Jury Nullification: It’s A Grand Old Tradition

cropped-district-court.jpgI was going through an FBI list looking to see if I could find any information on Arthur Flegenheimer. I didn’t find it under that name. So I went looking under the pseudonym he used. I didn’t find him there. I thought perhaps because he was a big gangster back in 1935 the list wouldn’t include people back in those days.

I checked for Baby Face Nelson who was killed in 1934, he wasn’t there. I found Kate “Ma” Barker who was killed in 1935; Pretty Boy Floyd killed in 1934; John Dillinger also killed in 1934.

You may know of Flegenheimer as Dutch Schultz who was a big time hoodlum and bootlegger out of New York City. I was looking for him because I heard that a criminal jury did for him what one had done for OJ Simpson, who by the way is back in the news.

I think of him because I wrote about jury nullification yesterday Schultz was considered public enemy number # 1 for a while. The government was unable to get him for the crimes he committed so it went after him for not filing income taxes for three years. He went on the lam for almost two years during which time he offered the government $100,000 to drop the charges. It wouldn’t so he surrendered.

His trial began in Albany. The prosecutor was the man who convicted Al Capone for the same thing.  The government presented a strong case that went on over a week. Schultz’s defense that he didn’t think he had to pay taxes on illegal income lasted three hours. After a day and a half deliberation the jury was hung.

The case was scheduled for a retrial in Malone, NY., a small town ten miles south of the Canadian border.  The trial lasted two weeks. The jury came back with an acquittal. It seemed for a week before the trial Schultz had been in town picking up the bar tab for all the locals.

Just before the jury left the courtroom the federal judge Frederick H. Bryant presiding over the trial said to it: “you have labored long and no doubt have given careful consideration to this case. Before I discharge you I will have to say that your verdict is such that it shakes the confidence of law-abiding people in integrity and truth. It will be apparent to all who have followed the evidence in this case that you have reached a verdict based not on the evidence but on some other reason. You will have to go home with the satisfaction, if it is a satisfaction, that you have rendered a blow against law enforcement and given aid and encouragement to the people who would flout the law. In all probability, they will commend you. I cannot.”

Jury nullification is something not much liked by the judges as Judge Bryant indicated yet is something they can’t do anything about. The California Supreme Court wants the judges to instruct jurors to turn in other jurors who say they won’t follow the law. The judges don’t like it because as I’ve noted several times “the law is what the judges say it is.” Even though the law can change, the judges want the jurors to stick to the law as told to them today, not that which they may have lived under previously or what it will be tomorrow.

We tend to think of jury nullification as something new when it isn’t. In the South at one time almost all white juries would acquit a white man charged with killing a black man. Yet at the same time, during the Underground Railroad days when the runaway slaves were tried before a jury under the Fugitive Slave laws most juries in the northeast would refuse to find the slave had to be returned.

Then there’s a much simpler case that occurred on Nantucket several years ago. There a man stood before a jury charged with drunk driving (operating under the influence). The evidence was truly overwhelming.  Around 10:30 p.m.he put his car into a fence. He had been coming from a party. When the cops came he got out of the car carrying a pint of Old Granddad. He staggered forward mumbling incoherently. It was all on  police tape. He was held up by two cops at the booking desk. He admitted he had been drinking since early afternoon. The jury was out a half hour and came back with a not guilty.

It seems the defendant was the guy who drove the trash truck on the island. The jurors were dependent on him to pick up the trash twice a  week during the summer. None would dare deprive him of his driver’s license.

We might also have seen that in Boston in the trial I write about in my book Don’t Embarrass The Family. There a jury had a corrupt FBI agent John Morris and three gangsters Martorano, Weeks and Salemme testify. It refuse to convict Connolly on any evidence that was not independently corroborated by non-gangsters except in one instance involving the crying lying agent Morris who told about a double stacked case of wine with a thousand dollars in it that Connolly had given him.

When I heard Martorano testify I know I felt ill seeing a man who murdered twenty people joking in court and acting as a wise guy. It turned my feelings against the government thinking it would have allied itself with such a man. This is a real danger that faces the prosecution. Neither Flemmi nor Martorano have any redeeming features. They ooze corruption and filth but still think of themselves as wise guys. Their acts might play all right in some places but it’s not something that will endear themselves to a Boston jury.



11 thoughts on “Jury Nullification: It’s A Grand Old Tradition

  1. With all the shenanigans that take place in our courthouses it is reassuring to me that the people will make a decision showing that the quality of mercy is not strained out on the Island. Lawyers can be a dime a dozen but the guy that you can count on to show up and dump the ash barrels is a man worth protecting.

    1. Hopalong:

      That’s that the people of Nantucket rightly decided. Can’t say I blame them.

  2. Matt,

    One ‘question’ I forgot to ask you. Is it illegal if a person or a group were to hold signs in front of the DOJ, State House, or FBI office protesting their support of criminals such as Martorano or a sign protesting certain Govt. antics? I know you mentioned there are “Freedom of Speech” sections nowadays and I know the hacktivist group Anonymous was at the DOJ but I don’t know where to find the laws on this for Massachusetts?

