Patterico's Pontifications

7/28/2005

Radley Balko on Jury Nullification

Filed under: Law — Patterico @ 8:11 pm



Radley Balko says of jury nullification: “Not only is this your right as a juror, some would say it’s your obligation.”

And some would say it’s jury misconduct.

In a competent judge’s courtroom, all jurors are asked if they are willing to follow the law, regardless of whether they agree with it. They must answer this question in the affirmative or they cannot sit as jurors. And they must answer this question under oath.

How would you answer that question, Radley Balko? Would you lie under oath to protect what you believe to be your “right” and “obligation” to disregard the law?

UPDATE: I’ll have much more on this in coming days. I see a parallel between nullification and judicial activism. Both are “doing what’s right” at the expense of the law — and as such, both pose a similar peril to the rule of law.

UPDATE x2: In my promised post I will address, among other things, Balko’s statement:

In fact, the Supreme Court has since repeatedly upheld the doctrine of nullification. In 1952, for example, the Court found that “juries are not bound by what seems inescapable logic to judges.” And in 1972, that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”

“In fact,” that latter quote is not from a Supreme Court case, but from a case decided by the District of Columbia Circuit Court of Appeals. (U.S. v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).) That case contained plenty of warnings concerning the dangers of nullification, and held that juries need not be instructed that they have a power to nullify. The other case, Morissette v. United States, 342 U.S. 246 (1952), does not read to me as an affirmation of juries’ authority to nullify, just a recognition that they have the power to do so (which I don’t dispute). More in my upcoming post, perhaps over the weekend.

UPDATE x3: For those who still don’t get it, let me quote some language from the California Supreme Court:

Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law. As one commentator has noted: “When jurors enter a verdict in contravention of what the law authorizes and requires, they subvert the rule of law and subject citizens–defendants, witnesses, victims, and everyone affected by criminal justice administration– to power based on the subjective predilections of twelve individuals. They affect the rule of men, not law.” (Brown, Jury Nullification Within the Rule of Law, supra, 81 Minn. L.Rev. at pp. 1150-1151, fn. omitted.) A nullifying jury is essentially a lawless jury.

We reaffirm, therefore, the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is “unable to perform his [or her] duty” as a juror (§ 1089) and may be discharged.

People v. Williams (2001) 25 Cal.4th 441, 463.

Got it?

UPDATE x4: I’ve written Radley to tell him that the 1972 quote is not from a Supreme Court case. Hopefully he will do the right thing and get a correction appended.

127 Responses to “Radley Balko on Jury Nullification”

  1. You are right. He is wrong. American jurisprudence does not allow for jury nullification.

    BUT, it is entrenched in the common law of Scotland and, to a more limited extent, the law of England. I cannot write an essay here, but I believe that we (American jurispridence) have a corrupt version of the common law. I do not accuse, only describe. I recognize that we are neither England nor Scotland. However, think of how the development of tort law, from Palsgraf to the Tobacco Lawsuits, might be different if we had jury nullification instead of judicial legislation. Also, stare decisis would have a different meaning if the precedent were the opinion of a jury and not only of a judge.

    nk (759880)

  2. I do not support your position. If the law is an ass then the last resort is for the Jury to refuse to convict under the law.

    If the facts are as described in the two cases referenced, the prosecutor was an ass, the judge was an ass and the jury could have and in my opinon should have voted not quilty.

    Not a Yank (b79152)

  3. It’s always fun watching the Balkos of the world argue passionately about how our legal system is supposedly designed to allow juries to judge the law rather than just the facts. They never seem to be able to stay on message when you ask why jury nullifications in civil trials are appealable, as are “reverse nullifications” in which where a jury convicts a legally innocent defendant because there oughta be a law.

    Xrlq (158f18)

  4. Calling for jury nullification to be treated as “misconduct” is calling for the removal of the jury box as one of the four boxes (soap, ballot, jury, cartridge) with which we protect our rights.

    If juries could not refuse to convict someone of breaking a bad law, then people who helped escaped slaves and people caught drunk during Prohibition would have been jailed. Is that your desired outcome?

    From this article:

    American history is studded with examples of juries that refused to convict because they disagreed with the law. In the 1735 case that established freedom of the press, a New York jury refused to convict John Peter Zenger of seditious libel for publishing a critique of a colonial governor — affirming that regardless of the law, Zenger had a right to print the truth.

    John Adams argued that it was each juror’s duty “to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

    Slavery crumbled in part because juries in the North refused to convict those citizens who assisted runaway slaves in violation of the Fugitive Slave Act. Prohibition ended in part because juries refused to punish those violating it.

    But the modern legal establishment is extremely wary of jury nullification, which, if it became common, could lead to individual jurors blithely disregarding any laws they happen not to like. The U.S. Supreme Court has ruled that courts need not inform jurors of their power to refuse to convict if they believed a conviction on the facts proven at trial would be unjust.

    From this lesson plan:

    Famous cases of jury nullification include the trial of William Penn in England; the trial of John Peter Zenger in New York; and numerous cases in which juries refused to apply the Fugitive Slave Act to abolitionists who had assisted escaped slaves.

    More recently, juries have refused to convict pacifists who avoided the draft during the Vietnam War; marijuana-users accused of nonviolent offenses; and individuals who engage in or assist with so-called “mercy killings,” or euthanasia.

    Critics of nullification argue that justice requires strict enforcement of the laws.

    Proponents argue that nullification is simply one way in which a jury might fulfill its duty.

    In 1789, Thomas Jefferson wrote to his friend, Thomas Paine, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” As long as citizens are aware of their powers and responsibilities, juries will remain a powerful means for citizens to have a voice in their government.

    And from this article

    Nevertheless, jury nullification is, and has historically been, near the core of a free society’s legal system. It constitutes the People’s ultimate check on its own government. It prevents a government from enforcing immoral, unethical, and nonsensical laws. A jury will generally resist doing things it feels are inherently wrong. A jury is non-political. A jury is not a creature of the government.

    Keszler (9acdcf)

  5. This is patently untrue, even with the oath, juries are free to nullify based on conscience.

    I point you to the Full Informed Jury Association’s “True or False?” brochure:

    I MUST ACCEPT THE LAW AS GIVEN BY THE JUDGE, EVEN IF I THINK IT’S A BAD LAW, OR THAT IT’S BEING WRONGLY APPLIED, BECAUSE I CAN BE PUNISHED IF I DISOBEY MY OATH TO “FOLLOW THE LAW”.

    False. You are free to vote on the verdict according to your conscience. You may not increase the charges, but you may vote to acquit, even though the evidence shows that the person “did it”, if your conscience so dictates. And if you think the charges are too high, you can ask the judge to tell you about any reduced charges of which you might, in good conscience, be able to find the defendant guilty. The same options apply if you learn that the evidence was gathered in a way that violated the rights of the accused, or if you believe the government is just trying to flex its muscle by making an example out of the defendant, or feel that you were not allowed access to some of the facts of the case, or that victimless crimes should not be punished, or for any other reason you believe that justice will not be served by finding the defendant guilty as charged.

    When a jury agrees that despite convincing evidence proving the defendant acted as accused, justice can only be served by bringing in a verdict of not guilty, or finding the defendant guilty of reduced charges, or by not awarding the damages claimed by the plaintiff in a civil suit, its action is called “jury nullification”, or the exercise of “jury veto power”.

    John (46a3c1)

  6. Dammit, forgot to include the link. 😉

    John (46a3c1)

  7. Why doesn’t Balko mention Jim Crow Era juries “boldly and valiantly standing up to unjust laws” that would have punished whites for murdering blacks? Or past Utah juries that refused to convict Mormons of polygamy and rape for impregnating multiple 13-year-old “brides”?

    Jury nullification sounds to me like a fancy term for ignoring state and federal laws and constitutions in favor of local laws and customs.

    Nels Nelson (e88b48)

  8. 1) Nullification is a doctrine that seeks justice in spite of the law. Upholding, for example, the acquittal of an obviously guilty white man who killed a black man would be precisely the opposite.

    2) Nullification is most certainly a tradition of American jurisprudence. Read a little history. All of the founding fathers endorsed it, as did all of the original members of the U.S. Supreme Court. It has been eroded from our justice system by (a) the problem of plea bargaining, which never lets cases get to jury trials, and (b) power-hungry judges who don’t want juries to be independent.

    3) Does this mean you would have voted to convict a black man for the crime of having sex with a white woman in the 1950s? Would you have voted to convict him for swimming in a white swimming pool? What if the punishment for the former were hanging? These aren’t competely hypothetical.

    4) As for your question, there are ways around the voir dire, but yes, most of them are dishonest. So is sending a paraplegic to jail for 25 years for the crime of seeking to relieve his pain. I’d like to see such dishonesty rendered unnecessary, by amending state constitutions or passing state laws explicitly outining the right of a jury to nullify bad law.

    Radley Balko (7320fb)

  9. About the voir dire, Radley, I recall that (at least in the 5th circuit, due to certain case law) you can say that such a question is private, and the judge will have to ask why such-and-such is important to the case at hand. If the lawyer can’t give a good answer, he’s asked to move on. It’s likely he COULD give a good answer in regard to jury nullification, so passing laws saying there’s a right there would be useful, but not completely necessary. I think the biggest hurdle to overcome is to make sure people know what jury nullification is, and as soon as enough people know, there will be enough of a cultural knowledge of it that you won’t be able to get around it. This is a bit naive, but all you need is a big case or something involving it, and suddenly everyone will know about it.

    On the other hand, there are ways to get around the voir dire, and they are dishonest, but it’s not necessarily wrong if the idea is to be a fully-informed juror in a jury of fools.

    I suppose that’s a philosophical and moral question, rather than a legal one. So…bleh.

    John (46a3c1)

  10. “Follow the Law.” Fine. But remember that the Constitution is the highest law. Were some statute to clearly violate the Constitution, I would have a duty to exercise jury nullification, based on the higher law.

    Ranten N. Raven (e5e6e1)

  11. How many times in your prosecutorial career do you believe you’ve lost because the jury nullified the verdict despite your best efforts, and not just was not convinced by your prosecution?

