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August 18, 2008

Juror Nullification

For those in the half vast readership with a propensity to wordsmithery, the title of this post is intentional - "juror" nullification vs. jury nullification. In the interests of amusing the readership and enlightening the Editorial Staff, we have decided to institute a new feature, aptly named: "Ensmarten Cass".

As one might guess, the bar is not set particularly high here.

Today's "Ensmarten Cass" question is a no brainer. When is it acceptable for a lone juror to deliberately ignore his sworn oath, disobey the judge's instructions to the jury, and single-handedly declare federal statutes invalid?

It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”

That’s a fair question. It is a point that has been made in Cato’s publications (go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.” Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations. So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf). I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below.

A few facts about the juror in question which confused your hostess:

1. Promises? Aw heck - he meant whatever he was swearing to ... at the time:

the jury... had taken an oath to consider only the evidence and to heed the judge's instructions...

2. The judge specifically instructed the jurors that:
..they could not consider constitutional questions..."

3. The sufficiency of the evidence was not an issue:

Federal prosecutors presented evidence that Luisi orchestrated drug sales in the Boston area. Luisi had been tried and convicted of the same charges in 2002 before another federal judge, but the US Court of Appeals for the First Circuit reversed the conviction and ordered a new trial.

...and

Last week Eddlem said he would have voted to convict Luisi in a state court; he simply felt there were no grounds for a federal prosecution.

4. Principles? Again, negotiable. But sometimes you have to break a few eggs to make an omlette, no?

He opposes nullification, he added in an e-mail, but judges who ignore the Constitution pose a far greater threat than a "handful of 'nullification' radicals."

Given the considerations above, I await my eventual ensmartenment with the deepest imaginable fervor. Bonus points for mentioning England's Magna Carta or the idea we are, each of us, a virtual fifth branch of government unto ourselves capable of unilaterally nullifying federal statutes and issuing binding precedents on various Constitutional questions with no more legal training than your average Capuchin. The wisdom of crowds, indeed.

Empowering thought, ain't it? You've got to love those Founding Dudes. If we keep up this line of thought, eventually some of us may have as much power as Bill Keller.

Update: A little historical context on jury nullification. Unfortunately due to work constraints, the Princess was unable to do any reading about jury nullification until just now, so I've been making what I see as the logical and moral case against it. Here is a more history-based approach:

...in pre-revolutionary days, colonists lived under what they deemed an undemocratic, tyrannical government. The jury became a shield, where colonists could be judged by members of their own communities, and it was considered their only means for democratic expression. Second, the entire premise of democracy, in both pre- and post-independence days, demanded popular control of all facets of government. There was also a practical side to granting juries such unyielding control of trials: early colonial judges were essentially laymen selected from among their peers, and they often knew no more law than did the jurors.

However, once the United States established itself and a new republican form of government was developed, the will of the people became expressed through popular election of representatives and the enactment of their own laws. As nullification of the law would constitute a frustration of the popular will, the issue became essentially moot. Jury nullification was no longer considered necessary or desirable in a democratic society. Concomitantly, the role of judges as those who decided issues of law became enmeshed with traditional trial procedure. Not until more than 100 years later did the U.S. Supreme Court have to address the issue. In the case of Sparf and Hansen v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895), it unequivocally determined that, in the federal system at least, there was no right to jury nullification. The opinion noted,

[Juries] have the physical power to disregard the law, as laid down to them by the court. But I deny that … they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime that the jury should respond as to the facts, and the court as to the law … This is the right of every citizen, and it is his only protection.

Sometimes, it hurts to be this good... :p Seriously, I have made this point elsewhere.

Notwithstanding a judiciary that denied jurors the right to nullify, over the years, jurors have continued to use their power to do so. The power is most often wielded when jurors believe that an acquittal is justified for reasons that the law does not officially recognize. Examples include controversial social issues such as motorcycle helmet laws, ABORTION and right-to-life issues, medicinal use of marijuana, and EUTHANASIA.

In 1997, the U.S. Court of Appeals for the Second Circuit held that a juror's intent to nullify the law was JUST CAUSE for dismissal from the jury.

The case of United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) involved an African-American juror's dismissal from the criminal jury trial of five African–Americans on drug charges. However, the narrow opinion also reversed the convictions of the five defendants and remanded the matter for a new trial. Although the court ruled that a juror's refusal to apply the relevant law was just cause for dismissal, only unambiguous evidence of the juror's deliberate disregard of the law (not apparent in this case) would justify such a dismissal. In so holding, the appellate court acknowledged the necessity for secrecy in jury deliberations.

Similarly, in 1999, the Colorado Court of Appeals reversed a lower court's CONTEMPT conviction of juror Laura Kriho. People v. Kriho, 996 P.2d. 158 (Colo. App. [1999]). Several of Kriho's fellow jurors testified that during deliberations, she suggested to them that drug cases should be handled in the community rather than by a criminal justice system, and then advised them of their right to nullify. Although the trial court cited Kriho's alleged misleading of the court about her attitudes toward drug use during voir dire examination, the appellate court found that the Kriho case was, in fact, about jury nullification. It reversed her conviction on grounds that the court should not have considered evidence from jury-room deliberations. The end result of these cases reaffirms that juries have the power to render unreviewable general verdicts of acquittal, making it nearly impossible to definitely prove that nullification occurred.

In other words, as I said earlier, a wrongful conviction can be appealed. Where is the check on on a jury's willful decision to set aside the law?

Posted by Cassandra at August 18, 2008 07:40 AM

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Comments

All kydells for the future shall be removed altogether from Thames and Medway, and throughout all England, except upon the seashore. -- Declaration 33, Magna Carta.

That pretty well sums up my ideas on the matter.

Posted by: BillT at August 18, 2008 11:25 AM

I can tell today is going to be one of those days...

*sigh*

Posted by: Cassandra at August 18, 2008 11:29 AM

Personally I have never seen the groundwork for the Law of Gravity.

Ergo, I refuse to be bound by it. I am a feather; lighter than air. You cannot constrain me to the quotidian bonds so meekly accepted by mere mortals.

"Feh...", I say to you.

Posted by: Fig Newton at August 18, 2008 11:38 AM

How did this juror get by the initial screening? How difficult is it to follow the instructions of the judge and read the jurors instructions? It occurs to the more sane among us that jurisdictional issues were resolved before the case went to trial and likely will be addressed on appeal.

GOD save us from would be Clarence Darrows posing as jurors or spotters for Black Helicopters.

Posted by: vet66 at August 18, 2008 11:56 AM

Hey Hey, Ho Ho
Gra-vi-ty has GOT TO GO!!!

Hey Hey, Ho Ho
Gra-vi-ty has GOT TO GO!!!

Repeal the Law of Gra-vi-tee
I'm a feather and I wanna be FREE!!!

Posted by: MathMom at August 18, 2008 12:28 PM

Oh, dear. On the one hand, I firmly believe that when people find a law objectionable they should work to change it but still obey it. On the other hand, we do have juries for a reason so presumably jurors are supposed to exercise judgment. On the third hand, if the jurors swore to consider only the facts of the case and the judge's instruction about the law then the juror should have done that. On the fourth hand, there are some laws that are not merely bad but immoral and deserve to be rejected by jurors. On the fifth hand, a fourth hand argument would have more weight if the entire jury rejected it rather than just one juror.

Sadly - because I have a great deal of sympathy with the juror's contention that the commerce clause has been stretched out of all recognition - I think the correct course of action would have been for the juror in question to make his Constitutional concerns known during the jury selection process. Of course, that would almost certainly have resulted in his not being chosen for the jury, an outcome that would have occurred quietly and thus deprived him of the attention he presumably wanted focused on the issue of Federal overreach.

I don't know enough about the law to know if the judge acted appropriately in dismissing the juror rather than (presumably) declaring a mistrial. Since I believe I read that the defendant's attorney does not plan to appeal, it seems likely the judge did the legally correct thing.

Posted by: Elise at August 18, 2008 12:55 PM

I don't know either, legally.

Given the propensity of most defense attorneys to appeal on even the slimmest of grounds, my reaction was the same as yours, Elise. That is why I find the shrieks of horror over this even harder to understand.

It seems to me that if the charging statute were unconstitutional, that is grounds for appeal not grounds for an individual juror to decide to hang the jury and acquit the defendant, thereby (and for all time) precluding a new trial b/c of double jeopardy. That he would do so believing him guilty of a crime he'd have no problem convicting him of in a state court only makes him look like more of a jackass, IMO.

I've written - many many times - about how SCOTUS has abused the Commerce clause. However, two wrongs don't make a right.

Posted by: Cassandra at August 18, 2008 01:04 PM

"It occurs to the more sane among us..."

Whew! That leaves me out.
heh

"...two wrongs don't make a right."

But three lefts will.
0>;~}

Posted by: DL Sly at August 18, 2008 01:09 PM

GOD save us from would be Clarence Darrows posing as jurors or spotters for Black Helicopters.

Would everybody *please* stop waving those laser-pointers around after dark? They throw the onboard mind-ray generator out of calibration...

Posted by: BillT at August 18, 2008 01:46 PM

And three outs make half an inning, but three outies won't make half an innie.

Posted by: BillT at August 18, 2008 01:48 PM

A man should always keep his oaths.

That said, I have two concerns:

1) How can the court reasonably ask such an oath of prospective jurors? It's akin to saying to people on jury duty, "The Constitution requires a jury of peers, to prevent the government from overreaching or abusing its authority. That's your job. However, the government refuses to allow you to question the following things..."

That's, um, asking the jurors to swear not to do the things that a jury is for. I don't think the government should be permitted to even request such an oath from prospective jurors. It's improper interference by the state: the jury is supposed to be a branch of the People, empowered to sit in oversight over the performance of the State's execution of judicial function.

You wouldn't say, "Grim, we want to ensure that you are doing your job fairly, so we've appointed someone to watch what you do and approve or disapprove of your methods. However, you can formally forbid them from considering any factors you want, and give them instructions as to how they are to read the remaining evidence that they are required to adhere to completely."

2) To what degree are jurors free not to take this oath? If the oath is compelled by (say) a contempt citation if you refuse to take it, it's not binding.

If you are free to refuse the oath, but will then not be allowed to serve on the jury, I have the concerns in (1), above.

The only way such an oath could be reasonable is if you were free to refuse it and also could then still serve on the jury. Even then, though, it's a 'command influence' style problem: the Authority in this Court would Very Much Like you to take this oath. Will you?

So yes: a man should always keep his oath. However, I think the court is wholly wrong in asking an oath of this kind. It is completely improper.

Posted by: Grim at August 18, 2008 02:13 PM

Just out of curiosity, what if the defendant's legal team raised this as an issue and presented arguments to the Jury that raised the question of how could a man be tried for violating the Commerce Clause when it is clear that the activity didn't really? Does the judge then get to tell the Jury to ignore all that nonsense or does he squelch the lawyer every time he raises this point?

Posted by: Curtis at August 18, 2008 02:18 PM

Really?

So if the jury hears something during trial that is inadmissible, the judge cannot (by your rule) instruct the jury to disregard it - and so protect the defendant's due process rights?

Posted by: Cassandra at August 18, 2008 02:22 PM

Well, first of all I think that's a separate issue, but actually I would think, yes, he could because it's irrelevant to establishing his guilt or innocence under the charging statute.

I'm not sure that sort of question can be raised during a trial, but then I know f***-all about criminal law.

I don't know that the federal district courts even have jurisdiction to ascertain the Constitutionality of individual statutes. I'm pretty damned sure they don't have the authority to overrule Supreme Court precedents.

So it's sort of a moot point at this level, isn't it?

I would think the point would not be raised to a court of original jurisdiction but made on appeal, and only after conviction - because until you're convicted it hasn't even been established that you committed the crime - to a higher court. First things first.

But again, I'm talking out of my fanny since I am not an attorney.

Posted by: Cassandra at August 18, 2008 02:40 PM

This is what I find amusing about all of this.

Several people seem to take it for granted that individual citizens have the warrant to do what we don't even allow lower courts to do. But hey - they're "We the People!". They have a pocket copy of the Constitution!

Come on, guys. Think about this for a moment.

What if this were a common practice and judges couldn't stop it? All it would take would be one person to bring any criminal proceeding to its knees. Apparently that is OK with you?

Why?

Posted by: Cassandra at August 18, 2008 02:43 PM

The Founders wanted a free and independent jury to serve as a hedge against tyranny. That's why.

I don't have a problem with judges informing a jury that a given thing they've heard is not admissable, explaining why such things are considered, and asking them to disregard it. Advocating for the customs and traditions of a fair trial is part of his job. Good.

However, judges are people too: just as suceptible to prejudice, anger, pride, corruption, and so on as the rest of us. The jury is the only force in the courtroom that can serve as a balance against him in the case of a bad judge. In such cases, a lawyer can appeal a bad result, but his client goes to jail (if innocent) or free (if guilty) in the meantime. A jury alone can stop a bad judge in the court. The independence of the jury is critical for that reason.

Now, that requires a jury acting in common. If it's only one juror, the most he can do is hang the jury and require a new trial. If the facts are as solid as they seem to be in this case, you'll get your conviction next time.

Yes, that costs money and time, and yes, the courts are overburdened. That's a small price to pay for the bulwark against tyranny that a free and independent jury provides.

"What if this were common?" you ask. I assume you mean by that: "What if the courts were required to demonstrate the constitutional authority for a law, before they sent people to prison for violating it?" Well, er... I think I would like that a lot, actually.

That won't happen, though. This is a rarity, not a commonality. It's a rarity because the system enjoys a lot of basic support from Americans. If it ever gets to the point that Americans are so alienated from the laws they live under that courts run into regular objections of this type, then the system is no longer representative.

What you've got is a controlled revolution, in that case, which the legislature and courts will have to address. They'll have to do so in a way that makes the laws acceptable to the people.

And that is the kind of system we wanted to have in the first place. That's what the Founders wanted.

So: if it remains isolated, it's a minor issue. If it becomes common, it would be a major issue -- but it SHOULD be a major issue, because it points to a very serious basic alienation between the people and the law. If we get there, we need big changes. The disruption of the courts might serve as a way of forcing those changes without needing an actual revolt. It would therefore save lives, and prove to be a very wise policy.

Posted by: Grim at August 18, 2008 03:11 PM

According to Wikipedia (that font of legal knowledge) double jeopardy does not attach (if that's the correct term) in the event of a mistrial. So a judge in this situation could declare a mistrial and start over.

Cass asks: What if this were a common practice and judges couldn't stop it? All it would take would be one person to bring any criminal proceeding to its knees. Apparently that is OK with you?

I don't think there's anything that can be done about that danger. Even if the law was absolutely clear that Constitutional questions could never be considered, the juror who refuses to convict on Constitutional grounds could simply lie and say he isn't convinced by the evidence.

In this case, I believe the juror acted incorrectly because I believe he knew the issue existed before he was empaneled and should have made his objections clear during jury selection. But what if a juror is seated for a case and becomes convinced at some point during the trial that the case against the defendant violates, say, the First Amendment?

There is a place for principled objections to bad law - as Grim says (I think, I'm not entirely sure I speak his language) keeping bad law in check is part of the reason for a jury. Something I read on this case seemed to say that repeated jury nullification was one way for communities to get rid of bad laws. I'd emphasize the "repeated" and the "jury": if several entire juries won't convict under a law it's a bad law. For individuals, I still think their obligation is to make their Constitutional objections known as soon as they are aware of them. If that includes being unwilling to take the oath required of them, then that's the point to say so.

Posted by: Elise at August 18, 2008 03:13 PM

You wouldn't say, "Grim, we want to ensure that you are doing your job fairly, so we've appointed someone to watch what you do and approve or disapprove of your methods. However, you can formally forbid them from considering any factors you want, and give them instructions as to how they are to read the remaining evidence that they are required to adhere to completely."

