Patterico's Pontifications

9/4/2006

Another Question for Supporters of Jury Nullification

Filed under: General — Patterico @ 12:56 pm



This one is simple and straightforward.

Assume you’re a juror in a criminal case where you think the defendant is clearly guilty beyond a reasonable doubt — but you also believe that a conviction would be unjust. Maybe you disagree with the law on its face; maybe you just disagree with its application in this particular case. For whatever reason, a conviction is clearly the legally correct thing to do, but it might bother your conscience.

Would you ever convict in such a situation?

In other words, if you perceived a conflict between the demands of the rule of law and the demands of your conscience, would you always go with your conscience? Or can you imagine a situation where you decide that the consistent application of the rule of law is more important than your conscience?

If so, how would you decide when to apply the rule of law instead of your conscience?

I use words like “ever” and “always” in this post because I am trying to find out how absolute people’s views on this issue are.

FOLLOW-UP QUESTION: If your answer is that you would never convict in such a situation, then what would you do if faced with a choice between your conscience and the rule of law? Would you simply vote to acquit? Or would you tell the judge that you shouldn’t be a juror any more, because the law is telling you to do one thing, but your heart is telling you to do something else?

I’m going somewhere with this, but I want to see the comments before I continue. I’ll have a follow-up post tomorrow; leave a comment and then stay tuned.

88 Responses to “Another Question for Supporters of Jury Nullification”

  1. I would vote with the law or if (and I can only think of a few situations where this may apply) I could not, in good consience vote for guilt, involving an infraction of a law I believed to be unjust, I would tell the judge that I could support the law and take whatever consequences fell my way. js

    Jesse (9ccadb)

  2. I would tell the judge that I could support the law and take whatever consequences fell my way.

    I assume you mean “couldn’t support the law.”

    I think that’s exactly the right answer. Let’s see how many people agree with you.

    Patterico (de0616)

  3. 1. I presume that a conviction would also be consistent with my understanding of the law as it is written: for ex, even if the judge advises me that there is no right to due process, I would disregard that because it is simply incorrect.

    2. I reserve a “Nazi” exception: i.e. legal or not, I do not support death camps, slavery etc. But it really does have to be something in the “society is collapsing” category.

    Then, yes, I would convict even if I disagree with the law. I may not agree, for example, with income tax laws, but they are what they are, and if you were tax-avoiding as defined under the law, I’m stuck convicting you.

    I think overall this means that absent truly extraordinary circumstances, I would convict based on the law as it is, not as I wish it would be.

    ras (a646fc)

  4. i would have to agree with Jesse. The circumstance would have to be extreme and then I would go to the judge.

    Stephen Macklin (4ea65b)

  5. In general yes, the only possible exception would be death penalty for a victim of violent spouse abuse, who killed the abuser.

    chuck (406edc)

  6. Some defendants are overcharged as a hedge against an unforced error on the main count. I’d sound out fellow jurors if – e.g., mail fraud – wasn’t prosecutable on its own in a complicated corruption matter that fell apart. Two caveats: I’d never vote that way as a holdout and obviously have no legal training.

    steve (edba57)

  7. I would ALWAYS follow my conscience rather than the law. Perhaps you could come up with a “lifeboat” case that “would cross a Rabbi’s eyes,” but that would be my rule.

    I would not be mouthy about it. I would simply tell my fellow jurors that I was voting that way, and that I felt it would be unjust to convict the person.

    I could go the other way also. If I was convinced the person was guilty, and there was a possible loophole in the law, I could vote for guilty.

    No Lawyer would ever pick me for a juror. :>)

    Bill Millan (0b61a8)

  8. Assume you’re a juror in a criminal case where you think the defendant is clearly guilty beyond a reasonable doubt — but you also believe that a conviction would be unjust. Maybe you disagree with the law on its face; maybe you just disagree with its application in this particular case. For whatever reason, a conviction is clearly the legally correct thing to do, but it might bother your conscience.

    Is said law constitutional? If I believe that it isn’t, it would be pretty easy for me to acquit.

    dksuddeth (ac44fb)

  9. Yes I could and would convict according to law, unless the law in this case turned out to be so obnoxious I had to bail, tell the judge what was happening, and take my lumps. And I would not relish that, and I would not want it to be a political statement, even though that’s exactly what it would be.

    I understand the role of the juror to have a great deal of latitude, but it’s a traditional, historical, collective latitude, for the good of the office if I can put it that way. It’s not David’s particular and individual latitude to decide as he likes based on what suits him.

    David Blue (85d4d4)

  10. I was on a jury where the prosecutor – a Christian fundamentalist – was trying to close down every XXX adult bookstore in town. We couldn’t warrant the material was obscene and had only a fire code violation left. We elected to acquit on everything, believing the owner would have been given an opportunity to fix the code issue absent the ongoing “crusade” against his choice of livelihood.

    steve (edba57)

  11. Depends on the case (of course.)

    Someone who’s accused of some hyper-technical violation of a statute for which there seems to be no reason for them to have been familiar with and where that violation seems to have damaged no one might get an acquital ballot from me. To make an example, someone whose name was “Paul Bunyan”, has it painted on the sides of his truck, drives through a far-away community where there’s a candidate named “Paul Bunyan”, and the public display of the name, painted on the truck, parked in view of a major street while the visitor is at lunch, violates that state’s campaign laws. It’s a “slam dunk” legal case, but what public good is created or preserved by punishing this visitor? Demonstrate that the visitor knew of the law and the campaign and/or was told to move the truck or be arrested, and I’d convict.

    I think my answer comes down to my perception of “public good”. It is a good that the laws be obeyed, less of a good that they be always enforced, and even less that violators be always punished. Sometimes it appears that the greater public good requires the knowing violation of the laws, and trying, convicting, and punishing such acts must be done with the very greatest care.

    I can’t imagine going to the judge and whining that it was hard to decide. The time to do that was when I was selected. Some cases are “easy”, some are “hard”. If the gods hand me a hard one, I have to do the work, I can’t just /shrug/ and walk away. “Kills his own dogs” is one way to put it.

    htom (412a17)

  12. Patterico:

    I would only vote to acquit in such a case if a conviction would “shock the conscience of the decent.”