    Andrew (a0661e)

  12. Radley Balko:

    Nullification is a doctrine that seeks justice in spite of the law.

    Justice according to whom? I’m sure Fred Goldman has a somewhat different concept of “justice” than O.J.’s jury had. My preference, of course, is for everyone to have justice according to me, but seeing as no one has died and made me king, I’ll settle for justice according to the people, as expressed through democratically enacted statutes and a super-democratically enacted Constitution. That kind of justice may not be perfect, but it sure beats rolling the dice to see what 12 semi-randomly selected individuals of average (or less) education are going to feel is justice on any given day – which in turn will depend on whose lawyer can make up a better sob story. It doesn’t work that way now, of course, but it would if the “fully informed” (runaway) jury movement ever got its way and lawyers were allowed to encourage jurors to do to criminal statutes what Anthony Kennedy does to the Constitution. Are there some stupid and unjust laws out there? Sure. Call your Congressman and tell him to fix them. Don’t rely on street “justice” and the luck of the draw to produce a few isolated acquittals, while most equally culpable violations of the same exact laws result in defendants rotting in prison. Do you really want better “justice” for those criminals who are lucky enough to pull a jury that shares their political views (or, worse, for those who are smart enough to commit their crimes in areas where the law is unpopular)?

    I notice that you didn’t answer Patterico’s rather pointed question, so I’ll ask it again myself: since you’re so damned convinced that flouting the law in favor of “justice” is your God-given right as a juror, are you willing to perjure yourself to protect that “right?” You also haven’t answered mine, so I’ll ask it again: do you also favor “reverse nullifications” in criminal cases, which also seek “justice” in spite of the law, only by adding to it rather than by taking away what was unjustly left out? And what about jury nullifications in civil trials? Should they become unappealable, too?

    Xrlq (158f18)

  13. The Jury is Still Out on Juries

    On the topic of jury nullification, I’m against it. The subject has resurfaced in light of a recent Radley Balko column. I refer readers to this response by Patterico and endorse it as my own.

    A Stitch in Haste (59ce3a)

  14. I suppose perjury would depend on the exact question. If it is “are you willing to follow the law…” I could honestly so affirm in the abstract. It’s when the particulars were detailed in the process of hearing the case that I might find myself in a situation where I was no longer willing to follow the specific law in question.

    If the question is “are you willing to follow the law no matter where following it takes you…” well, I would then admit I’m just not jury material.

    As I recall this country was founded by a bunch of potential jurors who decided there was no way they could follow the law where that law was taking (and had taken) them.

    Dan S (d281eb)

  15. As for me, yes, I am willing to perjure myself. I regret that I have but one life to give for my country.

    And as to the OJ verdict, yes, it was a case of jury nullification. It was the worst possible case for the jury to exercise that right, but there is no denying that the black citizens of LA were pissed off, and this was how they decided to show it. Would you rather they rioted like 94?

    Prosecutors and government attorneys should be afraid of juries.

    Phelps (2824b3)

  16. And with Phelps’s comment, I rest my case.

    Patterico (95bf4e)

  17. Look guys I’m not A LAWYER. I am a neocon republican. I am an ex naval officer and my empathy for the criminal defense bar approaches nil. That said, is there such a thing as a directed guilty verdict? No. So Jury nullification is. Deal with it.

    craig mclaughlin (0042a8)

  18. Xrlq: I’d like to point out that violating the oath is not perjury, and a juror cannot, under the law of this land, be punished for using nullification as a deciding factor in his decision, so your statement in that regard is inaccurate on its face.

    Secondly, to completely disregard a vast history of how jury nullification has greatly helped further the legal system is not just something to dismiss outright.

    “…it sure beats rolling the dice to see what 12 semi-randomly selected individuals of average (or less) education are going to feel is justice on any given day – which in turn will depend on whose lawyer can make up a better sob story.”

    In that case, than I’m sure the legal system will merely stop. C’mon, who’s kidding whom now?

    Have you served on a jury? Were they the gaggle of slack-jawed jackasses you seem to perceive everyone is who sits in that box? There are not a great deal of people who would just spuriously go against the facts and evidence in a case to support something horribly wrong. Or, even if they did, to have twelve people do that at the same time? That would appear to me to be a group coming to a unianimous decision: “There’s something wrong about this, and we can’t, in good conscience, let this person be punished because of it.”

    I’d point you to a documentary that FrontLine premiered about a jury coming to the conclusion of nullification naturally (see Frontline: Inside the Jury Room (PBS television broadcast, Apr. 8, 1986), and CBS Reports: Enter the Jury Room (CBS television broadcast, Apr. 16, 1997)).

    John (46a3c1)

  19. Affirming that they are willing to follow the law wouldn’t obligate them to not nullify a verdict.

    SayUncle (56b6ac)

  20. err, a verdict should be in a verdict.

    SayUncle (56b6ac)

  21. We had a jury nulification up here in WA a few years ago … the BATFE was trying to paint a reloader as a bomb maker … one of the jurors had a relative who reloaded, so she recognized the BATFE’s “evidence” as bullshit.

    The prosecutor tried to convict her of purjury for failing to volunteer that she had a relative that was an NRA member. The conviction was reversed on appeal.

    Apparently the feds were not willing to mirandize and then provide jurors with lawyers during voir dire.

    Heh.

    Kristopher (9fe3b3)

  22. That should be unanimous…blah.

    John (46a3c1)

  23. The prosecutor tried to convict her of purjury for failing to volunteer that she had a relative that was an NRA member

    Heaven forbid someone familiar with the subject matter be allowed to decide on it.

    SayUncle (56b6ac)

  24. Affirming that they are willing to follow the law wouldn’t obligate them to not nullify in a verdict.

    Huh? We must be talking about two different things. I am saying jurors have no authority (not “no power,” which is a different question) to disregard the law in rendering a verdict. Affirming that they are willing to follow the law regardless of whether they disagree with it (and make no mistake, *that* is what jurors must pledge to do) certainly does obligate them not to nullify. How do you argue differently, Uncle? I just don’t get it.

    This is an interesting issue; I plan a much more detailed rebuttal to Balko and his ilk in the next few days, when I get time. Stay tuned.

    I see an analogy here between nullification and what I consider judicial activism. Both are “doing what’s right” regardless of the law. Both are unprincipled, undemocratic, and contrary to the rule of law.

    Patterico (02a5f1)

  25. I have absolutely no compunctions about violating a sworn oath to leave my conscience and common sense at the door of a jury box, particularly when the common law of this country has made it abundantly clear that I have no legal obligation to do so.

    And, Xqrl, while I’m certainly sympathetic to the notion of leaving the fixing of bad or unjust laws to legislatures, the fact is that these laws do not simply spring up tabula rasa — they are passed by legislatures in the first place, and the egos of congresscritters are rivalled only by the egos of prosecutors and judges. Furthermore, a legislative inquiry into the reasonableness of a particular statute does nothing to help the poor guy presently in the dock for violation of that statute. Legislative solutions and jury nullification need not and ought not be either/or. Given that we are talking about putting people in modern U.S. prisons, potentially for long periods of time, for nothing more than violation of arbitrary bureaucratic edicts, I’m perfectly happy with a system that prevents enforcement of any given law more than half the time if as little as 5% of the population is willing and able to return not-guilty verdicts in prosecutions for violations of that law.

    Even if it gets a few folks worked up about jurors perjuring themselves during jury stacki– sorry, voir dire.

    Brett (0a3a94)

  26. Patterico,
    “Affirming that they are willing to follow the law regardless of whether they disagree with it (and make no mistake, *that* is what jurors must pledge to do) certainly does obligate them not to nullify”

    Can you get a directed guilty verdict in a criminal case? No. Can a not guilty jury verdict be appealed? No.

    Next question.

    craig mclaughlin (0042a8)

  27. The way I see it, the logical extension of the argument against jury nullification leads us to doing away with juries completely.

    The reason we have juries is so that the community is the ultimate arbiter of justice. Not the government. The reason we have a jury of 12 “peers”, aka ordinary citizens, is so that the sensibilities of the community are the deciding factor, not the sensibilities of a crusading prosecutor and hanging judge. The famous “french fry case”, if brought before a jury, would have been nullified in a heartbeat.

    The jury’s job IS to sit in judgement both of the facts, and of the law. The jury is to give the presumption of innocence to the accused, and the presumption of “rightness” to the law, but both are only presumptions. The greatest genius of the Founding Fathers was the application of checks and balances to government. Jury nullification is one of those checks and balances.

    Of course most lawyers don’t like it. Jury nullification is a wild card, its the ultimate in “not playing by the rules”, and by tempermant, lawyers love the rules and stand aghast at those who break the rules of THEIR game. Lawyers are trained to argue the facts, to argue the coherence and applicability of the law. Losing a case because of factors outside of that realm seems like being the victim of cheating. The catch is, our justice system was not set up in order to benefit lawyers, it was set up to serve the needs of the community.

    One of those needs is for the community to be able to stand up and say “bullshit” to the gov’t when the law is an ass.

    Bikerdad (a548c0)

  28. Next question: So what?

    There is a difference, as I say, between power and authority. A jury certainly has the power to nullify. But under the law, it does not have the *authority*. Juries have the *authority* to judge credibility, find facts, and even to make silly and unsupportable decisions while doing so. But they don’t have the legal *authority* to simply ignore the law. Period.

    If Uncle meant only that jurors have the power to lie, then he’s right — but he should have said that, clearly. But if jurors affirm they are willing to follow the law regardless of their personal beliefs, that is in itself an affirmation that they will not nullify. Can they still disregard their oath and do it? Sure. It’s not legal, but they’ll get away with it.

    Patterico (02a5f1)

  29. But they don’t have the legal *authority* to simply ignore the law. Period.

    How fortunate that the United States Supreme Court (see U.S. v. Dougherty, 473 F 2nd 1113, 1139) disagrees with you, Patterico.

    Brett (9f194f)

  30. Patterico,
    “There is a difference, as I say, between power and authority. A jury certainly has the power to nullify. But under the law, it does not have the *authority*. Juries have the *authority* to judge credibility, find facts, and even to make silly and unsupportable decisions while doing so. But they don’t have the legal *authority* to simply ignore the law. Period.”

