the first place but
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then also here and you know that you kind of get excited because this is right in your your line
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of work um so I first want to give you an opportunity I want to hear about you uh
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where do you come from like how did you get to where you are today and uh let’s hear the highlights okay uh well I’m
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from Minneapolis Minnesota and uh I’ve been a lawyer since 1988 but before that
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I was a political activist an issue activist and as a result of being an
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issue activist I’ve got involved in Party politics and several different political parties as well as uh
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candidate campaigns including presidential campaigns um on you know local campaigns everything
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and uh currently I’m working as a member of the board of directors of Minnesota
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normal which is the Minnesota chapter of the National Organization for the reform
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of marijuana laws and we’re trying to legalize marijuana in Minnesota and we
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seek to be like all normal chapters the voice of the consumer or consumer
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advocacy group beautiful I love it
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um so you’ve worked in so many different kind of areas and then you you became after that
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um once you became an activist then you became a lawyer and then you continue on down those those ways of kind of melding
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the two together yeah I mean I think I like my family was political
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um involved in politics I think it just came naturally to me
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um as a result of that perhaps but um you know I think if you’re involved in politics
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some of us get real excited about issues that maybe have a a broader application
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than just our own narrow self-interest maybe we think we can improve the world somehow I think a lot of younger people
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feel that way and if you get started you learn wow I can actually have a really big impact and I’ve had a big impact on
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various things over the years um and so once you get a taste of that it’s really hard to hard to stop yeah
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absolutely and then and then yeah later on I became a lawyer and shortly after that I I decided I loved
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criminal law so that’s that’s what I’ve been doing beautiful well it’s a it’s it’s always
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exciting to see like kind of where people started from and how they progress to where they are to to this
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day and uh so I appreciate that um so today our conversation is centered around during the jury itself and of
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course we’ll talk about jury nullification as a as a product of this um but this is something that’s been
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been around you know this was Old English a drive from and it came here along with the system and and so with
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how it’s been functioning can you kind of give us the the generic view of how is a jury
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selected what kind of is its purpose and and you know is it how important is it
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to our criminal justice system as a stance well you know one thing that I’m super
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interested in is history and I think among lawyers that’s pretty common a lot
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of lawyers are real into history and I’m I’m not an exception to that so when I look at Jury the jury and jury trials I
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actually have studied you know the ancient Greek classical Athens era where
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juries had more than 500 people and they were paid
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um the equivalent of the average income in that society which I don’t know what that would be today like what 40 000 a
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year maybe yeah um so that and based on that I I I’m a person
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who Advocates paying jurors instead of basically constrict conscripting them into volunteer work and then they’re
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losing money by not being able to do their regular job but um
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you know then you know the more recent history the English legal history of juries
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um which is when jury jury nullification and jury power struggles as we know them
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began um in the Medieval Times in England and
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then we kind of inherited that as a colony of England and our legal system largely is based on
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the British legal system and then you know we we kind of developed from there but in the
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modern context and over the years the jury has fluctuated I have often said
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that I believe that populism if you look at American history populism has
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become more of an influence and then less of an influence depending on the time the historical period yep jury
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power I think it it it matches populism almost 100 percent so if populism is is
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Big than juries jury power is big if the populism and the people are um put down
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and suppressed then so is the jury and jury power post World War II jury power
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became highly suppressed and the jury has been under attack you
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could say I would say since the World War II era okay up until now but in
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recent years there’s been an upsurge in people’s interest in bringing back the
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jury and also coincidentally or maybe not an upswing in populism too in the
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last several years last decade or two yeah yeah definitely that’s that’s a really interesting correlation I never
