Sandwich "Grand Jury Nullification" Weakens Protection for Law Enforcement

WASHINGTON - Rezul -- The decision of a grand jury to refuse to indict a protestor who barely touched an ICE agent with a sandwich seems to be a rare example of "grand jury nullification," says public interest law professor John Banzhaf,

This is at least the fourth time this month that grand juries have refused to return felony indictments against citizens charged with assault against law enforcement officers involved in immigration enforcement, notes Banzhaf.

If these cases set a trend, it could endanger ICE, FBI, and other agents facing more serious physical assaults, he predicts.

Although judges routinely tell jurors that they must put aside any personal feelings, jurors may of course balk and vote their individual feelings; a right upheld by the Supreme Court with regard to trial jurors, and apparently also inherent in the powers given to members of a grand jury.

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Under the principle, a grand jury may refuse to return a felony indictment, as it did in the sandwich case and at least three other recent incidents involving immigration officers, if its members believe that the law is unfair or unreasonable, either in general or as applied in a specific situation, to send some kind of message to prosecutors and/or to the general public, because a conviction in a specific situation might seem unjust for some reason, to register strong discontent with the conduct of the prosecutor or the alleged victim, because of public pressure for - or concern about - imposing a more serious charge than is warranted in the particular circumstance, or for a myriad of other similar reasons.

Most "not guilty" verdicts which appear to be the result of jury nullification involve very sympathetic or popular defendants such as former D.C. Mayor Marion Barry and perhaps O.J. Simpson, and/or where the circumstances of the crime are factually unclear or morally uncertain such as with subway shooter Bernhard Goetz or George Zimmerman.

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Here it appears that the grant jury refused to return a felony indictment for barely touching an agent for one of two (or possibly both) reasons:
* mildly touching any law enforcement agent, even an ordinary cop on the street, with a sandwich should not warrant a felony indictment which could result in incarceration for a year or more in a prison
* physically interfering with immigration enforcement is warranted because the agents often deport sympathetic law abiding people, and/or use overly aggressive and unpopular tactics

But to the extent that grand jurors rely upon the latter justification, they may refuse to issue felony indictments even where a much more serious and perhaps even life-threatening assault occurs, warns Banzhaf.

http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf