Patterico's Pontifications

8/29/2006

Why the Oath to Follow the Law is Not Coercive

Filed under: General — Patterico @ 7:51 am



Thanks for all the responses to my nullification question yesterday. I will address some of the major recurring arguments as time permits.

First, many of you argued that requiring jurors to swear an oath to follow the law is coercive. You believe that the court would hold a juror in contempt for failing to take the oath — a threat that would prevent jurors from following their conscience.

This argument shows an unfamiliarity with the jury selection process, which is designed to weed out jurors who can’t follow the law before they are selected to be on a jury.

Nobody in the courtroom wants to put jurors in a position where they will be voting in a manner contrary to their conscience. That’s why the court spends hours on jury selection: to make sure jurors understand the rules, and to give them a chance to tell the court if they can’t live by them.

Jurors are always asked whether they can follow the law. They are told to say so if they can’t.

The oath comes at the end of the process, when the jury has been chosen.

I’ve never seen a juror who refused to take the oath to follow the law. But if it happened, the judge almost certainly would not respond with a threat of contempt. He would ask the juror why he is not taking the oath. If the juror said: “Because I can’t promise to follow the law,” the judge would ensure that the juror was not saying this to get out of jury service.

If it appeared that the juror was sincere, the judge would likely say something along these lines:

Why in the world didn’t you tell us this during jury selection? Between the lawyers’ questions and mine, we must have asked the prospective jurors in fifty different ways whether you could follow the law. And you never said a word. Why not?

After this lecture, the juror would be excused for cause.

Nobody is coerced into taking an oath to follow the law. The question is: if you can’t follow the law, would you lie to get on the jury, take an oath to follow the law — and then disregard it?

109 Responses to “Why the Oath to Follow the Law is Not Coercive”

  1. When I first show up for jury duty, I will say “I refuse to swear to follow the judge’s interpretation of the law. I am doing this on advice of counsel, Patrick Frey”.

    [Heh. Good one. But, uh . . . don’t do that. — P]

    TomHynes (c41bdd)

  2. And then the D.A. – Patrick Frey, perhaps? – will charge you criminally for perjury, since we all know he wasn’t really your counsel after all.

    Xrlq (f52b4f)

  3. This question tends to go back to me “What is the Law.”

    First, walking through the process.
    A. I can absolutely follow the Law and have no problem doing so.

    B. No, I would not lie to get on a jury (This is probably worse for the prosecution I’m probably a prosecution-sympathetic juror generally).

    C. Yes, I would take an Oath to follow the Law.

    D. Then I would not disregard it.

    But again, I guess the question to me is this, in this pattern, I go in fully intending and ready to obey and follow and impose the law. What happens if (as not the case now) the law is something like one I posited earlier, Patterico is on trial say for the commission of the criminal offense of political blogging without a permit 60 days before an election. Do I prior to deliberations send a note to the judge. “Judge, this law is unconstitutional…I don’t even know why we’re here? Do I wait until I get the instructions that says, this law is certainly constitutional disregard any concern as to that question move along nothing to see there, and say “hey Judge, the 1st amendment says “Congress shall make no law…abridging the freedom of speech.” I don’t see how this law can in anyway conform to that?

    Do I convict anyway knowing that the law is wrong, and sent a genuinely innocent man to be punished for a crime that cannot exist (constitution > statute).

    What do you want the juror to do?

    Now all that being said, I am fairly certain that a good prosecutor would ask during voir dire, “do you think political speech can be prohibited 60 days prior to an election constitutionally.” I would truthfully answer no, be struck for cause and there wouldn’t be an issue. So maybe the issue, is less there than meets the eye.

    A Common Commenter (c0bbd9)

  4. Now is that an oath to follow the law, or an oath to follow what you’ve been told is the law? For instance, let’s say there’s an affirmative defense to the crime the defendant is accused of, the burden of proof for that defense is met, but the Judge neglects/refuses to instruct the jury that the defense is a valid reason to acquit.

    Now suppose you’re a juror savvy enough to know this. Can you convict in good conscience, figuring that the defendant can prevail on appeal? If you acquit, have you violated the oath because you’ve not followed the law as you were instructed to follow it, yet you have indeed deliberated according to what the law actually is?

    Pablo (efa871)

  5. I have had an experience that is probably unusual but is illustrative of this question. I was on a jury panel in which a mistrial was declared during voir dire. It was a civil case and, when the plaintiff counsel asked if anyone had ever been sued, most jurors raised their hands. It was in Newport Beach so the response was not unexpected.

    During voir dire the plaintiff counsel made some statements that indicated we were being chosen for a jury to hear a damages case where the only party that refused to settle was an insurance company. Of course, the statement was made that we could not consider the possibility that there was insurance involved.

    During a break, a number of us noticed that the plaintiffs and the defendant were chummy, sitting together outside having coffee. When we came back in to continue, the next juror (not me), when asked about his opinions, blurted out that he thought the whole case was a scam by colluding plaintiffs and defendants to pillage an insurance company.

    Well, that set the cat amongst the pigeons. The lawyers and judge retired to chambers for a half hour and when they came back, the judge, struggling to keep a straight face, announced a mistrial. He said it was his first such experience. I don’t know if that was nullification but it made a statement. I agreed completely with the guy who said it was a scam and probably 90% of the rest did, as well.

    Mike K (416363)

  6. I’m not so sure that I’d be willing to tell a judge that I’m *not* willing to follow the law. You do need to be careful what you say as a juror, lest the judge decide you’re a smartass and find you in centempt.

    As an example, see this recent post from my blog ( http://nylawblog.typepad.com/suigeneris/2006/08/he_probably_sho.html ) which describes a NY appellate case where a juror was found in contempt and fined $1000 for stating his opinion that the defendant was a scumbag.

    Sure, it’s a lsightly different situation, but I could absolutely envision a situation where a might get ticked off if a juror informed him/her that he couldn’t or wouldn’t follow the law. Personally, I’m not sure that I’d want to risk it.

    [If you’re respectful and sincere, there should be no risk. The judge might lecture you on why it’s important to follow the law, but he shouldn’t hold you in contempt for telling the truth in a sincere and respectful manner. — P]

    Nicole Black (442f8f)

  7. So, I take an oath to follow the law, and I follow it.

    As Patterico pointed out in a comment yesterday:

    [If you see police violating their oaths, and it causes you to have a reasonable doubt, you dont have to violate your oath or nullify to acquit! P]

    So, I hear a police officer testify, and I feel very sure that he lied about something in his testimony. Maybe he lied about something not even important in the case. Or maybe his testimony was something that a judge would excuse as “mistaken” and not a lie, but I feel more strongly about police being truthful under oath than the judge does.

    Can I decide that he’s just a liar, and disregard all his testimony? Do I have to make an exception that it’s OK for a cop to lie about some things, but not about others? Or what?

    [Jury instructions provide that if you conclude a witness was deliberately untruthful in one area, he is to be distrusted in others, and his entire testimony can be disregarded. But understand that police officers are human and make mistakes like everyone else. You shouldn’t automatically conclude one is *lying* simply because he made a mistake. — P]

    Occasional Reader (a64048)

  8. “the judge would ensure that the juror was not saying this to get out of jury service…”
    how, exactly, would the judge do this? by putting the juror on trial on the spot, but without the constitutional protections accorded to the defendant? sounds like an impromptu inquisition. at this point, isn’t the juror’s statement “because i can’t promise to follow the law” self-evidently true, without the need of further inquiry?
    “after this lecture, the juror would be excused for cause.”
    the judge has no right to lecture a prospective juror. the judge is a tribune, a servant of the people, not the master of the people (from my standard counterlecture on occasions when i’ve been lectured.)
    the three ages of juries:
    the ancient age took place in england, starting before the new world was even settled. jurors were “twelve men good and true” who lived in the same shire as the parties, most likely knew them, and were considered to be the most reliable adjudicators of factual issues.
    in the pre-modern age, emphasis shifted toward elimination of bias. prospective jurors would be asked during voir dire whether they knew any of the parties/counsel/witnesses, a “yes” would get them disqualified.
    in the modern age, the emphasis has shifted again, from picking a fair jury to picking a stacked jury. an entire industry of jury consultants (“witch doctors”) has arisen to assist counsel, some odious conventional wisdom has developed (asians are analytical and unsympathetic, good prosecution jurors, hispanics are emotional, good plaintiff’s p.i. jurors), the court has abdicated its role of protecting prospective jurors from excessive, intrusive questions from counsel, eliminating their right to privacy.
    in the modern age, the entire sequence of jury service has been carefully crafted to intimidate prospective jurors with the awesome majesty of the state. sheep only wanted, no freethinking mavericks please, and that’s how prospective jurors are treated. after being shuttled from office to office, being told to hurry up and wait (like army boot camp, and with the same goal), they get handed a questionnaire which (at least in the o.j. case) asked things like have you ever used illegal drugs? do you own a gun?
    none of your damn business!
    so what’s an anti-statist citizen like me supposed to do? nullify, just like they did in the pre-modern age!
    marijuana possession? i don’t recognize that as a crime. not guilty!
    she’s a prostitute? the working girl is a victim, not a criminal. not guilty!
    the homeowner shot the burglar? i salute him for taking out the trash. not guilty!
    the old couple smuggled prescription drugs in from canada because they couldn’t afford them at american prices? i would have done the same. not guilty!
    as an american juror, it is my right to do this.

    assistant devil's advocate (d70597)

  9. ada–

    All moral grandstanding is beside the point: Do you lie to the judge about your refusal to follow stated law?

