Patterico's Pontifications

8/31/2006

Balko Says He Will Lie Under Oath to Get on a Jury and Nullify for the Libertarian Cause

Filed under: Crime,General — Patterico @ 8:10 am

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 lit[]any 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.

42 Responses to “Balko Says He Will Lie Under Oath to Get on a Jury and Nullify for the Libertarian Cause”

  1. When you cast the issue as one of “lying to get on the jury”, you pretty much stack the deck against nullification. Not a lot of support for perjury.

    But look at it from another viewpoint (not necessarily mine):

    You only get to the “perjury” issue because of the intense questioning by prosecutors to filter out any oppostition to the law in question during jury selection. If you believe (and there is reason to believe), that the Framers intended for juries to have the power to try the law (or its application), then you are likely to view this filtering as poorly as others view perjery.

    If screening against any opposition to the law predjudices the jury against one of its natural functions (nullification), then it follows that the right to a jury trial is being methodically abridged by the state. After that, lying seems not so much perjury as “civil disobedience.”

    It really depends on how you view the jury’s role: is it one of Justice, or merely Law.

    Kevin Murphy (0b2493)

  2. I really must use spellcheck.

    Kevin Murphy (0b2493)

  3. Spellcheck or no, Mr. Murphy, your remarks are most excellent.

    Prosecutors manipulate juries to achieve outcomes. The last thing a prosecutor wants is a jury untainted by the state.

    RJN (e12f22)

  4. Lying in order to get on a jury is contempt not just for the law, but for the rule of law. If you don’t like the law, change it.

    If I were a jurist, I would do my best to decide the case based on the evidence and the law, not based on what I wish the law were. If I could not do set aside my opinion of the law, I would make it known during the jury selection process.

    aunursa (6dd70a)

  5. You only get to the “perjury” issue because of the intense questioning by prosecutors to filter out any oppostition to the law in question during jury selection.

    Kevin, did you read my post about the oath jurors are required to take? The court requires that, not the prosecution.

    I will unapologetically question jurors regarding whether they disagree with the law, but the court is the one that requires an oath. The questioning is mostly designed to make sure that jurors can take that oath in good conscience; if they can’t, they can and should be excused.

    Patterico (91fd36)

  6. Kevin,

    There is no evidence that the Framers intended exclusion of probative evidence as a remedy for Fourth Amendment violations, or suppression of voluntary confessions as a remedy for a “Miranda” right that didn’t exist when the Founding Fathers were around.

    And letting clearly guilty criminals go is more a function of Law and not Justice.

    So your logic could be used to justify police perjury to ensure that probative evidence or confessions are admitted into evidence. I’m not comfortable with that, and I imagine you aren’t either. But the logic is the same.

    Patterico (91fd36)

  7. judge only the facts and not the law.

    I missed the original round on this, but the question I have is that at some point doesn’t the law become a fact of the case?

    Fact A – someone did X

    Fact B- law says you can’t do X

    Fact C – evidence shows person Y did X

    Stephen Macklin (fc20a6)

  8. Having served on a jury *and* as the foreman, I can say we judged the case on the law and facts, and not on “oh that poor man up there with the mean DA trying to convict him.”

    The facts of the case were not refuted by the defense. The law was clear. The violation was clear.

    We deliberated for about 2 hours. We spent the first hour reviewing the law and the facts, as well as the defense. We spent the next 45 minutes arguing the defense. Was any evidence disproved? Was there any believability to the defense of the actions (the actions *were* admitted by the defendant).

    We voted unanimously to convict on the first ballot.

    We saw our duty as examining the facts and evidence provided by the defense and the DA. We started out with the assumption that he was innocent until enough overwhelming evidence showed otherwise.

    We felt sorry for the guy. He did a stupid thing, and tried to get out of it by spinning more and more unbelievable reasons why he did what he did. None of his reasons said “I didn’t do it” – they all admitted he did it, but he tried to *explain* why he did it. None of his explanations were of the nature that we’d say “Oh, well, then, it’s understandable why you broke the law – and you knew *while* you were breaking the law *that* you were breaking the law.”

    Feeling sorry for the guy didn’t mean we let him off the hook.

    And that was that.

    steve miller (0fb51f)

  9. Lying to get on a jury with the intention of nullifying is wrong. But it’s a different matter if, after hearing the facts of the case, one concludes the law is so fundamentally unjust that its enforcement corrodes the rule of law as we know it. In such a case, the issue goes far beyond the law or the person being tried. Nullification is proper then. Of course, people differ on when that injustice threshold kicks in. Even Patterico could find some “wobblers” where he would say reasonable people could disagree. That’s what makes this issue so . . . interesting.

