Abortion Protest Juries Told to Ignore Nullification Ad

Judges in three trespassing trials involving anti-abortion demonstrators admonished jurors Friday to disregard a “jury nullification” advertisement that appeared in this week’s San Diego Reader.

Steven J. Casey, spokesman for the district attorney, said Municipal Judge Larrie R. Brainard, presiding over one such trial in El Cajon, told the jury, “in strong words, to pay no attention to the ad, to ignore it.”

The ad failed to sway the jury in one trial, in which a guilty verdict was returned Friday. Seven defendants being tried in the courtroom of Judge Victor Bianchini were convicted of resisting arrest and trespassing, and three others were convicted of trespassing. Sentencing may come next week.

Judge Eddie Sturgeon, who presides over the El Cajon Municipal Court, said Friday that he is “deeply concerned” about the ad, which was arranged for by the anti-abortion group Operation Rescue and appeared in Thursday’s issue of the weekly newspaper.

“I have real problems with it,” he said. “Basically, it tells potential jurors to disregard the law in the state of California. It tells jurors not to follow the instructions of the law, to hide their true feelings and intentions from the judge. It tells jurors to disregard the oath that they take.”

“Our main concern about the ad is that it solicits and encourages prospective jurors in a criminal proceeding to just flat-out lie,” said Casey, the district attorney’s spokesman.

In Casey’s words, the ad schools potential jurors on how legally to acquit anti-abortion protesters accused of trespassing. Casey said the district attorney had warned the court about the ad but may follow up by investigating the Reader and Publisher Jim Holman in pursuit of “possible criminal violations.”

Holman was arrested at a demonstration in Hillcrest last spring and again last fall in an anti-abortion blockade of a La Mesa clinic. He is one of 32 Operation Rescue protesters who came before the court this week in three separate trials in El Cajon. His case has not yet been resolved.

“We run almost any ad of a political nature, unless it’s libelous,” Holman said. “We don’t run ads pertaining to abortion clinics or abortion referrals because of my personal convictions. But, if Planned Parenthood or the Womancare Clinic wanted to run a political ad, we would let them. We might even run a political ad from the Communists or the Nazis.

“In the case of this ad, it does seem to me that jurors ought to know all of their rights, including jury nullification, whether they choose to exercise them or not. Otherwise, we’re treating them like infants.”

Deputy City Atty. Steve Miller said Friday that his office “may consider” banning the Reader from public buildings in San Diego, particularly courthouses.

“Every Thursday morning, they put piles of these papers in all sorts of public buildings,” Miller said. “To have hundreds of these papers dumped in the laps of prospective jurors worries us. I don’t think the existence of the ad is going to affect the outcomes of cases all that much--I think jurors have more sense than that--but why should we take a chance? What distresses us is that they (the management of the Reader) pulled this stunt at all.

“ ‘The people’ have to prove a criminal case beyond a reasonable doubt, so the burden of proof is entirely on us. We consider it a blatant violation of ethics, and that’s why it’s so disgusting.”

Miller said he questions the use of one passage in the ad, which reads: “The most important rule is, don’t let the judge and prosecutor know that you know about this right. It is unjust and illegal for them to deny you this right. So, if you have to, it’s perfectly all right for you to make a ‘mental reservation.’

“Give them the same answer you would have given if you were hiding fugitive slaves in 1850 and the ‘slave catchers’ asked if you had runaways in your attic. Or if you were hiding Jews from the Nazis in Germany. The second rule is, educate the other jurors about jury nullification and, if possible, persuade them to vote ‘not guilty.’ ”

Miller called the history of jury nullification an ignoble one. He said the only time he knew of its having been used was in the South, at a time when Ku Klux Klan members were on trial for having murdered blacks, who, in Miller’s words, “were trying to exercise their rights, by registering to vote.”

“The jury decided, in essence, that Klan members could do whatever they wanted,” Miller said. “Law isn’t a case of ‘who wins is who we like.’ Jury nullification is asking jurors to ignore evidence, to ignore law. As a juror, you look at the law, and the facts, and to do otherwise is to ignore your sense of duty and promise as a citizen.”

Holman reacted to the possibility of the Reader being banned from courthouses in San Diego by saying, “That’s so typical. They’ll do anything to stop the dissemination of information. They don’t worry about First Amendment rights, and that’s a shame.”

Holman, who is Catholic, said he is opposed to abortion, “not because I’m such a religious person, but because it’s the deliberate taking of innocent, human life.”

A local attorney who has represented dozens of anti-abortion activists but who begged not to be quoted by name, said he thought the Reader ad was “highly questionable and walked a very thin line. Yes, you could say I was opposed to it.”

But Sylvia Sullivan, a spokeswoman for Operation Rescue, said the Reader ad was necessary because of the “irrationality” of the court system.

“This was necessary because the truth is not being allowed in court,” Sullivan said. “And the truth is, a lot of reasonable people are trying to save babies from dying. But, in America, you can’t say that in court. Most of our people do not deny that they were present at the abortion mill, they just can’t say that they were trying to save a baby’s life.”

Sullivan said a “type of jury nullification” was evident in the recent Ginger Brown kidnaping case.

“Her parents did haul her off and tried to have her deprogrammed, but the jury acquitted them because they were rescuing her,” Sullivan said. “In that case, the jury did the moral thing, and everyone seemed to condone it.

“We’ll do more of this in the future,” Sullivan said, in reference to the Reader ad. “When the system denies us a defense, we’ll do anything to get at the truth.”