    Federal Dog (9afd6c)

  10. Patterico, you’re not only quite intelligent and informative in your posts, but you ought to be canonized a saint for the patience you exhibit with some readers.

    I don’t wish to use “a common commenter” as an example in order to insult the lad, but he is a good example of the narcissism of some personalities who end up sitting on juries.

    There’s a certain percentage of the population who believe they’re ‘re-inventing the wheel.’
    They’re armchair quarterbacks when watching a football game, they’re armchair generals when following Iraq, and they’re probably even armchair chefs when watching the lovely Rachael Ray cook on TV.
    (There are people such as Edison, Einstein, and Gates who ARE re-inventing the wheel—but they are few and far between.)

    I feel there are a number of narcissists who walk into a courtroom as a member of the jury pool, and believe that within half of an hour, they are going to outwit Perry Mason, the D.A., the Judge, the Founding Fathers, and the law.
    (We also saw other examples of this narcissism displayed by commenters in your fine OJ Simpson posts.)

    You’ve made it quite clear that the jurors must follow the law when rendering a verdict. It is not the juror’s job to inform the court that he dislikes the law, feels the law is unfair, or that in his humble opinion the law in ‘unconstitutional.’
    The jurors must follow the law regardless of their personal feelings about the law.

    Naturally, there are channels for dealing with laws which are perceived to be ‘unconstitutional,’ and the personal feelings of Juror # 5 is not one of those channels.

    Desert Rat (d8da01)

  11. After reading the responses (particularly A.D.A.’s) I have less faith in the jury system than ever. Which is sad.

    sharon (03e82c)

  12. Desert,

    I don’t think in any way am I being narcissitic. I can read and I can reason. Something that any juror should be able to do. I’m not positing a situation where we are in a marijuana case, and I’m am arguing a situation where well, I don’t think it’s interstate commerce or some such thing far more constitutionally complex.

    All the situations I’ve posited have been fairly straightforward and simple…and Patterico or X, have never really addressed my points, except to say that I overextended Patterico’s hypo by accidently including a case where the defendant is not guilty, and the cop lies.

    You’ve made it quite clear that the jurors must follow the law when rendering a verdict. It is not the juror’s job to inform the court that he dislikes the law, feels the law is unfair, or that in his humble opinion the law in ‘unconstitutional.’
    The jurors must follow the law regardless of their personal feelings about the law.

    I’ve also made it quite clear that if the question was asked up front I would be honest about it if asked.

    I get frusterated myself, with the trite “We are the People” crap, but at some level, there is truth in it, and that’s worth remembering.

    Being an armchair quarterback, an armchair general etc. is one thing, I have no special training in football or the military, I concede that, but for all you know, I may have special training in the law, not that it really matters.

    A Common Commenter (c0bbd9)

  13. Patterico wrote:

    Jury instructions provide that if you conclude a witness was deliberately untruthful in one area, he is to be distrusted in others, and his entire testimony can be disregarded. But understand that police officers are human and make mistakes like everyone else. You shouldn’t automatically conclude one is *lying* simply because he made a mistake. — P]

    Thanks for answering. I’m not talking about mistakes, but things that are so transparently convenient that ordinary mortals would not consider them mistakes. Any parent who has caught a child lying from their demeanor can spot them.

    Occasional Reader (a64048)

  14. Just skimming before I run for a while , so maybe I’m missing something, but …

    Patterico, the oath you cited was not to follow the law. It was to follow the court’s instructions, a distinction that seemed to me to be at the heart of much jury nullification in cases where the juror does not see those two as being in sync.

    ras (a646fc)

  15. “Patterico, the oath you cited was not to follow the law. It was to follow the court’s instructions,”

    If the court’s jury charge materially departs from the law, it will be flipped on appeal.

    Federal Dog (9afd6c)

  16. @federal dog:
    all moral grandstanding aside, as i have disclosed on here before, i have never been summoned for jury duty, notwithstanding decades of voting, driving and property ownership. i don’t even know if i would respond to a summons. since i don’t like to lie, i would prefer a clintonesque circumlocution (it might depend on the meaning of “stated law”), and the time sequence would be important. as other commenters have noted, when the law hasn’t been stated to you yet, it’s only a thoughtcrime to breach a promise to follow it.
    moreover, one can nullify **without** breaking any law whatsoever, including perjury during the voir dire! here’s how:
    the concept of “beyond a reasonable doubt” is entirely personal and subjective, there is no metric to measure it, and it can shift with context…
    i’m still yawning after 45 minutes. waiter, i convict you beyond a reasonable doubt of serving me decaffeinated coffee!
    the cop found a pound of sticky bud in the trunk of his car. well, cops lie, i’ve seen them lie on the stand before in cases where i had personal knowledge of the truth. unless the defendant gets up in open court and admits it to us, i don’t believe any of this shit!
    @sharon:
    good morning, authoritarian statist! less faith in the jury system than ever, ahh, but what do you propose to substitute for it? i would be interested to hear.

    assistant devil's advocate (d70597)

  17. If the court’s jury charge materially departs from the law, it will be flipped on appeal.

    But if you know that’s the case, can you convict in good conscience? Do you make the defendant pay for the Court’s error?

    Pablo (efa871)

  18. When I served on a jury in California about 15 years ago, the charge from the judge was that if we became convinced beyond a reasonable doubt in the defendant’s guilt, we “may, but are not required to” find him guilty.

    I would have been following the law, therefore — both as to what I understood it, and as to what the judge told me — if in spite of being convinced beyond a reasonable doubt, I had voted to acquit.

    As it was, the verdict of guilty was unanimous (and I had some little bit to do with persuading one or two uncertain jurors to that conclusion).

    McGehee (5664e1)

  19. Pablo’s on the right track. Depending on the premise that it will be flipped on appeal still means you are convicting a innocent man.

    Proverbs 17:15 “He who justifies the wicked and he who condemns the righteous, Both of them alike are an abomination to the LORD.

    A Common Commenter (c0bbd9)

  20. Most people on jury duty have no clue what all the lawyer riddles mean. Do you not claim this isn’t the case?

    > Do you lie to the judge about your refusal to follow stated law?

    Wesson (c20d28)

  21. Jury nullification is permitted under the law. (Judges, much like police during undercover investigations, are permitted to lie to jurors by telling them they cannot practice jury nullification.) A juror who knows about “jury nullification” and who is honest, will be booted from the jury. Thus, the only way to do something that is “perfectly legal” is to lie about knowledge of the right of jury nullification.

    Daniel Quackenbush (1d7cdb)

  22. questions for patterico:
    when you’re picking a jury, does race, religion or gender ever influence your use of peremptory challenges? if he’s an aclu member, is he out the door right there? you’ve got the only challenge left and you can seat a certified public accountant, or an organizer for a labor union, whom do you pick and why?

    assistant devil's advocate (d70597)

  23. When NJ’s judges start enforcing the law, i.e. when they installed the new governor after exceeding the time limits, then I’ll respect the law.
    When Michigan’s judges stop having conflicts of interest (funding ACLU & being on the board) and then passing judgement on WOT tactics, then I’ll respect the law.
    Kind of hard to respect the law when there are so many judges who don’t- it’s only a tool as a means to a (liberal) end.

    [Excellent. If there is anyone in the system who behaves wrongly, Dave gets a pass to do whatever the hell he wants. Since there will always be such people, Dave is now exempt from the rule of law. What did I say yesterday about rationalizations? — P]

    Dave (64ef3d)

  24. I have been in jury selection when a prospective juror said he couldn’t render a verdict without prejudice, since he thought all (defendant’s race) were born liars and thieves. His Honor found this unfunny, and found him in contempt on the spot. Possibly because the judge was a member of (defendant’s race).

    I understand the wiseacre spent the night in the pokey before the judge had him brought back in for a good early AM tongue-lashing and then released him.

    Nah – surely not. I must’ve been hallucinating.

    [It doesn’t sound like the juror chose a respectful way to express his stupid prejudice — assuming he was telling the truth to begin with. — P]

    mojo (8096f2)

  25. In response to the question from Occasional Reader in comment #7, continued in comment #13: I don’t know it works in state trials, but from my experience watching jury selection in federal trials, the judge instructs jurors that if they find that a witness (any witness, cop or non-cop) gives untruthful testimony in a particular area, they can either find that witness’s testimony to be unreliable in its entirety, or they can choose to disbelieve some parts and believe others. It’s up to the juror’s own personal sense of what is reliable/truthful and what is not.