Not exactly. The restriction is not that you can forbid them from considering any factors you choose, but instead restricting whether they can consider whether you should be performing that job in the first place. 'Whether' and 'how well' are different questions to be answered by different groups.

Posted by: Yu-Ain Gonnano at August 18, 2008 03:16 PM

Well, except that if they are required to follow my instructions, I can instruct them, "You won't consider the coffee I spilled on the report; or, for that matter, the fact that I spent six hours of each day drinking such coffee and playing chess in the breakroom. I think those are prejudicial factors."

Posted by: Grim at August 18, 2008 03:22 PM

Your grabity iz brokenz...I send kittehs to fix.

Posted by: Cricket at August 18, 2008 03:25 PM

There is a place for principled objections to bad law - as Grim says (I think, I'm not entirely sure I speak his language) keeping bad law in check is part of the reason for a jury.

Oof! A wound, right in my heart!

What I meant was:

1) Juries should be able to consider whether a law that is normally good and fair should be set aside in a given case. ("We find the defendent not guilty, but he has to give back the mules.")

2) Juries should be able to consider whether the judge is being fair.

3) Juries should be able to consider whether the government appears to be fair and disinterested, or if it is acting to force a conviction.

4) Juries should also be able to consider -- I gather this is your concern -- that a law may simply not be proper, and refuse to apply it for that reason alone.

Posted by: Grim at August 18, 2008 03:27 PM

Also, when Cass mentions "becoming common" I don't think she means 'questioning constitutional authority', I think she means 'substitution personal policy preferences for law'. You mention that the jury is the last line against bad judges and that if nullification became common it would imply a problem with the judiciary and not with the people. Yet the KKK used jury nullification in exactly the opposite manner. They weren't protecting against a judicial tyranny, the *jurors* were the tyrants.

There is a place to overturn bad laws. The legislature and the appellate courts. That is what they are there for.

Posted by: Yu-Ain Gonnano at August 18, 2008 03:33 PM

Oof! A wound, right in my heart!

Actually that was intended as more of a self-inflicted wound. I suspect it's less your speaking and more my comprehending that confuses me sometimes. IOW, I cite Zelazny; you cite Aristotle.

Posted by: Elise at August 18, 2008 03:34 PM

Jurors are people too: just as susceptible to prejudice, anger, pride, corruption, and so on as the rest of us :p

The jury is the only force in the courtroom that can serve as a balance against him in the case of a bad judge. In such cases, a lawyer can appeal a bad result, but his client goes to jail (if innocent) or free (if guilty) in the meantime. A jury alone can stop a bad judge in the court.

And who stops bad juries, such as the ones which routinely sent innocent men to their deaths earlier in the century, and the ones which refuse to convict guilty criminals today?

To hear some of the commenters, no one.

It seems a very unbalanced equation you describe - all weighted in one direction.

Posted by: Cassandra at August 18, 2008 03:35 PM

Yu-Ain got there ahead of me :p

Posted by: Cassandra at August 18, 2008 03:38 PM

Grim, if they aren't bound to follow the judges instructions, then how do you bind them to follow the judges instructions on due process? Or are jurors allowed to make up their own mind on evidence improperly gathered?

Posted by: Yu-Ain Gonnano at August 18, 2008 03:39 PM

And Yu-Ain makes an excellent point. The Founders also feared the passions of the majority and wanted us to be a nation of *laws*, not of men. That is why judges are empowered to set aside jury verdicts in some cases (although not on acquittals).

Posted by: Cassandra at August 18, 2008 03:41 PM

Juries are twelve citizens who get to make one decision: an up or down on the conviction. The balance against them is that the judge and lawyers decide (out of the presence of the jury) what can and can't be presented as evidence; and the fact that there are twelve of them, who must be unanimous to render a judgment on the one decision they get to make.

The only time 'due process' matters come up is when something is presented in court when it shouldn't have been. The judge is free to explain to the jury why such information is not allowed, and why it's prejudicial and unfair, and ask them not to consider it. That's fine: and if the jurors believe his reasons are fair, they will.

Posted by: Grim at August 18, 2008 03:50 PM

In otherwords, you don't. They each get to make up their own mind. The jury gets to do whatever the heck it wants.

Let's say that you live in Chicago and someone breaks into your home and you shoot them. The prosecuting attorney poisons the well by asking questions that paint gun-owners as either gangsters or a militia-overthrow-the-gov't-wannabe who are just a hairsbreadth away from starting to 'shoot the bastards'. The judge instructs the jury to ignore those questions as the defense attorney's objections are sustained.

However, the jury's prejudices tell them to ignore the judges instructions and convict because those 'militia type traitors' are dangerous and should be locked up anyway.

You are telling me that you are OK with this? After all, that is the jury's job, you say, to determine what is and is not proper.

Posted by: Yu-Ain Gonnano at August 18, 2008 04:18 PM

That's fine: and if the jurors believe his reasons are fair, they will.

Of course. The jury gets to decide whether to obey the law. Juries, you see, are always right and noble in their instincts, and so they aren't bound by the law.

Judges, on the other hand, are generally a step away from being tyrants :p

Posted by: Cassandra at August 18, 2008 04:21 PM

Now, now, I never said that judges were "generally" anything. There's no reason to be defensive on behalf of judges, any more than on behalf of Congressmen or Presidents. The system is constructed to balance with checks any powers they are given, in order to prevent tyranny. That isn't an assertion that Presidents are generally tyrants; it's just a wise recognition that we can't be sure just who will come to occupy a given office at some point in the future. We balance the powers in order to protect against the potential for bad judges, Congressmen, or Presidents; not because we believe that all judges, Congressmen or Presidents are bad.

The American system is designed to ensure that there are checks and balances against all parties entrusted with powers. The jury's particular power is the power to decide, freely and without undue influence from the state, whether or not to apply the law in a given case. We've already talked about the checks against them.

The judge has a vast array of powers; there are also mean to be certain checks, chief among them the jury itself; but also review by higher courts of his decisions.

That's not "deciding whether or not to obey the law," nor is it a state where they "aren't bound by law." That's the way our system of law was designed.

The oath being required here is an affront to that basic system. It reduces the liberty of the independent jury, so that they are no longer to play the role that they were meant to play. That is a reasonable critique.

Posted by: Grim at August 18, 2008 04:47 PM

There is no review of an unjust acquittal.

Also, you state here:

The balance against them is that the judge and lawyers decide (out of the presence of the jury) what can and can't be presented as evidence; and the fact that there are twelve of them, who must be unanimous to render a judgment on the one decision they get to make.

And yet earlier you have them making not only THAT decision, but you've got them involved in sentencing (giving back mules), setting aside laws they don't like, whether a law is "proper" (on what grounds, pray tell?), and whether they think the judge is "fair".

*rolling eyes*

So it's not actually one decision at all. A more subjective set of criteria are hard to come by, Grim. And you seem to assume that 12 people always make a fairer and better decision than one: that crowds are never swayed by ignorance, anger, prejudice, or other strong emotions (much less strong personalities)?

Did you watch the OJ trial?

Juries are not meant to be independent of the law.

Posted by: Cassandra at August 18, 2008 04:56 PM

The check against jury nullification, by the way, is judgment n.o.v.

But I have a feeling you'd call that tyranny. According to your definition of a jury's powers, it's an unacceptable encroachment on the absolute power of a jury to substitute their judgment for that of people's elected representatives and appointed jurists. Or have I misunderstood?

Is there any check on a jury's power that you recognize?

Posted by: Cassandra at August 18, 2008 05:00 PM

but you've got them involved in sentencing (giving back mules)...

I guess you don't know the old story. :)

Jerry Clower used to tell the story of a poor man who worked hard, but had trouble feeding his family. He had a rich neighbor who was not generous. One spring, the hardworking neighbor needed a couple of mules because his had died and he couldn't afford to replace them to do the plowing. So he went to his neighbor to borrow them, but the man wouldn't loan him any, though he had plenty to spare. Desperate, he stole two mules and plowed his land, and was able to feed his family.

The police eventually came and got him, and he went to court. At the end of the trial, the jury came back from deliberations and the judge asked them, "How do you find?" The jury answered, "We find the defendant not guilty, but he has to give back the mules."

The judge threw a fit. "That's not the way the law works!" he said. "We're not going to have any of this garbage! You get back in that jury room and don't come out until you've come to a real decision."

So after a while, the jury came back out. "How do you find?" the judge asked.

The jury foreman answered, "We find the defendant not guilty, and he can keep the mules!"


Anyway...

No system can ensure we don't sometimes get a bad result. All the best system can do is balance powers with checks so as to limit the opportunity for bad results.

In general, the American system provides larger checks for greater powers.

For example, Congress can pass a law with simple majorities in both houses -- but it still needs the President to sign, or else it needs supermajorities to override his veto. In the case of amending the Constitution, we require a supermajority of both houses, and then you ALSO need a supermajority of states to ratify the amendment.

Juries are the only part of the constitutional order where actual unanimity is required. That's a very strong check. And the judge can still, as you point out, in some cases of conviction, set aside the verdict; or as Elise points out, declare a mistrial and require it all to be done again.

Does that mean that no jury will ever come to a bad result? Not at all. No system is or can be perfect; but this system does have both checks and balances. The ones aimed at the jury are strong, and in return, they are supposed to have a strong role to play in balancing the judge and the government in general.

That's what the Founders wanted, and it's what I want.

Posted by: Grim at August 18, 2008 05:10 PM

What a jerk this juror must be to assume that he is ordained to impart his own particular reading of the Constitution into the matter of a criminal trial. Only a superbly ignorant (or well coached) fellow could mistake the charge given to a jury to determine whether the facts admitted into evidence before it constitutes a breach of the law, as that law has been been described in the judge's instructions to the jury. I'm not a litigator, but I've been around enough jury trials to know that the judge's instructions are the result of a great deal of bickering and horse trading among counsel for both sides and are generally rounded down to "if you find this, than you must find that" kind of bright line determination. Answer the question asked, and only the question asked.

As a juror, you are bound in your duty within the confines of the evidence and argument presented, and you can't just go gallivanting around those facts and circumstances and delve into the dark corners and greater mysteries of the law whenever it damned well suits you. You wanna question the efficacy of that law? Write a letter to the editor. Write a letter to your congress person. Start yourself a blog. Failing those options, just get yourself a position as a law professor and pontificate to your heart's desire. Otherwise, just answer the questions you've been asked, and let justice be done. If you're wrong, there's a bunch of bright jurists at the appellate levels trained in this sort of thing that are available to comment.

I might remind readers that the juror was made aware sufficiently prior to his seating as to his own limitations to permit him to announce himself (under voir dire) as being incapable at reaching such a determination. He didn't. And in so doing, he has rendered a disservice to the Court, and to the Republic and its taxpayers.

The guy is a moron, and should rightly be reviled as such.

Posted by: spd rdr at August 18, 2008 05:41 PM

Do you know, I don't disagree that this particular juror was arrogant; and the judge, we are told, is normally a very good hand. This is one of those cases where the general principle is challenged by the particular case.

I still think it holds up. I think the jury should, and traditionally does, have a broader mandate than the one you describe, spd. I also think the fact that a judge is normally good doesn't mean he can't make a bad decision now and then (as apparently the Volokh Conspiracy likewise believes in this case).

Still, it's worth recognizing: the juror shouldn't break his oath, even if the oath should never be required; and the judge seems like a decent man, even if I think he's wrong in this case.

Posted by: Grim at August 18, 2008 05:50 PM

Jesus, Grim.

I helped *teach* common law concepts for three years, and yet it would never in a million years occur to me that I had the wherewithal to disregard a judge's instructions regarding the application of *law* (in which he is trained, and I am not) to facts (which are within my purview as an ordinary citizen of reasonable competence).

I really get disgusted at the arrogant American assumption that any layman is just as capable as any well educated person to render expert judgment on affairs he or she knows NOTHING about. I've read a lot of books on Constitutional law, but I don't think that makes me a lawyer.

In fact, I know shy away from writing about law, even though I dearly love the subject, for fear of saying something stupid. I've pretty much run out of bland generalities on which I can blather and bloviate. When it gets to specifics, I recognize that I really don't know my ass from a hole in the ground.

I don't understand the presumption that juries have any better motives than judges. They are BOTH bound by the rules - one no less than the other. The judge can be overturned on appeal. But what, pray tell, compensates society when a bad jury screws up? Where is the check?

Yeah. There isn't one. So why this blind trust? Juries have been swayed by bad reasoning since the dawn of time. There are good reasons for jury instructions - they are not lightly to be set aside, and it alarms the hell out of me to hear so many people argue that they should.

Sure lawyers like the idea - they want to sway an easily influenced jury. Think the OJ case and you won't be far wrong.

Not a convincing case for the wondrousness of jury nullification.

Posted by: Cassandra at August 18, 2008 06:09 PM

It is one thing for the judge to be wrong, Grim, and another for a juror to neglect his or her duty to vote on whether the particular issues presented by a particular set of circumstances constitute a breach of law. A judge's interpretation isn't sacrosanct - even the Black Nine overturn their own misconceived decisions - and jury instructions provide the widest avenue for most appeals. I disagree that a that a jury a has a broader mandate than that presented it during trial. This is a fundamental difference of opinion, my friend, but please do not take it as being unfriendly.

Posted by: spd rdr at August 18, 2008 06:14 PM

I'm with Grim. And I can't think of anything to add to way he expressed himself.

Posted by: Texan99 at August 18, 2008 06:15 PM

I don't mean to sound so cranky.

I understand the criminal justice system is weighted towards the defense, and moreover I understand why that is. Any time the power of the State is arrayed against an individual, we give that individual an assist.

But we have to assume all parties will discharge their duties faithfully. Jury nullification goes against that idea - it jumps the gun, and that is wrong because in some cases the resulting wrong (unlike an unjust conviction) cannot be undone.

Posted by: Cassandra at August 18, 2008 06:18 PM

I don't take it as unfriendly, spd.

Let's look at the issue of the case. The juror made an unusual claim about Federal authority. In response, the judge did something unusual in order to assert his authority over the jury. The consequence was what?

The trial carried on to conclusion, the issue is being considered by litigators and jurists, and also by laymen interested in the subject. We're discussing our different ideas of the role of the jury, what the Founders meant it to mean, what it has come to mean instead, and -- for those of us who believe in a larger mandate, which seems to me clearly implied by the Founders' intent -- reviewing and defending the basic concepts of our system of justice, and indeed our system of government.

We have fundamental differences, as you say, but we're dealing with them through discussion and exchange; and the lawful process, whatever it eventually decides, will be respected by all of us. The changes I would like to see to how the Federal government treats juries would apply only to future cases, and only if I can convince enough people to think that way to make the change come about.

So, no harm, no foul. The folks at Volokh, the judge, we ourselves, we're doing what we're supposed to do according to our own best understanding. This is the system, fundamental -- but not unfriendly -- disagreements and all.

Posted by: Grim at August 18, 2008 06:28 PM

I'm sorry, but I categorically reject the notion that certain segments of society (like Bill Keller) can just blithely and unilaterally reinterpret laws to suit themselves. My problem with Grim's example is that he continues to posit a benign outcome and/or benign motives.

But the outcome of juror nullification of valid laws is not always benign, nor is it always just.

Do you all support it even when it is not motivated by a genuine desire to revoke an unjust law? Do you support it if it is motived by hatred? Or malice? Or simply ignorance?

I would like someone to address these cases. I don't understand how you can support selectively reinterpreting the law while only examining the cases in which you say it will turn out well.

I think people need to follow a just process, not their own whims. This seems little different than the NY Times deciding they don't "feel" like going through the formal process of handing over classified docs to the oversight committees, so they'll just "publish" them - after all, the Founders would have wanted it that way! Yee ha.

