Patterico's Pontifications

9/5/2006

Flouting the Rule of Law

Filed under: General — Patterico @ 12:01 am

Yesterday I asked people who support jury nullification what they would do if they perceived a conflict between the rule of law and the dictates of their own conscience. I asked: if the evidence showed beyond a reasonable doubt that the defendant was guilty of a breaking a valid law, but convicting the defendant appeared to be an unjust result, would you:

a) follow the law and convict;
b) follow your conscience and acquit; or
c) ask to get off the jury?

I believe the correct answer is either a or c. Jurors should follow the law, and if the situation is so extreme that following the law would keep them up at night, they should get off the jury (absent circumstances so unusual that the entire fabric of society has broken down).

But several of you picked choice b. You said you’d stay on the jury and acquit, despite your oath to follow the judge’s instructions. You said you would always follow your conscience over the law.

Here’s my question for you:

Do you think that’s how federal judges should behave?

Because some of them do — and if you believe that conscience always trumps the rule of law, you have no standing to complain about it.

Let me give you a concrete example. Let’s say California passes an initiative to eliminate affirmative action. A federal judge gets the case, and he believes the law is clear: he must uphold the law. But he is a tremendous supporter of affirmative action, and believes firmly, deep down in his soul, that the law is terribly unjust. If he upholds the law, it will weigh on his conscience for the rest of his life.

Should he:

a) follow the law and uphold the initiative;
b) follow his conscience and strike it down; or
c) get off the case, either by recusing or quitting?

Clearly, as with the juror question, the correct answer is a or c. Judges have no business ignoring the law in favor of their own personal views, however sincerely held. Really, the judge should simply apply the law — but if it were a rare case where it would destroy his conscience to do so, he should recuse himself, or simply quit.

But if you said that, as a juror, you would always follow your conscience over the law, then you presumably would insist that a judge do the same — even if it meant overturning the will of the people as expressed in the initiative.

If that’s how you feel, let me introduce you to your new judicial hero: liberal federal appeals court judge Harry Pregerson.

Harry Pregerson is the kind of judge who votes his conscience, rather than following the law. He was forthright about this in his confirmation hearings. He told Senators: “If I had to follow my conscience or the law, I would follow my conscience.” (From a law.com article that I will refer to again.)

His conscience has led him to take actions in utter contravention of direct Supreme Court precedent. For example, it came to light in 2003 that Pregerson was refusing to follow Supreme Court precedent on the application of the Three Strikes law to petty thieves, because his conscience forbade it. Here is language from a typical opinion, courtesy of the Curmudgeonly Clerk:

REINHARDT, Circuit Judge, specially concurring.

REINHARDT, Circuit Judge.
I concur only under compulsion of the Supreme Court decision in Andrade. I believe the sentence is both unconscionable and unconstitutional.

PREGERSON, Circuit Judge, writing separately, dissenting in part.

PREGERSON, Circuit Judge.
In good conscience, I can’t vote to go along with the sentence imposed in this case.

When Stephen Reinhardt can’t find a legally defensible way around directly controlling Supreme Court precedent, it doesn’t exist. Yet Pregerson simply refused to follow the precedent, because it conflicted with his conscience.

This is not an isolated example. Pregerson has repeatedly flouted Supreme Court precedent in favor of his personal views. He did so in a death penalty case in 1992. From the law.com article:

In 1992, he was the key figure in the 9th Circuit’s repeated refusals to allow the execution of Robert Alton Harris to proceed. Eventually, the Supreme Court told the 9th Circuit to stop issuing orders in the case.

That was an unprecedented order, caused by Judge Pregerson’s unprecedented defiance of the rule of law.

Judge Pregerson was also in the majority in the ridiculous decision to delay the 2003 California recall election — a decision unanimously overturned by the Ninth Circuit sitting en banc.

Judge Pregerson has repeatedly shown utter disdain for the will of the people as expressed through laws passed by their duly elected representatives — or, as in the case of the Three Strikes law, by the people themselves through initiative.