    Jon C. (625631)

  26. Big deal our politicians swar on the bible to UPHOLD PROTECT AND DEFND THE CONSTITUTION OF THE UNITED STATES and they never ever do they break that soon after they get into office SQUAWK SQUAWK

    krazy kagu (a2e13d)

  27. This oath seems unsavory. It is a backdoor, extra-constitutional imposition between the judge and the juror’s duty and the defendants rights.

    RJN (e12f22)

  28. I’m wondering if anything like Nuremburg applies here. It seems to me that it should. (Here are the Nazis!)

    In non-legalese (IANAL), Nuremburg says that following orders is no excuse when committing a crime. Similarly, following the court’s instructions, whether or not one has pledged to, is no excuse for violating the fundamental rights of a defendant.

    If I was a juror, I don’t think I would convict a blogger, say, for violating McCain-Feingold by merely posting his opinions. The First Amendment overrides any law. On the other hand, I wouldn’t do the same for a drug dealer. I think the drug laws are bad policy, but they don’t violate fundamental rights. Opinions will vary of course.

    Part of the problem is that when taking an oath to follow the court’s instructions, you’re really promising to do whatever a particular man or woman says. As I alluded to earlier, even in the military, (rare) exceptions to the requirement to follow orders are recognized. It can’t be less in a courtroom, can it?

    The answer may be that any pledge or oath to follow another person’s orders is never broad enough to include basic violations of anyone’s rights or fundamental laws, and that this caveat is implicit in any promise to obey someone else, whether employer, commanding officer, or judge.

    Brian O'Connell (69c9fc)

  29. “But if you know that’s the case, can you convict in good conscience? Do you make the defendant pay for the Court’s error?”

    If the judge’s error is so substantial that an average juror can tell as much, the defendant will not “pay.” Defendant’s attorney can get a stay of any sentence based on clear error while the appeal is pending, and any conviction will be reversed.

    Federal Dog (9afd6c)

  30. “Pablo’s on the right track. Depending on the premise that it will be flipped on appeal still means you are convicting a innocent man.”

    No, Pablo is confused about how to properly contest a wrongful conviction. As stated, if the error is so grievous that an average juror can see as much, that sentence gets stayed and thrown out so that it does not harm the defendant. The average juror, as another poster noted above, has no clue what the law is and is not. Such people may not properly disregard laws and due process that they pointedly do not understand. That position is incoherent: a recipe for hysteria and injustice.

    Federal Dog (9afd6c)

  31. Patterico,

    You are correct that two wrongs don’t make a right and that past injustices do not justify a jury writing their own law.

    But I cannot share Fed Dog’s faith that appeals will fix everything everytime. And my central contention remains: why does the oath mandate following the court’s instructions rather than following the law?

    If the two are always the same thing, then why not word the oath properly in the first place and remove the dilemma that we are now discussing? And if they aren’t always the same thing, then I think a juror’s first duty s/b to the law, not to the judge.

    Would you, Patterico, as a juror, convict an innocent person based on a judge’s instructions, even where you knew, really knew, that the judge’s instructions were wrong? Yeah, sure, you could bring it to the judge’s attention first, but for sake of arg, what if the judge wouldn’t budge?

    Would you convict no matter what, cuz the judge’s (erroneous) instructions left you no choice?

    Understand that I *agree* with you on your most fundamental point: juries should not be taking the law into their own hands. Neither should judges.

    ras (a646fc)

  32. Just thinking out loud now, but what if jurors were indeed sworn to follow the law (esp the constitution) rather than the courts’s instructions … would it mean that the juror pool must then be restricted to those who can answer a few simple q’s about that document lest they be excluded on challenges?

    Is that why the oath’s worded the way that it is? To expand the pool of jurors by avoiding the challenges that could otherwise result?

    ras (a646fc)

  33. “But I cannot share Fed Dog’s faith that appeals will fix everything everytime. And my central contention remains: why does the oath mandate following the court’s instructions rather than following the law?”

    For the reason that I and another poster have repeatedly stated: The average juror does not know the law sufficiently to determine what must be proven and how to convict. And you are misrpresenting my post in a way I do not appreciate. Please have the decency to at least be honest.

    Federal Dog (9afd6c)

  34. “@sharon:
    good morning, authoritarian statist! less faith in the jury system than ever, ahh, but what do you propose to substitute for it? i would be interested to hear.”

    *sigh* It’s always a pity when someone like A.D.A. makes stupid statements and starts the name-calling. What you advocated is anarchy (you know, you get to decide whatever the hell you want based on whatever standard you choose). There’s a reason courts give specific jury instructions. It’s because they don’t want lame brains wandering into the judicial system thinking that because they don’t believe in drug laws, then no one should be convicted of one.

    sharon (e3ba47)

  35. It’s far better for there not to have been a wrongful conviction in the first place. Period. This should not be a subject of discussion.

    The problem comes when my conscience says “not guilty” and my understanding of the facts and the law (informed by the lawyers, witnesses, and judge) says “guilty”. It doesn’t help if I know that the defendant is facing a draconian sentence for what seems to be a trivial crime. Concealing the potential sentence doesn’t help either; I’m old enough to have seen enough people’s families and lives destroyed because some prosecutor wanted to “send a lesson”. (Their words at the post-sentencing press conference.)

    Now if I knew that Federal Dog was the defendant — or someone else who has no desire for anything like doubt or mercy in a jury — I’d be much more comfortable convicting them, and letting them take their chances with further court actions.

    I’ve been threatened with contempt a couple of times. Usually (unless restrained by my own lawyer) I sit quietly unless a reply is demanded. Then things can become … interesting. “Of course I feel this process is contemptable, Senator; you demanded I appear, that I be sworn, that I testify, and then don’t let me answer the questions you ask!. What else should I feel?”

    [We had a fifteen minute recess then, and came back without the live radio folk, and I was dismissed. To make a Nazi remark, Senators in charge of committees ….]

    htom (412a17)

  36. Some have posited about cases where YOU KNOW that the Court’s instructions to the Jury are in error, and try to use that as a hypothetical to get around Patterico’s original point.

    First – how do you KNOW the Court’s instructions are wrong? We have a court system, whereby appeals happen, to determine whether the decisions (including jury instructions) of a lower court were legally correct. Usually, both side’s attorneys are involved in drafting the instructions – i.e., giving the judge proposed instructions, objecting to instructions they don’t like, etc. And, of course, either side can appeal the instructions and can challenge the constitutionality of the law involved. Thus, it is not really the juror’s place, w/in the context of the jury trial, to do so. The electoral process is the way to excercise control over such things.

    And, of course, the Judge was appointed and/or elected to be in the position to give the instructions – Juror # 5 was not.

    I think Patterioc is correct. If someone does not believe they can follow the law – as defined by the Court, not their own conscience – they should alert the Court and that person will not be seated as a juror. If, they initally think they can follow the law, but during the course of the case realize that their consciounse won’t let them – they should alter the Court immediately, who will likely excuse them and seat an alternate juror. So the hypo of “what if I think I can follow the law, but then determine that I can’t after the trial starts” is really a straw-man argument.

    But, this idea that one has the right to disregard our judicial system and written laws, simply b/c you disagree with those laws, undermines the legal system. If more and more people think they can determine what is the law, or what should be the law, and disregard the judge’s instructions, then what happens to our entire system of justice?

    – GB

    Great Banana (aa0c92)

  37. As an follow-up to my last comment, there are plenty of Supreme Court decisions that I believe are wrongly decided and that I detest. However, those decisions represent what the LAW is right now. I would not – and it would be both dishonest and dishonerable – get on a jury by claiming that I would follow the law, only to reject those decisions because I disagreed with them.

    The Judge is telling jurors what the LAW is, as set by statute and precedent. Yes, Judge’s can make mistakes. But if they do, it will be appealed and will be corrected.

    Either we are a nation of laws, or we are not. If we are not going to follow the laws because of each of our own personal beliefs, then we are not a nation of law.

    Great Banana (aa0c92)

  38. Man shall live by LAW! Not by the rule of other men.

    Moses (31d860)

  39. Not going to read the comments until later, although surely the first comment will have called you on your twisting of the facts. No, I’m going to throw the bullshit flag now, then go back and read the other comments.

    In your “Nullification” post, you wrote,

    “In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

    Do you, and each of you, understand and agree that you will well and truly try the case 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?”

    That is most emphatically NOT the same as

    “Jurors are always asked whether they can follow the law.”

    Anyone who cannot tell the difference is probably a lawyer. Twisting the frame of the argument to assign equivalency to those two positions is complete bullshit.

    Sorry, you definitely pooed the scrooch on this one.