By that rule, I can ignore any modern law I wish to. Any laws passed to address real problems are just so much "red tape".

Posted by: Cassandra at August 18, 2008 06:31 PM

Cass:

I think this concept is where you and I break: "But we have to assume all parties will discharge their duties faithfully."

That isn't what the Founders believed: that we should assume that all parties would discharge their duties faithfully. If they had, we'd have a much simpler form of government: a Caesar perhaps, as they were admirers of Rome, with a Senate to serve as an advisory council.

The basic assumption of our government is that there will be factionalism, some corruption, and irrationality; that people will sometimes do their duty faithfully, but sometimes won't. The structure is designed to ensure that the system works when they do, and that harm is minimized when they don't.

We don't, and ought not to, assume that people will execute their duties faithfully. That's really the basic concept of the Republican form of government; the whole reason for checks and balances, and division of power.

Posted by: Grim at August 18, 2008 06:32 PM

You mistake my point, Grim.

The instructions to the jury are to give them guidance. A jury is composed of people of varying intelligence, aptitude, goodwill, morals, etc. The instructions are there to help guide them to a more even handed and just process - IOW, to help them discharge their duties faithfully.

And yet you argue they can ignore those instructions at will.

Posted by: Cassandra at August 18, 2008 06:37 PM

Or maybe you are arguing the judge has no right to require them to promise to discharge their duty faithfully. I think that's wrong.

Being a juror is a solemn duty, not a lark. It isn't performance art where everyone gets to make it up as they go along - otherwise the parties wouldn't get due process for their claims. That's what the judge is trying to ensure.

Posted by: Cassandra at August 18, 2008 06:40 PM

No, what I am arguing is that the judge has no right to make them swear NOT to do their duty: and that their duty includes things like jury nullification, in extraordinary circumstances.

Look, you want a non-benign example. Here's one: post-Civil War, jury nullification was used to allow nightriders and other terrorists to avoid prosecution and conviction. That troubled Federal efforts to break the early-KKK and other such groups.

Those efforts were nevertheless successful in the end, but they took longer and were harder than if juries could have been excluded from the process -- or placed under such constraints that they were not really able to perform a jury's mandate.

However, the other thing they did was serve as a valve for social tension arising from the North's domination of Southern states. The law is not -- and justice is not -- only for lawyers. It has to suit not just the litigators and jurists, but also the people who live underneath it. If it doesn't, you get serious social turmoil: riots, revolts, insurgencies.

The jury nullification in the South at that time was unwise and unhelpful, except insofar as it gave Southerners a sense of control over their common fate. Reconstruction was bloody and difficult enough without taking that away.

By the same token, in the wake of the Rodney King verdict -- releasing the police -- the Stone Mountain DA's office had a wave of nullification in the black community of Decatur, GA. The community felt that if the law didn't apply to white cops in LA, it wouldn't apply to blacks in Atlanta, either.

Was that good? Certainly lots of guilty-as-sin people walked. Yet it released a lot of tension that was dangerous: there was one day of rioting in Atlanta as it was, mild by comparison to LA, but definitely present (I was downtown for parts of it).

So, these cases are not benign. They're pretty clear examples of bad behavior by juries.

Yet they also serve a function in preserving the Republic. The tension arising from a wave of black riots across the country -- and the efforts to suppress them -- would have done more damage to the Republic. The black community in Decatur took its anger out in jury nullification (and thereby hurt mostly themselves; the criminals being released went right back into their community, where they were mostly re-arrested on other charges later, when the wave of anger had passed). It didn't do so in other means, because it felt it had a voice in the government.

Imagine if they had been commanded to appear for jury duty, and put in a position where they had no choice but to convict time and again, in spite of their will. What would that do for the social contract? For the general welfare, as the Constitution puts it?

These concepts arose out of revolution and war, and are designed to prevent the need for it to recur. That is their chief function. They normally do more: they allow "the blessings of liberty to our posterity," as well. In times of distrust of the government -- fair or not, and even when 'not benign' -- this is a useful safety valve, and a way to have a controlled rather than an actual revolt.

Posted by: Grim at August 18, 2008 06:54 PM

Your argument doesn't make any sense to me, Grim.

You are arguing that it is OK to do wrong (your example) if it is convenient. The fact is that we don't know what would have happened in the alternative. You think it was "better". Maybe it was. You could be right.

Maybe it was not - maybe if there had been well publicized injustices, something would have been done about them instead of it being swept under the rug (which is all too often what happens when you put a band-aid on something instead of addressing the cause). Maybe it would have been "better" for people to see justice done the right way instead of by cheating. That only makes them feel the only way they will ever get justice is by subverting the law.

Posted by: Cassandra at August 18, 2008 07:01 PM

The jury's particular power is the power to decide, freely and without undue influence from the state, whether or not to apply the law in a given case.

This is what it all boils down to.

I'm sorry, but deciding the applicability/constitutionality of laws was never meant to be left up to any given random collection of 12 people. That is the job of the Judicial branch as a check against the Legislature. Determining the constitutionality of laws is the responsibility of the appellate court system. The job of the jury is to decide if the state has made an adequate case (beyond reasonable doubt) that the accused has actually done what they accuse him of having done. Nothing more, nothing less.

Posted by: Yu-Ain Gonnano at August 18, 2008 07:02 PM

Yes, Grim, we are attempting to deal with this issue within the bounds of the rational, and properly removed discussion from that reserved to those of who have heard the evidence and arguments before the trier of fact, and we accept that those persons are sufficiently disaffected and reasonable to render a conclusion within the boundaries of the charges and limits of the law presented them.

You ask far more of your citizens than the Constitutions demands by asking them to discern whether the law, as presented by the court, and enacted by their duly-elected representatives, makes them feel "comfortable" in rendering a decision as to any accused transgressor.

That's the essence of juror nullification. An individual rejecting the evidence in favor of self-aggrandizement does no service to the greater good.

Posted by: spd rdr at August 18, 2008 07:16 PM

I'm not sure I can agree that the applicability of constitutionality of was was never meant to be left up to any given random collection of twelve people. The jury system is a very old and strange animal. It came into being to do something just like what you suggest: subvert the power of the persons ordinarily holding the reins of government and the controlling the mechanism of reward and punishment.

Grim is hitting on an important point with the need for a safety valve when the individuals who make up society are not on board with the prevailing social program. Jury nullification is very unlikely to be a significant disruptive force unless it is quite widespread; a smattering of nullificators will only result in the occasional wasteful second trial. If there are enough nullificators out there to be really obstructing the machinery of justice, then the consensus is broken and needs to be fixed. That's the way a free society works.

In any case, jury research suggests that a lot more jury nullification happens that we might imagine. Most participants simply are not as straightforward about it as the fellow in this story.

Posted by: Texan99 at August 18, 2008 07:26 PM

"You are arguing that it is OK to do wrong (your example) if it is convenient."

Not quite.

A law isn't good in and of itself; it's good if it achieves its end, which is social harmony. There may be several reasons why this fails to be the case.

Just because a law has been duly passed by proper authorities doesn't make it good or desirable; it can sometimes be very bad or foolish. That isn't what I'm talking about in the above examples, but I mention it for completeness.

Another reason they can fail is that they are applied unfairly or unreasonably. Again, not what I'm discussing here, but important to remember.

A third reason that the law can fail to serve the purpose of increasing social harmony is that the society no longer accepts it as just. In cases where there is a stronger, larger society forcing the issue, the application of the law as written can actively wreck social harmony.

In these cases I mentioned, the law was being used for good purposes, by good people, and fairly applied to bad actors: but the law and the government were not accepted as just by the society itself.

When that happens, if you go in saying, "We'll have the law no matter what you think," you get the opposite of the thing that the law is for: you get not harmony, but insurgency.

If you allow a mechanism for steam to escape, though, you will often find -- as we did in both these cases mentioned -- that this will cause the government to be accepted as more legitimate. This may appear be a paradox in some sense, because the government is becoming more legitimate by not insisting on the enforcement of the law.

Paradox or not, it's really true. People value that you're willing to heed them, and even to let them make their own mistakes.

So, you see, sometimes allowing the law to be nullified, even for bad reasons, isn't a bad thing. Insofar as it increases the harmony of society and allows for a fuller resolution to differences in the future, it can be the good thing.

Sometimes enforcing the law isn't the good thing, because the law isn't good in and of itself. Rather, it is a thing that aims at a good: and so, if it gets in the way of that good, we need a way to make an exception.

Posted by: Grim at August 18, 2008 07:31 PM

I hear you, Texan, but I am not convinced that the Constitution meant to relegate to an individual the power to determine the law, at least such law as might exist outside of that enacted by elected representatives.

I will admit, however, that this is a difficult question, and one, as citizens and potential jurors, must be squarely addressed, lest there be anarchy within the system of justice.

Posted by: spd rdr at August 18, 2008 07:34 PM

The end justifies the means?

Does this work for everyone, or only juries?

Posted by: Cassandra at August 18, 2008 07:43 PM

I will admit, however, that this is a difficult question, and one, as citizens and potential jurors, must be squarely addressed, lest there be anarchy within the system of justice.

Jury nullification is anarchy spd. It is where one person (or 12) get to decide when a law matters and when it doesn't. Grim's point seems to be that a little bit of anarchy is a good thing.

Posted by: Yu-Ain Gonnano at August 18, 2008 07:45 PM

I agree with Grim's position although I'm not comfortable with his "safety valve" argument. I think jury nullification is a valid and valuable check on government authority. It can, of course, be abused - and has been - but so has government authority.

I can certainly see the danger in jury nullification but I think the risk is worth the reward. And I'm talking about jury nullification: cases in which entire juries refuse to convict. To me that's an entirely different thing than one juror refusing to convict. If twelve people believe the law is invalid then I think their opinions deserve some weight. And I also agree with Grim that if jury nullification becomes a frequent occurrence then some part of the compact between the government and the people is badly broken. (The current estimate is that jury nullification occurs in 3-4% of cases.)

According to Wikipedia's article on jury nullification, the US is moving (has moved) from Grim's and my position to that of Cassandra:

It is not only his right but also his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court. - John Adams

It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy - John Jay 1794

Starting in 1840, however, the courts began to restrict what the juries could hear about points of law and eventually forbade judges and attorneys to tell the jurors about the possibility of jury nullification. By 1988:

There is no such thing as valid jury nullification. - Sixth Circuit, 1988

and by 1997:

the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).

The examples Wikipedia gives are pretty interesting and include both juries refusing to convict for violations of the Runaway Slave Act (pre-Civil War) and white juries refusing to convict whites of murdering blacks (20th century Civil Rights era).

In a lighter vein, there are estimates that jury nullification occurred up to up to 60% of the time in alcohol control cases during Prohibition and "[t]his resistance is considered to have contributed to the" repeal of Prohibition. Skol!

Posted by: Elise at August 18, 2008 08:12 PM

It is not that I don't see any need for a mechanism for amending bad laws. It's just that I strongly disagree that jury nullification is the proper vehicle for doing so.

I think you have to look at these things in the context of the times.

It's one thing for Grim (and Elise) to point out historical examples dating back to a time when government power was at its zenith and the power of ordinary citizens was less than it is today.

But the fact is that there are other avenues for accomplishing the same thing - in fact, more plentiful and more convenient and accessible ones than existed in the past. So this changes the risk/reward calculation and erodes the argument for allowing jurors to selectively interpret laws.

Nowadays information flows more freely than it has ever done. With bloggers, TV, radio, the Internet, it is easy and inexpensive to get word of an injustice to millions of people and mobilize support. There are lots of legal aid societies who will take cases pro bono. Where people used to have to wait -sometimes for extended periods of time - for the circuit court judge to come around, now district courts are conveniently located all over America and transportation is fast and efficient. And we are not exactly awash in civil insurrection either.

So I have a very hard time understanding the horrible urgency here.

Posted by: Cassandra at August 18, 2008 08:33 PM

What I have not yet heard, and what I am open to hearing, is how the actions of this lone juror served the greater purposes of reasonable, predictable justice, other than to commence this discussion.

Posted by: spd rdr at August 18, 2008 08:50 PM

Cassandra;

Disclosure: Neither American citizen nor resident (and hence not expert in law or history), but...

Are you sure govt power at that time was at its highest? Knowing what I know about nanny-statism right now, and the SWAT teams committing sanctioned home invasions, and the MSM limiting free access of information to the less involved, I am unconvinced...

Posted by: Gregory at August 18, 2008 09:09 PM

We have far more rights now, Gregory, than we did in colonial times.

How many rights would I have had then? A black man? Or woman?

How many rights did an accused criminal have? Would he be Mirandized? What about the conditions of imprisonment? Appeal after conviction? What about being on death row for those endless habeas appeals? (Huh? Oh yeah - executions often occurred fairly swiftly after conviction).

Civil rights?

Think about it.

Posted by: Cassandra at August 18, 2008 09:11 PM

???

As I understand it, the rights of the accused are pretty much the same as they are today; they were just interpreted differently. Cruel and unusual punishment meant the rack, for instance, or two botched hangings, instead of being deprived SRS and/or cable TV.

Miranda, as I recall, came about because some retarded Latino never learnt his rights - and got acquitted because of it.* This is a failure of citizenship, I would have thought.

- Oops, just re-read your question. Yes, I do believe you as an American citizen have far more rights - as provided under the Constitution and the Bill of Rights - than you would have as a British colonial. My bad. But that's like comparing apples and oranges, I would have thought.

*Have since looked it up on a non-Wikipedia source and discovered it was the *woman* he raped who was mildly retarded. Again, my bad.

Posted by: Gregory at August 19, 2008 03:33 AM

The end justifies the means?

"The end justifies the means" is a slogan used to describe (and normally to critique) arguments that morally evil means can be made non-evil if they are directed at good ends. That is not the argument being made here; neither the means of enforcing the law-as-written nor the means of allowing juries to create exceptions to the law-as-written is morally evil. Both are legitimate parts of our judicial system.

What is never in dispute is that the means must in some sense fit the ends. If you want to get the eggs from the nest on the top of the tree, you can climb the tree, or you can cut down the tree. If instead you choose to dig a hole, however, you're not likely to accomplish the goal. The means of climbing the tree isn't more or less moral than the means of digging a hole; but one of them is fitted to the end, and the other is not.

Aristotle said that justice is treating relevantly similar cases alike. If the cases are not relevantly similar, treating them alike may not be a virtue, and may in fact cause harm.

For example, there is a relevant difference in these two cases:

1) Applying the law in a case where the government is generally trusted and respected in the community.

2) Applying the law in a case where the government is generally distrusted by an angry community.

As these are two different cases, it is not unjust or immoral to have two different approaches to them. In both cases, the end is social harmony; but because of the difference in the cases, the means may need to be different.

You understand this when it is applied to counterinsurgency abroad: but our system likewise grows out of an insurgency. America holds the rejection of the law to be sometimes morally right.

What our system tries to do is not to set the law above the people, but to find ways for popular revolt to be channeled. So we have elections instead of wars, impeachments instead of assassinations, and jury nullification instead of insurgencies.

That is part of the design. It is part of our moral order. The enforcement of the law as it is written is also part of our moral order, in good times; this is for bad times. Both, though, are tools that we are meant to have, and meant to use in their proper hour.

Posted by: Grim at August 19, 2008 08:07 AM

Grim, I think that perhaps you and I will have to agree to differ here. The following is not intended to argue with you so much as to explain my comment.

First of all, as I pointed out you keep asserting that jury nullification is some sort of time honored right of juries, inherent in their role as jurors (in fact, you assert it is almost a duty). I disagree, and have presented information designed to back up that claim.

Applying the law in a case where the government is generally distrusted by an angry community.