    I don’t dispute your point. I’m sympathetic to it in fact. But, and this is a big but, I don’t see what is to be gained by arguing about it. Juries can and will piss us off in the future. To me, the layman, whether they have the power or authority is bound up in recourse–can their decisions be appealed. If not…

    craig mclaughlin (0042a8)

  31. First, I’m no lawyer. But:

    Affirming that they are willing to follow the law regardless of whether they disagree with it (and make no mistake, *that* is what jurors must pledge to do) certainly does obligate them not to nullify

    How do you figure nullifying something isn’t following the law? By law, they can pretty much come to any verdict they choose, if I’m not mistaken. As evidenced by the BATFE case in the earlier comment implies, that happens.

    I assume what you mean to state is that the jurist agrees to convict if they find someone guilty of a law that’s on the books.

    All I remember from my business law class, if such commitment is unenforceable, it’s quite meaningless in any sense of the word.

    I see an analogy here between nullification and what I consider judicial activism.

    I could concur. However, I expect judges to follow the law and I expect citizens to be activists.

    SayUncle (56b6ac)

  32. Patterico:

    I’m sorry, but you’re wrong. The power to nullify trumps the oath since nullification has been embedded in the law and since it was a main source of power the Founders thought juries should possess. It is not illegal in any sense of the world, and there’s hundreds of years of precedent and case law to prove that.

    John (46a3c1)

  33. How do you figure nullifying something isn’t following the law?

    That’s the very definition of nullification.

    By the way, note my update. Balko got it wrong in his piece, which purports to quote the Supreme Court as upholding the doctrine of nullification. One of his quotes is not even from the Supreme Court.

    Patterico (02a5f1)

  34. How fortunate that the United States Supreme Court (see U.S. v. Dougherty, 473 F 2nd 1113, 1139) disagrees with you, Patterico.

    When did the United States Supreme Court start publishing their opinions in the Federal Reporter?

    That’s not a Supreme Court case, dude.

    Patterico (02a5f1)

  35. You folks who think juries have the authority (as opposed to the power) to nullify:

    Every criminal jury in California is told, in the very first instruction they receive:

    You must accept and follow the law as I state it to you, regardless of whether you agree with the law.

    CALJIC 1.00, Respective Duties of Judge and Jury.

    You folks are telling me that this instruction is what — unconstitutional?

    Patterico (02a5f1)

  36. John:

    Xrlq: I’d like to point out that violating the oath is not perjury, and a juror cannot, under the law of this land, be punished for using nullification as a deciding factor in his decision, so your statement in that regard is inaccurate on its face.

    My statement is accurate on its face; it’s your reading comprehension skills that are lacking. I never said that violating an oath is perjury. It’s not. Lying under oath is perjury, and lying includes making promises you have no intention of keeping. Any FIJA freak who lies to get on a jury commits perjury whether he ends up using his “right” to flout the law or not.

    Bikerdad:

    The way I see it, the logical extension of the argument against jury nullification leads us to doing away with juries completely.

    I take it, then, that you advocate the abolition of all civil jury trials?

    Brett:

    How fortunate that the United States Supreme Court (see U.S. v. Dougherty, 473 F 2nd 1113, 1139) disagrees with you, Patterico.

    How fortunate that most runaway jury advocates are too legally illiterate to know which court they are misquoting.

    Xrlq (ffb240)

  37. You folks are telling me that this instruction is what — unconstitutional?

    What I’m telling you is that it is irrelevant and false to tell them that. Legally, juries apparently can (and have) chosen not to convict based upon violation of the law which, I think, is separate from not following the law (to respond to comment 33).

    We live in a country where juries are lied to, not told all the facts, and are kept in the dark. It’s just a pity more people don’t use jury nullification.

    SayUncle (56b6ac)

  38. “You folks who think juries have the authority (as opposed to the power) to nullify:

    Every criminal jury in California is told, in the very first instruction they receive:

    You must accept and follow the law as I state it to you, regardless of whether you agree with the law.

    CALJIC 1.00, Respective Duties of Judge and Jury.

    You folks are telling me that this instruction is what — unconstitutional?”

    No, we’re telling you its unenforceable. For the fortieth time, is a not quilty verdict appealable? No. Let’s move on. There’s nuthin to see here

    craig

    craig mclaughlin (0042a8)

  39. You guys just aren’t getting the difference between raw power to do something, and lawful authority to do it.

    I *may* have the power to murder you, if I catch you unawares and I’m armed. But I don’t have the authority.

    If I murder you, you stay dead regardless of my lack of authority.

    If a jury nullifies and acquits, the defendant stays acquitted regardless of the jury’s lack of authority.

    Courts recognize that the jury has the power to do this. But (to my knowledge) no court acknowledges that juries are legally *authorized* to ignore the law. Courts routinely tell jurors they must follow the law regardless of disagreement, and demand (under penalty of perjury) promises from jurors to do just that. OK?

    Patterico (02a5f1)

  40. What I’m telling you is that it is irrelevant and false to tell them that.

    Then every conviction in California is in error.

    Patterico (02a5f1)

  41. Comments and questions from a non-lawyer, previous witness, previous juror.

    Re SayUncle’s comment, yes, it seems strange in the way they want people who know nothing about a subject to be on a jury. This makes sense if you want to make sure an amateur doesn’t throw in his own misinformed opinion, but it also gives you the feeling they reserve the right to “hoodwink” you if they want. I was once on a jury where the defense attorney stated “You can’t really believe someone would be selling drugs in the open in the middle of the day like they claim, do you?” I was familiar with the area, and wanted to raise my hand to tell the judge, “Either the attorney is lieing through his teeth, or he is an idiot. They sell drugs in the open there all of the time!”
    During deliberations at that trial one person freely offered, “I don’t trust the police.” I thought to myself, “I thought you said before you wouldn’t do things like that.”

    As a physician, I find it hard to believe the facts presented in the Florida case. Even if it was against Florida law to prescribe a higher dose (which has not been true in Wisconsin and Pennsylvania, the two states I specifically know about), I do not see how it is logically valid to say in this circumstance that “so many mgs of medicine means intention to distribute”.

    MD in Philly (b3202e)

  42. no court acknowledges that juries are legally *authorized* to ignore the law.

    But they’re not arrested for doing it so such legal authorization is not necessary, I don’t think.

    SayUncle (56b6ac)

  43. BTW, this isn’t the first time Radley Balko has talked out of his ass over a legal issue he knows little or nothing about. In this article on Terri Schiavo, he managed to butcher just about every legal issue there was applicable (or in some cases, inapplicable) to the case. He later issued an L.A. Times-style correction to one of his many boners, butchering that one issue further while ignoring the rest altogether. [Note that when “L.A. Times-style correction,” I refer to the quality of the correction in question, and not to its location on the blog. Balko’s shitty little correction may not be worth the ones and zeroes it was printed with, nor worth the wear and tear on your monitor should you choose to view it, but FWIW, it is located exactly where corrections like it should be located: at the end of the affected article, with a heading that prominently reads “CORRECTION.”]

    Xrlq (6c76c4)

  44. Then every conviction in California is in error.

    How do you figure?

    And if you murder me, you break the law. Not so when a jury says they won’t convict.

    SayUncle (56b6ac)

  45. “You guys just aren’t getting the difference between raw power to do something, and lawful authority to do it.

    I *may* have the power to murder you, if I catch you unawares and I’m armed. But I don’t have the authority”

    I get it, Patterico, I really do. I wish the law was as you wanted and juries would have to actually follow jury instructions, but it isn’t and they don’t.

    For the fortyfirst time, can a not guilty jury decision be appealed?

    If not, like it or not, nullification is reality

    craig mclaughlin (0042a8)

  46. […] Once again (cf. this), Radley Balko is in way over his head on a legal issue he knows little or nothing about. This time, a higher-profile blogger than I was the one to call him on it, and an interesting discussion has arisen as a result. The debate seems to be mostly between two camps: those who think “the law” is something passed by a legislature and signed into law by an executive, and those who think “the law” is whatever some like-minded political activist tells them it is. […]

    damnum absque injuria » Fully Informed Clueless Juries (38c04c)

  47. Uncle, if your made-up version of the law were real, every criminal jury verdict in California (and, I suspect, everywhere else) would be in error because the jury was improperly instructed. In California, so was the jury selection process, which stacks the deck against jury nullification by excluding all potential jurors who are willing to nullify but unwilling to lie under oath and promise not to.

    And if you murder me, you break the law. Not so when a jury says they won’t convict.

    Only in that they break a different law, and one they much less likely to be punished for.

    Craig, you’re sounding like a broken record. Yes, juries can nullify criminal laws, illegally acquit people, and generally get away with it. No, that doesn’t mean they have a right to behave that way, and it certainly doesn’t mean, as runaway jury activists suggest, that lawyers should be allowed to encourage them to do so.

    To all FIJA activists: next time you feel like lecturing anybody about what “the law” is, you might want to try consulting some actual … um … law?

    Xrlq (6c76c4)

  48. My made up version of the law? Where did I do that?

    The only laws I alluded to were that a jury legally can come to the conclusion it chooses and that apparently no one is charged for using jury nullification because it’s apparently not illegal (according to the comments here).

    I assume by the rest of your statement that you’re referring to this statement I made:

    What I’m telling you is that it is irrelevant and false to tell them that

    Which is not at all in anyway making up a law (or even mentioning one) but factually asserting that the little vow or whatever they’re required to take is irrelevant because if the jury chooses to nullify something, there is no recourse against the jury. And it is, therefore, also false.

    SayUncle (56b6ac)

  49. OK, so now we’re back to equating no recourse with no law. Meaning Patterico’s analogy is spot on: if he murders you, you stay dead. And if O.J. murders you, not only do you stay dead, but his murder turns out to be “legal.”

    In any event, there is the potential for recourse against jury misconduct, and there is certainly is for perjury. Assuming, of course, that the juror already held his “fully informed” views at the time he took his oath, and didn’t have a FIJA-epiphany later.