Addressing Judge Pregerson’s dissents in the Three Strikes cases, legal ethics expert Stephen Gillers says (from the law.com article):

It’s not good for the justice system for a judge to disobey the Supreme Court. Even though people may agree with him, we risk legal anarchy if judges refuse to follow Supreme Court precedent.

In his own post, the Curmudgeonly Clerk also explains why judges must follow the law:

I do not believe that there is any ambiguity about what is required of judges when their conscience counsels other than adherence to obviously binding precedent: they must disregard their personal preferences or contrary interpretations and hew to precedent. If we are a nation of laws and not of men, then inferior tribunals must obey superior ones. Contrary practices are foreign to the rule of law. This is not to say that judges must do so with a glad heart. Judge Reinhardt’s special concurrences are hardly unique. Many judges have enforced precedent all the while noting that they might decide otherwise if writing on a blank slate. Indeed, there are opinions by lower courts that openly call upon superior ones to overrule precedent but abiding by the precedent in question nonetheless. In such ways, inferior courts may call upon higher ones to abrogate unjust and ill-conceived decisions.

But Judge Pregerson’s dissents are beyond the bounds of acceptable judicial conduct. A judge’s conscience does not enjoy constitutional status. Instead, judges take an oath to uphold the Constitution of the United States. This oath entails adherence to the decisions of our Supreme Court. A judiciary in which individual judges are free to do otherwise is not an organized, multi-tiered institution so much as a conglomerate of co-equal jurists who may do as they please whenever they are of a mind to do so. Taken to its logical end, horizontal precedent would cease to have meaning.

Similarly, jurors take an oath to follow the law as set forth in the judge’s instructions. They should abide by that oath. If they simply can’t do so, they should get off the case.

If you place your conscience above the rule of law as a juror, you have no grounds for complaint when a federal judge like Harry Pregerson does so as a judge. Sure, maybe the people of California chose to vote out corrupt governor Gray Davis on their own timetable. They want their Three Strikes law enforced as they passed it — and if they don’t, they can change it themselves. They want to see duly convicted murderers like Robert Alton Harris receive justice.

But Harry Pregerson thinks he knows better than the People of the State of California. And if you believe in Rule by the Decisionmaker’s Conscience, you have no business complaining about it. Indeed, he should be your hero.

Harry Pregerson is not my hero. He should not be yours.

There is a place for the rule of law in society. There is a reason we have it. Judge Pregerson should not disregard it. And neither should jurors.

89 Responses to “Flouting the Rule of Law”

  1. Patterico:

    I suppose that I understand your reaction to the answers you’ve been getting, but I think you are wrong. I think that the system needs to take into account that the law is imperfect, that the government occasionally wants to win far more than it wants to play fair, and that people are not computers.

    Yes, Jury Nullification will let a certain number of murderous thugs free. Based on what I read that number will be far less than the number freed by elected and appointed officials who , contrary to The People’s expressed preferences, will not apply a death penalty.

    A system that worked like a well oiled machine would mangle, just like a machine. If the system cannot deal with human contrariness, then the system is no goddamned good. I don’t think Jury Nullification should be overtly accepted y the system, because people who practice it should be scared of possible consequences and moved enough to nullify ANYWAY. That said,a process where the Jury CAN decide (whether they, in theory, MAY or not); “screw the evidence, screw the law, the prosecutor’s an arrogant bully, and the ‘victim’ needed killing REAL bad” has something to be said for it.

    In this country the People (bless their black, flabby little hearts) are Sovereign. In most cultures the Sovereign holds the power of low, middle, and high justice and may rule by whim. Occasionally Sovereigns are capricious. If you can’t deal with that, maybe you need to be in another line of business.

    C. S. P. Schofield (c1cf21)

  2. Though Patterico’s question was not addressed to me…

    I picked (a) follow the law and convict, or in an extreme case that bothered me greatly personally but was not the sort of thing I think juries (historically and traditionally) should set aside regardless of personal opinion, (c) bail and say why.

    I’ve read and liked a number of Justice Clarence Thomas’s opinions, most recently his dissent on Kelo.