    1. Question:
      There’s a video on line of a guy who was stopped by the Homeland Security Police for taking pictures of cars near some federal facility. There may not be something illegal about it but with the Homeland Police watching it’d depend on their training. The law on it is in the First Amendment which gives one the right to stand in front of the courthouse in an orderly manner and protest anything. You might get harassed by some cops or they might set up a “free speech zone” that’d be somewhere in Everett for you to protest from but other than that anyone can protest anything in front of the courthouse where the local DOJ hangs its hat. The Founding Fathers (FF) realized the people have to be able to express their grievances; the can do it verbally and peacefully or violently, the FF figured if it ensured that right was enshrined in the Constitution then most people would take advantage of it and do it peacefully that is why it is legal. McVeigh decided that wasn’t enough for him and he caused great harm and is no longer with us.
      Here’s a look at the law on it. http://law.justia.com/constitution/us/amendment-01/56-public-issue-picketing-and-parading.html

    2. Question,

      Last time I picketed in front of the Federal Court, we got a permit from the City of Boston and notified the court officers. We were allowed to picket with handheld signs on the sidewalk in front of the court, but away from the doorway. I seem to recall that we were required to be walking continuously and not make loud noise. There were about one hundred of us protesting one of the many cases in which the US Attorney’s Office withheld exculpatory evidence resulting in the conviction of an innocent person. The case was overturned by the First Circuit, twice. Needless to say, the US Attorney who blatantly violated the law was not disciplined in any way.

      If you do picket the Court (legally and peacefully)it would be appreciated if you posted it here in advance.

  3. ” You point to something significant, it’s going to be an unusual group that is willing to give up its summer.”

    Matt, I have an unusual brother who would love to do such a thing. In fact, he was just summonsed to be on the Fed Jury for the same time Whiteys case is on. Of course I don’t know if he’d be chosen or not or if he’d even be on Whiteys case, but he is all for it.

    He doesn’t know anything about Whitey or the case but I made sure he knew about Jury Nullification. LOL

    1. Question:
      Don’t you and your brother speak? How can you know about Whitey and he not know. I suppose you talk about other things. That’d be great if he got on the jury since once the case was over I could sit down and discuss it with him. In the meantime don’t discuss Whitey with him one way or the other and if he truly is neutral and wouldn’t mind the summer in court and can render a fair verdict then he should go for it.

      1. Matt,

        My brother and I have twenty years or so between us and I don’t see him very often. My mom had him VERY late in life and due to the age difference we don’t have too much in common. LOL. I don’t tell him anything about the Bulger case but I hope he gets it. If he does I will send him right in to see you afterwards I promise.

  4. Matt,
    you mention a Boston jury. Conventional wisdom has always been a Suffolk County jury would give a defendant a break because they are more street smart. Meaning many on the jury have life experiences causing them not to take what the police say as gospel.

    The more suburban/urban the jury the more difficult to question the police/prosecution’s credibility.
    Can you comment on the jury pool for a federal trial in Boston. The length of the trial alone limits the jury those who can literally afford to be there. Older and unemployed persons dominate the jury?

    That’s not a bad pool for the defendant. Especially if the old-timers grew up in metro Boston.

    1. Ernie:

      You are right the jury comes from all around the eastern part of Massachusetts spreading. There are 35,000 names kept on what is called the Master Jury Wheel, sounds old plantationist. See: http://www.mad.uscourts.gov/resources/pdf/RevisedJuryPlan.pdf off toward Worcester.

      Connolly’s jury was a good mixture of people from ages 30 to 50 give or take a few years. They weren’t a bunch of old timers. You point to something significant, it’s going to be an unusual group that is willing to give up its summer. It’s not a matter of who can afford to give up their summer and job but of who wants to give up their sanity spending all that time. Whitey’s one problem is to try to get an impartial jury that has not been affected by the media lies. I really don’t know how he’ll do that. There will of necessity be “sleeper jurors” who come on board intent to convict him, as anyone would feel who knew of his life.

      His real chance would be that if his lawyers could file a motion and have the court limit any reference to the name Whitey Bulger from the trial courtroom. What would happen if he was put on trial as Jack Robinson or James Dogood? If I can fight my way through the mob I hope to be able to give a description of the jury. My experience tells me for the most part just by looking at them you won’t be able to tell anything. You’ve heard me tell of the two Irish guys from my neighborhood who served in the same jury group one month. Looking at their backgrounds there was no way to tell them apart and you’s assume they thought alike. However one believed everyone was guilty; the other everyone is innocent. A jury is a crap shoot. There are some more expertise at it than others and attorneys rely on them but in the end you never know how all 12 will react although you may have a good feel for some of them.
      s problem will be to weed out those who want to “get him”

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