    I think I said before that, although I oppose the laws against, e.g., possession of marijuana, cocaine, etc, I would still vote to convict someone clearly guilty beyond a reasonable doubt of such crimes.

    But I would not vote to convict the woman in the scenario I used in my own post on the matter: the woman who was a convicted felon, but who clearly needed a gun to defend herself from her homicidal boyfriend — thus obtained one illegally. A rigid adherence to the law would say to her, “our internal consistency is more important than your life; you should go ahead and let him kill you rather than break the law.”

    That should shock the conscience of any decent person; the right to defend oneself is so fundamental and absolute, that for a State to abolish it fits the Declaration’s description of “a long train of abuses and usurpations, pursuing invariably the same Object [which] evinces a design to reduce [the people] under absolute Despotism;” enough so that, were it part of a pattern of a nation, revolution would become a moral option.

    (And lest you think that such predation by the State upon the individual could never occur in America, I remind you that such despicable laws and prosecutions occurred here in America, in the South, in my conscious memory.)

    In that case, I would vote to acquit, thus ensuring a hung jury at the very least (though I would hope that in such a case, the others would join me, and she would be acquitted).

    But unless the injustice rose to that level, I would follow the law, not my own conscience.

    Dafydd

    Dafydd (6e94cd)

  13. You continue to misstate, misunderstand, or misrepresent what people who support jury nullification believe.

    Leopold Stotch (a1c2b8)

  14. A similar case (as I see it): in scrutineering (vote counting), if I thought some scrutineers for another party were getting away with too much, I would not start trying to count every arguable ballot as a vote for my candidate (regardless of what I thought it really was) to even up. I would play it straight, even if the result was a great injustice in my electorate. Because playing it straight rather than chiseling to counterbalance the other guy you think is chiseling is what a good scrutineer does. There’s a lot of play in what you may claim, challenge and accept, but ultimately if you are doing it right that discretion is exercised in a traditional way, because that’s the gig, rather than instrumentally and for personal or partisan reasons.

    David Blue (85d4d4)

  15. Patterico:

    Several people here said that they would just tell the judge that they couldn’t follow the law.

    That’s a cop-out, and it’s cowardice. The result would be that you would be bumped, and an alternate would take your place — and convict. So your personal, precious conscience would be assuaged — lucky you! — but the injustice would continue.

    Look, either you believe a conviction is so unjust that you cannot acquiesce, or you don’t. If you do, then it’s morally despicable to simply walk away, knowing that the next guy will do what you won’t.

    For God’s sake, show some spine: if you honestly believe that a conviction would be such a shocking miscarriage of justice that you cannot do it, then have the guts (and the decency) to prevent it to the best of your ability… even if that means being the lone holdout who forces a hung jury.

    Dafydd

    Dafydd (6e94cd)

  16. Dafydd in post #15: I disagree. What you call a cop-out and cowardice, I might call the gig, and doing the job the way it’s traditionally been done. (Though traditionally, a juror generally makes a call – bailing because you don’t like something is not an accepted, standard solution.)

    David Blue (85d4d4)

  17. You continue to misstate, misunderstand, or misrepresent what people who support jury nullification believe.

    Educate me. You mean that it’s in the structure of our government for jurors to do whatever they like, and the numerous instructions we have telling them the exact opposite are all wrong and contrary to the views of the Founding Fathers.

    So why do we have those instructions?

    Patterico (de0616)

  18. But I would not vote to convict the woman in the scenario I used in my own post on the matter: the woman who was a convicted felon, but who clearly needed a gun to defend herself from her homicidal boyfriend — thus obtained one illegally.

    What if she were not pure and innocent — she was a gang member who needed the gun to protect herself against rival gang members who would shoot her dead if they found her walking the streets unarmed?

    That is a very, very, very common reason convicted felons carry firearms. OK? Where do you draw that line? And why do you get to, instead of society?

    Why would you not address this injustice you perceive by seeking a law allowing convicted felons to possess a firearm for self-defense purposes under certain circumstances? What you described is such a great injustice that you’d lie your way onto the jury to acquit the person?

    Patterico (de0616)

  19. What if she were not pure and innocent — she was a gang member who needed the gun to protect herself against rival gang members who would shoot her dead if they found her walking the streets unarmed?

    so because one is a ‘gangbanger’, one should not be able to use a gun to defend themselves? from others perfectly willing to use a gun to assault that person? Perfect example of unconstitutionality of a law, thanks.

    Why would you not address this injustice you perceive by seeking a law allowing convicted felons to possess a firearm for self-defense purposes under certain circumstances? What you described is such a great injustice that you’d lie your way onto the jury to acquit the person?

    Many of us have tried, with no success. No politician is going to go out on a limb to repeal a law when people, who are ignorant of the constitution, will simply see it as supporting a criminal. Others, mostly anti-gun politicians, will purposefully misapply this law so as to bolster a gun control record. Another perfect example of the right of jury nullification.

    dksuddeth (ac44fb)

  20. so because one is a ‘gangbanger’, one should not be able to use a gun to defend themselves? from others perfectly willing to use a gun to assault that person? Perfect example of unconstitutionality of a law, thanks.

    No. Because the law says a felon may not possess a firearm, a felon may not possess a firearm. I’m simply pointing out to Dafydd that many, many such felons possess firearms in part because they are gang members worried about being shot.

    Oh, and they also want to shoot rival gang members themselves — and rob people, and such.

    Did I forget to mention that?

    But they also want to defend themselves.

    Patterico (de0616)

  21. Courts were deemed necessary as a buffer between citizens and a potentially tyrannical legislature (in collusion with the executive). Basic Federalist 78 stuff. But juries were intended to act as yet another protection, in the event that judges to also betray the lives, liberties, and property of citizens. They are not there, as California’s oath proclaims, to serve judges. They exist as a final defense of liberty, an ultimate check on the entire system.

    What you have created is a false choice between the law and nullification, because you (seem to) have an issue with the framers’ intent that citizens would actively participate in the law, and have the power to essentially declare unjust or unconstitutional laws void.

    So when you speak of this choice between one’s conscience and the rule of law, what you don’t get is that the framers believed that one’s conscience would be rooted in an understanding of the Constitution and natural law — and so any “rule of law” that violates this is not a law at all. It’s simply a false dichotomy.