The examples you cited don't fit this definition. As you pointed out, the "feeling" in this case died down: IOW, it was a transitory passion. What's more, the GA police were not the LA police, so their rage was misdirected.

The "community at large" in the case of the Rodney King incident didn't "generally distrust" the justice system. For instance, I viewed that incident as a case where authority was abused, but I didn't see it as evidence of an endemic problem. that justified ignoring any law I felt like blowing off.

A specific subset - angry blacks - a minority - did. And they took out their frustration illogically: by acquitting criminals who were victimizing their own community without regard for the innocent victims who would be harmed if these people were allowed to escape the consequences of their actions.

By what right did those people take it on themselves to let guilty men go free to commit more crimes? Did they feel no duty to their own communities?

IMO you *are* defending an inherently immoral and wrong act on the basis that it produces convenient results, and I do not understand this. It didn't solve the problem, nor was it intended to. It wasn't even directed at the perpetrators who caused the anger.

Posted by: Cassandra at August 19, 2008 08:27 AM

Agreeing to disagree is fine. I will join you in not arguing, but simply explaining why I feel as I do.

I don't believe the law is a subset of morality, or that morality requires enforcing the law; mercy may sometimes be a better course. The law is good if and only if it is useful in securing the peace; it has no inherent virtue of its own.

When it is no longer useful, it should be set aside. We do get to choose whether we set it aside out of mercy, to give a community time to calm down; or if we set it aside in favor of setting martial law on those people when they revolt. The one approach reinforces authority by showing it to be a friend to the people, even when they are mistaken; the other, through force only. The one wins allegiance, the other only submission.

Posted by: Grim at August 19, 2008 09:05 AM

> issuing binding precedents on various Constitutional questions

This is in error. The jury's findings set -- repeat NO -- binding precedents.

Stop and think about that, you'll know it's true. The reasons why the jury found the defendent "Not Guilty" (or "Guilty" for that matter) are the stuff of tabloids, but they have no mention in court documents, to the best of my knowledge, excepting as bears on appeals, in the cases of some things indicating prejudicial comments or revelations of illegal consanguinity of some sort.

Cass, as far as Jury Nullification, the real question you might want to ask is, if the law is sufficiently disapproved of by enough of the populace that all don't agree with it, should it be Law at all in the first place?

One of the points behind JN is the idea that the jury, on the spot, can judge if the application of the law in question would result in a miscarriage of justice. They can decide, for example, that a youth of fifteen, who killed his father, after years of beatings and abuse, need not suffer any more for the murder -- that the laws about murder should not apply in this specific case.

Yes, the system isn't perfect, but it does provide a final checkstop against an overweaning government, and helps to deter prosecution under unpopular laws (a single case will not, but cases consistently repudiated by the people tell the prosecutors not to bother).

And yes, I think drug laws certainly qualify as stupid and purposeless. The only drug-related criminals who should be prosecuted are the ones who commit violent crimes -- and who needs drug laws to prosecute violent people?

In fact, the end result is sheer lunacy...
Six years for possession of a cigarette?...I got six months for possession of a deadly weapon!
- cartoon by S. Harris -

> We have far more rights now, Gregory, than we did in colonial times.

Not entirely accurate. Women, yes, blacks, more dependent on the location than you probably are aware of (or at least are thinking of) but certainly there was a measure of locality involved that has gone by the wayside, and there is probably more uniformity across the board than there used to be.

But as far as what people were willing to put up with, no, they accepted a lot less crap from their government than people do today.

Hell, just go back to "You Can't Take It With You" -- 1938. The central theme is a lone family of rugged individualists preventing a rich fatcat from building a munitions factory by owning a key piece of property. Note that, at no point in the entire movie, is even the notion of London-v-Kelo offered up for consideration. If they won't sell, the fatcat is stymied, pure and simple (mind you, in the Real World, violence might ensue, but that's a different issue).

As late as 1884, Grover Cleveland is noted:
After a drought had ruined crops in several Texas counties, the Congress appropriated $10,000 to purchase seed grain for farmers there.[91] Cleveland vetoed the expenditure. In his veto message, he espoused a theory of limited government: "I can find no warrant for such an appropriation in the Constitution; and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadily resisted, to the end that the lesson should be constantly enforced that, though the people support the Government, the Government should not support the people."

In short, there was a very, very different attitude about what government was about -- what it did, could, and should do.

And that generally speaks to greater rights, because of less government interference in one's day-to-day activities.

Posted by: Obloodyhell at August 19, 2008 09:54 AM

> So if the jury hears something during trial that is inadmissible, the judge cannot (by your rule) instruct the jury to disregard it - and so protect the defendant's due process rights?

1) What the heck makes you imagine people are computers subject to mindwipe anyway? Of course they consider it. But they are supposed to take into account, at least, that they are to try not to let it sway them.
2) Go the other way, as it sounds as though you are working for the prosecution: Suppose there are facts clearly relevant to the case, but which some idiocy of modern legal structuring doesn't allow the defense to bring up, but somehow it comes into play for a moment due to some stupid error by the prosecution?
3) Ask yourself instead -- Why is ANYTHING "inadmissible"? The defense presents their arguments, the prosecution presents their arguments, the judge explains what is historically considered relevant and what is considered irrelevant. Then the jury decides, after asking questions of the judge which it deems pertinent (currently an absolute no-no -- WHY?), where Truth and Justice lie, to the best of their ability. Instead of their being mindless automatons there to rubber stamp the court's will, they should be reecognized as intelligent, informed, and responsible individuals. And yeah, I grasp that there are problems with that, these days... but you don't fix THAT problem by bowdlerizing the current system.

Posted by: Obloodyhell at August 19, 2008 10:09 AM

Cass, as far as Jury Nullification, the real question you might want to ask is, if the law is sufficiently disapproved of by enough of the populace that all don't agree with it, should it be Law at all in the first place?

Jury nullification doesn't test this proposition. Not even close. 12 jurors selectively deciding to ignore the law does not a general consensus make.

One of the points behind JN is the idea that the jury, on the spot, can judge if the application of the law in question would result in a miscarriage of justice. They can decide, for example, that a youth of fifteen, who killed his father, after years of beatings and abuse, need not suffer any more for the murder -- that the laws about murder should not apply in this specific case.

This is already provided for in the law. It's called a mitigating circumstance, which comes in at sentencing. It may well also go towards a lack of the required mental state and a possible defense of self-defense being raised.

Posted by: Cassandra at August 19, 2008 10:13 AM

And as far as binding precedents go, I agree that literally, that is the case. However, that was a response to the argument that repeated jury nullifications of a bad law should effectively repeal it, as opposed to simply having the legislature (which, after all, represents this "majority viewpoint" just fix the law in question so defendants wouldn't have to rely on the whims of a jury which may - OR MAY NOT - selectively enforce a bad law.

Again, wrong remedy.

Posted by: Cassandra at August 19, 2008 10:17 AM


> What if this were a common practice and judges couldn't stop it? All it would take would be one person to bring any criminal proceeding to its knees. Apparently that is OK with you?

Cass, this USED TO BE common practice. It was how a lot -- an AWFUL LOT -- of "escaped slaves" got to maintain their freedom, despite laws (even in non-slave states) which decreed that escaped slaves be returned to their masters. A jury refused to ack that they were the slave in question, despite ream after ream of evidence to the contrary.

It was also central to the overthrow of Prohibition, as juries refused to convict people of trafficking in alcohol.

Again: if a law is that unpopular that 1 in 12 want to revoke it, should it be Law?

To claim otherwise is to treat the whole of the populace as children, unable to recognize what is good behavior and what is bad behavior -- what is socially detrimental and what is not. And again, not arguing that there are problem areas here, now, it's not good to set the actual precedent that we don't EXPECT people to be and do more -- to be responsible adults. That is simply begging for the Nanny State.

Posted by: Obloodyhell at August 19, 2008 10:17 AM

What you all are missing is that spd asked the right question last night. I just got tired and went to bed before responding. I would, actually, broaden it a bit and ask you all to respond:

What I have not yet heard, and what I am open to hearing, is how jury nullification serves the greater purposes of reasonable, predictable justice,

Answer? It doesn't.

Posted by: Cassandra at August 19, 2008 10:19 AM

if a law is that unpopular that 1 in 12 want to revoke it, should it be Law?

Gee. I don't know.

So you think 8% of the population should be able to foist their policy preferences on the other 92% of us?

I can't even respond to that.

Posted by: Cassandra at August 19, 2008 10:23 AM

Gregory,
Cass' claim that we have more rights (well, technically just better protected) even works when you go back to the 1950's.

Freedom of speach? Just look at TV, how much of what is on today would have made it past the censors in the 50's?

Freedom of the press? Any newspaper who published the weaknesses of U.S. body armor in WWII would have found themselves charged with Treason. Today, the gov't doesn't even call them nasty names.

Equality before the law? Can you say "Seperate but Equal"?

Even on the topic of jury nullification: You don't see the KKK getting off the hook because "That n-word deserved it for being so uppity".

On the most recent expansion of rights, D.C. residents just got back the right to even own a handgun (unless you were grandfathered in). And even then D.C. is doing it's best to prevent it's effective use to defend your own life.

Remember, Gun Control was started by the Dixiecrats as a way to prevent recently freed blacks from defending themselves against the KKK. Ever since then gun rights have been declining until the last 15 years or so.

Yes, the welfare state has grown, but the overuse of SWAT is a problem of using heavy handed tactics needlessly and not one of not having the right to search and/or arrest (i.e. it's a problem of using a cannon to kill a fly, not one of whether the fly should be killed). Additionally, the MSM has always limited information to the story it wanted to tell. That's not new. But today there are vastly more alternate avenues of information than there ever has been in human history.

So yes, some things have gotten worse, but on balance the trend is positive.

Posted by: Yu-Ain Gonnano at August 19, 2008 10:32 AM

Honestly, all you have to do is look at the Constitution itself.

How many times has it been amended to add specific guarantees since it was ratified?

Posted by: Cassandra at August 19, 2008 10:38 AM

> I don't know that the federal district courts even have jurisdiction to ascertain the Constitutionality of individual statutes. I'm pretty damned sure they don't have the authority to overrule Supreme Court precedents.

It does not matter. Part of the point of jury nullification is that, in the end -- when push comes to shove --

The Law derives from US, the people, not from the government. Not from Congress, not from the SCotUS....

**WE** ARE THE LAW.

Not some bozos out in Washington, or up in (insert state capital here). And, since we are right there, right then, with all the data at our fingertips associated with the case -- WE are deciding if the law is applicable and just, in this specific case alone.

The Law is nothing but a finite attempt to codify appropriate behavior for an infinite number of possible circumstances. The jury is there to decide if this application, and this application alone, represents propriety and justice.

And yes, it is a finite attempt -- Think of ANY CRIME YOU WANT TO: I can define for you a situation (however improbable -- a complete and total Deus Ex Machina) in which the correct thing to do is to commit that crime.

> They weren't protecting against a judicial tyranny, the *jurors* were the tyrants.

And yet, it only took *ONE* juror with honesty and integrity to f*** the whole thing up. Good system, sounds like, to me!

> But the outcome of juror nullification of valid laws is not always benign, nor is it always just.

It's a human system, Cass. It's never always going to be either of those. Instead I have to ask: What makes you think that millions of jurors are going to be less likely to produce a benign, just result than a bunch of overpaid, overbought jackasses, with their hands out for the biggest take, in DC or (insert state capital here)? Or a bunch of self-serving bureacratic lawyers looking to pad their conviction rates with a lot of bullshit cheap convictions?

> In this case, I believe the juror acted incorrectly because I believe he knew the issue existed before he was empaneled and should have made his objections clear during jury selection.

I disagree with this because I don't believe that sort of question is proper to ask of a potential jury member. It used to be that the question asked was pretty simple: "Do you know the defendant personally?" and "Do you have any other reason you can't provide a fair and true verdict in this case?"... Nowadays they try and stack the jury using Voir Dire one way or another so as to weight it in favor of one result or another. That's not a proper jury in the first place.

> As a juror, you are bound in your duty within the confines of the evidence and argument presented

No. You aren't.

> I think you have to look at these things in the context of the times.

You GOTTA be kidding, right? Since when did you wind up in favor of a "living Constitution"?

"Hey, you gotta look at it in the context of the times..."???

:-/

BTW, Cass -- your source is a lying sack of shit:

Not until more than 100 years later did the U.S. Supreme Court have to address the issue. In the case of Sparf and Hansen v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895), it unequivocally determined that, in the federal system at least, there was no right to jury nullification.

The courts have REPEATEDLY affirmed jury nullification. What they have found is that the State has no particular obligation to make the jury AWARE of its rights in this regard, and has extended this to the point where the defense is not ALLOWED to make the jury aware of its right and obligations in this regard.

The Sparf case in question:
The 1895 decision in Sparf v. U.S. written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision.
(If the ruling claimed that they had no right, then why would a court need to "have no responsibility"?)

Also from the Wiki entry:
A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect. In 1972, in United States v. Dougherty, 473 F.2d 1113, the United States Court of Appeals for the District of Columbia Circuit issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense's chance to instruct the jury about the power to nullify.
The wiki entry acks some more recent contrary findings at the Circuit court level, but specifically indicate: "The Supreme Court has not recently confronted the issue of jury nullification".

Instead of the reference you cite, try The Fully Informed Jury Association.

They may provide any number of arguments for you to consider, both regarding the history of the rights and duties of jurors, but also the arguments for retaining the function.

> First of all, as I pointed out you keep asserting that jury nullification is some sort of time honored right of juries, inherent in their role as jurors (in fact, you assert it is almost a duty). I disagree, and have presented information designed to back up that claim.

It doesn't matter, your assertion is wrong. It is a duty and an obligation. One most are utterly unaware of, but a highly relevant one, nonetheless.

It is, in fact, something existing back into pre-colonial times and is a part of English jurisprudence dating back into the time of King John (yes, he of "Robin Hood" fame) and the Magna Carta...

Again, pore over the FIJA site linked above.

Posted by: Obloodyhell at August 19, 2008 11:04 AM

"They weren't protecting against a judicial tyranny, the *jurors* were the tyrants. - Me

"And yet, it only took *ONE* juror with honesty and integrity to f*** the whole thing up. Good system, sounds like, to me! - OBH

Aquitting KKK members of murder and making the terrorizing of black populations de facto legal was a good system????

And I guess since not 1 out of 12, but all 12 thought that murdering and terrorizing black populations was acceptable we should have repealed laws against it????

REALLY?

Posted by: Yu-Ain Gonnano at August 19, 2008 11:11 AM

*sigh*

We aren't going to come to any agreement on this one.

You have two camps here:

One thinks that if, in the judgment of some minority of the general populace who are not elected to represent us, a particular law is "bad" or certain results (such as convicting any black person, for anything) are "undesireable", it is OK to blow off the law. No matter what Grim says, no matter whether the end state ends up being "good" or "bad", I maintain circumventing the law isn't the best way to solve the problem, especially when there are plenty of other remedies available.

Then you have the other camp, that says even if a law is perceived, by some minority (and that is all a jury of 12 people will EVER be of the general populace) to be "unfair" or the result "undesireable" from their subjective point of view, they still need to uphold the law and follow a consistent judicial process. If it is the law that is unfair, they need (in a democratic Republic) to gain the consent of enough of their countrymen to change it. If, as the proponents of jury nullification claim, discontent with the law in question is so "widespread", this should be no problem, now should it?

Unless, of course, they truly are an aggrieved minority who DON'T represent the populace as a whole? Kinda throws the whole justification for jury nullification out the window, doesn't it? Unless your argument (like that for judicial activism) is that the assent of your fellow Americans is irrelevant. After all, the end justifies the means and you are right.

Posted by: Cassandra at August 19, 2008 11:26 AM

.