    David (d4d510)

  40. No, Pablo is confused about how to properly contest a wrongful conviction.

    No, I’ve been intimately involved in such, so I am most definitely is not confused. I also knows that appeals can easily cost many thousands of dollars ($30K comes immediately to his mind) which puts them out of reach of a lot of people.

    Who pays that? Why, the wrongfully convicted defendant!

    Pablo (08e1e8)

  41. First – how do you KNOW the Court’s instructions are wrong?

    Irrelevant. Assume that you do.

    Pablo (08e1e8)

  42. If someone does not believe they can follow the law – as defined by the Court, not their own conscience – they should alert the Court and that person will not be seated as a juror.

    In my hypothetical, you wouldn’t know that those are not the same thing until the jury instructions are delivered, long after you’ve been seated and immediately preceding deliberations.

    Pablo (08e1e8)

  43. If the court’s jury charge materially departs from the law, it will be flipped on appeal.

    Contrary to the opinion of many within the legal establishment this is a bug, not a feature.

    Perhaps the appellate courts would not feature so greatly in our society if juries were ‘permitted’ their true perogatives.

    ThomasD (21cdd1)

  44. “Contrary to the opinion of many within the legal establishment this is a bug, not a feature.”

    I am dealing with hypos as I find them. If the error is so clear that an uneducated juror can see it, the ruling is a goner. I do appeals regularly, and clearly erroneous jury charges are readily and successfully attacked.

    “Perhaps the appellate courts would not feature so greatly in our society if juries were ‘permitted’ their true perogatives.”

    Appellate courts are essential because they exist to counter human error at trial. Jurors are every bit as fallible as judges.

    Federal Dog (9afd6c)

  45. I do appeals regularly, and clearly erroneous jury charges are readily and successfully attacked.

    What kind of cash are you pulling down for your efforts, and who pays you?

    If I may be so bold as to assume, I’m going to guess pretty decent and the wrongfully convicted defendant. Am I close?

    Pablo (08e1e8)

  46. Pablo–

    Wrong on both scores. Think about it and about the effect such groundless and erroneous assumptions have in a criminal prosecution. Justice demands we not indulge juror emotion and error over facts and reason.

    Federal Dog (9afd6c)

  47. Thanks for the straightforward answers to my previous questions. Here’s another.

    The state constitutions of Indiana and Maryland still have provisions that state empower the jury to try the law as well as the fact.

    See Maryland Constitution, Declaration of Rights, Article 23.

    See Indiana Constitution, Article I, section 19.

    Assume you are a juror in a criminal trial in one of those states.

    Do you have a right to vote “not guilty” if you believe the law under which a prosecution is made is unjust or unconstitutional?

    Do you have a right to judge the law in any way?

    If not, why not?

    Thank you.

    Occasional Reader (c35fd9)

  48. Occasional Reader:

    You are misunderstanding what it means to be a “judge of law” under the meaning of these provisions. It means that the person charged with this function may make findings of law — i.e., how the law applies to specific facts entered into evidence. It does NOT mean that jurors are permitted to abrogate enacted law according to their personal emotions or convictions. That is a legislative function.

    Federal Dog (9afd6c)

  49. Fed Dog,

    By the time an appeal, even a successful one, has been won a lot of damage can be done. If you feel that misrepresents your contention, please say so, but to me it simply means that it’s w-a-y better to avoid a wrongful judgement than to appeal it.

    Jury nullification is the fire alarm in a crowded theater: it should only be used when absolutely necessary, but when absolutely necessary it should be used.

    Those times are few & far between, to say the least. I suspect that if I spent the rest of my life in a courtroom I still wouldn’t witness even one. But they do exist; that’s why nullification is allowed.

    And to repeat a previous q – is anyone going to address this pt directly? – I ask, why does the oath demand fealty to the court rather than to the law?

    The American Constitution is admirably clear and concise and, IMHO, is generally interpreted more accurately on a common sense basis than with penumbras and emanations anyway. Besides, an oath to uphold the law would in no way preclude a judge from offering advice to jurors, advice which I think would generally be accepted by the conscientous.

    So I have a suspicion that a lot of what is being argued here is not the concept of jn in those truly exceptional cases where it is appropriate, but rather the more-common frequency of its abuse. Abuse is visible; the effects of the possibility of jn, less so.

    ras (a646fc)

  50. Federal Dog, while I won’t ask you to disclose your income, I will ask you who pays you to do appellate work.

    Though I suppose I should also ask first if you’re a public defender representing clients who can’t pay…

    Pablo (08e1e8)

  51. Oh, and let me add that I’m neither speculating nor commenting on emotion. I personally know well paid appellate attorneys who are paid by the defendent they represent in criminal cases. That is neither an assumption, nor a conclusion jumped to. It is a fact.

    Federal Dog apparently falls into another category.

    Pablo (08e1e8)

  52. It does NOT mean that jurors are permitted to abrogate enacted law according to their personal emotions or convictions. That is a legislative function.

    We couldn’t agree more … so what does that mean a juror should do if they truly believe, for ex, that a conviction would violate the constitution, yet the judge’s instructions pretty much mandate it?

    If they acquit, they have gone against the law as interpreted by the judge.

    If they convict, they have gone against the highest law of the land as they know it.

    Perhaps the judge is correct (and, more probably, I suspect that’s usually the case), but … always? Is it to be a game of batting averages then, with every at-bat treated as being of the same importance as any other?

    ras (a646fc)

  53. Pablo–

    I am currently a public defender, but I have also worked as a prosecutor, both at the trial and appellate levels. I have never made more than a pittance as an attorney, and I never sought such profit. I am in it for the same reason Patrick is — to do the right, just thing. That means recognizing human fallibility, including juror fallibility. Give me a way to combat the latter and follow the judges instructions as given. I will do the rest.

    Trust me. I am a fighter, and bad jury charges are primo grounds for appeal.

    Federal Dog (9afd6c)

  54. “Who pays that? Why, the wrongfully convicted defendant!”

    Actually, since the criminal defendant has the right to counsel on appeal – the taxpayers pay.

    C Student (c949f7)

  55. Actually, since the criminal defendant has the right to counsel on appeal – the taxpayers pay.

    I thought that was only if the defendant could not afford an attorney. If the defendant could afford an attorney then the defendant would have to cover the legal fees.

    Joel B. (31d860)

  56. Trust me. I am a fighter, and bad jury charges are primo grounds for appeal.

    Federal Dog, you’re absolutely right, of course. But the appeal I’m familiar with was pursued at $250/hr, and wound up at $30K, paid for by that wrongfully convicted defendant. All based on a simple yet cruicial jury instruction that was requested, denied, and not given to the jury, though an abundance of case law clearly states that the defendant was entitled to it.

    Now, suppose that defendant didn’t have the ability to pay that kind of money, yet wasn’t indigent enough to qualify for a PD. If there were the case, the conviction would stand. Is that justice well served?

    Actually, since the criminal defendant has the right to counsel on appeal – the taxpayers pay.

    C Student, are you suggesting that the government will pay the attorney for anyone who wants to appeal a conviction?

    Pablo (08e1e8)

  57. Any chance of recognizing the potential human fallibility of prosecuting someone who shouldn’t have been, regardless of the words of the law and judge?

    If you’re interested in doing The Right, you’re in grave danger from both what the law requires and what the law forbids, because the law is not about The Right (or The Good.) Sometimes they’re aligned, sometimes they are not, sometimes they’re contrary.

    htom (412a17)

  58. I was in Vic Amar’s Con Law class in law school, and one day he mentioned that sometimes we buy into the idea that the Constitution is whatever the U.S. Reports say it is.

    He seemed (I’m pretty sure he did, but I want to hedge as my memory is imperfect) to feel that this was not wholly true. That the constitution stands outside of the U.S. Reports. The vast majority of the time there is no conflict, but sometimes there is.

    To some on this thread, perhaps they see the “law and constitution” being whatever the U.S. Reports and whatever the lawyers and judges tell us it is. To some, including myself more, the Constitution stands outside of the U.S. Reports in some very very few circumstances. I think however that it can happen.

    It seems like some fear this is a recipe for anarchy. I doubt it. I myself tend to be a pretty basic conservative with quite less of a libertarian leaning than many. But I can live with that. If our government is to mean anything, that is, if our government is truly governed by the constitution then it’d better at least generally conform to it, even in the lay persons mind. If “Congress shall make no law” means (as interpreted in the US Reports) “Well whatever we don’t give a hoot about what laws Congress enacts” then something is seriously messed up.

    As someone else observed JN is the fire alarm in a theatre. Use only when necessary, and both ras and I think this is a situation we are exceedingly unlikely ever to see.

    But I cannot for the life of me, I just cannot, accept that the “Constitution” is only and ever only what the Supreme Court says it is, because then we are ruled by 9 men not by the law. The Justices answer to the parchment, as do I, it stands above the Justices, they cannot abrogate the rights guaranteed there, no matter how much they appropriate themselves that power.