    He was alone in his opinion that one, but he was not being frivolous or arbitrary. He justified his position on the basis of history and what the Constitution originally meant, and on that basis he was prepared to go against precedent and the majority of his colleagues.

    He did not define his duty only by the play of forces or desires right now. He knows the law came from somewhere, and it is not his property to do with as he likes.

    That is the spirit I believe in as a juror: do the job, bearing in mind history and what the job is. Don’t treat legal power instrumentally.

    I’d like more guys in decision-making legal positions who think like Justice Thomas and fewer guys who think like Judge Pregerson, independently of whether I liked he results their method led them to, and independently of whether they were judges or jurors. I think this is the right way to go at law in general.

    Just making it clear where I stand.

    David Blue (61b35d)

  3. I suspected that was where it was heading, though had no idea you’d have such an interesting (and strong) example.

    My response, for what it’s worth.
    1. Judges are not the same thing as jurors.
    2. I for one don’t believe in rule simply by the Decisionmaker’s conscience — in my answer to your previous post, I noted and gave a (likely) hypothetical set of circumstances where I might follow the law rather than my conscience. I noted the danger to societal order of arbitrarily nullifying laws, even if I personally felt them to be unjust.
    3. That said (for example), if I, as a juror, was absolutely convinced that a defendant’s actions were protected under the Bill of Rights, as I understood it, then, yes I would vote to acquit, even if the judge had given no such instruction.

    Nullification is not to be taken lightly as a power, and I contend while it can certainly be used in situations well short of a breakdown of societal order, anyone with a conscience should also be very carefully weighing the cost to society and order of nullification.

    On (3), so would a judge, were he judging guilt or innocence. Now, you can argue I might be arrogant (in assuming I understood the Bill of Rights better than the judge in question) and/or an idiot (same reason) as a juror to do so. Fair enough. But that’s nullification.

    I do agree with you on this much. Jurors who would invariably cut the law to suit the shape of their conscience are not doing a service to anyone, least of all the administration of justice.

    Holmwood

    Holmwood (76cebf)

  4. 1. Judges are not the same thing as jurors.

    Exactly. Jurors are your peers, not legal experts nor a governmental entity which is the point of having them.

    Also, judges have more options at their disposal than answering yes/no questions. A judge can convict then impose a suspended sentence. A juror voting to convict has to assume the maximum sentence being imposed.

    Pablo (08e1e8)

  5. From my own jury experience (I don’t have the link handy – it’s in a previous comment thread), one thing impressed me from the judge’s instructions: he said he would make any findings of law (interpreting what a law means, what evidence would be allowed, etc.) and the jury was to make any findings of fact. It kind of takes the pressure off in thinking one needs to make a judgment of guilty or innocent of wrongdoing, but merely whether the accused actually did any of the things that are covered by the particular charges under certain standards of how well the charge was proved.

    In the case I was in, more than a few of us were pretty sure that the accused was guilty of =something=…but it was based on some suspicious actions of the defense and not at all on the particular facts to be proved by that case, as we were barely given anything to work with. We acquitted.

    Would it have been just for us to have pronounced guilty on any of the charges, because of an itching of conscience over letting someone we believed to be criminal get away with a nasty crime? We had one juror who was almost a holdout, until some of us let her know that many of us considered it entirely possible (even probable) that the defendant actually did what was charged, but that we thought the evidence just wasn’t strong enough to put it beyond a reasonable doubt. The question wasn’t proving that he =didn’t= do it, but that he did.

    meep (c0f65d)

  6. Patterico:

    If you place your conscience above the rule of law as a juror, you have no grounds for complaint when a federal judge like Harry Pregerson does so as a judge.

    My friend, with all due respect, your conclusion is logical gibberish.

    Just because I believe that there are some circumstances in which conscience should win out over the law does not mean I support every instance in which somebody makes that decision. Sometimes, people are just plain wrong.

    (And before you ask, the reason I get to make that decision is that you asked me what I, personally, would do.)