    I know this is all theoretical/academic argumentation on my part, and it may be hard to apply to the reality of an ignorant citizenry, but this is what supporters of nullification believe, and the writings of the framers support their position.

    Leopold Stotch (a1c2b8)

  22. Patterico, here is why the felon in possession law is unconstitutional.

    We have the right to life, liberty, and property.

    We have the natural and unalienable right to defend that life.

    We have a right to keep and bear arms, which shall not be infringed.

    We have the 5th amendment, which says a person cannot be deprived of liberty OR property without due process.

    If a person should not possess a firearm because they MIGHT commit a crime, where do we stop the rest of the MIGHT commit a crimes?

    If a person WANTS to commit a crime, they will commit it whether they have a gun or not and most likely they will get a gun anyway.

    If a person cannot be trusted with a firearm, that person should still be behind bars, period.

    It’s ‘liberalization’ of criminal sentencing and early release programs that continue a cycle of gun violence.

    If a law is unconstitutional, I acquit.

    dksuddeth (ac44fb)

  23. [UPDATE: This comment is directed at Leopold Stotch.]

    I think you’re arguing that there is a higher law than the “rule of law” called for by our current jury instructions, and it is indistinguishable from an individual juror’s conscience.

    Do I have that right?

    So it’s still a choice between the rule of law as we currently have it (whether you like it or not) and the juror’s conscience. The reason the conviction bothers the conscience could be anything: disagreement with the law itself, or disagreement with its particular application.

    P.S. What does your brother think of these ideas of yours?

    Patterico (de0616)

  24. What about jurors who refuse to convict a defendant because they are his race?

    It sometimes happened in the South last century, and it sometimes happens in Los Angeles in 2006.

    Patterico (de0616)

  25. Not sure who you are addressing that to, but i’ll answer for me.

    There is a higher law than the ‘rule of law’. Call it Gods law or Natures law. There is also the constitution. Any law that is repugnant to the constitution is null and void.

    I have no idea what my brother thinks of this. Haven’t talked to him in years.

    dksuddeth (ac44fb)

  26. What about jurors who refuse to convict a defendant because they are his race?

    It sometimes happened in the South last century, and it sometimes happens in Los Angeles in 2006.

    It also happened in 92/93.

    There is/was a popular saying, usually said by prosecuting attorneys when an unpopular conviction was obtained, ‘the system isn’t perfect, but it’s the best one we have’.

    Finding 12 people without racial prejudices shouldn’t be that difficult with a jury pool of hundreds. If attorneys were more ethical and based their questions and dismissals to potential jurors by looking for common decency instead of ‘do you hate guns’ or ‘do you disapprove of the death penalty’, the system would work better.

    dksuddeth (ac44fb)

  27. dksuddeth,

    Your comment intervened between Stotch’s and mine. I was talking to him. Sorry for the confusion.

    Patterico (de0616)

  28. I think Dafydd’s comment about not resigning from the jury makes perfect sense. After all, Patterico’s original q was specifically directed at those who support the need for jury nullification under at least some sort of circumstances, however rare.

    But if you’d back out cuz you won’t support jn ever, no matter what, then you’re not really a jn supporter and should abstain from commenting as if you were.

    From what I’ve seen so far, most jn supporters, tho not all, fall into the “truly extraordinary circumstances” category, with lots of discussion about just exactly what that means. They are not generally looking to invalidate any law they disagree with for the nice little rush of moral superiority it gives them. A few are, but the majority are not.

    They are instead defining just how tight the exception to the rule must be for them to even consider jn. Sounds conscientious to me, it really does.

    p.s. Patterico,

    If the felon in your example is truly carrying a gun for both legit defensive as well as onerous offensive purposes, I’d convict them, no prob. They could have always left town if they felt that they were threatened; no one forced them to stay put and start a gang war.

    ras (a646fc)

  29. Also, dksuddeth:

    Assume the law is constitutional. You just disagree with it, or disagree with its application.

    What do you do?

    Convict? Acquit? Ask to be let off the jury?

    Patterico (de0616)

  30. If the felon in your example is truly carrying a gun for both legit defensive as well as onerous offensive purposes, I’d convict them, no prob. They could have always left town if they felt that they were threatened; no one forced them to stay put and start a gang war.

    Well, realistically, they’re gang members, so they’re probably not carrying the gun for purely defensive reasons. But they could be. What if they were?

    Patterico (de0616)

  31. IF a law is constitutional, by my consideration (not the courts), I would have no reason to disagree with it. I might disagree with it’s application and in that case I would inquire about finding a different, lesser charge to convict on.

    dksuddeth (ac44fb)

  32. Not sure what the brother thinks, but he’s probably seen a few too many juries to believe that nullification is a good thing.

    But as to your question, of course there is a higher law than the “rule of law” as declared by a judge’s instructions to the jury. The Constitution is the supreme law of the land, and the Supreme Court is not the only place where the validity of common law was supposed to be tested/checked against the Constitution.

    As for racist jurors, they’re just that — racists, not believers in natural law and the justice required by it. So I don’t think you could consider them believers in nullification per se, and so such decisions for me are outside the scope of the nullification conversation. A juror claiming that a conviction bothers the conscience for any reason other than that it would be a betrayal of natural law isn’t making the nullification argument.

    Again, I admit to making a highly theoretical argument, but that’s what they pay me for.

    Leopold Stotch (a1c2b8)

  33. IF a law is constitutional, by my consideration (not the courts), I would have no reason to disagree with it. I might disagree with it’s application and in that case I would inquire about finding a different, lesser charge to convict on.

    But didn’t you read my post?

    Here’s the hypo: you believe the law is constitutional, and the defendant is guilty beyond a reasonable doubt.

    You just think the result is unjust. It bothers you.

    What do you do?

    Patterico (de0616)

  34. Stotch:

    Can you answer the questions posed by the post?

    Assume that you believe the law is constitutional.

    Patterico (de0616)

  35. If it is just a matter of listening to the evidence and following the law, why do we have juries at all? Surely judges are sufficient. Adding juries suggests to this non -lawyer that something more is asked. Do I, the juror, think this person deserves punishment?

    Since you asked, I acquit.