    Bradley J. Fikes (ae0e54)

  10. There is a good line in “A man for all seasons” that I think applies here: something along the lines of “Would you cut down all the laws to get at the Devil”?

    galletador (b58eba)

  11. i would certainly be uncomfortable lying to get on a jury. never been summoned and likely to get tossed for many other reasons, will have to wait and see. more likely to omit or circumlocute something that threatened the privacy of myself, family or friends.
    once on the jury, i would nullify for a number of victimless crimes, also in some cases where the victim was a corporation and the law was unjust (e.g., granny prosecuted for grandson’s swapping copyrighted music files on her computer). i’m not just pro-cancer patient granny, i’m pro-granny! i’m also subtle enough to do it just by questioning the proof, not by attacking the law itself.
    apropos of patterico’s truth and integrity arguments, winston churchill noted that “the truth must be protected by a bodyguard of lies.” i’ll let patterico be sir galahad, the chaste and pure of heart. many of us are more like sir lancelot.
    guinevere, would you get me a pilsner urquell out of the fridge now please?

    assistant devil's advocate (5296d8)

  12. nothing in our system of justice is perfect, including the law. The jury of your peers is supposed to be a failsafe to ensure that an individual is not ‘railroaded’ by unintended consequences or retaliation by a government entity. Nullification serves that purpose.

    Any court that endeavors to stamp out the nullification ability of jurists is flat out wrong. Now, having said this I realize that i’ve opened up the whole can of whoop@$$ and aimed it directly at me, but before anyone goes off on my remarks, please remember that the courts DO make mistakes.

    dksuddeth (ac44fb)

  13. You talk as if lying to Der Staat is a bad thing,

    Bilwick (bd15da)

  14. There’s not much to say about Balko, except that he’d be committing the criminal act of perjury, I believe, to obstruct justice, and I would like to see him convicted and sentenced of both crimes if he carried them out, which I hope he would not.

    Otherwise, I don’t give a darn what a person who is planning on committing criminal actions to thwart justice so that he can selfishly advance his personal agenda thinks.

    Chris from Victoria, BC (5ab65d)

  15. I would take the oath as a juror as seriously as I believed the judge, prosecutor and defense attorney take thiers.
    As Fletch said – sometimes you oblige liars by lying

    Gbear (c22f1c)

  16. Hello,

    This is a great blog. I’m going to be sure to link yours to mine. Would you mind doing the same for me?

    Thank you very much.

    My site:
    http://www.americanlegends.blogspot.com

    Take care,
    Mark

    J. Mark English (15bc19)

  17. I can understand your concern. You are heavily invested in a system and want people to work within that system. Balko disagrees and want to subvert that system. He recognizes that there is little likelihood of enacting such change within a sytem that created the problem in the first place.

    Why should a judge’s interpretation of law, as contained within instructions to the jury, trump the juror’s own interpretation of the law? If jurors cannot be entrusted to properly interpret the law then perhaps the problem does not lie with juror but with the law itself.

    ThomasD (21cdd1)

  18. You left out my favorite example from Radley’s list:

    I’d have nollified [sic] charges against defendants for violating the Volstead Act.

    The Volstead Act was, of course, the statutory component of National Prohibition. Anyone in violation of that law did not merely violate a clearly constitutional statute; they violated the Constitution itself. Does anyone seriously believe the founding fathers intended for jury nullification to trump the supreme law of the land?

    Xrlq (f52b4f)

  19. The Volstead Act was, of course, the statutory component of National Prohibition. Anyone in violation of that law did not merely violate a clearly constitutional statute; they violated the Constitution itself. Does anyone seriously believe the founding fathers intended for jury nullification to trump the supreme law of the land?

    that would actually beg the question of can a constitutional amendment be considered constitutional if it overstepped the bounds of the original constitution. Another topic for another day.

    dksuddeth (ac44fb)

  20. No, that’s a non-issue that can be disposed of easily. All substantive constitutional amendments “overstep the bounds” of the constitution as it existed before. Show me a constitutional amendment that doesn’t do that, and I’ll show you one that doesn’t amend anything.

    Xrlq (f52b4f)

  21. Pat, with respect, here is where I think you’re off the mark: if one believes that jury nullification is a fundamental part of the system — I’ll skip the usual historical cites — and if one believes that (no doubt well-meaning) prosecutors and judges are willfully sabotaging that fundamental part of the system, the question is not merely how can law and policy be changed to affect that, but what the responsibility is of a potential juror now.

    And it’s not clear-cut. If, to take the originalist view, the deal includes jury nullification, it’s the responsibility of those opposed to it to negotiate a new deal with the polity, and, at least arguably, that just hasn’t happened.