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even like thought about how how well those two would be correlated so with
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the physical actual jury so you know I didn’t even know about the Greeks and so that was just technically like their
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occupation is that um I think it was you know I’m not an
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expert on it so I’ve read a few books on it but um so people would meet in a
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certain place in Athens and then they would uh volunteer for
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jury service and then they would you know they would get their names and then because they would end up getting paid for that you know
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um but they would have 500 people on a jury so our juries in Minnesota for felonies we only have 12 people
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which is an incredibly small number that’s sometimes we call that a petite jury as opposed to the grand jury which
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is a bigger jury that uh we sometimes use to consider indicting people
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um for or charging people with a crime and so traditionally there was greater use
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in Minnesota we’ve kind of gone away from that except in bigger crimes but
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um that’s another important example of kind of the diminishment of jury power is the diminishment of the grand jury
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and also the taking over of the grand jury more and more by the prosecutor
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just like the regular petite Jury has been taken over more and more by the judge
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okay so because when we talk about those so you had said
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that a petite jury is 12 people a grand jury is much larger what would you is it
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on average we’re gonna see if you see a jury trial you’re going to see roughly around 12 or is it going to be like more
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than that less than that or what would you say so yeah normally in Minnesota and I think in Most states you’re going
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to see a 12-person jury depending on the length of the expected length of the trial if if the judge thinks the trial
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could go a little bit longer they may want more than one alternate but if they think it’s going to be a pretty short
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trial most judges probably are going to want at least one alternate juror just in case somebody gets sick or some
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something strange happens if they have an alternator then they don’t have to to do it over if one person can’t make it
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through the whole way that makes sense and so you were also saying that in a more petite jury basis the the judge has
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a little more sway in that has a little more control over them is that just kind of like he’s The Guiding figure for a
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jury or well you know when I say petite jury I’m I’m contrasting it with the
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grand jury which would be the the charging jury the the teacher is just what most people
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would think of as just the regular jury or the jury so with a jury trial where you have a trial by jury that that would
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be a petite jury not a grand jury or you could just say the jury but
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um in Minnesota for misdemeanors there’s only six people on the jury for for misdemeanor crimes
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um and then there may be an alternate as well but um so that yeah in a
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I think um over the centuries there’s been a struggle between the jury and the judges
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so back in English History they actually would prosecute jurors for coming up
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with the wrong verdict that the government didn’t like to put the jurors in if they would find
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them or put them in jail um and things of that nature because
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they found the wrong um the wrong verdict also the they would try to get them to there’s been a a
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point of contention over whether the jury should be the judge of the entire
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case or whether they should be limited or boxed into finding certain facts
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whether facts are true or not and so the judge would like in the historically
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judges wanted to be they wanted to take control over uh questions of law as they
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would put it and then just limit the jury or or take power away from the jury
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and say well you can only decide whether this is a TR whether this fact is true
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or not so for example in England um if some somebody was accused of a
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libelist publication that the government didn’t like and so they say it’s liable as it’s
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damaging reputation of someone some some somebody that the government favors
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um they would the judge would could say to the jury well the only question before
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you as jurors is whether or not this printer printed this publication that’s
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all you’ve got to decide if he printed the publication you say that then we’ll just we’ll determine whether it was
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libelous or not yeah well meanwhile if it was libelous the guy’s going to get um
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hung until he’s not dead taken down have his genitals cut off while he’s still
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living and then see them burn before his eyes then they were going to behead him
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and draw and quarter him and take the four pieces of his dead body to whatever
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parts of the Kingdom the king so decides yeah yeah no it sounds like a complete yeah so I think that I think that that