    Christy (9417f8)

  36. I already answered that. I would inquire about a lesser charge and try to convict on that.

    dksuddeth (ac44fb)

  37. Stotch says it well and true.

    California must have lots of bad laws, and I fear it is going to get more with Ahnold there to sign them. Giving a judge too much control over jurors is a bad law.

    RJN (e12f22)

  38. patterico, sorry about the stepping in on comments, still getting used to the layout of your sight.

    dksuddeth (ac44fb)

  39. For those opposed to jury nullification (either believing it will rsult in “anarchy”, or as a result of their legal affliction), I strongly recommend you read Lysander Spooner’s “An Essay on Trial by Jury)

    http://www.lysanderspooner.org/TrialByJury.htm

    It is a long essay, but perhaps this says it best…”the powers of juries are not granted to them on the supposition that they know the law better than the justices, but on the ground that the justices are untrustworthy, that they are exposed to bribes, are fond of authority, and are also the dependent and subservient creatures of the legislature…”

    As James T. Kirk showed, when the game is rigged, change the rules.

    Saavik: Admiral, may I ask you a question?
    Kirk: What’s on your mind, Lieutenant?
    Saavik: The Kobayashi Maru, sir.
    Kirk: Are you asking me if we’re playing out that scenario now?
    Saavik: On the test, sir. Will you tell me what you did? I would really like to know.
    McCoy: Lieutenant, you are looking at the only Starfleet cadet who ever beat the no-win scenario.
    Saavik: How?
    Kirk: I reprogrammed the simulation so it was possible to rescue the ship.
    Saavik: What?
    David Marcus: He cheated.
    Kirk: I changed the conditions of the test. I got a commendation for original thinking. I don’t like to lose.
    Saavik: Then you never faced that situation. Faced death.
    Kirk: I don’t believe in the no-win scenario.

    mitch (55069c)

  40. If you believe the law is Constitutional, you would have no conscientious reason to nullify and you would violate your duty as a juror (and commit perjury, depending on the oath) if you did so.

    To preempt your next question, here is where we come to the problem as to what happens if the Constitution is amended in such a way that you believe violates natural law and original intent — here you get into McVeigh territory, where the argument is that in such cases we revert back to the Declaration of Independence and take up arms.

    Leopold Stotch (a1c2b8)

  41. I already answered that. I would inquire about a lesser charge and try to convict on that.

    You can’t. There’s one charge, no lessers.

    You have three choices. Convict, acquit, or get off the jury.

    I didn’t mean to criticize you for “stepping on” comments or anything. It’s just that sometimes I think I’m responding to one commenter, and another comes in while I’m typing up the comment. That’s why it’s better practice to quote what you’re responding to; I just don’t always remember to do that.

    Patterico (de0616)

  42. Where did you stand on the Clinton impeachment, mitch? I tried to get you to answer in the relevant thread, but I don’t think you ever did.

    Patterico (de0616)

  43. You can’t. There’s one charge, no lessers.

    You have three choices. Convict, acquit, or get off the jury.

    must not be that terrible of a charge then.
    Unless there are mitigating circumstances, i’d convict….then raise such a public stink the unjustness of the conviction in the media hoping to force a reversal by a higher court or embarass enough legislators to change the law, maybe get a pardon from the executive.

    dksuddeth (ac44fb)

  44. Patterico,

    Well, realistically, they’re gang members, so they’re probably not carrying the gun for purely defensive reasons. But they could be. What if they were?

    If they are carrying a gun and out there actively looking to shoot someone, I think that’s reason enough to convict them of something. The fact that such behavior also causes them to need a weapon to protect themselves from others who wanna shoot them first cuts them no slack with me, cuz as soon as we allow that, we sanction gang warfare.

    “Didja shoot him?”

    “Yes, officer, but he’s in another gang and so was a threat to me.”

    “All right then, have a nice day.”

    If we could ascertain, however, that the gun really was for purely defensive purposes, he’s still guilty of carrying, tho I would nonetheless convict (if that’s what the law says) and expect the judge at sentencing to take it into account.

    ras (a646fc)

  45. Where did you stand on the Clinton impeachment, mitch? I tried to get you to answer in the relevant thread, but I don’t think you ever did.

    I did on the other thread #64

    …I thought Clinton should have been tarred and feathered. As has been stated, you are unable to differentiate access to justice from mind-reading the judge’s instructions. If Karnack was a member of the jury, he could take the oath. Mere mortals can’t with certitude. As I’ve stated elsewhere, the game is rigged by the State, and judges and prosecutors are complicit….

    mitch (55069c)

  46. BTW Patterico. thank you for hosting this conversation, and thanks to those participating. All the threads on this topic have been fascinating and I’ve enjoyed reading the scenarios you’ve created and the responses.

    mitch (55069c)

  47. As I’ve suggested in other posts connected to this topic, I’ll vote against the Law if the Law is clearly asinine, if the injustice is REALLY smelly, or if I think the infraction is essentially harmless AND the government is trying to cheat (the Martha Stewart case for example where as I understand it she was convicted for lying when she denied guilt of a charge the government later declined to pursue).

    I would vote with the Law if the injustice were minor (mind you, if I think an injustice was being done my standards for ‘beyond reasonable doubt’ would be pretty stringent), AND regardless of ‘justice’ of the charge I thought the defendant was looking for trouble.

    Example: A protester from some fracus like the ’68 Chicago Convention charged with ‘carrying a concealed weapon’ for having a pen knife over 3″ (or whatever absurdly small length it is) long on him. There’s a whiff of injustice about that charge, but if the young fool wasn’t associating with the kind of idiot that throws excrement filled baggies at cops he wouldn’t be in trouble. there is a difference between staging a protest and inciting a riot. One we need to learn again.

    C. S. P. Schofield (c1cf21)

  48. My first reaction is to say that I would follow the rule of law. BUT, I can now think of a case that is complete except for the sentencing–the two Border Patrolmen that were found guilty of attempted murder of a Mexican drug smuggler–this case I would have aquitted. I also have not followed the case 100%, so I don’t know all the facts.

    bald01 (25b534)

  49. must not be that terrible of a charge then.
    Unless there are mitigating circumstances, i’d convict….then raise such a public stink the unjustness of the conviction in the media hoping to force a reversal by a higher court or embarass enough legislators to change the law, maybe get a pardon from the executive.