    But perhaps that is part of where this disagreement lies.

    A Common Commenter (31d860)

  59. Federal Dog wrote:

    You are misunderstanding what it means to be a “judge of law” under the meaning of these provisions.

    I thought I was asking what the provisions meant.

    It means that the person charged with this function may make findings of law — i.e., how the law applies to specific facts entered into evidence. It does NOT mean that jurors are permitted to abrogate enacted law according to their personal emotions or convictions. That is a legislative function.

    I thought I only asked what the provisions meant. I don’t think I asserted anything about a “jury abrogating enacted law according to personal emotions or convictions”.

    I found the text of the Maryland and Indiana constitutional provisions.

    Article 23 of the Maryland Bill of Rights —

    “In the trial of all criminal cases, the Jury shall be the judge of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.”

    Article I, §19, Constitution of the State of Indiana —

    In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts.

    From what you have just said above, it appears on the face of these provisions that they give juries the same power as a judge has, ie: to judge the application of the law to the case before them.

    Is that correct or not?

    I certainly understand that is not a legislative power. But it does appear to be considerably more than just the power to determine whether an asserted fact is true or not.

    If those provsions do not empower the jury to act essentially same as, but independent of the judge, then please explain what they empower a jury to do.

    And please do not assume that I am asserting what the law should be or what it should mean. If I phrase something that suggests that, then I have misspoken. I want to know what the lawyers here say the provisions mean.

    Thank you.

    Occasional Reader (c35fd9)

  60. Joel B. & Pablo – that’s true – if the defendant has the ability to pay for counsel on appeal then he pays.

    I was responding more to Pablo’s comment that “appeals can easily cost many thousands of dollars ($30K comes immediately to his mind) which puts them out of reach of a lot of people.” An appeal is never out of reach because if you can’t afford one the government will appoint an attorney to appeal the case for you.

    C Student (c949f7)

  61. C Student, are you aware of how broke you need to be to qualify for a PD? Do you think a PD just gets to decide he’s going to appeal your case (or just does it because you ask) without significant pushback from his boss who has more cases on his desk than he knows what to do with and perhaps wants him working on them and not spending countless hours on your appeal? There’s a big range of income between qualifying for (and being lucky enough to get) a PD to d appeal for you and being able to absorb that kind of financial hit yourself without feeling the pain, and you’ve also got to keep in mind that this defendant just paid thousands more to get through trial.

    Your idea of “you can’t afford one” and the government’s idea of it may not be in the same time zone. Do you think a guy that makes $30K/year gets a PD? Do you think that guy can afford to spend $30K over a year or so for an appeal? Do you think we should just sluff that off as no big deal?

    Pablo (08e1e8)

  62. And not to disparage PD’s, but you’re simply not going to get the quality and the attention you’d get from a private practitioner, due to the caseload and budget restraints that their offices generally operate under. They mostly do a really hard job under really lousy circumstances, and that will impact on their ability to handle your case. That’s why rich people hire dream teams.

    Pablo (08e1e8)

  63. @sharon:
    i’m sorry that you were offended by “authoritarian statist”. fwiw, this puts you in the company of the president and most of the supreme court.
    well, actually, all of the supreme court. nine rascals.
    you sound like a smart, if somewhat misguided [i’m guessing lady is correct, but the internet is a funny thing].
    i am not an anarchist. i support traffic laws, tax laws, fish & game laws, and most malum in se laws. if i’m ever picked for a jury, i will answer to my conscience before i answer to the organs of the state, and if you were completely honest in cyberspace, you would affirm the same approach. sheepful servility does not become you.

    assistant devil's advocate (00205e)

  64. A few commenters in this thread are good examples of the narcissism of some personalities who end up sitting on juries.
    They seek to transcend the law with their ‘intense personal feelings’ about the utility or constitutionality of laws, the Judge, and the Supreme Court.

    A couple of the commenters are so adamant about their autonomy in transcending the law, that it sounds like they could use an hour in front of Dr. Phil to sort out the childhood traumas which cripple them from consenting to ‘the law’ as adults.

    Ironically, one can sift through other threads and find a few of these same commenters chastising other readers regarding someone’s violations of INTERNATIONAL laws (usually involving the US or Israel)—but again, it’s classic narcissism at work.

    Patterico, you’ve made it quite clear that the jurors must follow the law when rendering a verdict. It is not the juror’s job to inform the court that he dislikes the law, feels the law is unfair, or that in his humble opinion the law in ‘unconstitutional.’
    The jurors must follow the law regardless of their personal feelings about the law.

    Prior to being sworn in as a juror, each potential juror is asked directly if they see any reason why they cannot adhere to the law, if they were to serve on the jury.
    Naturally, the narcissist pays no attention to that trivial detail—not even in an internet chat thread about the matter.
    Not even when the thread is facillitated by a highly-respected D.A. who practices law in one of the nation’s busiest courthouses.

    There are channels for dealing with laws which are perceived to be ‘unconstitutional,’ or ‘outdated,’ or ‘no longer applicable.’
    Unfortunately for our narcissist friends, the personal feelings of Juror #5 is not one of those channels.

    Desert Rat (d8da01)

  65. “C Student, are you aware of how broke you need to be to qualify for a PD?”

    In fact I deal regularly with Public Defenders in LA County in the arraignment court downtown. They are extremely liberal (not in the political sense) when conducting financial evaluations of potential clients to make sure that if it is even a close question they decide in favor of representing the client.

    Furthermore, even if you spend thousands on a private attorney for trial, you can still apply for a publicly appointed attorney on appeal if you then qualify because of debts incurred during the trial phase.

    “without significant pushback from his boss who has more cases on his desk than he knows what to do with”

    You simply don’t know what you’re talking about here. There is no “pushback” from any level of the PD’s office to restrict the number of clients they take.

    And regarding competence . . . because I handle fairly large complex cases I often get very high paid, well known, private attorneys who represent the defendants I prosecute. While there are a few standouts (not many) who are worth the fees paid to them, most of the time the defendant’s would have had the same or better representation by a PD who knows the court and knows the system and generally are very experienced. I’ve had more than one case that went much easier for the prosecution when the defendant decided he’d be better off hiring a private attorney.

    You really think Mark Geragos earned his fee representing Scott Peterson? Plenty of PD’s with capital case experience could have done a better job.

    C Student (a230aa)

  66. There is no “pushback” from any level of the PD’s office to restrict the number of clients they take.

    Of course you can’t restrict the number of clients. If they quailify for a PD, they get one regardless of anything else. But are you saying you have free rein to appeal any case a defendant wants appealed? Could you devote all of your time to appeals without getting any heat for not being available to take new cases? Are you telling me there are no budget/caseload driven constraints on what you’re able to choose to pursue? Can you bring in as much outside help as you like?

    You really think Mark Geragos earned his fee representing Scott Peterson? Plenty of PD’s with capital case experience could have done a better job.

    Do you think you would have gotten Petersen off? Frankly, that’s the only objective measure of doing a better job. Do you think Cochran, Shapiro, et al earned their fees defending OJ?

    Pablo (08e1e8)

  67. “And not to disparage PD’s, but you’re simply not going to get the quality and the attention you’d get from a private practitioner, due to the caseload and budget restraints that their offices generally operate under.”

    You have no idea how public defender offices work. I have never even heard of a PD office depriving any defendant of services because of money. There are many, many ways of funding meritorious appeals.

    The same lack of basic knowledge that you demonstrate here is the same ignorance that makes it wholly offensive that you, as a juror, replace collectively enacted law with personal ignorance and emotion.

    To Occasional Reader:

    Judges, exactly like jurors, have no discretion to set aside law because of personal dislike of that law. That is simply NOT what being a “judge of law” means. Again, that simply refers to who is permitted to determine how law relates to facts in evidence. Nothing more.
    If a judge ignores law just because (s)he doesn’t like it, I attack that ruling instantaneously on appeal — and successfully.

    Federal Dog (9afd6c)

  68. “@sharon:
    i’m sorry that you were offended by “authoritarian statist”. fwiw, this puts you in the company of the president and most of the supreme court.”

    “Authoritarian statist” isn’t terribly far from calling me fascist, which is why I object to the terminology. To say that comments which boil down to, “To hell with the law, I’m doing what I want” give me less faith in the jury system doesn’t show me to be an “authoritarian statist.” I am, however, someone who believes that one should follow the directives of the law under most circumstances. I wouldn’t, for example, go burn down Korean businesses or shoot black people if the law required me to do so.

    But as for following the jury instructions, it’s simply not the job of the jury to rewrite the law if they dislike the way the law is currently. You want to change the law? Vote, petition, go to the legislature, etc. Don’t do it in the jury box.

    sharon (e3ba47)

  69. GB: “If, they initally think they can follow the law, but during the course of the case realize that their conscience won’t let them – they should alert the Court immediately, who will likely excuse them and seat an alternate juror.”