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was actually was the basis was the starting basis of jury notification as
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we know it was that a jury was was saying I believe that the case was around a group of people practice
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practicing religion in the streets and and the judge was like you guys got to
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find them guilty and they were like the jury came back and they were like yeah they were guilty of being on the streets and he was like literally they were
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guilty of a crime and I was like no they were guilty of being on the streets which wasn’t a crime in that time and
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the the king or sorry the the judge in that case had actually put those jury in
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incarcerated them until trying to force them into a different opinion and they
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came back and they said no and and so that’s kind of from my understanding is the basis of where jury nullification
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came from was the look you can have the laws that you want
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but if the laws aren’t sound we don’t have to you know you’re not violating anything
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but that brings the question up of kind of the American civil or the American court system as it
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stands now with a jury of course jury nullification as I just kind of spilled the beans on there what kind of what is
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the what is the temperature now for them are they looking at it more for you know are they finding if the printer printed
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that or are they um because the cases I’ve seen a lot maybe this is more the the average is
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where they’re determining whether they’re innocent or guilty and then the judge is coming forward and determining
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you know the the charges from that is that kind of where they were at where they’re at today well so you know
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historically this the struggle has been judges trying to turn juries into
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limited fact finders and then the jury’s trying to say no no no we want to we
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want to decide whether they’re guilty or innocent of a crime and deliver what’s called a general verdict as a SPO as
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opposed to a special verdict which is special I always think of special in terms of specific or Limited
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um verdict to sort of details or parts the general verdict is the whole darn thing the
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whole enchilada you know guilty not guilty so the jury wants to say you know we can find him not guilty or her
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um even if the law if the law says that
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um it’s a crime to have sex before you’re married in Minnesota fornication
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is a crime still at least on the books I haven’t seen it enforced ever in my
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lifetime but I love bringing that up because another one is um sodomy Minnesota’s
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sodomy statute includes oral sex among married people so if you’re a married
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person and you have oral sex you’re guilty of a crime I’m sorry yeah bad
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news for you so hopefully you won’t get caught um hopefully the police won’t like come into your bedroom with their drones or
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something and see you having oral sex because you could be in big trouble especially if they don’t like you for
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some reason you know if there’s some kind of political dissident or what have you or some persona non grata
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but um the jury wants the jury traditionally the jury has wanted to say
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no we have the right to veto the law and say you know
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we don’t care if you have a law that says that it’s a crime to have oral sex
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even if you’re married we’re not going to convict we don’t think that’s a fair law because the jury is supposed to be
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the conscience of the community and that’s the whole point of the jury
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if and even back hundreds of years ago in the trial of William Penn that you were just referring to that they said no
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I mean we we have to be able to judge um not only the facts but also the law and
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if the law is is morally repugnant we we need to be able to acquit someone and
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say they’re not guilty just because they publish some religious uh tract that you don’t agree with
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that’s not real we’re not going to convict him and see him drawn and quartered you know
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yeah which brings up another issue which is the issue of punishment
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so today in Minnesota and probably in Most states we’re not allowed normally
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to talk to the jury about punishment about what happens if you convict my client you don’t get to know what
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happens so that’s a form of judicial uh censorship yes absolutely and and it’s
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basically defanging the jury taking Away Jury uh Independence and making the jury
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making it kind of like a kangaroo court in a way yeah no because it’s like for the
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audience I’m sure that some of them have the same mindset I do it’s if you’re sitting there and you’re like well you
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know if you could be on the cusp of let’s say I’m going to use a a more
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heinous crime if you’re on the const between first and second-degree murder for example and you don’t know the
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difference between those two charges right you might have some people saying it’s first degree and some people that might be having second degree so when
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they’re in those deliberations if if you have enough Sway and more people like well just go to the first