> So you think 8% of the population should be able to foist their policy preferences on the other 92% of us?

I can't even respond to that.

Sure you can, Cass. The FF's attempted to balance the need of the majority against the right of the individual to be free to pursue "Life, Liberty and The Pursuit of Happiness" as they saw fit.

If you can't get one in 12 to agree that something "oughta be a law", then it's got no business being a law. It should be a social custom. A more. But not Law.

Do you really, actually imagine that they are going to nullify things that OUGHT to be laws?

That the average citizen is going to legalize:
Murder
Rape
Child Molestation
Child Abuse
Spousal Abuse
Burglary
Extortion
Embezzlement
Auto Theft
Assault
Battery

Etc.?

OTOH, they might "defacto" legalize:
Gun Ownership
Gambling
Operating a business without a license
Watching porn movies in your own home
Having sex with the partner of your choice
Having sex with the partner of your choice with money involved
Putting up a shed in your back yard without a permit
Repairing your neighbor's lawnmower for free
Smoking outdoors
Offending the Perpetually Indignant on your blog
Smoking indoors


Are you really, really sure that everything on that second list ought to be a crime?

.

Posted by: Obloodyhell at August 19, 2008 11:27 AM

OBH,

They certainly did defacto legalize those things. At least, so long as the victims were black.

Posted by: Yu-Ain Gonnano at August 19, 2008 11:36 AM

If you can't get one in 12 to agree that something "oughta be a law", then it's got no business being a law. -OBH

I find it absurd to require near 100% approval to pass a law. The founders certainly didn't think so.

Posted by: Yu-Ain Gonnano at August 19, 2008 11:39 AM

I think it's a bit disingenuous to pretend that jury nullification is always a referendum on the validity of laws.

It isn't. As Grim pointed out, it is often about other things entirely.

A way of expressing displaced anger or emotion (the Rodney King incident).

A reflection of heated passions or racial tensions (the lynching mentality of the Jim Crow era, or alternatively the refusal of black juries to convict even defendants they think of guilty). You can't tell me these juries acted as they did b/c they wanted the laws on murder or rape repealed.

A reflection of the fact that in a small group setting, people can be swayed by a strong personality (ever watch 12 Angry Men?).

The test of an act's rightness isn't (as I observed before) always whether you happen to like the outcome. OBH keeps mentioning outcomes he likes, but ignores the ones he doesn't.

I maintain the act is wrong regardless of the outcome - I don't care whether I agree with the outcome. That isn't the point, because if it is, I am indulging in situational morality: it's OK if I do it and agree with the outcome but bad if the opposition does it and I disagree with the outcome.

Posted by: Cassandra at August 19, 2008 11:59 AM

I think the juror in this case is a poor poster child for the validity of jury nullification for reasons I've already explained. However, I'd like to try a hypothetical case.

Ann lives in a state with few gun control laws. When she moves into an apartment by herself she buys a handgun, learns to use it, and keeps it in her bedside table.

A few years later Ann moves to a state with strict gun control laws. She takes her gun with her but does not register it when she arrives at her new home. It simply never occurs to her to do so.

Shortly after Ann moves into her new apartment, an intruder breaks in in the middle of the night. Ann hears the door being forced, gets up, locks her bedroom door, dials 911, and gets her gun. The intruder kicks in her door. She points the gun at him and tells him to stop. He walks toward her. As he gets almost within arms length, Ann shoots him. He dies.

The local prosecutor decides to charge Ann with possession of an unregistered handgun. The penalty is a year in jail.

If I sat on that jury, I do not think I could vote to convict even if the law and the facts were perfectly clear.

Posted by: Elise at August 19, 2008 12:21 PM

Again, Elise, the question becomes one of means. I don't know what I would do either. There are too many variables.

Are you interested only in Ann's case? Or in fixing the unjust law? The remedy you propose doesn't NOTHING to fix the unjust law and if it is this draconian Ann can hardly be the only one impacted by it. Admittedly your particular conscience will be at rest (at least as regards Ann's fate). But what about the next Ann?

Arguably, if all juries do what you suggest, it prolongs the existence of an unjust law since some juries will convict anyway and others won't. Like welfare, you are interfering with cause and effect, since only pain and adverse publicity are going to motivate the legislature to fix the law.

The result is the uneven, unpredictable, and inequitable administration of justice based on the whims of random jurors.

That doesn't strike me as being right at all.

Aside from the problems I have with the fact pattern (I am really having trouble with 1 year in jail for the possession of an unregistered handgun in what clearly looks like a self defense case). But I'll let that go in the interests of addressing the question.

There are several remedies here:

1. Executive clemency.

2. A sentencing recommendation to the judge based on mitigating circumstances.

3. A media campaign designed to pressure the legislature to repeal the law and the courts to address the problem.

4. An appeal.

I could equally point to a jury nullification case where a freed murderer or robber goes out and commits another crime. But that gets into the ends-justify-the-means thing. I don't see a perfect solution - I think writing good laws takes time and no law will ever prevent every miscarriage of justice. There are a variety of remedies designed to address these cases.

I think there is (perhaps) an *extremely* limited case to be made for doing what you suggest.

I also think it is entirely fair to suggest that doing so only pushes the problem off onto someone else. It is a short term fix for a long term problem people don't want to deal with.

Posted by: Cassandra at August 19, 2008 12:42 PM

Elise,

I would say the proper conclusion is to convict and then contribute to the appeals process to overturn an unconstitutional law. Ann is not the only one affected and those other people need to have their rights protected by more than the luck of the draw in jury selection.

Posted by: Yu-Ain Gonnano at August 19, 2008 12:58 PM

As a juror (an unlikely happening) Ann gets a "not guilty" verdict from me, and a hung jury if I can't convince my fellow jurors. Jury nullification is part of the social lubricant. It makes the bits work together better, especially in a world where there are perhaps too many laws and people trying to punish violators.


Jury nullification doesn't change the law at all. Still there, and if the jury hangs rather than acquits, the defendant can be tried again.


It is not possible to write laws so that all of the possible circumstances are covered. There are always going to be "good" exceptions, and there are always going to be cases that are near, if not on, the line (which is frequently rather fuzzy to begin with.)

The cop has discretion to ignore crimes and not arrest violators, for whatever reason she wants.

The prosecutor has discretion in which, if any, charges to bring.

The judge has discretion as to what evidence is allowed, what theories of law are allowed, what questions may be asked, what the charge to the jury is, and whether a guilty verdict is to be accepted or set aside.

But the jury -- who live under the law -- shall have no discretion in how the law is to be applied. None. They're a rubber stamp for the others in the legal process.

No, thank you. This is a tyranny of legal professionals.

Posted by: htom at August 19, 2008 01:33 PM

Now *that* is an argument :p
Well done.

I don't completely agree with everything you've said, mind you. Judges don't have complete discretion on these matters: they are governed by rules of criminal and civil procedure which (if they're not followed) then become basis for appeal.

So that's something of a non-starter when you are comparing that to the unreviewable "right" of a jury to completely set aside the rules. However, it is the best argument I've seen so far for jury nullification.

Posted by: Cassandra at August 19, 2008 01:44 PM

They're a rubber stamp for the others in the legal process.

No, they are not a rubber stamp as the state still has to make the case that the accused actually committed the act of which they are accused.

Just because the state says you did something doesn't mean you actually did.

Posted by: Yu-Ain Gonnano at August 19, 2008 01:45 PM

Additionally, neither cops nor prosecutors have complete discretion in these matters either.

Posted by: Yu-Ain Gonnano at August 19, 2008 01:53 PM

That attitude reduces all crimes to status offenses, actus reus (the guilty act), and ignores the mens rae (the guilty mind.) It may be efficient, but it's not just.


http://en.wikipedia.org/wiki/Actus_reus


http://en.wikipedia.org/wiki/Mens_rea

Posted by: htom at August 19, 2008 01:58 PM

Jury "not guilty" verdicts are, for the most part, unreviewable by higher courts (unless there are allegations of jury tampering, ...), but defendants may find themselves being tried by other sovereigns from what appear to be the same cause (federal or civil, for example.) There's also the court of public opinion.

I am not saying that the other members have complete and total digression, but that you seem to want the jury to have none.

nb. The juror in the instant case ... I think he had an excellent question and the judge tried to use the argument of authority to answer it. Not an especially good plan on the judge's part, and removing the juror under those circumstances a worse one. Let the jury hang and declaring a mistrial would have had the same result eventually, although it would have been more expensive for both the defendant and the State.

Posted by: htom at August 19, 2008 02:09 PM

Re: actus reus v/s mens rae.

Nope, doesn't remove that at all. The jury can always find that the state has not made the case for mens rae and aquit accordingly.

Re: the juror in this case.
I think the juror is correct in his interpretation of the constitution. However, I do not want to leave my constitutional protections to the luck of the draw of 12 random people. Better a conviction and an appeal which leads to protection for everyone than an aquittal that protects only one.

Posted by: Yu-Ain Gonnano at August 19, 2008 02:18 PM

Well, I disagree.

The defendant had already been tried and convicted once. His conviction was reversed on appeal and (presumably, since there was a jury) remanded to the lower court for re-trial.

Now you want a third trial, all at public expense, simply because a single juror deliberately decided not to inform counsel that his pre-existing objection to the law would preclude his joining deliberations?

I don't think that is reasonable.

Posted by: Cassandra at August 19, 2008 02:19 PM

I think this discussion has moved from the real to the theoretical. Is jury nullification "good" or "bad". It's neither, it's both. It depends on how it's used, just like any tool.

But it DOES exist. And telling the jurors they CAN'T nullify won't change the fact that they can. At any point, a juror can simply claim, "I do not believe in this defendant's guilt beyond a reasonable doubt." And unless we have some form of mind reading apparatus, there's no way we'd ever know that wasn't their firm belief.

Sure it leads to a hung jury. But again, are we now to argue against requiring unanimous consent?

I need to make this clear, nullification is only good or bad when used for good or bad purposes. I would FULLY support nullifying in Ann's case. And I must disagree that nullification would be wrong there. Yes, if you went ahead and voted guilty because she violated the letter of the law, she COULD appeal, and you COULD work to get the law repealed... but in the meantime, Ann's in jail. Does that serve the common good? Clearly she's not a danger to the community, yet she violated the letter of the law (which apparently is not well written). What public good does having Ann in jail serve?

Someone specifically mentioned the OJ Simpson case. I am about to blow your minds here. Based on what I saw of the evidence, I believe he murdered those two people. But also based upon the evidence I saw, I would HAVE to vote 'not guilty'. Why? Because the prosecution did such a miserable job presenting their case, and the defense wiggled enough doubt to rise to the case of "reasonable".

I would have voted to let the man I believe guilty of the murders of Nicole Simpson and Ron Goldman free. Why? Because the specific requirements incumbent on the prosecution to take away the liberty of citizens would have required me to. In such a case, it would be easy for me to say "I know the prosecution screwed up, but I'll vote Guilty anyway since I'm pretty certain he did it." But the problem is that's NOT what you are supposed to do.

Now the obvious question is, if I'd object to voting a guilty man guilty because the instructions required me to do so, why do I think it'd be appropriate to let Ann off the hook in the hypothetical, even though the instructions would tell me "if she did x, then you must find her guilty"? Because ultimately that's why juries exist.

All this nonsense of "if they did x, then you must find the defendant guilty" is a load of hogwash. If that were all that was required, you wouldn't need a jury in the first place. The judge could determine the facts himself. The purpose of each jury is to determine how the facts and law apply to THIS CASE. Not all cases, just the one before them. A man who steals a loaf of bread has indeed violated the law, but does it really serve the public interest to jail that one man for it? Perhaps someone who stole a car stereo to earn some quick cash it would make sense for, but a hungry man?

Laws are fallible. Judges are fallible. Juries are fallible. But the hope is that if all three fallible things come together, the common good will prevail.

One final note. Justice. The word gets thrown around a lot. I believe the most clear definition of Justice is "you get what you deserve." Not what you want, or what you think you are owed. What you truly deserve. Human justice will make errors, but ultimately I have faith that everyone will get exactly what they deserve.

Posted by: MikeD at August 19, 2008 02:28 PM

Your OJ example, Mike, isn't jury nullification :p

You did your duty as a juror and voted not guilty, since there was "reasonable doubt".

...as any reasonably competent judge would instruct you to: IF YOU FIND THERE IS REASONABLE DOUBT, THEN YOU *MUST* ACQUIT.

Jury nullification, in your case, would have been convicting based on your assessment of the evidence.

Posted by: Cassandra at August 19, 2008 02:36 PM

Now you want a third trial, all at public expense, simply because a single juror deliberately decided not to inform counsel that his pre-existing objection to the law would preclude his joining deliberations?

I don't think that is reasonable.

And I COMPLETELY forgot to cover this. Of all my problems with the case Cass initially posted on, this is my only real complaint. If during voire dier the juror LIED about his thoughts on Commerce Clause (or his ability to judge the case on the facts as presented), then kicking him off the jury would be insufficient, I'd probably try him on lying under oath or at least contempt of court. Mind you, if it never came up (which I sort of doubt) then I'd have less problem with it.

Posted by: MikeD at August 19, 2008 02:36 PM

Your OJ example, Mike, isn't jury nullification :p

You did your duty as a juror and voted not guilty, since there was "reasonable doubt".

...as any reasonably competent judge would instruct you to: IF YOU FIND THERE IS REASONABLE DOUBT, THEN YOU *MUST* ACQUIT.

Jury nullification, in your case, would have been convicting based on your assessment of the evidence.

Exactly, that's what I was trying to say (badly I guess). Nullification would have been (in my mind) a guilty vote. But in my mind, while nullification would be JUST, it would be wrong in that case. Whereas in Ann's case, justice demands acquittal even though the law demands conviction.

And honestly, to me that's the entire point of a jury. To determine if the law, as applied to that ONE CASE, is just. Heck, I may disagree with the law in Ann's case on principal, but I'd still vote to convict someone else who violated that law in conjunction with commiting an armed robbery. Why? Because THAT would be just.

Posted by: MikeD at August 19, 2008 02:40 PM

It only counts during voir dire.

Posted by: BillT at August 19, 2008 02:43 PM

And I disagree that the judge could always try the facts for himself (although a jury trial is not *required*), by the way.

What a jury does is subject the prosecution's case to the scrutiny of 12 of the defendant's peers - people who are presumed to be reasonably competent and reasonably diligent in the performance of their civic duty.

And again, your hungry man example ignores the influence of mitigating circumstances (a safety valve already in the system, and which juries are customarily instructed they are *allowed* to take into account). You are excluding them as though the system made no allowance for them, when in fact, it does.

Again, I have stated I am not sure what I would do, given such an extreme case as the "Ann" example.

But it is also a bit far fetched. Not impossible, because worse traveshamockeries have occurred. But as a fact pattern, a lone woman shooting an intruder who kicks her door down at night being jailed for a year for .... not *murder*, or even manslaughter, but possession of a previously registered but now unregistered - due to a move - firearm?

Posted by: Cassandra at August 19, 2008 02:44 PM

But he was almost certainly asked if there was anything that would prevent him from discharging his duty as a juror, Mike. That's a routine question - if he wasn't asked it, someone was asleep at the wheel.

Additionally, he subsequently took an oath.

Posted by: Cassandra at August 19, 2008 02:47 PM

First, the fact pattern. From what I can tell, Massachusetts at one time had a mandatory one-year minimum sentence for possession of an unregistered firearm. I do not know if they still do. In Maryland in 2005, Prince George County’s state’s attorney sought “a one-year minimum sentence for all first-time illegal gun possessions, even if the defendant was not involved in any other criminal activity.” I don’t know if he got it. I also found a Department of Justice memo which states, “The maximum sentence for possession of an unregistered firearm is 10 years in prison and a fine of up to $250,000...” It’s a little unclear but that appears to apart from any other criminal activity. And if Ann lived in New Jersey, then “the simple unlawful possession of any firearm can bring mandatory penalties for anyone who pleads guilty to or is convicted of that crime alone.” (This is the kid with the BB gun who could be looking at a 3-year sentence law.)