    Xrlq (e2795d)

  50. “Craig, you’re sounding like a broken record. Yes, j’uries can nullify criminal laws, illegally acquit people, and generally get away with it. No, that doesn’t mean they have a right to behave that way, and it certainly doesn’t mean, as runaway jury activists suggest, that lawyers should be allowed to encourage them to do so.”

    I’m sounding like a broken record because no one has answered me. Why do I have to keep asking the same questions over and over. You lawyers can do whatever the hell you think you’re required to do. Just leave me out of the ethical delimma please. It ain’t my fault that you can’t convince a jury to convict. And no jury is obligated to, period, full stop. End of story. So quit your whining.

    craig mclaughlin (0042a8)

  51. OK, so now we’re back to equating no recourse with no law. Meaning Patterico’s analogy is spot on: if he murders you, you stay dead. And if O.J. murders you, not only do you stay dead, but his murder turns out to be “legal.”

    Is there or is there not a law making jury nullification illegal?

    SayUncle (56b6ac)

  52. Hmmm…

    Another way to get out of jury duty?

    Seriously, as a layman, it is my opinion that we don’t have a system of justice in this country, we have a system of laws. Not the same. And a few of those laws sometimes create great injustices. If I were faced with such a situation, I would follow my conscience and vote for justice.

    Sorry, legal eagles.

    Gary S (acdc84)

  53. I’m sounding like a broken record because no one has answered me.

    No one has “answered” your irrelevant musings because they are irrelevant to this discussion. No one ever claimed you can reverse a jury acquittal or direct a jury to convict anyone, so your repeated protestations that you can’t are less than enlightening. They don’t have a f’n thing to do with Balko’s recommendations that juries not merely be permitted to engage in juror misconduct, which is inevitable, but that they also be encouraged to do so, as well.

    Xrlq (ffb240)

  54. OK, so now we’re back to equating no recourse with no law

    And, btw, no we’re not. Two separate things. The first that there is, to my knowledge, no law against it. The second is there is no recourse for it. Nullify away, my nullifying friends.

    SayUncle (56b6ac)

  55. So, patterico & xrlq:

    Would you advocate being able to appeal a not guilty verdict IF you could prove the jurors were nullifying? After all, you state they are doing so without authority, but the Constitution gives them that POWER and gives you NO RECOURSE. How is this different from “authority”? Does all authority have to be written out longhand?

    How, exactly, would a world where a jury was told: “If, after hearing all the facts, you determine that the defendant, while guilty as charged, is wrongly prosecuted, you may return a not guilty verdict” be substantially less fair than the current charge?

    A lot of drug posession cases would get off. The jury would have to be told of 3 strike cases lest they started letting everyone off for minor crimes. Hmmm … doesn’t that happen now? Courts try to fix it by only letting anti-drug jurors sit on drug cases and the like, but is this really what we want to be doing? Jury of right-thinking peers? This is the kind of thing that makes people lie to “save the system.”

    I don’t think you quite get what the nullifiers are saying here: one profession writes the law, enforces the law, judge and argue in the courts of law. All decisions must occur under this law. But the basic law says they have to admit unruly outsiders in to perform the basic fact-finding and this is annoying because these outsiders won’t follow the damn RULES. When this conflict occurs regularly, you have to ask: which system is broken, the juries or the law they are asked to judge? Yes, sometimes it is the juries (1953 Mississippi), but that’s usually not the way to bet.

    Kevin Murphy (9982dd)

  56. “Would you advocate being able to appeal a not guilty verdict IF you could prove the jurors were nullifying?”

    No. Our system is that a person who is acquitted remains acquitted. I think that rule is important enough not to undercut with a bunch of exceptions.

    I realize that leaves juries with the *power* to nullify, as courts have repeatedly recognized. Perhaps in some situations that power is a good thing; reasonable people can argue about that. But juries have no lawful *authority* to do this – even if there are pamphlets that claim otherwise in a compelling “true/false” format.

    But the basic law says they have to admit unruly outsiders in to perform the basic fact-finding and this is annoying because these outsiders won’t follow the damn RULES.

    I am all for unruly outsiders finding the facts. That’s what the jury system is all about. I am not for them making up their own laws. Again, I’ll go into the philosophy of this in more depth in the coming days. What I want people to understand clearly here is that the law requires jurors to follow the law.

    On this point, I’ll let the California Supreme Court speak for me:

    Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law. As one commentator has noted: “When jurors enter a verdict in contravention of what the law authorizes and requires, they subvert the rule of law and subject citizens–defendants, witnesses, victims, and everyone affected by criminal justice administration– to power based on the subjective predilections of twelve individuals. They affect the rule of men, not law.” (Brown, Jury Nullification Within the Rule of Law, supra, 81 Minn. L.Rev. at pp. 1150-1151, fn. omitted.) A nullifying jury is essentially a lawless jury.

    We reaffirm, therefore, the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is “unable to perform his [or her] duty” as a juror (§ 1089) and may be discharged.

    People v. Williams (2001) 25 Cal.4th 441, 463.

    Patterico (c3ad9d)

  57. I am all for unruly outsiders finding the facts. That’s what the jury system is all about

    Then why deny them important facts, like the medical case mentioned?

    SayUncle (56b6ac)

  58. Would you advocate being able to appeal a not guilty verdict IF you could prove the jurors were nullifying?

    Sounds reasonable enough to me, in theory. In practice, it would probably require an amendment to the double-jeopardy clause, which I would oppose on other grounds if it were drafted too broadly.

    After all, you state they are doing so without authority, but the Constitution gives them that POWER and gives you NO RECOURSE. How is this different from “authority”? Does all authority have to be written out longhand?

    No, but it does have to be implied. Contrary to FIJA revisionists, our legal tradition of entrusting judges with ruling on questions of law and juries on questions of fact (except in bench trials, of course) is older than the hills. Accepting the fact that the double-jeopardy rule makes a nullification unappeal is not the same as confusing this bug with a feature and openly encouraging others to exploit it. And make no mistake about it – it is a bug, not a feature. Were it a feature, juries have the same powers in civil trials as well.

    Here’s another way to look at it. Suppose a criminal defendant waives his right to a jury trial, leaving the judge in the dual roles of ruling on both the facts and the law. The judge throws up his hands and says “the evidence is incontrovertible that he did it, the law clearly says he was not allowed to do it, but that law is bullshit, so I’m going to acquit him anyway.” Are you seriously suggesting there should be no repercussions for the judge? He’d rightly be kicked off the bench (as would the jury; it’s just that that won’t faze anyone since we do that to juries after every trial).

    Xrlq (ffb240)

  59. “You want answers?”

    “I think I’m entitled.”

    “You want ANSWERS?!?”

    “I WANT THE TRUTH!”

    ” YOU CAN’T HANDLE THE TRUTH!”

    Ok, from an actual lawyer (not that Xlrq and Patterico aren’t real lawyers), here is what the whole “jury nullification” system all boils down to:

    1.

    Ben Pugh (1527b3)

  60. I have no idea what just happened, so I’ll begin wehre I left off.

    1.

    Ben Pugh (1527b3)

  61. I am all for unruly outsiders finding the facts. That’s what the jury system is all about.

    Then why deny them important facts, like the medical case mentioned?

    Because those allegedly “important” facts are irrelevant to the crime for which he was charged.

    Xrlq (ffb240)

  62. Then why deny them important facts, like the medical case mentioned?

    I am a supporter of loosening (or perhaps even largely discarding) the rules of evidence, except for a minimal relevance standard, and letting all relevant truth into every trial. That’s a different issue, which we can discuss some other time if you’d like.

    Don’t assume that I am supporting prosecutions in the particular cases Balko cites. I just support jurors following the law.

    Patterico (c3ad9d)

  63. Looks like the comments are going wacky. Sorry.

    Patterico (c3ad9d)

  64. You’re comments section doesn’t like numbers, I guess.

    Craig, you are right with respect to the criminal defendant. If jury nullification occurs and results in an aquittal, it is not appealable.

    That does not mean, however, that there is no recourse against the juror(s). There is one, very slight and seldom (if ever) used, recourse against a juror who refuses to apply the law – a prosecution for perjury for lying under oath in response to the initial question of whether they will follow the law as teh judge gives it to them, regardless of whether they agree with the law.

    Is this a particularly effective possible sanction? No, but it is there. Balko, I presume, wants to get rid of even this mild sanction. If we get rid of the requirements that jurors follow the law, why have laws? Why not just let 12 people in a box decide things according to their personal whims and conscience?

    The first and fundamental reason, and the reason why continental legal systems are insane, is that you ensure that like crimes will not be punished alike, and similarly, like civil disputes will not be resolved similarly. This is bad for so many obvious reasons that I shouldn’t need to tell you.

    Ben Pugh (1527b3)

  65. I see there are two issues in dispute and I think I can knock out one.

    The first is whether or not jury nullification is legal. That question seems to have lawyers on both sides.

    The second is whether or not a nearly unenforceable restriction is any restriction at all. We don’t want the independence of juries to be so restricted by our efforts to avoid jury nullification that we lose the benefits of the jury system. If jury nullification is illegal, it is illegal in a way very similar to perjury. If I am testifying, for example, about my own mental state, perhaps in a case where I am claiming self-defense, I can perjure myself with near impunity, especially if the only other witness to my behavior is dead.

    Lots of laws in lots of situations are, as a practical matter unenforceable, and we may greatly restrict their enforceablity for important practical reasons, yet breaking those laws is still illegal, even if one does it in a way where it is very hard to be convicted.

    Yours,
    Wince

    Wince and Nod (e47577)

  66. Jury nullification because of thinking a law is bad is not something I am at all comfortable with.

    But nullifying a particular case because the specific application of the law is bad may very well be good.

    I recall a case which never actually got to court because the prosecutor(s) recognized that no jury would refrain from “nullification.” A man on parole came into possesion of a gun, violating his parole. The law quite clearly calls for rescinding the parole and returning him to prison – and he was notified of this and instructed to surrender himself. Cut-and-dried, no defense because he admitted the facts.

    But there were more facts. The store where he was working was held up by an armed robber. The robber forced the three employess into a back room, and proceeded to tie them up. While he was somewhat distracted with this, our defendant managed to take away the gun and hold the robber until the police arrived.