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degree if you don’t know what those the consequences of those if you’re kind of being blinded by that
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you just go all right well I’m gonna go for this if you know what the consequences are if you know like here’s
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what the what the spectrum is for first degree versus second degree if you know those consequences you can go but
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this would be more justified in terms of a punishment having that scalability there is only
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going to empower the jury and so I can kind of see why they would try to keep that away from them
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yes exactly I think it’s super important and I’m really uh I really feel that
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that’s wrong that we are not able to or the judges don’t want us to tell the the
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jury that if you convict my client of possessing you know two ounces of marijuana that he’s going to go to
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prison for three years because he had his handgun in the trunk of his car at
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the time yeah in Minnesota so if the jury says three years in prison for marijuana
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maybe maybe we’re gonna say that’s not right maybe we’re gonna
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bring in a not guilty verdict you know if the penalty was uh
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a 300 fine maybe we would convict them because you know he did he did have the
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marijuana on him and it is illegal but you know it I would I think hopefully some people wouldn’t even find
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them because marijuana should never be illegal but okay that’s kind of so but
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but I think you know it’s uh Justice what is just is very it can be
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very context specific you know what we think is fair or unfair there’s a lot of
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uh factors that could influence our ideas on that
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and I think the jury has the right to know the truth yes the whole church but the the current thinking in the legal
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profession and in the courts is that no they don’t the judge has the right to
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only tell the jury is part of the truth the part of the truth
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that the judge thinks the jury can handle you know they can’t handle the truth
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the judges think yeah I think I think the jury can handle the truth and they
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should be they should be given the whole truth that’s relevant to it including the punishment yeah absolutely
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I think that that’s really important if they are supposed to discern and be able to go through all of the evidence given
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before them they’re supposed to watch all the testimony they’re supposed to watch the the cross-examinations the
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examinations they’re supposed to watch all this stuff is shrouding them and protecting them
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from some of the information just seems criminal to me um you want to
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we also look at this in and certainly right you are somebody who works in this field but you’re somebody who has doused
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yourself in in legalese and understanding the law and why things are structured the way that they are I am
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somebody who’s never worked in the legal field I’m somebody who’s interested in this I’m somebody who you know has
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dabbled in this in in some regards I am well above the average when it comes to understanding how these processes work
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so a lot of these jurors are coming onto these panels they’re being selected it’s it’s the mechanic down the street who’s
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never once looked at what a republican was what a Democrat was just Minds his own business it’s the Mother with three
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kids that’s too busy to to care about what’s going on it’s all it’s a lot of people it’s your average Joe schmoe
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that’s on these juries if they don’t know anything by shrouding them for more information that just it seems like
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it just seems like it’s completely it’s putting them behind the eight balls it’s get putting them at a disadvantage to be
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able to make what is a justice system and instead it seems more in in looking at it from the lens of the spider web of
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the issues we have within the criminal justice system it seems more like a Vengeance system or like a a Revenge
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system where if you do something wrong in my opinion I get to destroy you and we’ll find a way how
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um I I wanna what are some of the other things that age
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what are some of the more lesser known portions of a jury that’s how they function or like some of the things they
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can be doing because I know jury nullification we talk about it a little bit you know a lot of Liberty candidates some Republicans some Democrats um talk
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about this and I think it’s important but is there other things within the jury process or the jury powers that don’t get discussed as much that could
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give them a little more leverage when it comes to having a little more power um as they take their seats well I think
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um if you I don’t know if you know if you’ve ever heard of Robert’s Rules of
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Order I think that’s short for Robert’s Rules of parliamentary order possibly if I
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remember right but um so it’s it’s parliamentary rules which
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actually I believe comes from English Parliament um which developed over a centuries so a
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lot of you read Robert’s Rules of Order I think there’s modern versions of it that that don’t sound like really old