As for why a prosecutor would pursue Ann in a case where she clearly used the gun in self-defense, I can think of a number of reasons:

- the intruder turned out to be the son of the mayor or governor or richest person in the county and the prosecutor is being pressured
- the intruder was the quarterback of the high school football team and community sentiment is running high because he was such a good kid
- the intruder was a member of (fill in group), Ann was not, and that group is up in arms
- the prosecutor honestly believes Ann should be punished regardless of the other aspects of the case

For the prosecutor to pursue Ann for one of these reasons is neither illegal nor (I believe) unconstitutional. It’s just wrong. Given a different set of circumstances prosecuting the law against possession of an unregistered handgun may be perfectly appropriate. For example, Ann is exactly the same person but instead of shooting an intruder she has a fight with her boyfriend, grabs her gun, and shoots him. I’d be perfectly happy for the prosecutor to pile on with unregistered handgun charges on top of the murder charges.

In other words, my objection is not to the law itself but to the way it is being applied. It seems to me that considering that should be part of what a jury can do. But under the strict law and facts idea, it is not. Ann had an unregistered handgun, the law says that’s a crime, so I must vote to convict.

I realize I’ve shifted ground here - this is not an argument for jury nullification to remedy bad law. But it is an argument for jury nullification.

I do, however, still stand by my idea that jury nullification to remedy bad law is also valid. I still maintain that if a juror knows ahead of time that he will not be able to follow the law he must say so during the jury selection process. However, if he sits through the entire trial and when deliberations begin decides the law being considered is simply wrong I believe he is obligated to say so. Directly - not via coy questions to the judge - and without any attempt to play lawyer. If the other eleven jurors agree with him, we’ve got jury nullification. If not, the court can decide to replace him or declare a mistrial.

I also agree that one juror finding a law unpalatable does not mean the law is bad. Neither does one entire jury. But if jury after jury refuses to convict under a particular law I think that does serve as a valid check on bad laws. There are other mechanisms for changing laws but they don’t always work and they certainly don’t always work speedily. New Jersey, for example, has been trying to amend its eminent domain law for three years and towns are still trying to take people’s homes to hand to developers. The Supreme Court has ruled that such use of eminent domain is perfectly Constitutional but I do not believe that means such use is right.

The result is the uneven, unpredictable, and inequitable administration of justice based on the whims of random jurors.

Yes, and that’s why I find myself surprised to be on the side I am in this discussion. Heck, I have a category called “Code of Hammurabi” on my blog because I’ve always believed that the codification of law - the law must be the same for all - is one of the most important steps civilization has ever taken. But I also believe that written law cannot cover all contingencies and that part of the purpose of juries is to apply common sense to legal doctrine. I can see the points of people who are on the other side but I cannot agree with them.

Perhaps my position can best be summed up by saying, “Jury nullification should be legal, safe, and rare.” (Reuse, recycle.)


One reference to Massachusetts law

Maryland article

DOJ

New Jersey law

Posted by: Elise at August 19, 2008 02:52 PM

If that were all that was required, you wouldn't need a jury in the first place. The judge could determine the facts himself.

Not really.

To use the sports analogy, it is the umpire's job to ensure the game is fair and played by the rules. It's up to others to keep score. Conversely, it is not the scorekeepers who get to change the rules and award points just because they like the home team.

Posted by: Yu-Ain Gonnano at August 19, 2008 02:55 PM

But he was almost certainly asked if there was anything that would prevent him from discharging his duty as a juror, Mike. That's a routine question - if he wasn't asked it, someone was asleep at the wheel.

As I said, that's the problem I have with his actions. He set out intentionally in order to make a scene.

And again, your hungry man example ignores the influence of mitigating circumstances (a safety valve already in the system, and which juries are customarily instructed they are *allowed* to take into account). You are excluding them as though the system made no allowance for them, when in fact, it does.

But that's just it, modern jury instructions tend to have a "if you find that the defendant did x, then that meets the legal definition of y." The intent is to make it clearer what does and does not constitute a violation of the law. And in the example (extreme or not) of Ann's hypothetical case her actions do indeed violate the law. Voting to convict her would certainly be legally correct, but would it be just? Would it be what she deserves? Would it promote the common good?

And if she was convicted, what common good would it serve to have her in jail while others work to repeal the law or get her a pardon? In that one case before that one jury, a vote to acquit, while legally incorrect would be just. And while you're looking at nullification trying to determine if it's a good or bad thing, I think you're missing the real issue.

Nullification is currently happening, nothing will stop it, shy of mind reading, and it can either be a tool for good or ill depending on how it is used. All this existential handwringing by yourself and Grim (as well as myself and others) is ultimately futile. Nothing will change.

Heck I've gone ahead and demonstrated how I am inconsistant with my own beliefs. I'd nullify to free Ann because that would be just. But I'd refuse to nullify to imprison OJ in spite of that being what he deserves. I'm not perfect, but I don't expect the law, or judges, or juries to be either (nor am I claiming you do). I just can meddle through with what we have, and on the whole, I think having the option of nullification is not one that CAN be removed, and if it could be, I'd personally be against it being removed. But that's even more of a hypothetical than poor Ann.

Posted by: MikeD at August 19, 2008 03:00 PM

Exactly, that's what I was trying to say (badly I guess). Nullification would have been (in my mind) a guilty vote. But in my mind, while nullification would be JUST, it would be wrong in that case. Whereas in Ann's case, justice demands acquittal even though the law demands conviction. - MikeD

So in OJ's case, the heck with nullification the law is the law, but with "Ann" the heck with the law, nullification is awesome!

Huh?

Posted by: Yu-Ain Gonnano at August 19, 2008 03:06 PM

To use the sports analogy, it is the umpire's job to ensure the game is fair and played by the rules. It's up to others to keep score. Conversely, it is not the scorekeepers who get to change the rules and award points just because they like the home team.

While I certainly respect you and your opinions YAG, I gotta disagree with your analogy. A jury is closer to an instant replay judge in my mind. The ump or ref makes the call on the spot (consider this the arrest or grand jury), but the instant replay judge makes the final call. The difference is that the burden of proof required to change the initial verdict is higher in sports than in court. Oh... and the fact that the call can still be appealed after the "game" in a court setting. Oh... AND the fact that an instant replay demands a challenge to the initial call.

Ultimately, it's not a very good comparison. But either way, I'll stand by my initial statement. If simply determining if the defendant met the legal requirement of violating a law, why would you need a jury if not to decide if the facts had mitigating circumstances?

Posted by: MikeD at August 19, 2008 03:06 PM

So in OJ's case, the heck with nullification the law is the law, but with "Ann" the heck with the law, nullification is awesome!

Exactly.

Huh?

I don't expect it to make sense to you, cause it certainly doesn't to me. What can I say, sometimes being "right" makes sense, and sometimes it doesn't.

Posted by: MikeD at August 19, 2008 03:08 PM

Ok, so during the cross-post you seemed to answer the question as "Yep, it's inconsistant. I make it up as I go along. So sue me. :-)"

And you think this is a comforting argument?

Posted by: Yu-Ain Gonnano at August 19, 2008 03:11 PM

I guess I need to explain my thoughts on OJ vs Ann.

In the OJ case, I do believe he was guilty. But do to the requirements of the law, I'd feel compelled to vote him not guilty. Justice would be for me to nullify the legal requirement and vote guilty anyway. But in my mind, "just" and "right" are NOT the same thing in that case. Why? Because I might be wrong!

I believe I'm right and he did it. But we're talking about sending a man to prison for life (or near enough to it). And I think he did it? Pretty sure he did it? The law requires me to vote not guilty, and in this case, it's a balm for my guilt.

Now look at "Ann's" case. I don't believe she violated the law with intent to harm the public good. Heck, I think she's contributed to the public good by her actions. The law says if she didn't register the weapon (which she didn't and apparently makes no effort to hide), then she spends a year in jail. But this doesn't serve the public good, and is not just. So I nullify.

And I feel good about it. Now, if I am wrong, and Ann is some kind of crazed thief magnet who enjoys murdering the folks who come into her house, I let her out. But the odds of that strike me as so low as to be ridiculous. But the similarity between the two choices is this:

I am chosing in favor of the defendant's freedom.

I cannot stress that enough. If I am in doubt as to the choice to make (even though justice seems clear to me), I favor caution.

Posted by: MikeD at August 19, 2008 03:18 PM

If simply determining if the defendant met the legal requirement of violating a law, why would you need a jury if not to decide if the facts had mitigating circumstances?

Because the facts are not always clear and having 12 people agree on what the facts truly are provides safety.

In addition, many of the 'facts' are really just the opinions of people believed to be knowledgable in such matters. The doctor who finds the 'fact' that the victim had a lethal dose of poison could be wrong. Different people react differently to different substances. The level found may not have been 'in fact' a lethal dose. It is simply his educated opinion based that it would be lethal in most people. Remember the Dread Pirate Roberts spent *years* building up an immunity to iocaine powder. :-)

Posted by: Yu-Ain Gonnano at August 19, 2008 03:19 PM

And you think this is a comforting argument?

No. Nor is it a comfortable position to hold in a discussion. But I felt out my own thoughts on this and came up with the above. And that's given me some comfort than in talking it out, I feel a bit more rational in my choices.

But ultimately, I guess "doing what is right" is like pornography, "I know it when I see (or in this case feel) it."

Posted by: MikeD at August 19, 2008 03:21 PM

The law says if she didn't register the weapon (which she didn't and apparently makes no effort to hide), then she spends a year in jail. But this doesn't serve the public good, and is not just. So I nullify.

And the next person comes along and doesn't get so lucky. Wouldn't it be better to solve the underlying issue *now* and not later?

Posted by: Yu-Ain Gonnano at August 19, 2008 03:23 PM

In addition, many of the 'facts' are really just the opinions of people believed to be knowledgable in such matters. The doctor who finds the 'fact' that the victim had a lethal dose of poison could be wrong. Different people react differently to different substances. The level found may not have been 'in fact' a lethal dose. It is simply his educated opinion based that it would be lethal in most people. Remember the Dread Pirate Roberts spent *years* building up an immunity to iocaine powder. :-)

NOW I'll play Devil's Advocate!!! MUHAHAHA!

If we're supposed to accept that a Doctor (who's job it is to determine such things) can be wrong about his field of expertise, based on the OPINIONS of twelve non-medical laymen... what's wrong with one of those twelve questioning the Constitutional basis for the law?
/Devils Advocate

Mind you, I don't have a problem with them questioning it. I DO have a problem questioning it PRIOR to being seated on the jury when they're asked to concentrate on the facts of the case.

And now I find my mind in a completely different place... more to come.

Posted by: MikeD at August 19, 2008 03:25 PM

We talked about oaths and truthfully answering questions during voire dier. And I find myself in a ethical pickle now.

I would truthfully answer in voire dier that I was ok convicting someone on a gun registry law (which I do disagree with). I could even do my best to judge the case on the facts as presented.

But once I was IN the case, and heard (and saw evidence) that Ann DID have the gun previously registered, and that the government found she had the unregistered weapon due to her defending herself and not through the commission of another crime... I would feel compelled to nullify.

Would that make me an oathbreaker? I don't think so. First off, my intentions were pure. I would vote to convict someone on a law I disagree with IF I felt the common good could be served (i.e. I don't like hate crime legislation, but show me someone who did it AND got the hate crime stuff slapped on em, yeah... I'll vote to apply it). But in the case as the facts came out, it would be clear to me that the common good would not be served by a conviction.

Yet, in a sense... that IS a violation of the oath, because I said I would judge the case on the facts. Tricky.

Posted by: MikeD at August 19, 2008 03:31 PM

If we're supposed to accept that a Doctor (who's job it is to determine such things) can be wrong about his field of expertise, based on the OPINIONS of twelve non-medical laymen... what's wrong with one of those twelve questioning the Constitutional basis for the law?

Well, for one thing the Constitutionality of the law in question is *not* a question either the court they are empaneled in front of, or they, were asked to decide. That is not why they are there.

They can, in fact, decide Ann lacked the requisite mental state to have committed a criminal offense and so acquit her. They can do so by not being "convinced" by the prosecution's case, since mens rea is a critical element of the offense (i.e., you had to intend the offense in the sense defined by law).

So again, another safety valve well within the system.

Posted by: Cassandra at August 19, 2008 03:34 PM

And the next person comes along and doesn't get so lucky. Wouldn't it be better to solve the underlying issue *now* and not later?

AH, but I am dealing with it now and not later. You're assuming the juror has the power to change the law. And they don't. They have the power to change how the law is applied in this one instance.

Any comfort that Ann would receive from the fact that people were working to get her a pardon and the law repealed would be of little help if she was sitting in jail in the meantime. That's wrong.

The juror can address the wrong of that law being applied to her by nullifying. He can't do anything "now" about repealing the law.

And as I said, I disagree with the law, but as presented, it's not fundamentally an unjust one. It merely would be unjust in that one case.

I really do get the sense that you're thinking that nullification fundamentally weakens the law across the board. Forgive me if this is not so, but that's the impression I'm getting. In Ann's case, I don't believe the law as presented is best served by jailing Ann. I do believe that it might be well served jailing someone else who violated the letter AND spirit of the law. Does my nullification in Ann's case mean that the law is now fundamentally broken? Or does it mean that in this one case (where it should not have been applied) it was not heeded?

Posted by: MikeD at August 19, 2008 03:38 PM

Well, for one thing the Constitutionality of the law in question is *not* a question either the court they are empaneled in front of, or they, were asked to decide. That is not why they are there.

Like I said, that's Devil's Advocate stuff. I was merely producing it as a question as to why the Doctor's credentials can be questioned, but the Judge's can't? Realistically I know it is not why they're there, but it's a fun mental exercise.

As for mens rea, if she didn't really know the law, she couldn't have formed a criminal intent... and yet... how often are we told "ignorance of the law is no defense"?

Would "I didn't know" hold up in a court of law? Really? If the contention were that Ann was too young, or mentally handicapped, that would be a clear mens rae defense (to me at least), but "I'm sorry Your Honor, but I didn't know it was against the law" is a working defense now?

Posted by: MikeD at August 19, 2008 03:44 PM

I would expect any competent defense atty. to product evidence that she had (in fact) registered her gun at her prior domicile and that she'd just moved.

Frankly, I can't even imagine a judge sentencing her to a year in jail with those mitigating circumstances.

Posted by: Cassandra at August 19, 2008 03:53 PM

Well, I can't imagine a DA deciding to prosecute in the first place, but it can happen. But if instructed that "ignorance is no defense" could you argue that the law would be right in prosecuting? Would that make it right?

As for the sentancing, you know as well as I that mandatory minimums are sometimes enforced in spite of the "rightness" of it. And given that sentancing takes place after conviction and outside (in many cases) of the jury's input and control, would you be willing to risk Ann's freedom on the judge doing the "right" thing in her case?

Heck, I (were I prosecuting this hypothetical case) would try making the argument that the very fact that she HAD previously registered the weapon would indicate that she knew she had to register it previously and thus should have at least inquired as to the registration requirements in the new state.

Posted by: MikeD at August 19, 2008 04:04 PM

In my mind hypotheticals are excellent tests of the "rightness" of laws, but reality (especially the reality of politics) sometimes hammers bad (or at least questionable) laws through.

An excellent case, if a bid odd, is the recent attempt by a state to pass a law making it more difficult for children to marry, but ended up (through poor wording) to allow toddlers to marry. I wish I could remember the details, but ultimately they fixed it. However, there was a window in which the law was active that would have forced the State, by letter of the law, to issue a marriage liscense to a pair of four year olds if their parents consented.

