Clark Neily
Imagine you were operating a shark-diving charter boat in Florida and came across a long fishing line that you believed to be the work of poachers. You haul in the line, release a number of fish, and take the rig back to the marina after notifying state officials.
If it turns out you were mistaken and had actually stumbled onto a bona fide research project, would it be fair to charge you with “stealing” the line you hauled in and left on the dock? The US Department of Justice thought so and pursued felony charges against the two boat operators, John Moore and Tanner Mansell, for theft of property within the “special maritime jurisdiction” of the United States.
A jury reluctantly convicted Moore and Mansell after deliberating for longer than the entire trial took, sending out seven (!) notes to the judge, and nearly deadlocking. The Eleventh Circuit reluctantly affirmed, with Judge Barbara Lagoa—herself a former federal prosecutor—castigating the Assistant United States Attorney by name in her concurrence for “taking a page out of Inspector Javert’s playbook.” She noted that Moore and Mansell “never sought to derive any benefit from their conduct” and have been branded as lifelong felons “for having violated a statute that no reasonable person would understand to prohibit the conduct they engaged in.”
Yesterday, Cato filed an amicus brief urging the court to grant en banc review and reverse the convictions. The brief explains that for centuries, the greatest protection against unjust convictions and punishments was the institution of jury independence, including so-called “jury nullification.” But because modern judges have effectively nullified the power to nullify, it is all the more important that other defendant-protecting doctrines—such as the rule of lenity—be applied robustly.
Because the jury instructions in this case reflected a broad conception of the word “steal” rather than a narrow one, Moore and Mansell are entitled to a new trial with a properly instructed jury.