    As you describe Harry Pregerson — another example was Thelton Henderson, but I don’t know if you remember him — he was simply wrong in the way he overturned law to suit his conscience; so was Rose Bird (waaa-aaa-aay before your time, though I’m sure you’ve read about her); so was the Warren Court in Roe v. Wade.

    It is perfectly logical for me to pick and choose when such a momentous, terrible decision should be made. It is perfectly logical for me to say “I was right, but Pregerson was wrong.”

    I have already said that I would not nullify for every law I disagreed with; only those rare instances when a law or its application “shocks the conscience of the decent.”

    You and I may disagree where to draw that line; that does not mean no such line exists. Similarly, even if you can concoct such a borderline case that I would be in a quandry what to do, that does not mean that no such line exists either… only that the line itself is fuzzy at the border.

    (The existence of twilight doesn’t erase the distinction between night and day.)

    There are two major points to make here before proceeding:

    1. The judge himself is under much stricter and tighter moral control than a juror… because the judge has far more extraordinary power, granted him by the State, than does an ordinary citizen.

      With great power comes greater responsibility: the judge is more bound to follow the law than a juror because the judge has power over Society far beyond that of the mere juror. (We likewise hold George W. Bush to a higher standard of behavior and probity than we hold Jack the bartender.)

    2. If a judge really does believe that the lack of racial preferences would shock the conscience of the decent, then yes, he has a moral obligation to strike down such laws.

      And Congress has the moral obligation (and legal power) to impeach that judge and remove him from office. So it goes.

    There are Laws that trump all laws enacted by legislatures — and I don’t mean “the word of God.” I mean the moral law… one of the most basic of which, expressed in the Declaration of Independence, is that governments “deriv[e] their just powers from the consent of the governed.”

    Consent is not synonymous with the vote; else you’d have to say that Saddam Hussein governed by consent in Iraq. There are other ways to express consent or its lack.

    The Founders were not idiots; they knew that some juries would refuse to convict, no matter how clear the evidence, because they believed the law (or particular application) was so unjust that it had no place in a civilized society.

    Please don’t take this the wrong way, but I trust the Founders more than I trust you or any judge you could point at who is currently still sucking air.

    I’m sure you don’t mean it this way, Patterico; but you come across to me as telling us non-lawyers that we should just shut up and do as we’re told. One of my commenters kept saying that jurors had no right to do anything but what they were told to do by “the experts”; but rule by experts is a horror we have seen many times in history.

    Far rather we should have rule by individuals who know they are fallible creatures, and who will usually go along with the experts (the legislature, judges, doctors)… but who do keep somewhere in the backs of their minds that ultimately, they have the power — hence the responsibility — to act in defiance of what all the experts tell them to do.

    We are the governed; you require our consent to proceed with your prosecution. Ordinarily, you get it; but it’s not a “right” of the State… it must be earned anew each time by demonstrating the justice of your case, not merely its legality.

    In England, the judge can instruct jurors to convict. If we passed such a law here, Patterico; and if you were picked for jury duty (yes, I know that’s virtually impossible — work with me); and if you were directed by the judge to find the defendant guilty, even though you (and you alone on the jury) had grave doubts… what would you do?

    A) Would you go ahead and convict, because you agreed to follow the judge’s instructions?

    B) Would you stand and inform the judge that you could no longer serve on the jury, so that you would be removed — allowing the alternate to cheerfully convict in your place, because he was told to?

    C) Or would you vote not guilty, and damn the consequences?

    Dafydd

    Dafydd (6e94cd)

  7. Patterico:

    Sorry, the Burger Court. My mistake.

    Dafydd

    Dafydd (6e94cd)

  8. “In this country the People (bless their black, flabby little hearts) are Sovereign.”

    But do you agree the People are Sovereign (sic) when they vote, elect officials to represent them, etc.? In other words, are the People Sovereign when they determine to use the process to create the laws now being nullified?