    I don’t know if this norm of behaviour is practical or would help the administration of justice, because:
    1) The juror is apt to discover this at the very end of the trial, with the judge’s instructions.
    2) If the jury loses more than two (number varies by state etc.) members in this way, then there is a mistrial anyway.
    3) It requires an unusual level of courage from the juror (and particularly the 2nd or 3rd such juror), who has singled himself out for rebuke and punishment, which may follow from the above and the court’s waste of effort.
    4) It ignores the whole point of a jury trial, which is to limit the power of the state to railroad people, because they are innocent of the charges, or also because the law is unjust. Admittedly, this last belief is controversial or considered radical today, but those who hold it will continue to hold it.

    For the record, if I knew going into a trial that I could not follow the judge’s instructions, I think I would say so, at least under our present government. If things really went to hell politically, or if I lived in the past (e.g., 1859 fugitive slave prosecution), I would do all I could to nullify, but then I expect, so would Patterico.

    I will not apologize for my “rationalizations.” It’s not like it’s a narrow personal interest of mine when, as a juror, I acquit someone I don’t know for, say, criticizing a politician under McCain-Feingold or its logical successor law.

    DWPittelli (a38ee9)

  70. Federal Dog, way to dodge my very direct questions by presenting a gaggle of strawmen I’ve already addressed. You think a jury would buy it? :-)

    Pablo (efa871)

  71. The same lack of basic knowledge that you demonstrate here is the same ignorance that makes it wholly offensive that you, as a juror, replace collectively enacted law with personal ignorance and emotion.

    I’ll also ask you to notice that my hypothetical regards a juror adhering to the collectively enacted law as opposed to faulty jury instructions. But you can spin it however you like it in the courtroom of your mind.

    Pablo (efa871)

  72. Patterico rightly points out that it is the Appellate courts’ job to correct errors in judges’ instructions. But I doubt that much, if any, jury nullification comes about because the jury believes the judge’s instructions are “wrong” in the sense that some higher court has determined otherwise. Jury nullification comes when the jury finds that the law, or the prosecution’s choices, or the potential penalty set by the law, offends their sense of what is just or proportional.

    For example, in the Berkshires recently, some idiot who was 18 sold some pot in a “school zone.” The prosecutor charged him as such, even though the school was out for the summer, and the buyer was an adult. The jury acquitted even though it was clear that there was a school within X thousand feet, and he did sell the drugs, and the law was constitutional, apparently because they thought the resulting sentence would be unjust.

    (The DA is now running for re-election on a law-and-order platform against the idiot’s defense attorney, helped by the fact that the idiot later re-offended; but since the DA’s over-reaching with the first charge was the cause of the acquittal, I don’t see how the affair makes him look good either.)

    DWPittelli (a38ee9)

  73. Pablo–

    You should use language more carefully then. I quoted your words exactly (note the quotation marks) and responded to the error they express.

    Federal Dog (9afd6c)

  74. “I’ll also ask you to notice that my hypothetical regards a juror adhering to the collectively enacted law as opposed to faulty jury instructions.”

    I already addressed that: If that law is bad, it is properly attacked through appellate review. Reread my posts and deal with their content.

    Make no mistake about it: If jurors tend to be predisposed against anyone, it’s against the defendant. Accusations stick, no matter how thoroughly they fly in the face of facts, logic, and even the complainant’s own account. Juror anarchy is thus guaranteed to damage defendants, including the innocent, which is why it must be obviated.

    Federal Dog (9afd6c)

  75. I already addressed that:

    Then you should be aware enough of the facts of my argument that you would not make statements like:

    The same lack of basic knowledge that you demonstrate here is the same ignorance that makes it wholly offensive that you, as a juror, replace collectively enacted law with personal ignorance and emotion.

    I’ll leave the rest for the reader to decide.

    Pablo (efa871)

  76. Pablo,

    Everyone, Pablo has solved all of these problems for us. If you go through and read his comments, quite clearly, the answer is to have him sit in judgment of everything, b/c he will know the right answer. He has been through the criminal process, he knows when the Judge is right on the law and not, he knows which laws are good laws and which are bad. In fact, why even have a democracy or elected officials, or laws for that matter. In the end, Pablo will decide.

    Pablo, please explain to me how the above is not your stance in all of your comments here. B/c that is what you are essentially saying. And it is b.s. You obviously have a very high opinion of yourself, which is great, but I will defer to democracy and our judicial system.

    Like all human endeavors, it will get it wrong on occassion, and it is always sad when it does. but, I surely trust the system and the process much more than I do your tyranny. And, if you don’t see your lying to be on the jury, lying when you are given the instructions (because you would refuse to alert the judge to the fact that you can no longer uphold your oath) and disregarding the law (which, is what the judge says it is in a jury trial – that is how the system is set up. the law is never what YOU say it is). Basically, you have set yourself up as above the law, smarter than the Judge, the lawyers, the legislature, the electorate, and the other jurors. You are a nation unto yourself. Congratulations.

    We should just make you king.

    Plus, you would have to live with your own dishonesty in lying to take the oath and lying to go into deliberations. But, that seems to matter little to you.

    Explain to me why anyone should follow any laws? If you feel so free to disregard the judge’s jury instructions, why should anyone anywhere obey any law? If you believe people should obey laws, why is it different then what you posit here?

    Great Banana (aa0c92)

  77. Pablo, please explain to me how the above is not your stance in all of your comments here. B/c that is what you are essentially saying.

    I’ve simply asked for comment on a very specific hypothetical, and don’t appreciate having it twisted into something it is not. That question finds the juror in a position of resolving a conflict between the law as it was legislated and jury instructions that do not correspond. If you agree with Federal Dog that I’ve argued that a juror should “replace collectively enacted law with personal ignorance and emotion”, please feel free to quote me arguing such.

    We should just make you king.

    Hey, that’s a great idea! 😉

    Pablo (efa871)

  78. My post at #74 is wrongly worded: If the jury charge is bad, it is properly appealed. If the law itself is bad, it must be repealed by legislative action.

    Federal Dog (9afd6c)

  79. My post at #74 is wrongly worded: If the jury charge is bad, it is properly appealed.

    I fully understand that, and my simple question to you is “At what cost, and to whom?”

    Your response appears to me to be that appealing a conviction is an insignificant burden on the defendant. In the case that s/he qualifies for a PD, you have a point. Otherwise, no. It’s terribly expensive, as is any legal work in which you’re being billed at an hourly rate.

    If I’m a juror in the case I suggested, and I understand what the law says (And thanks to all of you attorneys who insist that a layperson must be too ignorant for that to be possible), I’m arguing such in deliberations and I’m voting to acquit on the basis that I’d choose to follow the law and not the faulty instructions. And if the judge removes me from the panel for that, it’s a defendant’s dream and the judge’s nightmare on appeal.

    Pablo (efa871)

  80. And what do the victim and society do when juror error acquits a vicious perpetrator? As a general principle, jurors simply lack the education and expertise to understand when such legal errors are made. Even practising attorneys unfamiliar with pattern charges cannot recognize the errors you seem to believe you can magically recognize. Defendants deserve much better than to be jerked around by jurors who are so thoroughly unaware of the law that they are unaware of how thoroughly unaware they are.

    I do not imagine that you will understand what is at stake here until you are wrongly accused of a crime and ignorant jurors decide to second-guess law and procedure designed to assure you due process. At that point I imagine that you will react to self-righteous juror ignorance with great force.

    Federal Dog (9afd6c)

  81. And what do the victim and society do when juror error acquits a vicious perpetrator?

    Good question. What does it have to do with the situation we’re discussing?

    Pablo (efa871)

  82. At that point I imagine that you will react to self-righteous juror ignorance with great force.

    At that point, you defend me in my appeal for free, don’t you?

    Pablo (efa871)

  83. “What does it have to do with the situation we’re discussing? ”

    It’s the very heart of the problem. Juror error cuts both ways. I regret that you still show no grasp of the matter under discussion.

    Federal Dog (9afd6c)

  84. It’s the very heart of the problem. Juror error cuts both ways. I regret that you still show no grasp of the matter under discussion.

    I regret that you don’t understand the matter I’m discussing, which is not juror error, but a Court error. I find it telling that you think I should accept a wrongful conviction based on the Court’s error since you tell me you can fix that, but you think I should be outraged at a wrongful conviction due to juror error, apparently because they’re too stupid to be anything other than robots who do as they’ve been programmed. I’m hoping you’ll weigh in on whether you can fix that when it happens.

    Where I come from, it’s nice to have a process by which you can correct mistakes, but it’s better (and more cost effective) not to make them in the first place.

    Pablo (efa871)

  85. “I regret that you don’t understand the matter I’m discussing, which is not juror error, but a Court error.”

    AGAIN, average jurors lack the education and professional experience to know legal error when they see it. AGAIN, even practising attorneys who do not specialize in criminal law do not recognize such errors. The burden remains on you to prove how jurors have superior knowledge of law than do judges and attorneys.