Thankfully the situation never came up, but the possibility was there.

Posted by: MikeD at August 19, 2008 04:10 PM

Got it... it was Arkansas:

http://www.dailyprogress.com/cdp/news/national/article/toddler_marriage_rights_removed/7871/

Posted by: MikeD at August 19, 2008 04:11 PM

...and as the defense atty, I'd be reminding jurors of all the times they'd let a vehicle registration lapse or a library card get overdue and ask them if they did it on purpose, or whether (in the resulting chaos of a move from state to state) a reasonably careful person could well forget to take care of a detail like that. Or even just procrastinate through no criminal intent.

I have a hard time seeing a jury construing intent to conceal ownership out of that.

Posted by: Cassandra at August 19, 2008 04:20 PM

I think that jury nullification, in the long term, strengthens the law and the people's respect for it.

I think that declaring that it should not be done, along with mandatory sentencing and not revealing those sentences, do much more to weaken the law and increase disrespect for it.

I, too, am inclined to think that OJ did it, and wasn't proven guilty by the prosecution. The Scottish verdict of "not proven" would not have been available, though.

Posted by: htom at August 19, 2008 04:28 PM

:)

There's a reason I'm not a lawyer. The example isn't perfect, clearly (or I'm doing a poor job defending it).

And honestly, I'm now guilty of doing the thing I said folks were engaging in when I started... fact is, we're arguing about/discussing (choose your favorite) something which is a fact of life, and something that cannot be prevented (even if it were determined desireable to do so). Short of doing what this guy did and basically saying he was intending to nullify, how would you know a "not guilty" was nullification and not a heartfelt innocent determination?

Nullification, regardless of how we feel about it, is here and will remain in the system until the human element is removed. Personally, I feel that there is probably some case out there I would nullify, and I suspect there's something you (Cass) and Yu-Ain would nullify on. The fact that I cannot find a perfect example doesn't mean it's not there, just that I lack the imagination to come up with it.

Posted by: MikeD at August 19, 2008 04:33 PM

Oh, there is, Mike.

As I said, I admitted I don't know what I would have done in the Ann case. And I won't go there.

I am far less doctrinaire than most people I know, and far less respectful of authority. But that only makes me more convinced that people *do* need to respect the process, and also their own limits.

IMO, one of the greatest sources of evil in the world is people who think they are somehow charged by Almighty God with the sole responsibility to "fix" everything wrong with the world. They can excuse just about anything on the grounds that the end justifies whatever idiocy they are planning (that they wouldn't for a moment countenance if it were someone else doing it).

That said, I don't hold much brief for do-nothings either. Throwing your hands up and saying, "It won't do any good" doesn't strike me as much of a recipe for human progress.

It's just that if you live in a just system of laws, I'm not inclined to allow every Tom, Dick, and Harry to make it up as they go along - that is how Republics die. I think Elise has it right.

I disagree with Grim that this is anything close to a jury's duty. A jury has a limited role (just as the judge does) and its power can be - and sometimes is - abused. We depend upon people to faithfully execute the duties of a juror when they are sworn in or the system falls apart. Yes, individual conscience has a role, but I'm not willing to grant a blank check to selectively nullify laws to Joe Six Pack because most of my neighbors don't know their asses from a hole in the ground.

Sorry, but there it is.

Posted by: Cassandra at August 19, 2008 04:45 PM

I'll drop a hypothetical I've used elsewhere:

Long ago and far away, I was not the defendant, who I’ll call Joe.

Joe is out cross-country skiing in the winter, in the National Forest deep in Wisconsin; taking pictures, sipping on brandy from a flask. He comes upon a running automobile, stopped by the side of the state highway going through the forest. Upon closer examination, he discovers the driver, slumped over the center of the bench seat (a newer car, actually, but this happened in the sixties.)

The driver is unconscious. Non-responsive to voice, pain, eyes don’t track light. Seems to have a high temperature, and his breath is very sweet. Looking in the glove box, and then on the floor of the car, an empty insulin vial and syringe are found. Diagnosis (for someone who’s paid attention in first aid class, Joe was a medic): diabetic coma. Immediate medical attention in a hospital is required. Cell phones (and CB) didn’t exist at the time, and even now, in that area, there’s little cell coverage.

Joe thinks for a couple of minutes, examining his map. He moves the driver, gets in the car and drives to the nearest hospital, and hands the unconscious driver to the ER.

He’s then arrested by an cop who notices the smell of brandy on his breath. He admits to drinking, being in possession of an open container (the flask) and blood is drawn for testing.

Joe is then arrested and charged with drunken driving.

The local prosecutor, campaigning on a “lock up the drunken drivers” platform, brings the case to trial.

Evidence is that the BAL was 0.16, barely illegal at the time. The defense manages to display the whole story over the objections of the prosecution.

Motion to dismiss is denied, motion for directed acquittal is denied.

It’s in your hands, one of the twelve jurors.

Guilty of DUI, or not?

Posted by: htom at August 19, 2008 04:58 PM

In my case htom, I'd vote to acquit. Again, the law was breached, but for the right reasons. But for that infraction of law, the diabetic probably would have died. I'd also look into replacing that DA for not knowing his butt from a hole in the ground and not using his own good sense.

Cass, as I've attempted to make clear, I'm no legal genious. Nor do I trust myself to play God. I can only do what I think is right, and sometimes, the law is not right. Rarely... but I think there are exceptions to almost any rule. And when the public would NOT be served by a conviction, I might feel the need to violate the narrow needs of the law in favor of what I determine to be the public good.

Do I think that's a step to be taken lightly? Not at all. It would require deep introspection, because I DO have a healthy respect for the law. We're a nation of laws, and at our best we hold all men to it equally. But our laws are not divine. They're made by men. And men screw up... a lot (and no, that's not a sexist joke; I mean men in the humankind sense).

When in doubt, I can only see using nullification in defense of freedom. As for having the right to do so, I believe I do. We are a nation of laws, but we're also a nation of freedom. And there will be times those conflict. And when they do, I see it as a citizen's duty to resolve that conflict as wisely as possible.

Our very Founding Fathers saw that sometimes the laws must be broken to preserve freedom. Every last one of them was guilty of treason to the British Crown. But were they wrong? I can fully see such men supporting the idea of allowing citizens to nullify the law if the law is seen to be unjust or tyrannical. Can't you?

Posted by: MikeD at August 19, 2008 05:11 PM

I'd vote not guilty on reasonable doubt.

If his blood alcohol was "barely over the limit" then it was never established that he was legally drunk at the time he was driving, nor that there was evidence of impairment (since he obviously managed to think clearly enough to not only diagnose the problem but get the patient to the hospital, thereby saving his life).

Posted by: Cassandra at August 19, 2008 05:28 PM

Like I said, that's Devil's Advocate stuff. I was merely producing it as a question as to why the Doctor's credentials can be questioned, but the Judge's can't? Realistically I know it is not why they're there, but it's a fun mental exercise.

I'm not saying that the judges credentials can't be questioned. Only that there is a different avenue for it.

As for the hypothetical htom posed, Cass provided an example of the 'out' for this case already. "Mitigating circumstances" are an avenue already built into the system.

With regard to the hypothetical "Ann": Yes, you are taking care of "now". The problem is you are only taking car of "now" while leaving the "later" to fester. You are treating symptoms and not causes.

Posted by: Yu-Ain Gonnano at August 19, 2008 06:12 PM

You could also find not guilty on lack of 'mens Rae'.

As to how that is different than 'ignorance of the law is no defense': mens rae deals not with lack of knowledge of law, but lack of desire to commit a criminal act.

The latter is for cases such as "I meant to poison him, but I didn't know that was illegal" as opposed to "Oh my God, I had no idea that stuff was poison". In the first, the accused acted 'with malice aforethought'. He intended harm to his victim. He has 'a guilty mind' even though he was ignorant of the law.

The latter, may very well know the law backwards, forwards, sideways, and inside-out but lacked any desire to cause harm. He is well versed in law, but did not possess 'a guilty mind'.

Posted by: Yu-Ain Gonnano at August 19, 2008 06:28 PM

I was trying to ask if the Judge gets to tell defense counsel to move on to some other argument immediately or does the judge have to permit defense counsel any silly argument that he wants? Of course the judge can instruct the jury but as a juror I have trouble accepting the judge's order to disregard the role of the defense counsel, disregard the merits or lack of merits of the defense's case and to proceed with a rapid and speedy conviction. It doesn't work that way because I feel perfect freedom to ignore any judge who would order such a thing. If ignorance is going to prevail in courts of law then I want to be on the prevailing side! :)

Posted by: Curtis at August 19, 2008 08:11 PM

A juror is not supposed to be an automaton, but a seeker of truth and justice. That's why our system permits the introduction of mitigating circumstances against which to weigh the cost of guilt. That's a far cry from deciding, as this juror did, that the underlying law is invalid, at least in his own mind. The defense was free to bring that argument, and may still bring it upon appeal. But as a juror you are charged, not merely bidden, to return a verdict based upon the facts presented and within the confines of the question being presented. All the navel-gazing in the world cannot absolve a juror from failing to do his or her duty as so charged by the court, if the juror is honest to his duty. And if not, then why bother trusting our peers to do the right thing?

Posted by: spd rdr at August 19, 2008 10:12 PM

Because you may only act on the facts as presented.

In this instance, the principle that government is never on your side applies, and hence extremely strict rules of evidence exist so that there is less chance of government planting evidence, or being careless and contaminating it.

So, why not for jury nullification? In this particular instance, I think I'm on the pro-choice side; legal, safe and rare.

Or perhaps you would prefer bench trials, which is all we have in Malaysia. That's right - no jury duty, no messy hung trials and mistrials and multi-week jury deliberations, no laymen trying to get uppity, we have only the legal experts at play here. Perhaps you may prefer such a system. Then you won't have to worry about jurors breaking their oaths or taking the law into their own hands.

You ask a cogent question - how can you make jury nullification fit reasonable, predictable justice? But note that there are three parts to that question.

1. Is it reasonable?
2. Is it predictable?
3. Is it justice?

Suppose there was a court empanelled in the KSA for apostasy, and that 12 stout men and true were selected to decide whether someone was an apostate or not. Now, bear in mind apostasy from Islam bears the death penalty.

In this instance, I would say that justice would not be served, even if the case was airtight. Not that jury nullification would happen there, but some laws by themselves are travesties of justice. And don't think this is so far-fetched and would never happen in the USA...

Posted by: Gregory at August 19, 2008 11:13 PM

> I maintain circumventing the law isn't the best way to solve the problem, especially when there are plenty of other remedies available.

Really? Cass, Copyright Law is currently so f***ed up as to be utterly unworkable. It literally cannot possibly function as it is defined right now, but there are plenty of fat middlemen who are used to standing their and taking their cut and who aren't about to allow themselves to be cut out of the game, after they spent so much time rigging it in their favor.

Just TRY and change it while respecting it.

The only hope of changing it comes from it getting so widely ignored that those who lobby for the rules can't avoid the failure of their attempts to rearrange the deckchairs on the sinking Titanic of modern Copyright regulation. When they surrender, and grant that change is required, then, and only then, will it get fixed.

The bastards passed a law, The "Bono Bill" (sponsored by his wife, who took over his seat in Congress) about 10-odd years ago, which is defacto unConstitutional -- they changed the state of existing copyrights to extend them (Disney was behind it -- Mickey, Goofy, Donald, and Pluto were all due to fall into the public domain during this decade).

Article I, section 9 of the Constitution itself directly states that there shall be no ex post facto law passed -- which is legalese for "no changing the rules for pieces in play". You can make all NEW copyrights longer, but you can't change the length of *existing* Copyrighted works... but they did it anyway. Now go ahead and try challenging THAT law. Good luck. Hope you've got a LOT of money to spare for the task, it won't be cheap at best.

Now go ahead and tell me why I, a juror, should convict anyone of personal copyright violations (as opposed to commercial violations), when the Powers That Be are willing to cheat the system like that.

Posted by: Obloodyhell at August 20, 2008 02:45 AM

> Sure it leads to a hung jury.

And hung juries CAN be tried again. They do not violate the strictures against double jeopardy.

But if the next jury which tries the case is likely to result in a hung jury again, then that sends a message to the prosecution -- the people don't like this law, don't prosecute under it.

...And so the jury has done its job and neutralized a bad law -- such as Prohibition and The Fugitive Slave Laws -- which are probably the two best cases where this did exactly what it should have done.

> The result is the uneven, unpredictable, and inequitable administration of justice based on the whims of random jurors.

That doesn't strike me as being right at all.

As opposed to the complete injustice of all the cases resulting in the same???

> I'm sorry, but deciding the applicability/constitutionality of laws was never meant to be left up to any given random collection of 12 people.

No IT'S NOT. It NEVER HAS BEEN. And God forbid it ever SHOULD BE.

You can make this claim all you want, it's crap and wrong and shows that you have NO idea about the history of this --- other than what you've learned from reruns of Perry Mason and Law And Order.

Jury Nullification has been a part and parcel of English Legal System dating back to the days of the Magna Carta. And we inherited that (as opposed to the Code Napoleon, used in much of the rest of Europe) by virtue of being a former colony of Great Britain.

And the Founding Fathers CERTAINLY wrote the Constitution as they did KNOWING about all that, and the historical purpose and function of juries in restraining the excesses of the government.

In the 1600s, the case where William Penn (yes, that Penn) made his name as a lawyer of note, the judge in question TOSSED THE JURY IN JAIL telling them they MUST CONVICT. They said "NO!". And eventually the king tossed the judge in question out on his ass.

It's been around all along.

So stop trying to claim otherwise, just because the State has made a significant effort to keep you in the dark about it, and so obviously succeeded.

Perhaps, instead, you **should** be asking yourself:
"Hmmm. I wonder why that is???"

Posted by: Obloodyhell at August 20, 2008 03:03 AM

> Now you want a third trial, all at public expense, simply because a single juror deliberately decided not to inform counsel that his pre-existing objection to the law would preclude his joining deliberations?

Cass, they should not be asking these questions.

Part of the point of a jury (and this DOES tie directly into jury nullification) is that the jury is supposed to represent a reasonable cross-section of the populace. When you give either side the capacity to reject people for "special reasons" (often unstated) then you violate that intent.

The choice of 12 (as opposed to six, or eight, or four) has specific relevancy to the way juries work. Part of the point is to make it difficult to convict, not easy. To place the whole burden of proof onto the State. And to put up, for all involved to see, the rules the State is choosing to enforce and why, as well as how they apply to this case.

Yes, you will wind up with abuses (such as the aforementioned KKK case) but that situation is a lot more the failure of the Fed to do its job in the very first place overall -- and prevent a majority from defacto voting away the rights of a minority... Like most modern anti-smoking laws, for example.

The purpose of voir dire is only to empanel a jury who don't have a vested personal interest in the specific case in question -- through a relationship with either the court's representatives or with the defendant, or via a similar life experience involving the sort of case in question (a woman who had been raped might be a bad choice for a rape case, for example -- but her bad experience would have no bearing on an embezzlement case).

To grant modern voir dire rules is to allow one side or the other to stack the jury with people who DO HAVE a vested interest in one side or the other. That is a travesty of what juries are supposed to be.

Posted by: Obloodyhell at August 20, 2008 03:19 AM

> And the next person comes along and doesn't get so lucky. Wouldn't it be better to solve the underlying issue *now* and not later?

As a mere juror, you lack that power. You are free to mount a personal crusade after the case to change the law, however.

But until you are successful, at least ONE PERSON was saved.

> A reflection of the fact that in a small group setting, people can be swayed by a strong personality (ever watch 12 Angry Men?).