    In the absence of that, is individual action as a counterweight in a system one feels is in a serious way corrupt obviously immoral? Shouldn’t prosecutors and judges be expected not to be able to effectively circumvent such a fundamental check on governmental overreaching?

    Joel Rosenberg (7f106d)

  22. In my business, if we blindly do everything “by the book” for the sake of maintaining the integrity of the system, the end result would be anger, bankruptcy, and general anarchy and chaos.

    There is no question that the “book,” so to say, is of paramount importance. It’s also immeasurably important to adhere to both a belief in the system and to its individual rules.

    But when the importance of adhering to a policy supercedes the importance of the logic that was behind that policy’s creation, you know there may be an inherent problem in the system.

    I don’t think there’s a clear answer to this debate. It’s great to say that it’s correct to disobey an unjust law – such is the fiber of our great country’s spirit. But who’s responsible for making those decisions? We approach Patterico’s reasoning here- it’s not a question of IF the law is unjust; the question is WHO should make that determination, and what they base that decision on (namely, the prevailing contemporary morals and beliefs of the citizens).

    Every juror should allow their personal view of a law creep into their decision making process. THAT is what the Founders intended. I would say a juror crosses the line when they intentionally lie to get on a jury for the sole purpose of subverting the rule of law.

    Call it ‘bias’ versus ‘sabotage’. Bias is most welcome, but if a person is a saboteur and lacks integrity, then prosecutors/courts shouldn’t hesistate to cut them off at the knees. But, at the same time, prosecutors and courts shouldn’t be allowed to “force” a juror into the saboteur role — as much as George Dubya wants us to think that our world is only “black or white” or “good or evil”, with no middle ground, the fact remains that our world is composed entirely of shades of gray. I would think jurors are the same: most jurors have some bias/opinion about our laws, and such opinions should not prevent them from serving on a jury, unless their sole intent is to put that bias above the facts of the case.

    mvp (7b205c)

  23. No, that’s a non-issue that can be disposed of easily. All substantive constitutional amendments “overstep the bounds” of the constitution as it existed before. Show me a constitutional amendment that doesn’t do that, and I’ll show you one that doesn’t amend anything.

    The 13th and 14th come to mind at first thought. Every state that ratified the constitution and then those that later joined (before the 14th) all joined with the knowledge that the constitution was binding on the states as well as the federal government. A judiciary decided that they needed to differentiate who the constitution applied to, based on their ideology, and therefore came the indoctrination of the bill of rights. The 14th did not overstep the bounds of the original constitution, it solidified individual rights over state powers.

    dksuddeth (ac44fb)

  24. […] This morning I criticized Radley Balko for saying he would lie under oath to get onto a jury so he could nullify in numerous different cases. He now backs off that claim, but only slightly, in this post: One small concession: As bloggers sometimes do, I was perhaps a bit rash in using the word “lie.” I wouldn’t outright lie in voir dire, though I’m sure Patterico and other opponents of nullification would interpret the misdirection I would use in answering questions to have the same practical effect. I would answer questions in a way that’s not openly false, but that certainly masks what I’d intend to do. […]

    Patterico’s Pontifications » Balko Backs Off, But Not Much: He Now Says He Wouldn’t Lie Under Oath, He Would Just “Misdirect” the Court Under Oath (421107)

  25. Xrlq: “Does anyone seriously believe the founding fathers intended for jury nullification to trump the supreme law of the land?”

    I don’t know. But we know that Patterico favors jury nullification to trump the supreme law of the land, if his favor of it in the case of fugitive slaves applies retroactively (e.g., in 1859).

    DWPittelli (a38ee9)

  26. DKS: Nah. The original Constitution contemplated slavery, and required “just compensation” for any private property taken by the federal government. The 13th Amendment prohibited slavery, and also prohibited any compensation to former slaveholders for the taking of what had been their lawfully owned property under the original Constitution. And the 14th Amendment imposed several new obligations on the states that were not part of the original Constitution. If Congress had attempted to pass either in the form of a statute, it would have been unconstitutional. As constitutional amendments, they can’t be unconstitutional, by definition. But the 18th Amendment is no different.

    DWP: fair point, but then again, the fugitive slave cases were not necessarily the correct decision under the Constitution as it existed back then. By contrast, the Volstead Act was very clearly in line with the Constitution at that time; to attack it is to attack the 18th Amendment.