    “I find it telling that you think I should accept a wrongful conviction based on the Court’s error”

    You show no understanding here at all. Seriously. My point, AGAIN, is that average jurors lack the training and experience to recognize court error even when it happens. Indulging in the fantasy that jurors know the law better than judges and attorneys only undercuts due process and unjustly damages both defendants and victims.

    “but you think I should be outraged at a wrongful conviction due to juror error, apparently because they’re too stupid to be anything other than robots who do as they’ve been programmed.”

    Stop being hysterical and show how jurors have superior knowledge of law than do people with doctorates in the field who have devoted their lives to legal practice. Let’s see the source of this magic juror knowledge. If we can harnass this magic, we can just shut down the law schools and bar exams.

    “I’m hoping you’ll weigh in on whether you can fix that when it happens.”

    That’s rather the point! I can remedy judicial error. I cannot necessarily remedy lying, ignorant jurors who presume to substitute their own lack of understanding of law for due process in a criminal tribunal. If you think that HELPS defendants, or anyone else, you are very, very seriously mistaken.

    And even more seriously offensive.

    Federal Dog (9afd6c)

  86. Federal Dog,

    While it is true, that 50%-1 is below median intelligence, It is also true that 50%-1 is above median intelligence. Going to law school, even Harvard or Yale graduating in the top of your class and being the law review editor does not necessarily mean you’re the one of nine geniuses who can “understand” the law. I do not accept that, if that is the conception of the law, then something is wrong with the law.

    I do not expect, nor do I expect that Pablo expects juror’s to rule on the minutae of interstate commerce law, and to unpack the necessary and proper clause as it relates to interstate marijuana posession laws. But at the same time, the a large part of the law is not all that complex.

    A lot of lawyers think that, hey I went to law school for 3 years, I must be a genius, you know what the sad fact of the matter is? That believe it or not, it takes far more intelligence to become an enginneer or a doctor or one of many a myriad of more “useful” professions. Believe it or not accountants can be quite smart too, and not all 12 jurors are ignorant rubes. And, I think it’s wrong to suggest as much.

    The source of this “magic” you call it, is that there are a lot of smart darn people in the world, and a lawyer has a sad tendancy to “interpret” the law a little too much. If the darn words on a page say “Congress shall make no law” and the Supreme Court has a darn hard time figuring out what the heck that means (or interprets the meaning away), then maybe we sure as heck need the straight forwardness of the engineer to say, uh…Congress shall make no law seems pretty prohibitive to me, or the accountant to say, yeah I don’t see how the heck you can interpret X or Y the way the judge wants me to. That’s the source of the “magic” of the jury is that they’re not drunk on itself with law school and bar exams.

    A Common Commenter (a256da)

  87. “While it is true, that 50%-1 is below median intelligence, It is also true that 50%-1 is above median intelligence.”

    This has nothing to do with intelligence. It has to do with training. Intelligent people do not understand the first thing about many, many fields because they lack training in those fields, not because they are stupid.

    This really is horse sense. I fail to understand what is so controversial about it.

    Federal Dog (9afd6c)

  88. This has nothing to do with intelligence. It has to do with training. Intelligent people do not understand the first thing about many, many fields because they lack training in those fields, not because they are stupid.

    That’s not really true, I am no engineer (if I had to live my life over, I may well have gone into engineering, sadly AP Calculus burned me out, so I didn’t stick with it, though I should have), but I can carry on conversations with engineers and I can understand some of the basic physics and other things that they do in their job. More importantly, because they are interested in me understaning, they can frequently bring me to an understand of more complex areas of engineering (not huge but still). Most US Citizens have gone through High School Civics (sadly a class that is hurting but oh so valuable), and understand some basics about this country. That’s not a whole lot of training, but sometimes you want that basic understanding, that second pair of unfazed eyes, to overlook the work of those who sometimes get a little nearsighted in the law.

    A Common Commenter (a256da)

  89. “I can carry on conversations with engineers and I can understand some of the basic physics and other things that they do in their job”

    An apt analogy to the present discussion would be to contend that because you understand “some” basic aspects of their work, you are a fully functional engineer and thus qualified to substitute partial understanding for professional engineering expertise. Is that a rational contention? There is nothing more dangerous than a little knowledge. That’s why a pro se defendant has an ass for a client.

    We must all be scrupulous about recognizing the bounds of our own expertise. Criminal defendants — and victims too — deserve at least that honesty and decency.

    Federal Dog (9afd6c)

  90. In comment #59 8/29/2006 @ 4:23 pm I quoted the Indiana and Maryland constitutional provisions that make jurors judges of law as well as fact in criminal cases. I asked what those provisions mean, what their practical effect is upon a juror’s duties, powers and rights.

    In comment #67 8/30/2006 @ 4:23 am Federal Dog replied:

    Judges, exactly like jurors, have no discretion to set aside law because of personal dislike of that law. That is simply NOT what being a “judge of law” means. Again, that simply refers to who is permitted to determine how law relates to facts in evidence. Nothing more.

    Yes, I understand what a judge’s power to judge the law is not. Presumably that limitation would apply to jurors who had the same power as a judge to judge the law.

    But I’m not sure I understand what a jury’s power or right to “determine how law relates to facts in evidence” means.

    Thanks in advance for clarification of what that means. Examples (hypothetical or actual) of appropriate exercise of the jury’s right or power to “judge the law” under those constitutional provisions would be helpful.

    Occasional Reader (75d627)

  91. AGAIN, average jurors lack the education and professional experience to know legal error when they see it.

    AGAIN, I’m not talking about an average. I’m talking about a specific situation in which a juror made it through voir dire knowing more about than perhaps you’d like him to. And in this hypothetical, he knows the judge has incorrectly insrtucted the jury, which I hope we can agree happens if for no other reason that the existence of successful appeals which you’ve agreed are a slam dunk.

    AGAIN, even practising attorneys who do not specialize in criminal law do not recognize such errors.

    Neither do the judges who make them, apparently. But somehow the defendants and their attorneys manage to spot them and appeal. And anyone who has been wrongly convicted because of one would recognize it in a minute if they saw it again.

    Let’s be perfectly clear here. Are you saying that my hypothetical legally savvy juror cannot possibly exist? If not, this line of argument is a strawman. If so, there’s not much point in continuing the discussion.

    “I find it telling that you think I should accept a wrongful conviction based on the Court’s error”
    You show no understanding here at all. Seriously.

    Bullshit! You’ve told me flat out that it’s ok for a defendant to be wrongfully convicted because YOU can get them off on appeal, no problem!

    My point, AGAIN, is that average jurors lack the training and experience to recognize court error even when it happens. Indulging in the fantasy that jurors know the law better than judges and attorneys only undercuts due process and unjustly damages both defendants and victims.

    AGAIN, I’m talking about A SPECIFIC CIRCUMSTANCE IN WHICH THE JUROR CORRECTLY RECOGNIZES THE THE COURT HAS NOT PROPERLY INSTUCTED THE JURY.
    Have I made that clear enough yet? Is there a particular number of times that I need to say it before you’ll stop telling me that this doesn’t happen on average? I recognize that, but it isn’t the situation I’m talking about.

    Stop being hysterical and show how jurors have superior knowledge of law than do people with doctorates in the field who have devoted their lives to legal practice.

    As soon as you tell me how judges with those qualifications still can manage to screw it up. Is devotion a necessary component here? Again, are you suggesting that my juror is an impossibility? If not, quit with the strawman and answer my hypothetical on its own terms.

    That’s rather the point! I can remedy judicial error. I cannot necessarily remedy lying, ignorant jurors who presume to substitute their own lack of understanding of law for due process in a criminal tribunal.

    Whoa, whoa, whoa…stop right there. Either you can appeal it, or you can’t. If you can demonstrate the error, you can prevail on appeal, right or wrong? Furthermore, if the trial judge recognizes the error, he can override it on the spot and save us all the trouble, which is EXACTLY what my hypothetical juror wants to do. And, of course, I’m arguing for acquital based on correct knowledge of the law, which keeps you from having to appeal even though you’d likely prevail.

    Tell me, if you’re the defense attorney and I’m on your jury and I acquit as I’ve suggested in this circumstance, are you feeling like your guy got screwed or that justice was served albeit in a unique fashion?

    Pablo (efa871)

  92. A Common Commenter says:

    A lot of lawyers think that, hey I went to law school for 3 years, I must be a genius, you know what the sad fact of the matter is?

    That the guy who finally squeaks through the Bar exam on his 6th try is called Esquire. 😉

    Pablo (efa871)

  93. Occasional Reader–

    A finding of law would occur when there is no factual dispute about what events occurred to bring the parties into court. If everyone agrees about what happened, and the only question is the event’s legal significance, that requires a finding of law.