    Had this gone to court, would you have said you did not agree with the law that parolees should not have firearms? IF you agreed with the law, would you nonetheless have voted to acquit?

    John Anderson (01bfe3)

  67. Patterico keeps bringing up the issue of whether or not a jury has the authority to nullify. He posits that they don’t. I disagree. The jury is The People. You know, as in, “We The People of the United States, etc”. All authority of the court derives from the consent of the People. When a jury nullifies a law, it is because we do not consent to that law. All authority derives from the people, and a petit jury nullifying a law is a removal of any power delagated to the government under that law.

    Phelps (5ac936)

  68. John,

    Sounds like the case didn’t go to court. The prosecutor exercised discretion. And if the facts were as you state, properly so.

    I would acquit in such a case because the law in my state provides a defense of necessity to such an individual.

    Phelps,

    You might want to read the California Supreme Court quote I cite (I put it both in a comment and in an update to the post). There is what you think the law should be, and there is what the law is. Don’t confuse the two.

    Patterico (c3ad9d)

  69. Patterico – yes, discretion was used, and properly.

    But not until the parolee had gotten a lawyer and said he would take it to court. Up to that point, the law was blindfolded and armed.

    And that is also another point: the prosecutor properly exercised discretion. How is this different from “nullification”? It is, after all, a refusal to apply the law as written! Had they decided to go to court, you say you would have acquitted because of another law in your state: not all states have as all-embracing a statute as you imply, and the prosecution could certainly have argued against “necessity.”

    John Anderson (01bfe3)

  70. Cite me one state that lacks a necessity defense that would apply to the facts you stated.

    Prosecutorial discretion is miles apart from nullification. Jurors must follow the law they are given. Prosecutors are not legally bound to file every case that could possibly be filed.

    Someone please admit that the state of the law is that jurors must follow the law. That is *not* a controversial proposition. It just isn’t.

    Patterico (c3ad9d)

  71. There seems to be an accepted assumption on the part of those who oppose jury nullification that the jury is compelled solely to determine the facts in a criminal case. What I think this misses is that the jury effectively applies the facts to law.

    Granted they are closely shepherded through instructions and the like, but this effectively means that to some degree, yes maybe small, but to some degree, the jury is interpreting the law. In doing this, is it so wrong for the jury to nullify? Absolutely not, assuredly, Jefferson did not think the jury was the most important liberty right, because he thought juries were better finders of fact. (Granted Jefferson isn’t some great authority necessarily, but I think it’s instructive). If I remember correctly Jefferson claimed that the jury right was more important than a right to vote, it wasn’t because juries find facts better than judges.

    Patterico, and X… do you think juries are not supposed nay required to apply the law to the facts in determing a verdict? And in this way they are interpreting the law? If they are interpreting the law, don’t they to some degree have the authority to interpret whether a particular law exceeds our “liberty” interests protected by the right to a jury trial.

    Joel B. (c3cbe6)

  72. Someone please admit that the state of the law is that jurors must follow the law. That is *not* a controversial proposition. It just isn’t.

    I agree and it isn’t…but does this mean that the jury can convict under a violation of the BCRA, or that the jury can’t? What if the jury truly believed that the BCRA violated the first amendment, wouldn’t they have the absolute duty to return a verdict of not guilty?

    And if you disagree, have you not conceeded the interpretation of the constitution to the Supreme Court alone? Something Lincoln strongly warned against, as it would surely lead to the loss of our liberty?

    Joel B. (c3cbe6)

  73. Let me give you two examples:

    1. Defendant is found in a room with some dope. Various facts are introduced by both sides relevant to the issue of whether he possessed it. Jury analyzes facts and decides no possession. They acquit.

    2. Defendant is found with dope in his pocket. Jury decides he was in possession but decides they don’t like drug laws. They acquit.

    Defendant stays acquitted in both cases and there’s nothing we can do about it. The jury had the *power* in both situations, but had lawful *authority* only in example 1.

    Yes, juries apply the law to the facts they have found, and yes, as in example 1, that can call for the exercise of judgment. But they are not allowed to take a law that says x and apply it as though it says not x, just because they don’t like it — or they don’t like the way it applies in this case.

    That’s why they must swear to apply the law as written, and why they can be removed if it is clearly shown that they are refusing to do so. If that isn’t an indication that juries must follow the law, I don’t know what is.

    Patterico (c3ad9d)

  74. I agree and it isn’t…but does this mean that the jury can convict under a violation of the BCRA, or that the jury can’t? What if the jury truly believed that the BCRA violated the first amendment, wouldn’t they have the absolute duty to return a verdict of not guilty?

    Closer case. This is a tricky hypo and I think good arguments could be made on both sides. Arguably, as Ranten N. Raven says, the highest “law” is in the 1st Amendment.

    This is different from saying: “I don’t like drug laws, so I’m acquitting” or “I can’t believe they’re charging a guy for .06 grams of crack, so I’m acquitting” or “I just know this is a three strikes case [often the juror’s assumption is wrong] and so even though he’s guilty, I’m acquitting.”

    Can’t do that.

    Patterico (c3ad9d)

  75. The judge throws up his hands and says “the evidence is incontrovertible that he did it, the law clearly says he was not allowed to do it, but that law is bullshit, so I’m going to acquit him anyway.”

    Well, sure, I’d expect such a judge to be in for a rough time. But I’ll bet you it’s happened, and I’ll bet you lots more that there are judges who’ve acquitted for those reasons, but not said so — just like jurors don’t. I think we used to call them “bleeding-heart liberal judges”, but maybe I’m thinking of something else.

    Kevin Murphy (9982dd)

  76. Patterico, I am not trying to set up a “straw man”, although it may seem so. And I certainly do not want to force prosecution of every crime. I just do not see quite as great a difference as you in who gets to decide on a case-by-case basis whether or not to apply the law without interpretation.

    “Discretion” works both ways. Just a couple of days ago, there was discussion of the case of a man who was in trouble because he had a picture of himself kissing his infant’s navel. It did get as far as a court. Why? “Discretion?”

    Or go read
    *zombie invasion*
    A student is in court because he “threatened” – in a story – to organise a four-state killing spree at schools. Discretion?

    John Anderson (01bfe3)

  77. I think that the exasperation I see here is one side KEEPS quoting the law against jury nullification as though that is going to have ANY effect on those who are already willing to ignore the law. Just one more wrong law….

    The other side seems to think that jury nullification isn’t a problem, and forgets how they felt when OJ got off.

    One question we can all agree on: How about juries acting the other way? Say they know the guy is innocent of the given charge(s), but they want him locked up anyway? So they find him guilty. True, he has more options, but the injustice is also worse.

    Kevin Murphy (9982dd)

  78. “Amen” to Phelps quote. Patterico keeps insisting that juries cannot nullify “The Law” because they lack the authority under the law to do so. Isn’t that begging the question? Jurors DO have the authority to nullify – because they say they do. Juries ARE the ultimate law. The twelve in the box represent we the people because it’s too unwieldy to get 285 million people in a jury box. We the people make the law. We the people decide what the law means and how it is enforced. We the people can decide – for better or for worse – that some guilty shall go free and some innocent shall be punished. No, it’s not perfect and sometimes bad things can happen, but I’ll take my chances with a random group of my fellow citizens rather than the alternative of a judge who insists the law must be followed regardless of the greater fairness of the outcome. (Speaking of following the law regardless of where it may lead, I remember back in the forties a group of defendants in Nuremburg were convicted by a panel of judges including a USSC Justice despite the defendants insisting that they were just following the law. I forget the particulars of the case, but I seem to remember the Justice making a comment to the effect that some laws are wrong to obey.)

    BigPig (89969b)

  79. Patterico-

    I think you just walked in to the legal cowpie I left for you. (Sorry, but I had to).

    If you concede, that it at least makes it a closer case, what if in the examples you provide the jury said, “I don’t like drug laws, I beleive the Ninth Amendment protects a liberty interest in doing idiotic things to oneself,” or what if the jury said “I can’t beleive they’re charging a guy for .06 grams of crack, and he could get 20 years, and this might be a strike, that sure as heck seems like excessive punishment under the Eighth Amendment, so I’ll acquit.”

    Look, I don’t like jury nullification, I think most of the time it is a bad thing, and I think the people who are like “jury nullification is the greatest” are deluded, but I think it has a place, a very small one, but a place.

    The thing about a jury is though, it never has to provide its justification for a criminal verdict. So, we don’t know if the jury acquits because “I don’t like drug laws” or “I think this law violates the Ninth Amendment.” Although, the former, may just be they lay persons way of saying the latter.

    [Good argument. That takes me off the fence in the BCRA example. A juror would be obligated to follow the law, not his personal conception of what the law is or should be. — Patterico]

    Joel B. (c3cbe6)

  80. Jury Nullification 2

    As a nearly immediate follow-up to my earlier post today on jury nullification, let me post a link to a discussion about the topic at Patterico’s Pontifications, where many smart people I otherwise agree with on many issues are decrying jury nullifica…

    Michael Williams -- Master of None (821c19)

  81. I’m amazed! The arguments of the anti-nullification crowd sound exactly like the arguments of anti-gun nuts who don’t trust the people with the power to check the actions of government. Yes, nullification can be used for evil, but it can also be used for good!

    The main difference between gun use and jury nullification is that someone who misuses a gun can be prosecuted and punished if guilty, whereas a juror who nullifies unjustly cannot be touched by the judicial system. Perhaps social punishment is enough to deter unjust jurors, but if that’s not the case then maybe we should just pass a law that allows jurors to be prosecuted for nullification. Then, when those jurors are tried, a new jury will be empowered to judge their actions and render a verdict. The trial in which nullification was initially used would be untouchable, but jurors could be punished individually if their peers later believed that their nullification was unjust. Such a system would impose a cost on jurors for nullification and give them an incentive to use the power rarely and only when they believe that their peers will back them up.

    Michael Williams (7ac280)

  82. Jury nullification always brings out the, erm, misguided.

    (I wandered over here, as I do occasionally, after a similar but less… misguided discussion at Volokh.)