    Patterico said in this post exactly what I told A.D.A. back near the beginning of this discussion. If you believe in jury nullification, you are heading down the road of anarchy, and why should I or anyone else approve or agree with that? I believe in the rule of law. It’s what works and creates a stable atmosphere for us all to live and work in. Otherwise, we truly might as well be living under a monarchy who rules by the Divine Right of Kings.

    sharon (dfeb10)

  9. The decision of a judge can, and in controversial cases often does, set legal precedent.

    The decision of a juror doesn’t.

    The maximum possible amount of legal damage any juror — however mistaken, biased, or just plain nuts — can do is to acquit one defendant. The maximum possible amount of legal damage a similarily off-the-wall judge can do is *enormously* greater.

    So to equate the two? IMO, totally off.

    Chuckg (b682cf)

  10. Belated afterthought — if all guilty/innocent verdicts needed to be applied with absolute strictness to the rule of law, the fug do we have juries for? The judge can do that.

    Juries are there to make decisions on a case-by-case basis. Judges are there to uphold the law. Both are necessary for justice, and the real problems lie in when tries to do the other’s role, or vice versa.

    Chuckg (b682cf)

  11. We’ve touched on the judge and the jurors, now let’s ask another question. What about the prosecutor?

    Is a prosecutor constrained by the rule of law in deciding whether to prosecute a case or not? The jury is supposed to convict or acquit based on what the law says is a crime, and the judge is supposed to make sure that’s what happens. But what is a prosecutor’s responsibility to prosecute violations of the law? Obviously, there is an ability to exercise discretion and we can probably all agree that there should be as there are cases that simply cry out to be ignored. Conversely, there are cases that are ignored and probably shouldn’t be.

    Should that discretion to ignore the letter of the law rest solely with the prosecution, and not at all with the jury of one’s peers?

    Pablo (efa871)

  12. The line of reasoning that says, “Oh, but the judge has a much weighter responsibility than those poor, ignorant jury members,” is flawed. Juries have just as much power as judges on those cases they sit, and denying that is ridiculous.

    The jury, in all jury cases, holds the power to convict; the judge only to determine sentence.

    It is a petty and weak argument to go, “Oh, but citizens do not have such heady responsibility!” when those citizens clearly do have that responsibility. The responsibility of finding a man guilty when the sentence is death is heady and great indeed. To claim that juries are somehow forgivable and without such responsibility is akin to that defense of “they do not know what they do.”

    Is that what the defense is in light of judges who exercise their rulings based on emotion and not logic? That the jury members, unlike the judge, are just poor, ignorant, emotional peasants who could not understand the law even if berated with it for hours? Give me a break. They can understand it fine.

    The line of reasoning, “Well, the jury members do not have years of law training,” is pathetic back pedalling. The juries are explained the law, how it was violated, and why they must convict if they believe the defendant to have broken it.

    On jury cases the jury is no different than that Supreme Court judge when it comes to correctly following and applying the law.

    And, Dafydd, using how England happens to operate is worthless. England is not the United States —like that even needs to be said— and your counter-argument has no legs until a law is passed that allows the Presumption of Innocence to be thrown out the window.

    And if the law is somehow wrong, guess what, that is what the Court of Appeals is for. Imagine that! A system set up to appeal convictions that were unjust because the law was wrong in a given case. What will those Founding Fathers think of next?

    Inquiring (24c50b)

  13. The jury, in all jury cases, holds the power to convict; the judge only to determine sentence.

    If a jury convicts but the Judge decides that the prosecution did not meet its burden, which is to say that the judge feels the jury erred, can he summarily acquit? Can he summarily dismiss charges he feels are groundless? Can the jury decide what evidence it will see? Can the judge?

    The judge has far more power than the jury. They are tasked with answering yes/no questions, period. Unless it’s a civil jury, in which case they also get to pick a number. The judge has far more latitude before, during and after trial.

    Pablo (efa871)

  14. “Juries have just as much power as judges on those cases they sit, and denying that is ridiculous.”

    Who’s denying that?

    What you’re denying is that the power of a judge goes well beyond the cases on which they sit… as the precedents they set can bind other judges, and other cases, potentially forever.

    Juries, OTOH, have their power end with the individual case in question, always.