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but um it’s there’s a set of rules that are
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kind of generically available to people to use to try to have a uh orderly
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discussion in a large group of people where people aren’t just shouting or you know beating each other down when they
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get mad or what have you um but one thing that I learned way back
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when is that uh in political parties at least the ones I’ve been in we we’ve
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used Robert’s Rules of Order and what one of the basic core uh tenets of
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um an assembly or a body that has its own has jurisdiction over itself so
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basically you can make your own rules and when we have rules those rules are agreed upon at the beginning of the
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meeting you know we don’t just make them up as we go we start out in the beginning okay these are the rules of
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this convention or what have you so um but we know that the ultimate
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Authority is the group so if if the group votes to override the rules at any point well suddenly this issue came up
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and we’ve just decided we we don’t like that role it’s very inconvenient it’s getting in the way of what we want to do they can just override it because there
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is no higher authority there is no review by anybody there’s no court they can do whatever they want as a group
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Okay the reason I’m talking about that is the jury is exactly the same
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the jury is a power of itself you know we are all Sovereign people we are all
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individuals born into our own sovereignty we all have the right to be alive and anybody who tries to kill us
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we have the right to use self-defense to prevent that right and so when we’re in a group
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the group has the right to decide whatever it wants to decide when a jury is constituted as a jury that is a group
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that is an assembly that can do whatever the hell it wants why do we tolerate a
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judge sitting up there in a black robe when we are in charge that judge at ideally should at most be
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an emcee a Master of Ceremonies just you know uh lubricating the activities or maybe like
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a chair at a convention kind of helping things move along you know and helping
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us do it more quickly you know more conveniently but they shouldn’t be uh you know if you had a chair of a
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convention trying to throw their own personal views around and abuse their power what would we do we would depose
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them we’d unelect them immediately at least I would in my groups yeah so yeah you know so why should a judge be why
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should we suddenly become sheep the minute we walk into a courtroom I mean I think
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a person could you know take take what I just said too far I mean it’s good to be
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smart and Savvy and um observant and Paul you know but it’s also good not to
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be a sheep don’t back down just feel your power you’re on the jury you are the the jury is about you once you’re on
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a jury you are you hold the power it’s all about you the lawyers sometimes use
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the analogy of a restaurant like I’m a lawyer I’m like a waiter in a restaurant and a cook you know and you know the
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judge is like the maitre d you know and I we’re in the back there cooking up a meal and we hope you know the
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prosecutor’s cooking up another meal and you’re gonna decide which one you think tastes better and then you know that’s your power
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we’re serving you we’re your servants you are in you’re in charge you’re paying the bill you’re there not getting
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paid not taking care of your life you’re sacrificing we’re there serving
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you the jurors you jurors you’re in control I mean you look throughout history jurors have taken control and
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God bless them and people have advocated for that and that is one of the most powerful forms of populism there ever
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was and all the way back to the Greeks it’s the Cornerstone of democracy democracy is sometimes uh you know
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people talk about oh that’s good that’s bad but democracy sometimes is used as
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almost like a the same meaning the same thing as populism and sometimes maybe it does
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except it implies you know maybe voting or representative democracy direct participatory democracy Church a jury is
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a Democrat it’s a direct Democratic process you don’t have to elect an intermediary who does things when you’re
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not looking and you hope that you approve of them but you don’t really know yeah because you’re busy doing your life I mean when you’re on the jury
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you’re you have the power you are the king or the queen or you’re sharing it
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with you’re the oligarchy with the other 11 of you you know you’re in control and
31:17
you have somebody’s life in your hands and you can just you can squash them like a bug or you can set them free it’s
31:24
up to you that’s incredible um yeah I mean it’s people don’t realize
31:29
their power they walk into a courtroom they see if they see Flags they see a
31:35
guy in a black robe who’s sitting way up high above them there’s a there’s a deputy with a gun on his belt you know
31:41
and a uniform and there they feel very uncomfortable like what am I doing here oh my God yeah
31:47
but I wish people would understand that you know that they
31:53
should when they walk into a courthouse they should feel like they own that that’s their house they own it it’s not the government’s house it’s the people’s
32:00