    Good answer. But it could be a terrible charge. Murder, even. Juries are not always instructed on lesser-included offenses in murder cases.

    Patterico (de0616)

  50. Hypothetically, say it was a murder charge.

    I’m not too generous with mitigating circumstances when it comes to taking a life, self defense highly excepted.

    I’d have to have a good reason to look for a lesser charge.

    dksuddeth (ac44fb)

  51. I would ALWAYS follow my conscience rather than the law.

    Bill M.:

    You are my target audience. I am here to try to convince you that is the wrong way to go. At a minimum, you should get off the jury.

    Watch for my post tomorrow.

    Patterico (de0616)

  52. Mr ab Hugh wrote:

    For God’s sake, show some spine: if you honestly believe that a conviction would be such a shocking miscarriage of justice that you cannot do it, then have the guts (and the decency) to prevent it to the best of your ability… even if that means being the lone holdout who forces a hung jury.

    I noted in a previous thread that I am opposed to capital punishment, and would say so were I ever to be considered for a jury in which the death penalty was a possible alternative. Am I to assume from Mr ab Hugh’s statement that I ought to conceal that, hoping to get put on the jury, knowing that a hung jury in the penalty phase means life in prison rather than the death penalty?

    Dana (71415b)

  53. I’d always go with my conscience as there are too many laws that I feel strongly are unconstitutional, eg., restricting firearms, so called “hate” laws, etc. And I wouldn’t tell the judge either so I could “hang” the jury.

    TxBubba (11ba6c)

  54. Anyone who follows the jury instruction to ignore their conscience and follow the law (no matter how lame the law is and no matter the injustice that would be carried out by verdict) does not have a conscience.

    I’m with the professor on this one. The types of offenses I see being prosecuted against ordinary citizens nowadays shocks my conscience. What’s with this rule of evidence that you cannot ask an adverse party if they are in the country illegally or not? Seems to me that would be an impeachable offense; but nowadays citizens are being prosecuted for not wearing their seat belts while illegals are not subject to “the rule of law.” It’s a double standard, and the courts and prosecutors are in collusion against the average Joe citizen.

    Lastly, the commentary being offered that people should just follow instructions without regard for their own conscience is pompous, arrogant, smacks of legalistic authoritarianism and flies right in the face of the framers’ intent to have a jury be the check on a system that has alredy been perverted enough.

    petit bourgeois (ee1d60)

  55. I was fully ready to say that I’m going to follow the law, and if it leads me to convict, I convict. Then I started thinking about situations in which I might not convict despite the law, and I thought of this case.

    It never did make it to trial, but it had an overzealous prosecutor who should have exercised his discretion in prosecuting the charge. The prosecution was ultimately dropped by order of the mayor who had been advised by the state attorney general that he would oppose any appeal the city might bring.

    But if the case were of lower profile, this might not have happened. This guy has clearly broken the letter of the law, but he hasn’t offended the spirit of it in the slightest. They wouldn’t have known there was a crime to charge had he not been wrongly identified, arrested and searched. I don’t fault those who decided to grab him, and he doesn’t either. But I’m not sure I could vote to convict him.

    Pablo (08e1e8)

  56. So you would ask to be let off the jury? Or you’d acquit?

    Patterico (de0616)

  57. Anyone who follows the jury instruction to ignore their conscience and follow the law (no matter how lame the law is and no matter the injustice that would be carried out by verdict) does not have a conscience.

    I’m with the professor on this one. The types of offenses I see being prosecuted against ordinary citizens nowadays shocks my conscience. What’s with this rule of evidence that you cannot ask an adverse party if they are in the country illegally or not? Seems to me that would be an impeachable offense; but nowadays citizens are being prosecuted for not wearing their seat belts while illegals are not subject to “the rule of law.” It’s a double standard, and the courts and prosecutors are in collusion against the average Joe citizen.

    Lastly, the commentary being offered that people should just follow instructions without regard for their own conscience is pompous, arrogant, smacks of legalistic authoritarianism and flies right in the face of the framers’ intent to have a jury be the check on a system that has alredy been perverted enough.

    petit bourgeois:

    So if you believed the defendant guilty beyond a reasonable doubt, but felt that a conviction would be unjust, would you acquit, or ask to be let off the jury?

    Patterico (de0616)

  58. So if you believed the defendant guilty beyond a reasonable doubt, but felt that a conviction would be unjust, would you acquit, or ask to be let off the jury?

    Given that situation, with no more information forthcoming, my response would be that I (believe that I would) vote to acquit.

    Unix-Jedi (b5dddb)

  59. Ok, you got me on this one….It will be my first post on your website. I would say that I would always follow the law no matter what my conscience says…sort of speak…

    Bill Heald (d2a47b)

  60. I just don’t see a problem with jury nullification. It’s ridiculous to let evidence, argument, and jury instructions be the basis for rendering a decision, when my conscience knows better. I think I would know whether or not a person is guilty, or whether the law is equipped to render justice, irrespective of what the prosecution or defense presents or the judge says. A juror should compensate for the perceived competence of each side, and be free to fill in evidence that was probably excluded (for one side or the other) by arcane rules of evidence. (Figuring that out would give my wandering mind something to while the witnesses and attorneys drone on.)

    I know that both sides cheat, so it’s better that I trust my judgment instead of the faulty system that is currently in place. And where the hell to judges get off giving jury instructions? I think my conscience can figure out the proper outcome without the meddling of a know-it-all.

    What better way to celebrate freedom and individuality, than for me to follow my gut feelings? That’s much better than following overly detailed laws, which are laughably offered up as the democratically expressed will of society. Every one knows that legislatures and legal system are composed of idiots, and corrupt idiots at that.

    Whether it’s some outsiders agitatin’ about voter rights–and getting their just reward–or a repressed member of my race
    “evenin’ up the score” by killing someone who probably deserved it, it’s better for me to render true justice than be bound by inflexible laws and jury instructions.

    Those advocating jury nullification would want to have me on the jury in their trials. I would do everything possible to ensure that they received the verdict that my conscience dictates. What more could they want?

