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Defense in vigilante arson case hopes jury favors client, not law

Samuel Mohammed, a Bible-toting vigilante who burned down a crack house, needs a jury that thinks as he thinks.

Mohammed, 33, whose arson trial is scheduled to begin today, has admitted that he took the law into his hands when he set two fires in September that destroyed a small, boarded-up house on Tamarind Avenue where drug dealers peddled drugs and addicts got high.

Juries aren't supposed to take the law into their hands. Their verdicts are supposed to be based on testimony and evidence, not emotion and conscience.

But every now and then a jury intentionally disregards the law and sets a defendant free, despite overwhelming evidence of guilt.

In legal circles, it's called jury nullification.

Although it sounds intimidating, jury nullification is simple: A jury can do whatever it wants, regardless of the evidence.

"They are, bar none, the most powerful group in the country," said Rebecca Lynn, a Clearwater jury selection expert who helped John Zile's attorneys pick the jury for Zile's first trial, which ended in a mistrial. "They answer to no one."

Nullification became a topic early in Mohammed's case. A prosecutor filed court papers trying to keep secret the names of prospective jurors after a renegade legal group that promotes jury nullification vowed to do "whatever we can to see that Mr. Mohammed gets what we call a fully informed jury." A judge refused to seal the jurors' names.

"The jury is put there to defend the individual against the government," said Harvey Wysong, spokesman for the Fully Informed Jury Association, which plans to hand out literature at Mohammed's trial. "When we say protect the individual from the government, that includes the judge, the Legislature that passes crazy laws and the prosecutor."

In other high-profile cases FIJA has done that by handing out leaflets to anyone entering the courthouse or getting the names of prospective jurors and sending them brochures. During the Branch Davidian trial, FIJA members circumvented a judge's order sealing the names of jurors by using a telephoto camera lens to get jurors' license plate numbers and then used motor vehicle registration records to get home addresses.

In Mohammed's case, the jury must weigh the evidence and decide if it really wants to send a deeply religious former college football star to prison for burning a crack house.

"The only thing I'm guilty of is loving my people and my community," Mohammed has said about the charges.

"This is a very sympathetic case in one sense because no one wants a crack house in their neighborhood," said Stephen Saltzburg, a professor at George Washington Law School. "But suppose it was a hospital that does abortions?"

Although jury nullification is not illegal, it is kept a secret by court officials. Attorneys, by Florida rules of court, are not allowed to tell jurors that they have the power to decide that a particular law should not be used in a specific case. Judges never mention the power to nullify in their jury instructions.

"There's so much jurors don't know," Lynn said. "It's kind of bizarre because they swear to follow the law, but they can follow their conscience. Which is better, the conscience or the law?"

Opponents argue that telling jurors about this power would create chaos and encourage jurors to become vigilantes.

"The fear is that jurors will run rampant with this," said Jeff Frederick, director of jury research with the National Legal Research Group in Charlottesville, Va.

Research confirms that when jurors are told about jury nullification they use it, Frederick said. But they use it selectively.

"Jurors do respond to the circumstances and you can end up with more jurors acquitting," Frederick said. "It really depends on the crime, if it's a euthanasia case or a drunk driving case."

Jury nullification has been around for hundreds of years. Legal scholars say the earliest case dates to 1670, when William Penn went on trial in England for preaching a Quaker sermon that violated a law establishing the Church of England as the only lawful church.

Penn argued for freedom of religion and the jurors agreed. Their verdict infuriated the judge, who fined them. One juror went to prison for refusing to pay. A higher court sided with the juror, establishing the rule that a juror can never be punished for a verdict.

Today, cases featuring to do-the-right-thing kind of justice are rare and usually grab headlines _ the cases of Bernard Goetz and Dr. Jack Kevorkian, for example, both of which raised the issue of vigilante justice.

For prosecutors the cases are especially tough. In some cases the victims are villains, in others they are willing participants in the crime.

"What you have to do as a prosecutor is try to explain to the jury that they're judges of the facts and they take an oath to follow the law," said Lawrence Bunting, a Michigan prosecutor who unsuccessfully tried to convince a jury that Kevorkian broke the law when he helped a terminally ill woman commit suicide.

"I always use that famous quote from John F. Kennedy," Bunting said. "

"Every American has a right to disagree with the law and every American has the right to try to change the law, but no one has the right to disobey the law.' Sometimes it works."

The cases can be equally tough for the defense. Evidence _ DNA, fingerprints, hair samples _ are unimportant. Winning these kinds of cases hinges on picking the right jury and saying the right thing.

"If I was his lawyer I would argue that (Mohammed) intended to burn a substance _ crack," Saltzburg said. "He didn't see it as a structure. He saw it as crack cocaine. It may sound silly, but that's probably what he thought."