    Trials are fact-finding processes. Usually a judge makes legal findings, while jurors (and, in bench trials, the judge) make findings of fact (i.e., when the parties do not agree about what happened, the jurors make the call). Apparently, in some states, jurors are permitted to make legal findings even when there is no factual dispute. You would have to ask a practitioner in one of those jurisdiction how this works in practice.

    Federal Dog (9afd6c)

  94. Pablo–

    You are profoundly dishonest in virtually everything you say. Post where I said I could remedy a conviction caused by lying jurors ignoring the law.

    You are a troll and a monumental waste of time.

    Federal Dog (9afd6c)

  95. Post where I said you said it, asshat. You said “I cannot necessarily remedy lying, ignorant jurors who presume to substitute their own lack of understanding of law for due process in a criminal tribunal.” and in my last post to you, I asked you wherther you could appeal it or not.

    Something is a waste of time here, that’s for sure. But it’s nice to know that if I ever was accuse of arson, you’d be sure to get me acquitted of manslaughter.

    Pablo (efa871)

  96. BTW, does ad hominem argument against the prosecutor work for you in front of juries?

    Maybe they are just that stupid.

    Pablo (efa871)

  97. I’m going to give you this one for free:

    “You see, Ladies and Gentlemen of the jury, the average person would never commit this terrible crime. Therefore, my client must be innocent!”

    Try it sometime! Maybe it will work better there than it has here.

    Pablo (efa871)

  98. Probably not as effective as “See how horrible this crime is! How innocent the victim was! The defendant must be found guilty!”

    htom (412a17)

  99. It isn’t an oath to follow the law. It’s an oath to follow the judge.

    Federal Dog, if the doctor and the nurse and the anesthesiologist are preparing to amputate the wrong leg, you bet I speak up! I’m tired of you calling people dishonest when the real problem is your failure to address the point to our satisfaction. Appeals are expensive, time consuming and harrowing processes. They also fail. They should be avoided.

    I do like your point that juries convict too often. But you have failed to convince me that it’s because they are ignoring the law. Isn’t it usually that they trust the police too much?

    Now, I established in the other thread that I could not take the oath as given, so I’m not one of your liars. And now that I’m aware that I might be given such an oath, I will be sure to mention this during the selection process.

    I don’t remember that wording from the oath from my Kansas jury duty, however. I do remember that I wanted MORE instruction and advice from the judge, not less. Instructions on what “beyond a reasonable doubt” meant would have been nice. Our trial turned on the issue of who was at fault in an aggravated vehicular homocide. Was it the defendant? Was it the driver of the other car? An instruction which stated that if you swerve to the right to avoid an oncoming car then swerve to the left when it follows you to the right then you aren’t at fault would have been nice.

    And I won’t mind at all if you inform me that such instructions are against the law and it would have been a mistrial if the judge had given them. I am aware that the judge and both lawyers are experts in the law and I am not. Sometimes the more qualified and more knowledgable person is wrong and the less qualified and less knowledgable person is right. And sometimes the less qualified and less knowledgable person wants instructions he shouldn’t have.

    Yours,
    Wince

    Wince and Nod (e49fe7)

  100. Wince and Nod–

    I do not know if you are posting to me under different names, but I did not call you a liar. In fact, I think this is the first time you have posted to me, at least under this name. You make reference as well to my not satisfying your demands, yet you have not addressed any demands to me. Where did I call you a liar, and where do you make demands on me that I failed to prove?

    Federal Dog (9afd6c)

  101. Federal Dog,

    You didn’t call me a liar. You called Pablo dishonest. I apologize for the lack of clarity. When I said “people” I was not refering to me. You have have not proven your point to his and my (our) satisfaction.

    I did not address whether this was a flaw in your argument, or our satisfaction. Either way, honesty is not involved.

    Yours,
    Wince

    Wince and Nod (e49fe7)

  102. It isn’t an oath to follow the law. It’s an oath to follow the judge.

    That’s what I’ve been trying to discuss. But you’re too smart to discuss it with me. Thankfully, now I know that you just know better, and judges do too, except for when they’re wrong and then you can fix it for me and without me having to worry my pretty little head about it. So I shouldn’t think about plausible things, I can just have the judge tell me how to vote if’n I ever gets picked for another jury. Or if’n I get convicted of something I shouldn’t have, I know my Uncle Dog is gonna take real fine care of me, bless his heart.

    What was that you said upthread about fantasy? I think I’m ready to hear that again, whilst I savor my rekindled faith in the justice system.

    Pablo (08e1e8)

  103. Erp! You’re = FD.

    Pablo (08e1e8)

  104. It’s amazing the difference between thoe who are employed by the State, and practice in the legal arm, and the rest of the commenters. The disdain and arrogance of the lawyers is astounding. Their fear of “anarchy” is palpable. They tamper with the jury during voir dire, and then complain that the jury is too stupid to know better than the judge or legislature, after they threw out the potentials jurors who can think. They have no sense of morality – only legality – something they lost in law school. And this is what we, as mere citizens, are supposed to hold so dear? No wonder the system is so screwed up. A little humility would go a long way, oh great legal minds.

    mitch (55069c)

  105. Pablo,

    I think the problem is that, for every time a juror has correctly identified an error in jury instructions, pointed it out to the judge, and been ignored (something that I wager has almost never happened), there are scads of times that the jurors think they know something but are wrong.

    When a guy who qualifies for a drug program takes his possession case to trial even though it should be a slam-dunk conviction, more often than not the jurors “know” he must be facing his third strike — because otherwise why would such a clear-cut case go to trial? So, some may vote to acquit for reasons having nothing to do with the strength of the evidence. (No drug possession case is ever a slam dunk for reasons like this.) So a case like that ends up in a hang or an acquittal — and the guy doesn’t get his treatment, which he’ll never get on his own.

    All because the jurors “knew” facts that weren’t true.

    Every lawyer has heard a story like that. But jurors knowing more about the instructions than the court? Sorry — if it happens, it’s once in a million cases.

    Patterico (91fd36)

  106. But jurors knowing more about the instructions than the court?

    Jurors are the conscience of the community – rightly or wrongly. The attorneys who disapprove of jury nullification are outraged (and scared) by the jurors use of morality instead of “the law”.

    As one earlier commenter noted, if the law/Constitution is what 9 justices say it is, then we really are a nation of men, not laws.

    mitch (55069c)

  107. Guessing that he can’t enter the drug program without being convicted?

    I’ll guess that they would have more successful treatments if it was a voluntary program that didn’t require a conviction (and that didn’t treat those attending as people volunteering for conviction!)

    Yes, I’m sure as a juror that there would going to be a great many “things I know” that are not so. Amoung the twelve of us, there would be even more of those things. It must be horrible (for both prosecution and defense) to have to face a new crowd with every trial, figure out what their buttons are, what their biases are, how to appeal to them, what to avoid, … I’m sure the list is nearly endless, and raised to the 12th+alternates power.

    But one of the things we seem to know (from the comments in the juror experience thread) that the lawyers seem to have forgotten is that the map of the world in the words of the law is not a perfect map of the world of human activity. You (lawyers) line up all of the words and we vote against you (or for you, depending) and it doesn’t make any sense to you. You need to look at the world to understand us, because we are looking at what we know of the world, and that world includes very little of your map.

    We are looking (sometimes) at a process that seems to us to be in the process of producing very bad results and noticing that we can say “not guilty” because we don’t think the actions were a crime, distinguishing the “guilty act” from the “guilty mind” (I know that there’s Latin for that, but I’d have to look it up.)

    htom (412a17)

  108. I think the problem is that, for every time a juror has correctly identified an error in jury instructions, pointed it out to the judge, and been ignored (something that I wager has almost never happened), there are scads of times that the jurors think they know something but are wrong.

    Granted. I’m not talking about a common occurence.

    Every lawyer has heard a story like that. But jurors knowing more about the instructions than the court? Sorry — if it happens, it’s once in a million cases.

    This assumes a court doing it’s best to get it right. That’s not always the case, though it should be, which is probably the primary reason we have juries. But even at one in a million cases, what should that one out of 12 million jurors do? Eventually, he happens. Or maybe he’s just a legal geek/groupie, and happens to go online and research the statute he’s considering one night between days of trial. That guy is not out of the realm of plausibility.

    We’ve got plenty of case law that was built upon extraordinary circumstances.

    Should this juror follow the law, or should he follow instructions he knows are faulty?

    Pablo (08e1e8)

  109. Another possibility, not likely to happen in Downtown LA, but once the common state of affairs in certain jerkwater jurisdictions:

    The judge is corrupt, and everyone in the box knows he’s not playing it straight, and he’s not instructing the jury properly because he’s somehow invested in the outcome.

    Should the jurors follow what they know the law says, or are they obligated to follow what they know are faulty instructions, thereby convicting an person who the law says should not be convicted?

    Pablo (efa871)


Powered by WordPress.

Page loaded in: 0.4214 secs.