house and they shouldn’t think any any other anything otherwise they should understand they they’re the
32:07
ones in charge the minute you give up your power you’re powerless you shouldn’t give up your power it’s yours
32:13
keep it and help all of the other people with use your power wisely yeah I think
32:19
that that’s incredible I I I’m motivated I want to go become a jury tomorrow with what you were just saying but it’s at
32:25
the same time like it’s it’s incredibly empowering to know like that you have those powers and I feel like a lot of
32:32
people because they’re not accustomed to the courtroom right many some people are lucky enough to to go to a courtroom
32:39
once or twice um because they’re on one side of the courtroom they’re not even being a juror
32:44
and and so you know people’s circumstances and experiences of course are going to vary but going in and being
32:50
a juror I I I want to know how we can impart that into a civic education of like when you’re the jury you are the
32:58
power like you are the world revolves around you the universe is revolving around you in that
33:05
courtroom um take a whole take take a hold of those horns and and ride that bull and and take it where it needs to go but
33:13
um I think that that was another thing that you ended there with is is the empathy part of this you are it’s not
33:21
just a blank Black or White Court case this is somebody’s life right if
33:26
somebody’s accused of hurting somebody else there’s two people’s lives there hey you know there’s there’s the spider web effect of you have to look at this
33:33
and and did somebody harm somebody else did somebody take somebody else’s stuff what was the damages caused how the
33:40
repercussions if you can find the research and figure out like what the what the punishment’s gonna be based on
33:46
your your own uh your own findings of hey if I give them this this is what the thing is
33:54
going to be because you can’t talk about it but but yours can talk amongst themselves about those things correct
34:00
that’s true so you know if if you are ever in that opportunity and I’ve got a
34:05
couple co-workers that I’m gonna have a sit down with and I’m gonna play this episode for them um that are getting selected or in the
34:12
process of potentially being selected for jury it’s just like hey here’s what you need to do you have the power you
34:18
empowering people with the responsibility and knowing that they are changing the trajectory of somebody’s
34:24
life I think that once you put that in someone’s hands they’re going to take it a little more seriously rather than oh I
34:30
can’t go to work one day I have to go and do jury you’re doing something that’s important to the process you can be a safeguard for Liberty you could be
34:37
a safeguard for um for order you could be a safeguard for whatever your desire is but it is in
34:43
your hands and as long as you’re taking that with some responsibility and you’re taken out with a little bit of ownership and you go in there and you do the right
34:50
thing I mean that’s all that we can advocate for right right I think I think one of the things
34:57
you just commented on that I would highlight is that it also does limit the power of the
35:03
government and that’s super important I think because you know sometimes the government maybe they’re doing all right but sometimes whoops they went over they
35:11
went they went wrong and um the two types of cases where jury
35:16
nullification is most prevalent today is probably marijuana and gun possession
35:23
and you know back like uh before the Civil War uh we had the
35:28
Fugitive Slave Act where um if a runaway slave went to a free state
35:36
and somebody helped that runaway slave they could be prosecuted under the Fugitive Slave Act and imprisoned in the
35:44
United States and so sir many many Northern juries used jury nullification
35:50
because after all the guy was guilty but the jury felt that the law was unjust and they were unwilling to enforce it
35:57
they refused so with juror nullification can you talk about how that process works like what
36:04
what is the threshold um so if you let’s say we have a 12 12 person jury what is the threshold
36:12
um is there how does it come about if you were to be in a court case and you the court case
36:19
was that somebody was had was found with three grams of of flour so it’s
36:26
literally nothing at all very little um they’re being accused and being charged
36:33
and it’s now your jury you’re going in as a juror into the deliberations how does how do you set up that conversation
36:40
what is the thresholds what’s kind of the the Necessities there well I guess one of the basic
36:47
basic aspects of the jury’s decision or decision making perhaps is that in order
36:53
to have a verdict a verdict is by definition unanimous at least traditionally and I think in Most states
36:59
I think there are a few states where they have watered down as part of the
37:04
um diminishment of the jury I think uh where the some states have they allow uh
37:11
non-unanimous verdicts so like 11 to 1 or something like that but in most States and traditionally it has to be
37:18
unanimous and in Minnesota it does have to be unanimous in a criminal case so
37:24
um if but if if in Minnesota if there’s a unanimous verdict to acquit then that
37:30
means the person was acquitted and they could never be tried again in state court maybe they could theoretically be
37:37
tried again in federal court because that’s a different jurisdiction at least that’s what the judges think these days I I
37:45
personally am not sure about that but that’s the that’s the prevailing view yep um so if it’s unanimous not guilty
37:52
verdict it has to be unanimous if it’s 11 to 1 it’s not a verdict but if it’s unanimous not guilty verdict that means
37:59
they’re acquitted and they can’t be tried again if the person uh is accused
38:05
of possessing three grams of marijuana and if if marijuana is a crime to possess
38:11
and the jury believes absolutely he possessed it he said he did you know
38:18
um but we don’t think anybody should be convicted of that so we’re gonna unanimously all 12 of us think we’re
38:25
gonna we we vote for not guilty so that would be an example of jury nullification meaning the jury nullified
38:33
the law they decided that the law was corrupt or
38:39
wrong and so they refused to enforce it to use their discretion so it’s kind of
38:44
interesting that you know police officers have discretion to enforce laws or not prosecutors have discretion to
38:51
enforce laws or not but then when the jury is going to do it we’re going to call it nullification and we’re going to
38:57
get really upset about it at least some people are why why why can police and
39:04
prosecutors have discretion in power but a jury isn’t supposed to that makes no sense to me and it makes no sense to the
39:11
courts in the United States all courts acknowledge and recognize that the jury
39:17
has the power to nullify in its verdict if it wants to that’s beautiful
39:23
um yeah I think it’s interesting so there was a recent court case um down in Indiana
39:28
um our my friend William Henry he was uh he was arrested for having a small amount of marijuana and they
39:34
actually brought it to a jury trial and so they spent thirty thousand dollars over a couple grams of of marijuana on
39:42
this trial and going through it and they of course laced up the the the body of
39:47
the piers were I believe most of the the jury was made