Cass, you got very much the wrong message from that movie, if that's what you took away from it.

> OBH keeps mentioning outcomes he likes, but ignores the ones he doesn't.

I'm not unaware of them, they just don't matter like the ones that do.

This is kind of like gun control.

I don't have a gun.

I don't feel like I need a gun.

But you try and tell me I *can't* have a gun, because "you're the government" -- I get an itchy feeling I suddenly need to own a gun.

Like Gun Control, Jury Nullification has a primary purpose in that it is there to CHECK GOVERNMENT ABUSE.

It renders it impossible for a government to maintain the fiction of being under control while actually being out of control... because if you start throwing people in jail under trumped up bullsh** laws, the people have one more way, short of outright revolution, to say "Hell NO!".

And thus it forces an out-of-control government to overplay its hand, to come out of the closet, and to begin to commit direct, inarguable injustices in order to get things done. Which then leads to a Test of Arms between said government and its people.

So, like Guns, while I grant that problems occur as a result of the presence of Jury Nullification, I consider its presence to be a critical final bullwark holding our government in check.

And we keep tearing down more and more of those bullwarks...

I am old enough that there's a good chance I won't see it happen -- but your kids... or your grandkids.

They may be looking back at y'all and asking:
"How... WHY... the f*** did you let go of the reins?"


I've made this point here before --

The current US. Government is the oldest contiguous, incrementally changed government of any vaguely powerful nation on earth.

There may be some exceptions, like, oh, I don't know -- "Lichtenstein", or "San Marino", and, of course, "Vatican City" -- but no major nation on earth has not been through a radical restructuring in the time of the existence of the US Federal Government. China, Russia, France, Mexico -- all have had one or more major revolutions. England has shifted from a Pure Monarchy to a Parliamentary Figurehead Monarchy. Canada, Brazil, Australia, Germany, Italy -- didn't exist as nations in 1800.

The Founding Fathers created something impressively solid. It's got a great foundation and a strongly interlocking structure to hold itself together, for longer than any significant nation on earth.

The 2000 Election was a defacto Constitutional crisis -- the "signal" as to who was to lead next was swamped by "noise".

In many nations, the result would have been for one side to pick up guns and fight it out for the Right -- and Power --- to lead.

Not here.

Why?

Because the fact is that the people would not accept a leader who "won" the election by a show of main force.

And the key thing is that the people HAVE THE POWER TO SAY "NO!" and make it stick.

The Founders created a governmental system which has outlasted many others in human history.

Citizen Gun Ownership and Jury Nullification are both key parts of the foundation for that system.


Tinker with it at your peril.

Avalanches often start with the smallest of tweakings.

And Remember the Law of Unintended Consequences...

No one will care if you "thought you were doing the Right Thing."

Posted by: Obloodyhell at August 20, 2008 03:46 AM

I don't ever think that I've heard a more reasoned explanation, so I'll pass the bong to Pile On.

Posted by: spd rdr at August 20, 2008 07:37 PM

I'm sorry, but deciding the applicability/constitutionality of laws was never meant to be left up to any given random collection of 12 people. - Me

No IT'S NOT. It NEVER HAS BEEN. And God forbid it ever SHOULD BE.

You can make this claim all you want, it's crap and wrong and shows that you have NO idea about the history of this --- other than what you've learned from reruns of Perry Mason and Law And Order.

Well other than the fact I have never watched either of those shows, you've got me pegged. /sarcasm.

You say it's crap, but that is exactly what you are arguing for. Because this one jury believes a law to be unconstitutional, they are making that decision binding on the court. That their decision is only binding in this one instance does not matter. The court will enforce their personal interpretation of the constitution.

Something you say, yourself, shouldn't be done.

So I agree, a random collection of 12 people shouldn't be interpreting the constitution, and you might want to reconcider your support of it.

Posted by: Yu-Ain Gonnano at August 21, 2008 02:40 PM

What OBH said! I happen to be a citizen, not a subject and the government and the courts work for me, not me for them. If they prove to be full of crap that doesn't oblige me in any way to support them. 26 years supporting and defending the Constitution; not the government and certainly not the courts. Who elected those assholes anyway? Ditto the bureaucrats passing all these statutes and telling me that it is law.

Any American knows that it is only law if it passes muster under the Constitution. Those issues are decided and laid to rest by the Supreme Court but they are launched every single day by ordinary citizens challenging the Constitutionality of some dumb ordinance, statute or law. And if they can do it right out there in the open, any citizen can do the same in the jury room.

Posted by: Curtis at August 21, 2008 04:25 PM

Most "ordinary citizens", Curtis, haven't the slightest idea what is in the Bill of Rights, who their Congressman is, or even how their government works.

I find it utterly amazing that some of you are so blithely willing to allow 12 ordinary citizens who - if you poll any 12 walking down the street - don't even bother to keep up with what is going on and less than 40% of whom even VOTE (and of those, many of whom don't even bother to learn who they are voting FOR - they just pull the party lever) to just arbitrarily set aside the law whenever the helk they want to.

Nice that you credit them with your awareness of current events, but I think you are naive.

And repeated studies back me up on that one. The average guy on the street can't even pass a junior high school civics test. He couldn't even name 5 amendments to the Constitution if asked, yet you want to let average citizens judge the Constitutionality of laws. And to make matters even worse, juries are not selected at random from the populace. Voir dire intentionally eliminates people with knowledge of the law. I know - every time I've ever been called for jury duty, I've been eliminated almost immediately.

The ignorant exercise of a franchise is worse than no exercise at all. I am at a loss to understand this.

On what basis do you all repose this bizarre trust in your fellow citizens?

These are the people you want to allow to set aside the law.

Still feeling sanguine about your decision?

Posted by: Cassandra at August 22, 2008 07:09 AM

Isn't it then amazing to you that they so often get it right and the criminals go to jail; what with jurists as stupid and uninformed as the ones seen in the movie clip? How does that happen? I'll answer. I haven't made a study of social dynamics but I venture to guess that in any jury there is at least one focused, smart and informed juror who uses all of those qualities and some inherent leadership abilities to chivy the stupid, dumb, ignorant jurors to address all of the facts presented in evidence, questions the the arguments of the defense counsel and prods the rest to a forgone conclusion based on the evidence or its lack.

Every now and then, a jury consists of a couple of educated folks who hold different opinions about the reality they live in and when this happens, juries are split by the political beliefs being expressed by the smart jurists. The usual outcome in this case is a hung jury. 99% of the time the Judge ultimately thanks them for the service, dismisses the jury and the prosecution is forced to refile and make a more convincing/devastating case against the accused in front of the next jury.

Lacey Act
Citation: 16 USC 3371-3378
Citation: 95 Stat. 1073
Summary:
The Lacey Act provides that it is unlawful for any person to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law whether in interstate or foreign commerce. Violation of this federal act can result in civil penalties up to $10,000 per each violation or maximum criminal sanctions of $20,000 in fines and/or up to five years imprisonment. All plants or animals taken in violation of the Act are subject to forfeiture as well as all vessels, vehicles, aircraft, and other equipment used to aid in the importing, exporting, transporting, selling, receiving, acquiring, or purchasing of fish or wildlife or plants in a criminal violation of this chapter for which a felony conviction is obtained where the owner should have known of the illegal transgression.

I don't think that I'd vote, as a juror, to convict anybody for "violating" this "law". OTOH, I would be upfront if asked and say so when questioned under the voir dire and no doubt be excused from jury service, again.

If we seem to think that Americans are ignorant uneducated buffoons, why do we permit laws like the above to be written?

In so far as what these "man/woman" in the street interviews mean to me...yeah, there are a lot of people roaming around this country that put on a very impressive act of total ignorance and stupidity but I don't hold it against them....they're Marines.

Kidding! Seriously, what was the sample size? How many scores of people answered the silly question and were not represented in these stupid clips? The juries I've been through have included neurosurgeons from UCSD hospital, retired Navy captains, solid people. None that I've been involved with has ever had a lawyer or a law officer on it.

Posted by: Curtis at August 22, 2008 06:34 PM

Curtis, I think people are a mix.

But I also think that this is why you give a jury *instructions* -- and expect them to follow them.

There is no group of people on earth who, just allowed to follow their heads, can perform a complex task with no real knowledge of the law. And yet you all seem to think they can decide whether or not laws are Constitutional?

I don't buy that. It's not just that video you know. There are all sorts of standardized tests of college grads from Ivy League schools and they don't do any better.

Posted by: Cassandra at August 22, 2008 06:44 PM

Also, the jury is asked to perform a fairly narrow, focused task - decide whether the elements of an offense have been satisfied or not. They are given a list of questions, and told which factors they can consider according to the law without violating due process, state and federal laws, and the Constitution.

What you all are saying is that they can throw all those instructions out the window and judge for themselves :p They know better. And we don't need to worry one bit about them being arbitrary and capricious, nor about what basis they will use for these "expert legal judgments".

They're the People!

Posted by: Cassandra at August 22, 2008 06:47 PM

None that I've been involved with has ever had a lawyer or a law officer on it.

That's because lawyers will strike anyone with legal knowledge from a jury so fast it will make your head spin. That why I always get stricken - I have a paralegal degree.

It ain't much, but it's been enough to flag me on every voir dire I've attended.

Posted by: Cassandra at August 22, 2008 06:49 PM

Cassandra,
I'm not sure you make a valid argument about questioning any jury's ability to decide matters of Constitutional law based on their smarts because we all seem to accept that these same jurors can decide complex issues relating to advanced genetic sciences, DNA, Securities and Exchange law, etc and etc. The issue that decides whether or not WR Grace is extinguished as a company is in the hands of 12 blokes plucked off the street and subjected to months of testimony relating to asbestos and its medical effect on human beings but you seem to think they're too stupid to trifle with issues revolving about whether or not some statute is constitutional? I don't get it. Somehow, while I was on deployment, the law changed and allows cops to seize anything they decide was involved/related to a drug seizure without filing charges or going to court and this violation of due process seems to have been upheld by the courts. Would it really bother you if I, as a juror said, 'screw the courts, this is an unconstitutional violation of due process and I'm voting innocent'. Of course, that's the exact point. These cases don't move through a jury trial because the beings who write and enforce the law have won the "right" to seize anything they want without going through the boring due process nonsense. These matters are never presented to a jury.

You keep referring to the limited ability of the average person to question the expert wisdom perceived by experts of some kind. You know who makes the law! You've gone to parties with some of them. Some of them really are so stupid they should not be allowed out of the house without a keeper and yet they are legislators! They're the ones that make the laws. Single cell organisms are smarter than some of our legislators (I come from California).

Many of my family are physicians. They tell horror stories of jury trials where advanced medical matters are routinely entrusted to the expertise of ordinary jurors who will decide amongst themselves whether or not there was malpractice. How did they become experts on medical matters? None of my relatives have ever been accused of malpractice, he hastened to add.

On a humorous note: my last call to jury duty found me at the federal courthouse in San Diego swilling coffee at the sidewalk coffee shop where I was suddenly hailed by a work colleague who happens to be a lawyer. He was also there for jury duty and told me he really wanted to sit on a jury. We both proceeded into the courthouse and I headed for the metal detector queue while he went left and headed for the 'officer of the court' non-queue and breezed on into the jury room because he is a lawyer. It put paid to his ambition to sit on a jury.

Posted by: Curtis at August 22, 2008 10:34 PM

> Most "ordinary citizens", Curtis, haven't the slightest idea what is in the Bill of Rights, who their Congressman is, or even how their government works.

Once more: this find fault with the people educated by a f***ed up system.

The solution isn't to dumb down the rules, it's to raise the people back up where they belong.

Dumbing down the system just puts power into the hands of the few who run the system.

What possible contortion of reason and sense makes that sound as though A Good Idea?

The same arguments can be made for tossing out the whole Democratic Republican concept as a whole.

Is that the next step? "Well, they won't vote for people that have any sense, so let's take away their right to vote, and put in 'our' guys!!"

...Works fine as long as 'our' guys are decent, rational, and responsible. But sooner or later a self-serving crook gets involved, and from that point on, it's a short slide into hell.

Posted by: Obloodyhell at August 23, 2008 11:54 PM

> Also, the jury is asked to perform a fairly narrow, focused task - decide whether the elements of an offense have been satisfied or not. They are given a list of questions, and told which factors they can consider according to the law without violating due process, state and federal laws, and the Constitution.

What you all are saying is that they can throw all those instructions out the window and judge for themselves :p They know better. And we don't need to worry one bit about them being arbitrary and capricious, nor about what basis they will use for these "expert legal judgments".

Yes, Cass, I am saying that.

Because, in the end, this is not a country of laws made by experts. It's a country of laws made by men (humen). The experts can screw up just as completely as the bozo on the street. Even more so, as sometimes their intellect and experience leads them more readily than the common man into a logic trap common to humans: thinking they understand something that isn't easy to understand, particularly something outside the bounds of their own expertise.

Further, let's face it -- a hell of a lot of the law in this country comes from mildly, if not completely, corrupted politicians who are voting for what they've been paid to vote for as a law. It's be nice if that got corrected by the judicial system but it often doesn't.

And finally, let us not forget the final aspect of this -- Not all laws are passed by elected politicians. Despite the fact that there is nothing to indicate that Congress has the power to delegate its lawmaking powers, in reality it has defacto done so -- many government bureaucrats have the power to place edicts -- effectively laws -- into the Code of Federal Regulations. If such laws are not disputed within a certain number of days (90, I believe), the edict becomes the law and has the power of law.

So, on several levels, there are quite adequately good reasons why the people should be able to rule on the applicability and effectiveness of The Law.

=====================

Cass, I don't quite get your problem here. Granted, the populace the Founders led were, on average, better educated and more widely literate than today's citizens, but that's still the basis they used in creating the current system. You haven't begun to justify eradicating that system in the first place beyond expressing a substantial distrust of the average bozo. I, too, don't particularly like trusting the average bozo. I think I should have a computer-aimed bazooka mounted on my car so I can take out the occasional complete and obvious moron... but you can damned sure bet I don't want anyone else to have that power...LOL.

I think that, given the choice between the common sense of the average person, and the expertise of a small cadre of individuals, I'll go for the common sense of the average person for the most part -- especially when all they get to handle is one-off problems, rather than setting policy for us all.

Let the experts set the overall policy, then let the common sense of the people temper it, on a case-by-case basis.

I, for one, don't have a problem with "Use a gun, get 10 years without parole" laws. But when you have some dumbass 15yo punk doing a first crime with a plastic toy gun that could not shoot someone, robbing a store for a carton of cigarettes to impress his buddies, and say you're going to toss him into jail for 10 years without any chance of parole... uhhh, HUH? As a juror, I'm NOT going to accept that kind of "follow the letter of the law" instructions. I'll want to know a lot more about this kid before I'll accept the notion that he's crossed the line into "hardened criminal" deserving of such treatment.

And my decision doesn't have any effect on any other case brought relating to this law. Sounds like real justice has a chance here.

Posted by: Obloodyhell at August 24, 2008 12:18 AM

BTW, Cass -- one such "expert":
Former Lieutenant Governor of Florida under Bob Graham, "Wayne Mixon".

This bozo could not grasp that he had to shut down his machine before powering it off. He'd been advised this several times, but he kept doing it anyway. Sometimes it did not matter. Other times, he'd screw up the machine and lose things as a result. And we'd tell him he needed to shut the machine down. "Oh, yeah, right." :-/

...But he might be the one voting on or even introducing a Florida law or policy regarding computers.

I dunno if he wasn't just a flat-out idiot, never really dug into it. But he damned sure would not know a good computer law from a bad one... but I'll guarantee you he was in position at multimple times in the early 1980s to vote on Florida laws and policies with regards to them.

Posted by: Obloodyhell at August 24, 2008 12:26 AM

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