    Xrlq (f52b4f)

  27. In comment #15 at 8/31/2006 @ 10:42 am GBear wrote:

    I would take the oath as a juror as seriously as I believed the judge, prosecutor and defense attorney take thiers.
    As Fletch said – sometimes you oblige liars by lying

    Several lawyers here have pointed out that if you believe a witness is lying about anything, you are entitled to disbelieve everything he says. That is not “nullification”. That is following the law. It is not a violation of a juror’s oath to do that.

    Prosecutors and defense attornies aren’t testifying, and they aren’t sworn to tell the truth. If you believe the attorney is playing fast and loose with the interpretation of the facts in evidence, you are not only allowed, but you have a duty, to disregard his interpretation. That is also not “nullification”, nor a violation of a juror’s oath.

    Sometimes it is difficult for a juror to tell whether the lawyers or the courts are playing fast and loose with facts. If the court excludes evidence that would have swayed a jury had they known, it is usually on grounds that the court found the evidence irrelevant. But ordinary citizens, who are supposed to compose juries, sometimes do not consider that evidence irrelevant. Sometimes after a trial they feel extremely angry at the courts, the lawyers, and the whole “justice system”.

    Whether they are right or wrong in that assessment, some do tend to endorse nullification upon coming to believe that they had been tricked or purposely kept in the dark.

    For an example of this, see the accounts of the recent Ed Rosenthal trial.

    Occasional Reader (878e69)

  28. We can’t tolerate such lies, even if they are told in furtherance of a laudable goal

    Every single time a person claims jury nullification is wrong, or not something the founders intended, that is a lie. And every time someone talks about jury nullification without explicitly stating it is a fundamental part of what protects our citizens from our government, and that it was always intended to do that, that is a lie of omission. So your entire post makes no sense.

    Your basic, unspoken belief, is that we can’t trust 12 jurors to do the right thing, but we can trust one judge and one prosecutor.

    Wrong.

    Harkonnendog (18231c)

  29. Patterico, you’ve 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.”

    I wonder if you might clarify a couple of points. First, do your examples above indicate there are no laws we presently have that might also lead to desperate situations causing you to use it if you were on a jury?

    Second, if you were a nineteenth-century juror in a slave escape case such as you allude to or a juror in a case with the hypothetical race laws you mention, would you go the nullification route if you had to swear an oath that you wouldn’t?

    Steve Ely (784676)

  30. Patterico,

    Fugitive slave cases were not “extremely rare,” therefore I believe you support nullification of laws which are “inconsistent with basic humanity” whether they are or will be rare or not.

    The disagreement is over the definition of “basic humanity”, not over whether nullification is ever acceptable.

    The position of most libertarians (small “l” or large) is that laws against victimless crimes are unjust. And most people believe prosecution to be unjust if the likely sentence is disproportionately harsh. Combining the two, is it really so unreasonable for a juror to consider a year or more prison sentence for simple possession of personal-use marijuana a “desperate situation” and “inconsistent with basic humanity” or personal autonomy?

    And if a blogger is criminally prosecuted under McCain-Fenigold for criticizing an incumbent (prosecuted perhaps because he has an ad or has some other little financial tie to a political group or candidate), do you send him to jail or forceably remove his site? Isn’t this a “desperate situation” both for the blogger and for the 1st Amendment, regardless of what SCOTUS has said? Wouldn’t furthering such a prosecution lead to more such, as well as a regime of state officials deciding who has a “media exemption” and who does not?

    Is it really so unacceptable that libertarian-leaning commentators would favor nullification in these two types of cases?

    Avoiding the judgements of hindsight, is the libertarian nullifier’s position, whether you agree or disagree on the merits, really significantly more radical or disruptive than the position to acquit a helper of fugitive slaves in 1859?

    DWPittelli (a38ee9)

  31. Steve Ely,

    I am not going to answer endless hypotheticals about this. I have said that I myself would nullify in extraordinarily rare circumstances such as I have described. I would never convict someone of the “crime” of being Jewish or Arab, or of trying to obtain freedom for slaves. My humanity would not allow it.

    There is no law on the books I can think of like that. I strongly disagree with a lot of them, but I would try to change them through the process.

    Nullification is generally going to require one to lie to the court. Does anyone here have a blog? Would you lie on your blog to achieve a specific result in the types of cases you’re talking about? Nullification would require you to do worse: to lie under oath.

    There’s hardly anything that would cause me to lie on this blog. But if I could somehow save someone from getting dragged off to their death on account of their race, or enable someone to rescue slaves who, absent my lie, could not, I probably would.

    But it’s a damn extreme step.

    Bloggers: what judicial results would motivate you to lie on your blogs?

    Do you see how serious it is now? And I’m not even talking about lying under oath.