    Andrew asks how many cases have resulted in acquittal due to jury nullification. I’ve had one out of 40 trials (four acquittals). I would have had more if it were allowed. (The one was: 92-pound 20’s cute female clobbers victim boyfriend in the back of the head with a metal object, opening boyfriend’s noggin. Proffered defense: Self-defense; clearly fictional. Actual defense: Boyfriend was an enormous jerk, and she’s way cuter than boyfriend. Which was true.)

    I would go further than Patterico and say a juror should convict based on the instructions given in the case, even if the juror’s understanding of the Constitution or the law conflicts with it. If I have 20 full machine guns in California, and your interpretation of the Constitution is that I am allowed to have them, you still have to convict me. If you can’t, tell the judge and get off the jury.

    Else, if a juror believes murdering Frenchmen is constitutionally protected, we could end up with some bad verdicts. (FWIW, I do not believe the OJ jury nullified. I think they just blew it.)

    Jurors are not supposed to be the Supreme Court. They are to apply the facts to the law as the judge tells them to.

    On some of these scenarios, the issue is sentencing; judges usually have discretion to sentence appropriately when there are unusual circumstances. In other scenarios, like the felon wresting the gun away from the robber, there’s a clear defense, and no prosecutor with a flashing neuron would issue the case.

    I have found juries normally act rationally. I’ve had only one case where I thought the jury just blew the case, and that happened after I left on a person who had a massive axe to grind agains the legal system. Bad read on my part. (She wrote profane poetry about police officers and gave it to the defense attorney after the trial.)

    The system works. Juries should follow the system and apply the facts to the law. They do a surprisingly good job.

    –JRM

    John R. Mayne (de6363)

  83. Patterico- I appreciate your comment to my comment. Thank you.

    I’m going to change gears a little bit though, because now my previous argument is going to be less persuasive to you.

    Conceptually, if Congress passed a law forbidding the President to pardon, and this law was passed (either by a cooperating executive perhaps because his party was leaving office, or veto override), would it be unlawful for the President to exercise the veto power? Or is the constitutional grant of the pardon power greater than Congress’ ability to make it illegal to exercise.

    Similarly with nullification, the right of the jury to nullify is guarded in the 5th amendment (I grant it is an implicit grant of power). Can a legislature make a constitutional grant of power unlawful by declaring it so?

    I think current system is good, jurors are not allowed to learn of nullification during trial, and nullification is treated as unacceptable; however, it is recognized that if nullification occurs it must be abided by. Thinking about it conceptually though, I disagree with the contention that nullification is outside of the “authority” of the jury, or that it is somehow inherently unlawful. It is, a feature of our constitutionally guaranteed rights, which, no legislature can legislate away.

    Joel B. (c3cbe6)

  84. Bikerdad:

    The way I see it, the logical extension of the argument against jury nullification leads us to doing away with juries completely.

    I take it, then, that you advocate the abolition of all civil jury trials?

    No, I’m simply saying that the logic of restricting juries solely to the judgement of evidence, aka “facts”, makes juries superfulous. There is no logical reason for empaneling a jury of 12 ordinary citizens versus a jury of 12 professional jurists. Why bother with 12, why not 7, or 3, or simply one?

    As for Patterico’s argument regarding the California Supreme’s decision, that is simply a lawyer’s argument. The California Constitution clearly states that all political power rests with the people. ALL. Not some, not most, ALL. That means that the people have the authority. They may, and in fact do, delegate that authority for a myraid of purposes to government, but the authority remain’s the peoples’. Authority to make laws, authority to enforce laws, AND authority to “excercise prosecutorial discretion” in the enforcement of the law. for whatever reason. This is not legal theory, it is fundamental American political theory.

    Bikerdad (a548c0)

  85. Those who push jury nullification should logically agree with the efforts of those on the SCOTUS who rule by whim, conscience and fashion (with a bit of foreign law stirred in just to make it interesting).
    If it’s good for the jury, it’s good for the judge.

    Boman (0186f3)

  86. What is the exact wording of the oath taken by jurors in California?

    JerryB (973bf6)

  87. Bikerdad:

    The way I see it, the logical extension of the argument against jury nullification leads us to doing away with juries completely.

    I take it, then, that you advocate the abolition of all civil jury trials?

    No, I’m simply saying that the logic of restricting juries solely to the judgement of evidence, aka “facts”, makes juries superfulous.

    Huh? If you think the proper role of the jury is to rule on the law itself and not just on the facts, then why should any jury verdicts, civil or criminal, be appealable? Surely you don’t support “superfluous” juries in the civil context!

    Xrlq (158f18)

  88. […] In response to Patterico’s thread on fully informed runaway juries, Michael Williams likens the debate to the one on guns. The basis of this comparison, as I understand it, is that juries are like guns in that both of them are … er … um …. illegal in most of Europe. Yeah, that’s it. Or something like that. Whatever. […]

    damnum absque injuria » More on the Runaway Jury Amendment (38c04c)

  89. Boman:

    Judges and juries have spastically different roles to play. Judges interpret the law, juries convict or acquit based on facts and evidence.

    BUT, there are many scenarios in which jury of twelve reasonable people go, “This shouldn’t be happening. How could we send [this person] to jail?”

    Would anyone on here convict on the sodomy laws (which the Supremes booted, but let’s put that aside for the moment)? Would you say, “He can’t have sex with this person cause it’s illegal, and we’re going to send him to jail for it”?

    I could also use the example of racist laws in the past, and there are laws and prosecutions which are completely unethical and an abridgement of freedom right now, sometimes on mass scales.

    I do believe that most juries are made up of reasonable, thoughtful individuals that look at a case as best they can. Simply having the ability to nullify doesn’t mean they will apply this across the board. Most people believe in the rule of law, but the justice system is not always fair, and not always just, and not always blind.

    If you said, “Yes, I would convict if the defendent was guilty, no matter what the law, no matter what the circumstances, no matter the cause or consequences, even if I and my fellow jurors all agree it’s wrong to send them to jail,” then I don’t know what more to say. It’s a case of not seeing the forest for the trees.

    John (46a3c1)

  90. If you said, “Yes, I would convict if the defendent was guilty, no matter what the law, no matter what the circumstances, no matter the cause or consequences, even if I and my fellow jurors all agree it’s wrong to send them to jail,” then I don’t know what more to say. It’s a case of not seeing the forest for the trees.

    No, it’s not. It’s more a case of being one of the trees, and deluding oneself into thinking one is the entire forest.

    Xrlq (158f18)

  91. I could probably argue all sides of this, but my heart is with the rare-but-available nullification right.

    Why do I call it a right? Because, like several other rights, it grows out of American history, particularly the pre-revolutionary period. As Britian imposed taxes, blockades and other restrictions on the colonies, prosecution of violations under these harsh laws became impossible as the local juries refused to convict.

    The British, upset at this perversion of the jury system, started shipping miscreants off to England for trial. Jefferson complains about this (and also about them shipping misbehaving soldiers and officials off to avoid convictions) in the Declaration among his causes for action.

    Now, is this a right of the people under the US Constitution? Well, there is the 9th Amendment and to some extent the 10th. But those are vague and evidence needs to be found elsewhere to support such claims.

    Again the history and the Decraration. The 6th Amendment also indicates the right exists, particularly when it requires that a federal jury come from the state and district where the crime was committed. Why would they require that, if not to retain the possibility that unjust prosecution by an aloof and distant government had to be heard before a local panel as a check against unrestrained federal power? John Jay also felt the right existed, saying “The jury has the right to judge both the law as well as the fact in controversy.” One could assert this isn’t incorporated against the states, I guess.

    In short, while the legislature and the courts may have the power to outlaw jury nullification, they may not have the authority.

    Kevin Murphy (6a7945)

  92. Xrlq:

    You’re not even going to bend on this a little? Despite the times when jury nullification was a spectacular benefit to people, you believe it should be wiped from the map?

    Pheh. All right then, I think we’ve hit a brick wall.

    John (46a3c1)

  93. John, I’m not denying that jury nullification has produced good results in any individual instances. Of course it has. It has also created horrible results in others, such as protecting whites who lynched blacks in the Jim Crow south, or blacks who dragged white guys out of their trucks and beat them within inches of their lives in L.A. “Justice” is too slippery of a concept to be entrusted to 12 random jurors who have no specialized knowledge of it anyway. The only thing a given jury does have specialized knowledge of is the facts of the case. I see no reason to defer to juries’ wisdom on anything else.

    That said, I’m not advocating that jury nullifications be wiped off the map, assuming that’s even possible. What I am advocating is that the system remain pretty much the way it is, which strongly discourages jury nullifications by excluding any potential jurors who think they’ve been called to serve on a miniature version of the Supreme Court.

    Xrlq (158f18)

  94. Coming a little late to the party here, but I feel like I should comment. Obviously, jury nullification is a fairly divisive issue. Lawyers (especially prosecutors and judges) hate the idea for obvious reasons. Defense attorneys love it, also for obvious reasons. But for ordinary citizens it’s a valuable, even necessary, component of our justice system, and one that is worth the risk of misuse.

    In the vast majority of cases, there’s really not much risk of jury nullifcation. Most juries will willingly convict someone of murder, robbery, assault, etc.

    There are exceptions, of course, but those exceptions rarely have anything to do with the principle of jury nullification — rather, they have to do with juries that carry a grudge against the system, or are simply making a stupid decision (as in the “my client is cute” defense above).

    Jury nullification is a little more specific than simply refusing to convict. It’s refusing to convict because the law is wrong. Stupid juries are a separate problem.

    Regarding the perjury issue — Patterico, if the court required an oath to convict the defendent regardless of the facts, would such an oath be legally binding? Possibly, but it would be unjust and would IMO invalidate the jury process. I don’t feel that such an oath is appropriate. I also believe other inconvenient things — like allowing the jury to hear Constitutional arguments against a particular law.

    The law is due respect, but not blind obedience. The people have both the right and the duty to judge the law, as well as the facts, in each case. And if the law represents the will of the people, the jury will be willing to apply it.

    TriggerFinger (6f673c)

  95. It’s funny X, because even though I think we’re approaching this issue from two different perspectives, it appears that we arrive at the exact same place. I pretty much completely agree with your statement at 8:25 am.