39:53
up of government worker spouses um it was kind of you know kind of what
39:59
you would expect in in an area that wanted to make sure that they got the the guilty charges that they did thankfully he was let off kind of easily
40:05
um by the judge uh through that process but um it is one of those things that you
40:11
know as we talk about this we are especially when we talk about cannabis in some areas
40:18
um across this country there’s there’s places where people are very much gung-ho about hey the cannabis laws are
40:25
are unjust let’s get rid of them let’s have you know when you have uh
40:30
dispensaries looking like I think what was the Tweet if you have a dispensary looking like a an iPhone store or an
40:36
Apple store it’s time to start letting people free you have areas of this country that believe that in and that is
40:43
clearly my view as well but then you also have other various areas where they still call it uh the gateway drug they
40:49
still call it um you know they they call it similarly to methamphetamines
40:55
and all these other hard drugs because they just have been suscepted to uh to the that kind of of a
41:03
view in programming and so if you are on the jury ever you have to
41:09
figure out how to be the best public speaker you’ve ever been and you know you have to Advocate and and well you
41:16
don’t have to you should it is your moral duty to stand up and and to advocate for the Nullification on that
41:22
and to get the other 11 15 or however many jurors are with you um
41:28
in your time as being a criminal defense lawyer have you had any cases where
41:34
you’ve been fortunate enough to see during nullification or is that something you’re allowed to talk about uh I’m allowed to talk about it because
41:42
I’m not in court right now if I was in court I wouldn’t use the n-word [Laughter]
41:49
which is nullification that’s the N word that I’m referring to by the way in case anybody wasn’t sure
41:58
that’s kind of uh the the n-word the Nullification word
42:04
it’s kind of um it’s an interesting thing it’s it’s a word that people don’t like and
42:11
kind of on both sides in a way we it’s kind of a love-hate relationship that we have with that word
42:17
it does capture uh what the extreme form of jury Independence
42:22
basically it’s the most it’s the most um extreme or notable uh form of it pure
42:31
form of it but and it’s actually we’re somewhat rare and it’s uh somewhat
42:38
limited but juries there’s another related term that
42:43
the Minnesota courts have used called jury lenience so the jury has the right of lenience kind of when I was talking
42:49
before about police officers discretion prosecutorial discretion well the courts
42:55
talk about the the jury has the power of lenity which is kind of a older word but
43:02
lenity means lenience but um that’s a more common word that any one of us might use today
43:09
um you might be lenient with your uh misbehaving child or what have you you know or your dog or something but
43:16
um but the jury lenity is the idea that the jury might be more lenient than
43:26
than what the facts appear to support so so for example I’ve had I had a
43:32
marijuana grow case where my client was accused of like 70 kilos of marijuana growing in a field
43:42
um and I got a jury instruction in Minnesota a small amount of platform
43:48
marijuana under an ounce and a half is a petty misdemeanor and I got the judge to give a jury
43:55
instruction for that as basically a lesser included offense so that jury had
44:00
the option on the menu they could convict him of under an ounce and a half if they didn’t
44:06
want to just acquit him of everything um so I’ve done that a few times and
44:12
I’ve got I’ve always gotten that jury instruction in Minnesota um
44:17
but the jury did not go for that but interestingly in that as long as I’m talking about that case yeah they
44:25
um they didn’t convict him of over 50 kilograms so the police and the crime
44:30
lab the State Crime Lab said that he had like you know
44:36
69.8 kilograms you know blah blah so the jury convicted of him of having
44:42
between 10 and 50 kilograms which nobody said that by the way yeah
44:48
no but I didn’t say that then the prosecutor prosecution never said that nobody nobody really so I don’t I’m not
44:56
sure how they could come up with that but lawyers often call that kind of verdict
45:03
a compromised verdict because you would think that they either Believe
45:09
it or they don’t believe it either it’s what they say or it’s not you know um I was saying it’s not and
45:17
I’m kind of skipping over the argument because I would take too long but they came back with oh something in between
45:23
but I was hoping for a house and a half but they the judge gave them that instruction
45:29
they didn’t know that it was me that had asked for that you know yeah but um and that’s kind of unfortunate but
45:36
that’s kind of how the system works but um but the prosecution was asking for
45:41
the over 50 kilos and between over 10 kilos so
45:47
he was acquitted of over 50 but he was convicted of over 10. so that that’s kind of an example or
45:55
that is an example of jury lenity probably yeah no that’s just compared to what the state wanted
46:01
so if my understanding is correct is there’s kind of there’s
46:07
there’s basically is what they asked for and I’m trying to get the camera angle right there’s what they’ve asked for then you have like lenity and and lenity
46:15
eventually would get to potentially like a nullification where it’s just like all full outright acquittal or not guilty
46:22
and so you kind of have that and so the Spectrum there in itself is like the lenity if you will and you just well
46:27
there could be there could be more than one there might be more than one charge so in that case there was more than one
46:32
there were three charges there were two from the prosecutor and one from the defense prosecution the the jury didn’t
46:38
really know where they were coming from they’re usually coming from the prosecution but the defense has the
46:44
right to request What’s called the Lesser included offense okay um I mean sometimes it comes up with
46:50
self-defense type of situations where um so self-defense is very fact specific
46:58
it’s really a jury issue there’s law on it but basically the jury can do
47:04
whatever they want whatever they think is right so it has been noticed that
47:09
sometimes juries will find for self-defense when some people might disagree with it because the the guy
47:17
caught his wife sleeping with another guy and you know he shot the guy or something you know
47:23
um and whether it was self-defense or not some people say probably not but the jury bought it anyway you know
47:31
um so it’s real it’s it’s real hard to
47:36
question a jury verdict and that’s one of the aspects of jury verdicts for
47:42
hundreds of years if that thousands of years I mean they can do whatever they want and it’s super hard to really look
47:48
behind it I mean all you really know is what the what their result is you don’t really know sometimes they some of them
47:55
will talk about it after the fact some of them won’t and you don’t you don’t really know for sure you know what
48:01
happened or why wow but you can speculate but so there’s a lot of situations I would say 99 of
48:08
the time when uh that the prosecution doesn’t get everything they want you could say that
48:15