    Greg Miller (3660a8)

  61. Patterico, you are hip deep in managing outcomes here. The jury doesn’t work for you. You are hired to, sometimes, prosecute violations of bad laws; the jury has been empowered, from the beginning of the jury system, to aquit in cases of bad law.

    RJN (e12f22)

  62. Tell the judge the truth, that I cannot in good conscience vote for a conviction even though the law is clear that I must. Further, that I understand I will have to accept the consequences for this action.

    I probably wouldn’t “say” that the court will have to accept the consequences for going ahead with a conviction, but I sure would be thinking it.

    Fodder (692279)

  63. Greg Miller:

    The real fun of your comment is trying to figure out whether you are serious or not.

    Patterico (de0616)

  64. I’m pretty sure your comment was a wonderfully droll commentary on those who support jury nullification. But so much of what you say is so close to what others on this site have said seriously . . . that I’m just not 100% positive.

    Patterico (de0616)

  65. I might have asked to be excused if I thought I wasn’t capable of following the judge’s instructions. But if I wasn’t excused then I would have to vote to convict. I thnk it is clear that to vote one’s conscience is the same as voting one’s prejudice. Both immeasurable and irrelevant to the law. It seems that this is putting selfish personal interest above any reponsibility that I would have to my fellow citizens.

    Pat Patterson (5b3946)

  66. Having been on a couple of civil trials, I’d swear to uphold the law. I may or may not acquit – even on overwhelming evidence.

    You’ve insisted in several places this: Here’s the hypo: you believe the law is constitutional, and the defendant is guilty beyond a reasonable doubt. You just think the result is unjust. It bothers you. What do you do?

    This is a false argument from my layman’s perspective. If I think the letter of the law as applied to this particular set of circumstances is unjust, then I feel perfectly justified in considering this cruel and unusual punishment.

    That’s what unjust means to me. And I, a layman, won’t be allowed access to expert legal opinion on the matter during the trial. (And dismissed if I seek it perhaps.) Lawyers are probably the most-excused-class when considering jury formation. The ‘Jury Instructions’ could be _the_ part that I consider unconstitutional. Judicial misconduct wouldn’t be resolved until afterward – but the instructions could be ‘walk in a circle and quack like a duck then vote “Guilty” so I can fry this guy’. Those instructions suck.

    IOW: If I had a problem with the law going _into_ the case, I’d mention that during voir dire, assuming they ask. But if the evidence presented indicated that the punishment would be drastically over severe _in_this_particular_case_, I’d seriously consider acquitting. We aren’t twelve voting sheep in a room, we’re twelve officers of the court, we collectively provide the most just response the consensus can agree upon.

    BTW: I think Clinton should have been impeached legally (although I thought it was disastrous politically). There was a local elections official here in Seattle that admitted under oath that she didn’t tally ballots to arrive at the responses on her form (she just added up the numbers that had been counted and assumed they were identical). She also claimed under oath to have followed procedure correctly. Two incompatible claims. Yet, because there was no trial for perjury, she gets a promotion and raise.

    Al (2e2489)

  67. Patterico asked a number of times something along the lines of …

    … if you believed the defendant guilty beyond a reasonable doubt, but felt that a conviction would be unjust, would you acquit, or ask to be let off the jury?

    The professionals in the system have roles related to the law and the rules, but the jury’s role is to maximize justice. They don’t always do so (i.e. OJ Simpson), but that is their role.

    I vote to acquit in this situation, although my standards for unjust are pretty high.

    tomjedrz (c722f0)

  68. Patterico …

    Have you ever prosecuted someone who was clearly guilty but the “justice” of the prosecution was not so clear? Have you ever seen other prosecutors do so?

    tomjedrz (c722f0)

  69. […] I love this comment by Greg Miller on jury nullification: I just don’t see a problem with jury nullification. It’s ridiculous to let evidence, argument, and jury instructions be the basis for rendering a decision, when my conscience knows better. I think I would know whether or not a person is guilty, or whether the law is equipped to render justice, irrespective of what the prosecution or defense presents or the judge says. A juror should compensate for the perceived competence of each side, and be free to fill in evidence that was probably excluded (for one side or the other) by arcane rules of evidence. (Figuring that out would give my wandering mind something to while the witnesses and attorneys drone on.) […]

    Patterico’s Pontifications » Is Greg Miller Serious? (421107)

  70. I believe in jury nullification. That said, would I ever convict in a situation where I knew the defendent was guilty where I believed a conviction to be unjust? Yes. It would come down to “how unjust”, and how damaging I believed my attempting to cut the law to suit the fashion of my conscience would be to society.

    For example: I’ve never used illegal drugs, and I think they generally damage society (some severely); however, I believe some (possession-oriented) drug laws are bad. If someone had an overwhelmingly credible medical marijuana defense, for example, I would vote to acquit, even if the legislation in question did not seem to permit doing so.

    If someone’s defense was simply that the drug laws in question were unjust, then, even if I agreed with the defense position, I very much doubt I would vote to acquit.

    The damage to society (via the legal system) of nullifying drug laws that were not incredibly widely believed to be unjust, or that I believed to be overwhelmingly unjust is not something I’d want on my conscience either.

    [I assume, of course, a competent, relatively non-corrupt police force, ditto prosecution and judiciary, all operating in a free and open democratic society. I believe that to be the case throughout the vast majority of the US.]

    Holmwood

    Holmwood (76cebf)

  71. Patterico:

    You are correct in surmising that my comment was sarcastic.

    I think that many of the arguments made by others (in support of jury nullification) were done in good faith. I don’t have a problem with people having an *opinion* about what is “fair” or not, but jurors are entrusted with a level of power that goes beyond freedom of expression. That power should be wielded responsibly. (Everyone OK with doctors and judges resorting to their personal consciences in deciding what’s best for all of us on the receiving end of their decisions?)

    It’s a tiny step from a genuine attempt to provide conscience-based justice to using racial hatred, political bias, or whatever as the basis for convictions (or acquitals). As you have demonstrated, there are seemingly unfair consequences to following the letter of the law and instructions of the judge. (I’m sure there a real life parallels to your hypotheticals.) Jimmy Carter got it right when he noted that life’s not fair. Our current system is the best we’ve got, and the alternative of following one’s inner voice is ultimately more unfair.