    I think it’s interesting because jury nullification is somewhat like judicial review as some people have mentioned earlier. The problem is that the “jury nullification is the greatest folks” fail to recognize the extreme injustice jury nullification has worked.
    In the same way, it’s like the “judicial review is the greatest folks,” how they hold up Brown v. Board of Education to show the great wisdom of the court and how valuable judicial review is, of course they notably omit, Plessy and Dred Scott to show why the Supreme Court, is extremely dangerous with the power of judicial review.

    Both are dangerous, and ought to be substantially discouraged, but, I think, both have a place in our constitutional system.

    Joel B. (c3cbe6)

  96. Patterico, if the court required an oath to convict the defendent regardless of the facts, would such an oath be legally binding?

    Of course not.

    All juries have to do is follow the law. Simple.

    Patterico (756436)

  97. It’s funny X, because even though I think we’re approaching this issue from two different perspectives, it appears that we arrive at the exact same place. I pretty much completely agree with your statement at 8:25 am.

    Then what are we fighting about? At 8:25 a.m., Xrlq said: “What I am advocating is that the system remain pretty much the way it is. . .”

    So am I.

    Patterico (756436)

  98. to power based on the subjective predilections of twelve individuals.

    As opposed to, you know, the subjective predilictions of a few lawyers and a black-robed political appointee.

    It’s magical thinking to believe that twelve laymen are unequipped to render judgement on the law itself, as opposed to merely the facts of a given case.

    Brett (0a3a94)

  99. Patterico, I don’t know that we’re really fighting about anything, or maybe just the definition of jury nullification as unlawful or beyond the lawful authority of the jury.

    I’m okay with the means of discouraging jury nullification employed today. Perhaps the difference is, I read into your arguments and statements that jury nullification is morally and legally wrong. I don’t agree with that, I think it can be morally and ethically proper. However those circumstances will be very rare.

    Joel B. (c3cbe6)

  100. It’s magical thinking to believe that twelve laymen are unequipped to render judgement on the law itself, as opposed to merely the facts of a given case.

    Quite the opposite, that’s just common sense. It’s magical thinking to expect 12 semi-randomly selected laymen to be anywhere near as proficient in the law as 12 judges, 12 lawyers, 12 legislators, 12 paralegals, 12 governors, 12 legal secretaries, or 12 of just about any other group that has at least some exposure to the law beyond the 2 or 3 days (or sometimes weeks, or rarely months) a jury gets by virtue of sitting as a jury. Listening to all the testimony on a particular case does not give you any keen insights into the law generally, why it’s written the way it is, what other side effects a more “just” (according to you) law might have produced instead, or countless other nuances lawyers, lawmakers and judges are forced to deal with every day. It makes you an expert on the facts of the case before you. It doesn’t make you an expert on anything else.

    Xrlq (158f18)

  101. I’m okay with the means of discouraging jury nullification employed today. Perhaps the difference is, I read into your arguments and statements that jury nullification is morally and legally wrong. I don’t agree with that, I think it can be morally and ethically proper. However those circumstances will be very rare.

    Morally or ethically, sure. Sometimes, albeit rarely, the only moral or ethical option is to break the law. But I do think we have to be clear on one thing: jury nullification is indeed legally wrong, even if it happens to be one of those occasional wrongs after which my own blog could have been named. If jury nullification were ever the legally right thing to do, our current system, which excludes all potential jurors who admit they would ever do such a thing, would have to be wrong.

    Xrlq (158f18)

  102. I’ve written Radley to tell him that the 1972 quote is not from a Supreme Court case. Hopefully he will do the right thing and get a correction appended. I updated the post to reflect this.

    Patterico (756436)

  103. And don’t forget that the SCOTUS acts as both judge and jury. Too many on the highest court have believed in their own wisdom to properly use jury nullification but with the added danger of creating new law outside their jurisdiction.
    Before we established this goverment of laws and rights there might have been more reason to use the power of jury nullification. That was then, this is now.

    Boman (07372a)

  104. I’ve written Radley to tell him that the 1972 quote is not from a Supreme Court case. Hopefully he will do the right thing and get a correction appended.

    Hoffen kostet nichts, but I wouldn’t hold my breath if I were you. I wrote him to identify all of the inaccuracies in the Terri Schiavo piece I linked to above, and never received so much as an acknowledgement. Balko is, for all intents and purposes, the right’s answer to Paul Krugman.

    Xrlq (158f18)

  105. Well, our current legal system, which excludes all potential jurors who admit they would ever do such a thing, is wrong, Xrlq. Voir dire as currently practiced in this country amounts to little more than jury stacking.

    But “keen insights” into the law, or anything else, are hardly required. All that is necessary is for twelve men good and true to answer the question, “Is the law an ass?” If not, then they can render a verdict based entirely on the facts, and you and Patterico can go home happy. If, on the other hand, the law is an ass, then quite frankly jurors have a moral duty to acquit. Condemning someone for a violation of an unjust law — which will result in a potentially-lengthy term in the barbarity of an American prison — is a moral abomination.

    You and Patterico seem to subscribe to the notion that the rule of law is an end unto itself, rather than a means to an end. Me, I don’t believe that unjust pronouncements turn into spun gold by dint of their being issued by legislators or judges, and any “justice system” that requires me to leave my conscience and my common sense at the door of the jury box is unworthy of the name.

    Brett (0a3a94)

  106. From the California Code of Civil Procedures: http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=75288726769+2+0+0&WAISaction=retrieve reached via: http://www.leginfo.ca.gov/calaw.html in case the above link breaks.

    232. (a) Prior to the examination of prospective trial jurors in the panel assigned for voir dire, the following perjury acknowledgement and agreement shall be obtained from the panel, which shall be acknowledged by the prospective jurors with the statement “I do”:

    “Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court; and that failure to do so may subject you to criminal prosecution.”

    (b) As soon as the selection of the trial jury is completed, the following acknowledgment and agreement shall be obtained from the trial jurors, which shall be acknowledged by the statement “I do”:

    “Do you and each of you understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court.”

    JerryB (fb8249)

  107. Kristopher,

    Any more details on that case you described? I can’t find it anywhere.

    Patterico (756436)

  108. You and Patterico seem to subscribe to the notion that the rule of law is an end unto itself, rather than a means to an end. Me, I don’t believe that unjust pronouncements turn into spun gold by dint of their being issued by legislators or judges, and any “justice system” that requires me to leave my conscience and my common sense at the door of the jury box is unworthy of the name.

    Thanks for admitting what I’ve been arguing all along, namely that the real debate over jury nullifications is a debate over the rule of law. Now that it’s framed so clearly, let all who support the rule of law oppose jury nullifications, and let all who oppose (or are at least neutral toward) the rule of law support it. Then we’ll see how FIJA does at the ballot box.

    Xrlq (158f18)

  109. Under the right circumstances, I’ll vote to nullify and I’ll encourage my fellow jurors to do so. And if that makes prosecutors and the prison-industrial complex nervous, good.

    I think a criminal ought to go scott-free once in a while just because it puts a dent in the power of the Leviathan.

    Someguy (a0661e)

  110. Sorry, Xrlq, I absolutely will not grant you that the real debate over jury nullification is a debate over the rule of law. If I can disagree with the Supreme Court (only the nine most important lawyers in the land) about what the Constitution means ala Raich and Kelo I can certainly disagree with you, and Patterico and the California Supreme Court about whether or not jury nullification is legal.

    Frankly, it sounds like just another check and balance. If I remember my civics, those are good. I seem to think the legislature and the President often don’t like it when the Courts exercise their power. I’ve even heard them say repeatedly that the courts are overstepping their legal authority and abusing their power.

    Hmmmm. So the power of the judges and the defense attorneys and the prosecutors is checked by the jury. And the judges and the defense attorneys and the prosecutors say repeatedly that the juries are overstepping their legal authority and abusing their power. Sounds like a check and a balance to me.

    Yours,
    Wince

    Wince and Nod (909e93)

  111. Here’s a question:

    Do you oppose telling people what jury nullification is? Aside from people saying this or that about it, a main argument here seems to be a sort of lawlessness that could result from it.

    But let’s say someone, like a famous documentary filmmaker (who isn’t Michael Moore, cause crap flows both ways out of his mouth), makes a film telling people about the history and current legal status of jury nullification, including that, yes Virginia, you can nullify is you feel the strong desire to, based on your idea that the law is bad. Something like that would obviously get seen by millions and millions of people.

    Would you oppose the production of a film to educate the general population on this topic? Cause really, that’s all we’re talking about here. Cause a film like that, far removed from legislation changing jury nullification procedure, would simply tell people about it.

    So, Patterico, Xrlq, other people, what do ya think?

    John (46a3c1)

  112. I don’t oppose telling people about anything. I’d hope that such a film would be balanced, historical, etc., i.e., not an extended FIJA tract. But even if turned out to be the F-911 of jury nullifications, I wouldn’t question anyone’s right to make the film. That’s just another example of free speech.

    Xrlq (158f18)

  113. No no, I’m not talking about rights here and free speech, cause I’m sure we all vigorously believe in that.

    What I mean is an “If I were king” scenario, what would you want to happen?

    John (46a3c1)

  114. There are 3 places where the perpetrator of a felonious act can be let off the hook, even though obviously guilty. First, is the police may decline to arrest. Rare, but it can happen. The second, and by far the most prevalent, is the DA refuses to prosecute. Lastly, the jury refuses to convict.

    Why is it OK for the DA’s to use their discretion regarding an obviously guilty person, in the interest of justice, but not a jury? Why is a jury bound by the letter of the law but not the state’s counsel? How does this square with the right to trial by jury, when some of the jury’s historic rights are now reserved to the state?

    Kevin Murphy (6a7945)

  115. By the way, I’ve run across a LONG US Supreme COurt decision from 1895 (Sparf v US) which discusses this subject at great length and reverses, in part, on this issue.

    I’d be interested to know if this opinion is still considered relevant, and if so, to what degree.

    Kevin Murphy (6a7945)

  116. Why is it OK for the DA’s to use their discretion regarding an obviously guilty person, in the interest of justice, but not a jury?

    Because the DA is the representative of the state, a party to the suit. Both parties always have discretion to assert or not assert their legal rights in any particular action. The judge and jury, being allegedly neutral parties, do not.