there was some kind of jury lenity going on but if unless they all 12 unanimously
48:22
vote not guilty on everything or you know it’s probably not going to be called nullification the n-word
48:30
I love that yeah um no that’s fantastic that’s it’s a lot of great information
48:35
there because I I feel like for a lot of people when we look at the
48:40
court system right we just and those of us who’ve sat there and watched a lot of these court cases we
48:45
see like it’s multiple charges and it’s like guilty not guilty throughout the throughout all of those I haven’t seen
48:52
very many whereas like guilty on all charges um some of those are because the the facts
48:58
don’t line up and some of those the facts did line up but but as you’re you’re described with the lenity they
49:03
could be that it could be a whole line of things I think it’s a really interesting concept just in in general
49:08
and um I’m really glad that you’re able to take the time to break down a lot of the stuff for us um tonight this is
49:16
my head is is reeling with like all the thoughts and everything else with this I want to know um if if you want to share
49:23
like your like your favorite court case that you’ve ever won or or like what was one
49:29
of the biggest highlights there in in in the courtroom if you’re able to talk about those I don’t I don’t know well
49:34
there’s one I think there’s one other thing that I kind of like to squeeze in yeah that we haven’t really covered yet
49:40
which is um basically a mistrial so
49:45
in Minnesota and probably most States we require a unanimous verdict for a criminal case either guilty or not
49:52
guilty has to be unanimous so um other lawyers and I and I have also said
49:59
to juries uh during closing argument that on it that as a juror you have uh
50:07
one juror on a jury
50:12
has the power to prevent an injustice to prevent a guilty verdict Because unless
50:19
there’s a unanimous verdict for guilt then there’s not going to be a guilty verdict
50:25
there may be a mistrial and I’m probably not going to say that because the judge won’t like it but that is what would
50:31
happen if if the jury does not come up with the unanimous verdict the judge
50:36
will probably you know ask them to keep trying keep trying for a while and hope you know and then some jurors
50:43
will try to uh possibly bully the one hold out if there are two holdouts or
50:48
whatever there are the minority the majority might try to bully the minority a little bit to acquiescing and giving
50:55
in so they can get a verdict a unanimous verdict but in the end if one person or
51:02
three people want to hold out and say absolutely not I’m not going to convict somebody for harboring an escaped slave
51:10
or for possessing uh a firearm you know in their bedroom
51:16
in a bad neighborhood when they were convicted of a felony 30 years ago I’m not going to convict for that I just
51:22
don’t think that’s right yeah so I think that’s important that there would be a mistrial and if there was a mistrial
51:28
because a jury couldn’t come to unanimous verdict then the prosecutor could have a they could restart the
51:34
process and have another trial and I’ve also heard where a mistrial has
51:39
led to the prosecutor going look we’re not going to keep trying this case anymore and kind of it just it the cards
51:46
fall within themselves and everybody moves on from there as well um right or they could sometimes they
51:52
make a better better offer too so there’s a lot of little tricks of the
51:57
trade there um I’m so excited for this conversation um any other last little bits that you
52:02
could think of that you want to share before we start wrapping this thing up no okay so you are an incredible
52:09
activist there in uh the Minnesota state what do you guys have anything coming up
52:15
I know you’re working with normal I know that you’ve been working you you said some of the the things you
52:20
love to work on um in the pre-show anything coming up that people can plug into and where can
52:25
they follow you it’s your social medias and everything else um
52:31
well with Minnesota normal we have a website m-i-n-n normal
52:38
dot org and I always say normal without the a normal without the Anarchy uh
52:45
you know a lot I think a lot of a lot of us are some of us might be more anarchists leaning but um but anyway
52:53
normal is spelled without an a because it’s an acronym but um
52:58
and then my stuff uh on Twitter at Gallagher 61b
53:04
and uh my website gallagherdefense.com I have a Blog and I write on various
53:11
criminal odd topics including a lot of marijuana law topics and gun law topics
53:18
so if you guys are looking for marijuana you guys are looking to get plugged in with Minnesota normal we’re looking to
53:24
find out more about normal whether because they’re probably in your state as well or are you looking to learn more
53:29
about guns go ahead check it out it was gallagherlaw.com
53:34
gallagherdefense.com gallagherdefense.com go check out those links go check him out follow him
53:40
fantastic source for all of your marijuana your cannabis needs your gun
53:46
needs and of course your criminal defense I want to thank you so much Tom for joining us tonight it was an absolute pleasure I learned a lot from
53:53
you and I appreciate it so much thank you all right uh I will see you in
53:59
a couple minutes uh there we go so what today a double header he had spy
54:06
Cohen Tom Gallagher coming through we’re talking about bail reform earlier coming into tonight’s show where we were
54:12
talking all about the jury how empowering was that I mean I felt
54:17
motivated I wanted to go break into a courtroom be like I am now the jury after that conversation uh there’s so
54:23
much there that we could be doing and here’s the important thing is that we’re taking these messages and we’re not just
54:29
taking it collecting it and just letting it mold around in our head take this stuff bring it out to your neighbors because your neighbors are going to be
54:35
on the jury potentially before you are um we gotta spread the message because we need to be working to have a criminal
54:43
justice system a court system a political system that is working in favor of the people it’s supposed to be
54:50
before the people buy the people and to the people it’s about time that us people come back and continue to work to
54:57
make sure that we’re holding it accountable and of course with the conversation around jury nullification
55:02
and that n-word coming back or jury uh leniency we can we have a little bit more say in
55:10
this than what we may have thought beforehand so go ahead give this a share out I want to thank you guys all so much
55:15
for spending some time with us spending some time with me today bearing through the dad jokes from earlier and
55:21
bearing and learning a lot with me today I was so incredibly excited for today I’m so glad you guys were a part of this
55:26
we’ll see you guys next week I’ll be back here next Friday I’ve got the one and only uh Marie peel from Brevard
55:34
County Florida she’s coming on we’re gonna be talking a little bit about how get how to get the gears moving
55:40
um when you’re working for an organization for an event for a party whatever you’re working on how you could
55:46
be on the on the back side and helping out so you can get engaged to help out and make a difference in your community
55:51
uh but with that guys I hope you guys will be well be good