    Patterico (91fd36)

  32. I guess I’ll never get on a jury after all. I can in good conscience swear to follow the law, but if asked to swear to follow the judge’s instructions, I’ll ask to see the instructions before swearing to follow them. I don’t usually like to make promises before I know what I’m promising.

    Bob (120b51)

  33. What is “basic humanity”?

    ML (993e22)

  34. Your basic, unspoken belief, is that we can’t trust 12 jurors to do the right thing, but we can trust one judge and one prosecutor.

    Absolute nonsense. But instead of getting huffy about it, I’m going to write a post that proves I trust juries more than any defense attorney does.

    Then I want to hear back from you folks who think my view is arrogant.

    Patterico (91fd36)

  35. Your basic, unspoken belief, is that we can’t trust 12 jurors to do the right thing, but we can trust one judge and one prosecutor.

    I’m sure it’s one of those things where Patterico trusts 12 jurors an awful lot. But (and for good reason we know see), Patterico is right to be skeptical of the occasional juror like Balko.

    Joel B. (4148cf)

  36. I’ll publish my post tomorrow.

    Then tell me who trusts jurors and who doesn’t.

    Patterico (91fd36)

  37. Patrick–

    The exclusionary rule, for the most part, is a bad solution to a hard problem. I would far prefer a system where the officer could be held directly accountable instead, although that’s not particularly better.

    I’ll point out though, that the exclusionary rule does not free one guilty party, it frees two.

    I should also note that I am not a big fan of nullification. I can name a few recent cases that appear to have been nullified (Hamadi’s sentencing for one), and I’d rather they weren’t. Death penalty opponents seem to do a lot of this.

    But I’m also not particularly opposed to it. In some cases it may be the best of bad choices. I’m pretty sure I would have voted to nullify in the Martha Stewart case, as her only conviction was for lying to a nosy policeman over some paltry thing (which is more a right than a crime in my book) and the prosecution seemed more interested in not looking bad than in actual justice (She was acquited of perjury, BTW).

    The best arguments against are 1) chaos, 2) uneven application of the law, and 3) the lynching cases. The latter was solved less by stamping out nullification than by changing hearts, but the others may be more general problems.

    I will point out, too, that the defense plays this game, too, weeding out excessive enforcers as best it can, who are the flip side of nullifiers. I’m pretty sure I wouldn’t care for a juror who lied to the defense about his racial predjudices so he could convict some black guy without much evidence. But there, at least, he’s only one of 12.

    So, like many things, I don’t see this as black or white. Nullification is a tool and the courts may be better off accepting this than twisting the jury selection process into knots trying to avoid it. This tendency to try to fit the jury to the case, rather than the case to the jury is my real problem. Too tailored a jury may itself violate the “peer” requirement lest the paragon of juries become 12 unthinking sheep.

    Which hopefully never represents the population at large.

    Kevin Murphy (0b2493)

  38. I should also point out that I doubt I would ever want on a jury so bad as to lie to do it — cannot imagine the case. Far more likely to find a way to get off it if I found the subject matter objectionable, most likely by clearly, distinctly and respectfully saying so and being excused.

    And if I was on a jury, I’d do my damnedest to find the truth according to the law and report same.

    But there could come a point where, in the jury room, I might find that simply following the letter of the law was worse than not. There are moral boundaries to all decisions. Which is where the real right of nullification comes in, and there is the genius of the jury of one’s peers.

    Kevin Murphy (0b2493)

  39. […] Balko says he would deceive to be on a jury to nullify a law. Patterico says: 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. […]

    SayUncle » Jury nullification again (9b413a)

  40. No, I would not lie to get on a jury. If I was in the pool for apotential capital case, I would have to say that I oppose capital punishment under all circumstances. That would mean that I couldn’t weasel my way onto a jury, to insure that the schmuck didn’t get executed.

    Dana (3e4784)

  41. I understand that sometimes libertarians feel justified in lying to get on a jury to accomplish their view of “justice” through jury nullification. Would libertarians support a racist in his or her attempts to lie to get on a jury with the sole intent of convicting a black man regardless of the evidence?

    It does not take long to see that even if you trust libertarians to exercise their judgment responsibly, do you trust everyone to do the same? Once you justify it for yourself, can you rationally prevent someone else from using the same means to accomplish justice?

    Also posted at: http://xrlq.com/2006/09/01/lying-for-a-cause/trackback/

    Nine-headed Caesar (494674)

  42. […] discredit me. Because time and time and time and time and time again, I show his arguments to be based on dishonesty, factually challenged, laughably one-sided, packed with distortions and omissions, and generally […]

    Patterico’s Pontifications » Radley Balko’s Failure to Address the Substance of My Arguments (e4ab32)


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