    No one is above the law.

    You either believe that, or you don’t. If you do, it applies to jurors as well as those who have committed crimes.

    With jury nullification, take your pick: tyranny by the majority, or anarchy by the minority.

    Greg Miller (3660a8)

  72. So you would ask to be let off the jury? Or you’d acquit?

    I’d probably foment a revolution of 12 and cause a mistrial.

    Meet option #4. :-)

    Pablo (08e1e8)

  73. Patterico:

    What if she were not pure and innocent — she was a gang member who needed the gun to protect herself against rival gang members who would shoot her dead if they found her walking the streets unarmed?

    The farther away from innocence she is, the less inclined am I to acquit her. My “line” is when I think her carrying of a gun was more to endanger society than to protect herself… if I think she’s not only carrying the gun to protect herself from rival gangsters but also to shoot at those rivals if she got the chance: a blood feud, in other words.

    (And I get to draw the line because I am one of the twelve representatives of society in that trial.)

    Why would you not address this injustice you perceive by seeking a law allowing convicted felons to possess a firearm for self-defense purposes under certain circumstances?

    The two are not mutually exclusive. I didn’t know you were asking about political activism as well.

    What you described is such a great injustice that you’d lie your way onto the jury to acquit the person?

    I said nothing about lying my way onto the jury. I’m assuming that all they told me during voir dire was that the case involved a felon in possession of a gun.

    Under normal circumstances, I’m happy to convict a typical felon who is armed for the typical reason you cited above. We would be deep into the case before I realized what was really going on.

    Consider it this way:

    To me, when you take an oath to obey the judge’s instructions, there are many tacit agreements on the judge’s part. You’re not swearing fealty, for heaven’s sake!

    For example, if you swore to obey the judge’s instructions, and then he instructed you to jump out of the 10th-floor window, obviously you wouldn’t obey that.

    Does that make you a liar, an oathbreaker? No, of course not, because you have a tacit understanding that the judge will only issue legitimate instructions.

    To put it in legal terms, if you raise your hand and swear to obey the judge’s instructions — and then the judge issues what are, to the best of your understanding, unlawful instructions, then it is the judge who has broken the compact — not you.

    Clearly, there was never any “meeting of the minds”: you thought he would only issue proper instructions; he thought you had agreed to obey any command he might issue, no matter how bizarre.

    When I joined the Navy, I raised my paw and took an oath that included a whole bunch of things; one of those was to obey the commands of my superior officers. But in OCS, they taught us that we actually had a duty to refuse to obey an unlawful command… and I even had to do it once (I’ll tell you about it some other time; it’s not pertinent here).

    The same holds with judicial instructions, even though it’s unstated: the Constitution and state constitutions are both superior to the state judge, and he cannot legitimately order me to violate them.

    Now, if I somehow knew in advance what the case was really about — telling a woman that her only legal option was to let her ex-boyfriend murder her — that’s a different question. I doubt I would openly lie under oath; I would have to consider myself almost in open rebellion against the country itself to engage in that level of devious falsehood — though there are certain other countries extant today in which I wouldn’t hesitate.

    But I would also not volunteer any information… including that I would not convict if the state were really prosecuting her for daring not to die. And when the question about judge’s instructions rolled around, I would probably seek clarification.

    If the judge insisted that I had to obey any instruction at all, no matter what it was — well, obviously I couldn’t agree to that even if I were virtually certain the case was perfectly acceptable. The judge is not God.

    But if the judge clarfied that he meant only lawful or proper instructions related to the case, then I could perfectly well swear to that — even knowing that the judge was likely going to break his word to me… which would free me from having to obey my word to him.

    (Actually, the most likely outcome would be that my answers would sound squirrelly, and somebody would excuse me for cause. But I wouldn’t be trying for that result.)

    Patterico, you have already admitted that there were prosecutions in which you, yourself would refuse to acquiesce as a juror; and I notice you’re not answering your own questions anywhere near as fully as you expect us to do.

    Dafydd

    Dafydd (6e94cd)

  74. Clearly, there was never any “meeting of the minds”: you thought he would only issue proper instructions; he thought you had agreed to obey any command he might issue, no matter how bizarre.

    Dafydd, I’ve been barking up the same faulty instructions tree and the most substantive response I’ve gotten is that the juror would almost certainly be too ignorant to know if this were happening, and therefore should assume their probable incorrectness and do as they’re told. Oh, and that I’m a troll for insisting that the situation you describe is plausible.

    I’d like to know what our legal eagles think a juror should do having taken an oath to follow the judges instructions and then having found that they do not coincide with the law.

    Pablo (efa871)

  75. […] On jury nullification: Assume youre a juror in a criminal case where you think the defendant is clearly guilty beyond a reasonable doubt but you also believe that a conviction would be unjust. Maybe you disagree with the law on its face; maybe you just disagree with its application in this particular case. For whatever reason, a conviction is clearly the legally correct thing to do, but it might bother your conscience. […]

    SayUncle » Pattycakes asks (9b413a)

  76. I’d like to know what our legal eagles think a juror should do having taken an oath to follow the judges instructions and then having found that they do not coincide with the law.

    1. Consider that you may be wrong.

    2. If you really are right, get off the jury.

    That handles 99.99% of such cases, which never happen anyway. Have you ever heard of it actually happening that the juror knew more about the proper instructions than the judge and lawyers?

    Patterico (de0616)

  77. Actually, step 1a should be to tell the court what you think the problem is.

    Patterico (de0616)

  78. 1. Consider that you may be wrong.

    See what I mean?

    Our juror has done that and is certain that he is not wrong. Suppose the judge is obviously crooked and/or a jackass of some sort. A blatant racist and he has clearly shaped the instructions so that you have no choice but to convict if you follow them. Or maybe’s he’s a drunk and he’s been a mess throughout the trial and he manages enough coherence to deliver faulty instructions. For whatever reason, the instructions conflict with the law and our juror knows it.

    Is this

    2. If you really are right, get off the jury.

    the proper execution of your duty as a citizen? Is it the right thing to do to walk away and let this miscarriage of justice occur?

    You’re assuming something that the Framers didn’t when they gave us the system we have, which is that the Court is always going to be honorable and correct. On the contrary, they suspected that there would be instances when it would not, and put the ultimate power of conviction in the hands of the people.

