Radley Balko answers my question from the other day and says he would lie, under oath, to get in a position to be on a jury and nullify:
Patterico wants to know if nullification supporters would lie to get on a jury to nullify an unjust charge.
I’ve said before that I most certainly would. Moreover, I think we need a test case to invalidate the perjury trap judges and prosecutors in some jurisdictions set when they ask potential jurors if they’ll judge only the facts and not the law. It creates a situation where potential nullifiers are either dismissed or must put themselves in legal jeopardy to get selected for the jury. Given nullification’s rich history in American criminal jurisprudence, and the fact that the founders intended it to be an extra layer of protection from unjust laws and laws applied unjustly, these attempts by courts and prosecutors to take nullification off the table need to be challenged.
. . . .
I’ll happily preach the gospel of nullification — even to the point of advocating misleading the court to get into a position to nullify –as one small way to stem the tide.
I have said I would support jury nullification in extremely rare and desperate situations, where the fabric of our society was falling apart and our laws were inconsistent with basic humanity. For example, I would not convict someone of helping a slave escape his master. If we somehow passed a law making it illegal to be Arab, or Jewish, or black, or Mexican, I would not convict someone for that “crime.”
But Balko says he would lie under oath, not just in a desperate humanitarian situation, but also to advance a host of items on his libertarian agenda:
I’d have nullified in the Richard Paey case. I’d also have nullified in the Dane Yirkovsky case. I’d nullify in any medical marijuana case where the feds are prosecuting drug crimes that the state where the crime took place has explic[i]tly made legal. I’d nullify in any case where mandatory minimums would mean a conviction would result in a punishment wholly disproportionate to the crime (see Weldon Angelos). I’d nullify anyone in Washington, D.C. charged with defending his home with a firearm (yes, it’s illegal — not just to own a gun, but to actually defend your home with one). I’d nullify in any case where it was clear to me that the prosecutor was motivated more by pol[i]tics than by justice. Which means I’d nullify in cases where it was clear the prosecutor was “making an example” of someone. I’d nullify in white collar crimes where heavy-handed regulation has made it impossible for business owners and business executives to follow one law without breaking another (see Jim DeLong’s book for a litany of examples). I’d nullify in cases where regulatory laws now, absurdly, bring criminal sanctions for honest mistakes, misreadings of the massive regulatory code, or unforeseeable mistakes by subordinates. I’d have null[i]fied in the ridiculous lobster tail case.
Balko takes care to point out: “That’s not a comprehensive list, of course.”
That’s fine. He’s entitled to his disagreement. And guess what? Many, including me and many of my readers, agree with some or all of Balko’s libertarian principles.
But there’s a way to go about seeing that your principles are enacted into law. There’s political activism. You can write or call your Congresscritter. You can write a letter to the editor or start a blog. In California, the people can make law themselves through initiatives. There are any number of other perfectly honest and perfectly legal ways to work to change laws with which you disagree. That’s how we do things in a representative democracy.
Lying your way onto a jury isn’t the right way to fight these battles.
This is especially true when people of conscience might disagree with you about some of your principles. To take just one example, one of Balko’s links has to do with the Sarbanes-Oxley Act. If you’re unfamiliar with it, it’s a law passed in the wake of the Enron and WorldCom scandals that changes rules about how companies handle accounting, and it carries criminal penalties. Now, reasonable people can disagree about the need for this law, and about the details of how such changes should be implemented, if at all. The CEO of the New York Stock Exchange has said the law is necessary. Radley Balko thinks it’s not. Congress balanced the competing interests and passed a law that it believed was the right law at the time. Maybe it is, maybe it isn’t, but it’s the result of a process that takes into account the interests and views of a broad range of interests — not just those of radical libertarians like Balko.
No matter. If you’re charged under this law, Balko will acquit, even if you’re guilty. The balance of interests and the congressional process I have described simply don’t count when Radley Balko decides to lie his way on to a jury to upset a prosecution brought under that statute. Balko, as an individual, has made up his mind, and that ends the matter. And so the legislative process that created the law, and the judicial process designed to enforce it — they can all go to hell.
I assume that Balko would not consider it right to vote multiple times for the libertarian candidate of his choice. I also assume that he would never lie on his blog to advance a libertarian agenda.
But why? If he proudly proclaims that he’ll lie under oath to a judge to advance the libertarian cause, what principle is it that restrains him from engaging in other acts of dishonesty to advance the principles to which he has devoted his life? Again, I take it for granted that Balko does not engage in such acts. But one could easily rationalize such dishonest acts with reasoning similar to that which Balko uses to justify lying to the court. After all, one could argue that the principles of libertarianism and federalism that Balko embraces are the only principles consistent with the views of the Founding Fathers. Isn’t it critical for us to get candidates into office who will carry out this uniquely American vision? And if we have to vote a few extra times to make it happen — or if we have to tell a few white lies in our public arguments in support of such candidates — well, you can’t make an omelette without breaking a few eggs. As long as the libertarian agenda is carried out, isn’t that the highest principle?
Again, I assume Balko would never make such an argument, and I take it for granted that he does not and would not engage in those other acts of dishonesty. But the reasoning he uses to justify lying to the court, it seems to me, could be used to justify these other dishonest acts as well. I don’t see what separates those acts of dishonesty, which he would not engage in, from the dishonest act of lying to the court under oath, which he has explicitly advocated.
The problem with all of these arguments is that they are patent rationalizations of rank dishonesty. Sure, Balko might consider libertarian principles to be essential to our society. But guess what? a police officer might see punishment of criminals as essential to an orderly society, too. And if he has arrested a truly bad man who is definitely guilty of a crime, he might well rationalize lying about probable cause to make sure that criminal is held accountable.
We can’t tolerate such lies, even if they are told in furtherance of a laudable goal, such as convicting the guilty, or advancing the libertarian cause. We just can’t tolerate lies that interfere with the working of the judicial system, because they undermine the integrity of the system — and the integrity of the system is very, very important. It is not something to be thrown overboard lightly, simply because someone has a political disagreement with the way society has chosen to balance competing societal interests.
P.S. Do me a favor, please, and do not misread this post as accusing Balko of lying on his blog. Not only I am not making that accusation, I say at least three times in this post that I take it for granted that Balko does not do that. I say this in advance because I have noticed that some commenters tend to distort and/or exaggerate my statements regarding his posts and columns. This is a post about Balko’s ideas and the effect they would have on the legal system. I may delete any comment that tries to foment a blog war where none exists.
UPDATE: Balko has responded, and has backed off his claim — but not much. I have the details here.