    Chuckg (c2b49e)

  15. I can’t debate this separately with everyone, but a couple of brief points:

    1) I have said I would nullify in extraordinarily unusual circumstances, and provided a link to that post in this one, to clarify the boundaries of what I am talking about. I would ignore the rule of law as a judge as often as I would as a juror: only when the fabric of society was being ripped apart by laws that, for example, criminalized being Jewish or Arab, or legitimized slavery again. If I were a judge called upon to apply those laws, I wouldn’t. But that would be because the rule of law would no longer be worth saving.

    2) The point of the post is to respond to those who told me yesterday that they would *always* place their conscience above the rule of law. That doesn’t apply to many of you — Dafydd, for example.

    3) Pointing out differences between judges and jurors is relevant only if it goes to the issue I’m discussing: the propriety of *always* following your conscience over the rule of law.

    Otherwise, it’s a lawyer’s trick: distinguishing situations in irrelevant ways.

    Patterico (de0616)

  16. It would be ‘irrelevant’ only if jurors’ decisions could bind cases other than their own.

    The opening statement was “If you place your conscience above the rule of law as a juror, you have no grounds for complaint when a federal judge like Harry Pregerson does so as a judge.”

    This statement contains within it the assumption that jurors = judges, and should be held to the same standards. To say that we’re *not allowed* to question the reasoning behind that assumption is an attempt to declare yourself correct by fiat, instead of actually allowing debate.

    Chuckg (c2b49e)

  17. Question away. I’m just saying that if your questioning is off point, it’s off point.

    If I understand your argument, Federal District Judge Harry Pregerson would be just fine, and could overturn as many initiatives as he liked, because his opinions aren’t binding precedent.

    Patterico (de0616)

  18. C.S.P.:

    I made a specific argument in the post. It’s not a “do we like nullification or not?” post.

    If you can’t deal with that, maybe you need to be in another line of business.

    I deal with it all the time just fine, thanks, and I don’t need my commenters questioning whether I should be in my job or not.

    Patterico (de0616)

  19. There is a line here, and questioning my fitness for my job crosses it.

    Patterico (de0616)

  20. Jury nullification exists, but it has a much lesser effect than the far reaching impact of activist judges.

    We have a pyramid judicial system, fewer justices at each level.

    If judicial activism become prevelant at the base, the upper tiers of the system are limited by if nothing else resource and time constraints to accept for review only the most powerful of the cases.

    So therefore by default those cases not accepted for review are defacto existing precident that was never challenged.

    As time passes and the concurrent logic environment fades, these blighted opinions and decisions will propogate themselves thru the system.

    Jury nullification does not have such a viral effect. It is limited and specific.

    SlimGuy (ea6549)

  21. It seems to me that jury nullification is an independent jury, taking a decision in one case, not to apply the law strictly, because they collectively believe that the law is unjust or is improperly applied or whatever. When federal judges do so, they are not taking a decison that applies in only one instance, but cut broad swaths through the law and precedent. I’d call that a huge difference.

    [But how is the difference relevant to the propriety of the act? If the initiative is struck down by a trial-level judge, in a decision that carries no precedential weight, does that make it OK in your view? — P]

    Dana (3e4784)

  22. “If I understand your argument…”

    Which, you don’t. SlimGuy explains, better than I do, why your ‘isn’t binding precedent’ attempted counter-argument is fallacious.

    Your original argument is based on the postulate that jurors and judges have identical burdens of responsibility under the law, and identical opportunities to do damage to the rule of law. Since neither statement is true, your original argument is based on false premises.

    [Decisions of trial judges are not binding precedent. And this is wrong: “Your original argument is based on the postulate that jurors and judges have identical burdens of responsibility under the law, and identical opportunities to do damage to the rule of law.” No, it isn’t. It’s an analogy. Analogies are never precise and can’t be refuted by showing irrelevant differences. The duties are similar in that jurors and judges must follow the rule of law. — P]

    Chuckg (c2b49e)

  23. Well, I was correct in where I thought you were going with this when I answered yesterday.

    To the logical errors, I bow to Daffyds reply, and need not repeat most of his arguments.