    [Pablo, you’re spending a lot of time arguing about a scenario that may never have happened anywhere. I’ve never heard of it happening. Have you? — P]

    [Pablo, assume the prosecution introduces evidence of prior bad acts by the defendant, and tells you that you may consider them for a specified purpose, but only if you find them true by a preponderance of the evidence. What do you do? — P]

    Pablo (efa871)

  79. I can easily say that I would NEVER convict for a victimless crime like drug dealing/possession or prostitution. I would be much more likely to convict , even if I thought the law was too strict, for example., so long as some actual harm had been done to an actual individual.

    Carlos (ca792b)

  80. I have recent experience with just this question. :)

    In the trial for which I was a juror last week, I was one of two votes to convict in the first poll; the defendant had clearly committed the crime of which he had accused, and it was not clear to me that the police conduct described constituted entrapment as the judge’s instructions to us had defined it. The law was moronic; but it was the law.

    The entire resulting discussion in the jury room consisted of a debate about whether or not the police behavior constituted entrapment as defined. Nobody on the jury liked the law, and several people expressed relief that the entrapment argument gave them a legal reason to acquit. To a certain extent it seemed to me that some members of the jury were clinging to entrapment as an excuse, as if it gave them some vaguely legal clothing to justify their desire to acquit on the grounds that the law was outrageous.

    (Eventually, the foreman found an analogy which allowed me to view the police behavior in question as entrapment. I’m not entirely sure, though, that I was persuaded by reason and not emotion).

    aphrael (e0cdc9)

  81. P, do I have a comment stuck in moderation? It was a pretty good one, and I don’t see it.

    Pablo (08e1e8)

  82. I can’t find one.

    I was interested in your response to my question (appended to one of your comments above).

    Patterico (de0616)

  83. Specifically: “Pablo, assume the prosecution introduces evidence of prior bad acts by the defendant, and tells you that you may consider them for a specified purpose, but only if you find them true by a preponderance of the evidence. What do you do?”

    Patterico (de0616)

  84. That’s odd. It was a response to your first question which I posted before the second one:

    Pablo, you’re spending a lot of time arguing about a scenario that may never have happened anywhere. I’ve never heard of it happening. Have you? — P

    …and as soon as I posted it, I got a message saying that it had gone to moderation. At any rate, it went something like this: Are you telling me that you’re not familiar with faulty jury instructions (with the phrase linked to a Google search for the term, which produced 366K hits)? Given that it is one of the primary reasons for successful appeals, I think we can agree that it happens not infrequently. The only wrinkle I’m adding is that our juror knows it.

    I’m not talking about flying purple three-headed juror, just a savvy one. Or a case where the error is so blatant that you wouldn’t need to be all that savvy to notice it. I fail to see the point of repeatedly dismissing the problem by brushing the scenario off as wholly implausible. It is not.

    As for your second question, I’d assume that I know what the judge intended when he gave that instruction inviting me to find evidence to be “true” or not by a preponderance of the evidence, while I chuckle to myself at the notion that your average juror is going to limit their consideration of something they know to the specific purpose as instructed.

    So, do you think just getting out of the jury and walking away while the defendant is wrongfully convicted should sit well on your conscience? It is a proper execution of your duty as a citizen to your fellow citizen?

    Pablo (08e1e8)

  85. This isn’t hard; it wouldn’t sit well on mine, and it is improper execution of a sworn duty. Actually, it wouldn’t sit on mine at all, because I wouldn’t do it. I left another “trial” case here, but no one’s commented on it yet (probably not being aware that it’s there!)

    http://patterico.com/2006/09/05/5081/flouting-the-rule-of-law/#comment-75204

    htom (412a17)

  86. This is a pure hypothetical for the most part, since judges generally demand during voir dire that prospective jurors commit themselves to only returning a verdict on the facts of the case, and dismiss any jurors who refuse. Hence why I haven’t been empanelled in more than ten years; I will not take that oath and waive my common law right to return a verdict on the facts and the law.

    Assuming for the sake of argument, though, that a judge didn’t do this, and I was empanelled and found myself in a situation such as your hypothetical, no, I would not convict. Inasmuch as the law is frequently an ass, I can conceive of no situation in which the consistent application of the rule of law is more important than my own common sense and sense of justice.

    And yes, I am an arrogant sonofabitch. Why do you ask?

    BC (6f05b6)

  87. You will find that from the Magna Carta through to the middle of the 19th century that jury nullification was considered a right of juries.
    It is the assurance that juries might not convict when the law are unjust that is their reason for being. Even today it is considered a legitimate power, even though (only in modern times) we are obligated to do so in secret. Arguing against jury nullification is arguing that man must suborn his conscience to law. This pretty much flies in the face of the entire history of the west. Our founding fathers had little problem with Jury nullification – try reading them. Or better yet consider that if they were obligated to place the law above their conscience then they were traitors – pure and simple.

    It is fairly trivial to find real (try nuremburg) or hypothetical examples where conscience must trump oaths or law. If the law or an oath to uphold it requires me to kill my children, must I do so ? Once you accept there is any instance in which conscience must overrule oathes and law, you are left with each individual on their own trying to sort out the grey areas. In the end jurrors excercising their own judgement – even contrary to the law, is the reason we have juries. Otherwise a trial is merely a logic problem. Jury nullification IS part of the system we have, it is not perfect, it does not appeal to people who want absolutes, but it is “the best system we have”.

    Begging off a jury because there is a conflict between your conscience your oath and the law, is failing to do your duty as a jurror.

    Nor is it my job to dictate to you or anyone else exactly how their conscience should guide them. Many who advocate jury nullification do so for reasons or with justifications I do not like. So what. Their conscience is their own. “better that ten guilty persons escape than that one innocent suffer” Blackstone, unless your would prefer “It were better that Ten Suspected Witches should escape, than that the Innocent Person should be Condemned.” Mather.

    dhlii (f63492)

  88. […] Frey, the site owner and primary writer on Patterico’s Pontifications, had a series of articles in which he clearly did not support jury nullification. But one of the articles indirectly pointed […]

    A serious governmental over-reach « Common Sense Political Thought (73d96f)


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