Villainous Company

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.

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

*sigh*

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.

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.

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!!!

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.

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.

"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>;~}

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...

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

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.

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?

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?

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.

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?

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.

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.

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.

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."

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

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.

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.

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.

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.

Yu-Ain got there ahead of me :p

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?

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).

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.

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.

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

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.

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.

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?

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.

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.

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.

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.

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.

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

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.

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.

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".

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.

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.

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.

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.

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.

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.

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.

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.

"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.

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.

The end justifies the means?

Does this work for everyone, or only juries?

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.

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!

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.

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.

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...

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.

???

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.

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.

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.

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.

> 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.

> 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.

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.

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.

> 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.

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.

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.

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.

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?

> 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.

"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?

*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.

.

> 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?

.

OBH,

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

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.

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.

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.

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.

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.

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.

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.

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.

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

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

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.

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.

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.

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.

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.

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.

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.

It only counts during voir dire.

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?

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.

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.