    Plus, if the cops make the mistake of not arresting someone they should have arrested, or if the DA makes the mistake of not charging someone they should have charged, they can always go back and fix that later. Not so for jury nullification, unless you’re willing to surrender the double-jeopardy clause.

    Xrlq (158f18)

  117. I’m late to the party here too… and as others have said “I’m not a lawyer”.

    I looked at state Constitutions other than Kommiefornia and found (I think) some intresting phrasing re juries.

    It seems that at least half the States reconize nullification in some circumstances.

    Maryland’s Constitution: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact…”

    Indiana’s Constitution: “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”

    Oregon’s Constitution: “…In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law…”

    Georgia’s Constitution: “…the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be judges of the law and the facts.”

    South Carolina: “…and the jury shall be the judges of the law and facts.”

    Alabama: “…and that in all indictments for libel, the jury shall have the right to determine the law and the facts under the direction of the court.”

    Colorado: “…and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.”

    Connecticut: “In all prosecutions or indictments for libels, the truth may be given in evidence, and the jury shall have the right to determine the law and the facts, under the direction of the court.”

    Delaware: “…and in all indictments for libels the jury may determine the facts and the law, as in other cases.”

    Kentucky: “…and in all indictments for libel the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.”

    Maine: “Freedom of speech and publication; libel; truth given in evidence; jury determines law and fact.”

    Mississippi: “…and in all prosecutions for libel the truth may be given in evidence, and the jury shall determine the law and the facts under the direction of the court…”

    Missouri: “…and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.”

    And so on, with similar language, through Montana, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Wisconsin, Wyoming.

    Magus (69c469)

  118. “Justice” is too slippery of a concept to be entrusted to 12 random jurors who have no specialized knowledge of it anyway. -Xrlq

    Thanks for admitting what I’ve been arguing all along, namely that the real debate over jury nullifications is a debate over the rule of law – Xrlq

    No, the real debate over jury nullifications is a debate over the rule of LAWYERS. You, Patterico, and others who object to jury nullification seem to think that the the common man (and woman) is a ignorant dolt, a rube, a bumpkin, a fool, a moron, or an idiot, depending on the time of day. In your elitist view, only the “experts” in the law have any comprehension of justice.

    News flash for ya: Justice is a concept that exists beyond the law, that transcends the law, and on more than one occasion, is in direct contravention of “the law.” Yes, judges and lawyers know more about the law than the average layman, but such doesn’t give them any more knowledge of justice. Over the course of a thousand cases, I’ll take the common sense articulation of justice from 12,000 jurors over the understanding held by 30 judges and 200 assorted lawyers. Y’all have fallen into the trap of the fallacy of expertise. Or, “them’s some mighty fine new clothes the emperor’s got”

    Last, a comparison has been made between jury nullification and judicial “activism”, i.e. declaring a law unconstitutional. There’s a huge difference between the two, for several reasons. First, the obvious one of whether the Constitution itself actually supports judicial review. There is essentially as much support for judicial review as for jury nullification, except for the odd little matter that the 9th and 10th CAN cover JN, because it isn’t a power granted to government. In a world of limited government, any power not expressely granted to gov’t is a power gov’t does not possess.

    In the current world, on a more practical level, which is where real justice actually takes place, as opposed to legal theory, there’s a number of huge differences. Jury nullification does NOT overturn the law. The next famous, retired pro athlete cum movie star to murder his wife is going to be tried, just as the last one was. The law is still on the books. Contrast this to the next 17yr old thug who murders someone for kicks.. but won’t face the death penalty as a result. A string of jury nullifications will result in either non-enforcement or removal of the law by the legislature, but it only takes one judge to fubar the works, as opposed to a bunch of “common folk.”

    The second huge difference is this: the judges are supposed to be experts in the law. On the other hand, the jury has, by virtue of its member’s own life experiences, far more knowledge than the judge about the rest of life.

    Is jury nullification perfect? Of course not, but I consider a single “power mad” juror, sitting on a single case, to be a lot less dangerous to the Republic than a single crusading judge…

    To reiterate: ALL political power and authority rests with the people. No amount of law school classes or bar exams passed or years on the bench trumps this simple American reality.

    Bikerdad (a548c0)

  119. Quite the opposite, that’s just common sense. It’s magical thinking to expect 12 semi-randomly selected laymen to be anywhere near as proficient in the law as 12 judges, 12 lawyers, 12 legislators, 12 paralegals, 12 governors, 12 legal secretaries, or 12 of just about any other group that has at least some exposure to the law beyond the 2 or 3 days (or sometimes weeks, or rarely months) a jury gets by virtue of sitting as a jury.

    Here’s some magical thinking — this seems to assume that we can have a legal system based on mens rea, yet we can have a man accused of a crime where the law he is alleged to have willingly broken is so arcane, convoluted and complicated that 12 of his peers can’t interpret it?

    If the law is so obscure that you can’t presume to educate a jury on what the law the person is alleged to have broken is, then the problem is the law, not the hapless jurors. If the jury can’t judge the law, how can the criminal have known he was breaking it?

    Phelps (5ac936)

  120. Bikerdad, thanks for once again admitting that the debate is really over the rule of law, even while purporting to refute it. Once you cut through the silly elitism and “rule of lawyers” crap, it all boils down to this: where “justice” and law conflict, you favor “justice,” while I favor the law. Full stop.

    Xrlq (5ffe06)

  121. Xrlq –

    “Justice” is too slippery of a concept to be entrusted to 12 random jurors who have no specialized knowledge of it anyway.

    Thanks for admitting that you believe the average American citizen is an idiot and only elites within the legal profession can be entrusted to comprehend justice, much less administer it.

    That pretty much sums up “rule of lawyers.”

    What part of “of the people, by the people, and for the people” eludes you?

    Bikerdad (a548c0)

  122. What part of “of the people, by the people, and for the people” eludes you?

    The part that says unelected juries are better representatives of The PeopleTM than elected officials or impeachable judges, both of whom at least have some accountability to the people, while juries have none.

    I tend to think that only people trained in physics are likely to say anything intelligible about physics. I also think that only people who know something about the law are likely to say anything intelligent about the law. If valuing informed opinions while ignoring uninformed ones on any topic makes me “elitist” in your book, so be it.

    Xrlq (6c76c4)

  123. The part that says unelected juries are better representatives of The PeopleTM than elected officials or impeachable judges, “impeachable judges”? That’s a laugh riot. As a practical matter, a judge is virtually impervious, and the higher up the judge goes, the more impervious they become. Impeaching a judge or booting the DA does nothing for the fellow that has been unjustly, but legally, convicted.

    I tend to think that only people trained in physics are likely to say anything intelligible about physics. I also think that only people who know something about the law are likely to say anything intelligent about the law. If valuing informed opinions while ignoring uninformed ones on any topic makes me “elitist” in your book, so be it.

    No, valuing informed opinions over uniformed doesn’t make you elitist, in fact it is a mark of wisdom. Regarding everybody without a law degree as ignorant of the law, or everybody without a physics degree as ignorant of physics, that makes you elitist. What’s even worse is your continued confusion between the law and being trained in the law, and justice. Justice and the law are not one and the same. A child, completely ignorant of the law, has some understanding of justice.

    The law is one of the imperfect systems whereby fallible humans endeavour to organize their relations with one another. In our system, justice is one of the desired characteristics of our organizational schema. But as every kleptocracy, tyranny and dictatorship demonstrates, the “law” itself is indifferent to justice.

    Bikerdad (a548c0)

  124. Late to the discussion, just got here today from P’s post in his OJ discussion.

    I think that the point of views concerning jury nullification need to be tightened up a bit. Is there anyone who really thinks that JN being applied because of a generic complaint (ie: the system is biased against X class) is a morally and legally (where applicable) valid use of JN?

    There is also the issue that in some states it appears that legally there is no problem with JN but in others (like CA) the legislatures seem to greatly fear it.

    If my instructions indicated that JN was not allowed , I would have to inform the judge I could not affirm to such an instruction. Especially since I do think JN is proper when there is prosecutorial/police misconduct.

    seePea (e47d6e)

  125. There will probably be only a few people that see this, since no one has posted for a few days. As someone who has been involved in a case where I was on the jury, I believe this applies. Here are two examples that to me are obvious jury nulls: 1) Someone has been busted with a nice bag of pot. It is well known he is a partyman, not a dealer. He gets nailed buying more than normal for a nice vacation weekend. It is decided he will be tried as a dealer, based on the amount. He was looking at 20+ fed years. There were some things that they put this guy thru that just didn’t seem right. To make a long story short, we aquitted. He had broken the law, but he wasn’t a dealer. He’d been thru way too much already (8th amendment?). We are deadlocked because some of refuse because of unfairness, others want to convict because “it is the law”. The judge will then inform, when he deems it appropriate, that the jury can render “not guilty”, with a note of “unfairness” (can’t remember the specifics, as it was mind-numbing after days and days).
    The other example would be if we found a guy not guilty even though it is obvious the guy is a big-time dealer (stupid/terrified jury). The judge will nullify the verdict and declare a mistrial. (Lots of mob trials, look them up.) If we didn’t have juries that had the power to do what they wanted, we might as well not have them. If the judge tells the jury EXACTLY what it can and cannot do, we might as well just have the judge render an assembly-type judgement and be done with it. Thank you…

    justavoice (ea997c)

  126. Hi justavoice,
    I do believe you misread the dates of the original posts :). It will be interesting to see if more people join in now that Patterico has referenced this post twice in the past week .

    seePea (626f97)

  127. […] Sorry, Radley. I don’t willy-nilly accuse every libertarian of being inaccurate — just the ones who are. Balko has made at least one misstatement that he didn’t bother to correct even after I called him on it. In arguing for jury nullification, Balko claimed that a quote favorable to his position was from a Supreme Court decision, when I discovered that it was in fact from a mere Court of Appeals opinion. I blogged the error here, and wrote Balko an e-mail about it, and he never wrote me back or corrected the piece. […]

    Patterico’s Pontifications » Why Would I Say Radley Balko Isn’t Always Accurate? Because He Isn’t. (421107)


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