    I’ll just observe that under your givens, presumptions, and flat declarations, there is no need for a jury.
    None.
    Period.
    Nada.

    That’s the dishonest part about this whole “debate” you’ve rigged for the argument. Yes, you rigged it. You’ve set the rules up such that only your desired outcome is acceptable. (Which, is the problem that the Nullification Education advocates complain about.)

    Since you’ve totally and completely negated the reason for having a jury (the judge is totally capable of making the judgement as to guilt/innocence, and under your value system, is far better equipped and able to determine the infraction of the law, if one exists)….

    Why are you attacking proponents of Jury Nullification (on their insistance that it’s a part of the law), rather than demanding that juries be stricken from the law in totality?

    Unix-Jedi (651a1b)

  24. I am not a lawyer person, I am one of those citizen outsiders that only observes the workings, or non workings of the judicial system we have depending on your viewpoint.

    But I wish to point out that one of the most glaring problems of the judicial environment we have is the “dilution factor”.

    The population of this country is on a constantly upward march, if the number of available courts remains static, then the impact is just as telling as inflation that the federal reserve is so watched about.

    I would love to see a graph of the number of judgeships v GDP or population statistics.

    Pure growth of population should dictate that splits and growth of judgeships at all levels should be occurring at each level of our system, but all I see is resistance to this prospect.

    If we don’t keep some kind of a per capita balance to this environment, this will be a bottleneck that will strangle the system by lack of oxygen.

    As population growth occurs we will have to eventually insert additional layers in the judgeship triangle to to act as additional filters sp we cam handle the workload, it is the only way we can address the validity of lower court decisions or we can choose to ignore the dilution and acceptance of bad decisions as useful and suffer death by a thousand cuts.

    SlimGuy (ea6549)

  25. Dafydd,

    Excellent post that summarizes well the view that no man-made structure forged by committee, no matter how ancient and respected (or how invested some may be to it), trumps basic human justice.

    Surprise, some people may go overboard and try to nullify everything that comes their way. Some people will also take perfectly innocuous beer, and destroy their life with it. Raising your nose at everyone who drinks just makes you look like a silly prude.

    Frank N Stein (38ff57)

  26. “…You said you would always follow your conscience over the law.

    Here’s my question for you:

    Do you think that’s how federal judges should behave?

    Because some of them do — and if you believe that conscience always trumps the rule of law, you have no standing to complain about it.”

    The flip side of that argument is: In our increasingly politicized and capricious system of justice, what other guide does a juror have but conscience, including one’s own understanding of the law?

    You’re right, Patterico: some judges – quite a few of them, including certain Supreme Court justices – are notorious for deciding cases based on what they think the laws ought to be. And quite a few prosecutors have become notorious for filing questionable charges against people based on what they think the laws ought to be, or to “make a statement.” (Elliott Spitzer, Ronnie Earle and Mike Nifong come to mind.)

    For that matter, quite a few of the “laws” governing our society, like McCain/Feingold, are themselves arguably unconstitutional. And the whole concept of “rule of law” becomes meaningless when the maze of laws and regulations we have in this country is so complex that just about anybody can become a criminal without even trying.

    No, I don’t take the responsibilities of jury duty lightly. Nor am I comfortable with the notion of jury nullification. However, at the end of the day I, as a potential juror, still have to look at myself in the mirror and know I did my best to see that justice was done. And if that means voting to acquit a defendant who was being unjustly prosecuted for a crime, even if the defendant were technically “guilty,” then so be it. I look on the potential of jury nullification as another “check and balance” on unrestrained judicial power in extreme cases.

    Wes S. (04e73e)

  27. You have got to be kidding. This is what all of this was about?

    The cases, oaths, powers, and duties of appellate judges and jurors are very different, as are the consequences of their actions.

    As a juror, I can say “guilty” or “not guilty”; I have no other option (well, I can run away, saying neither.)

    A trial judge could have dismissed the case, dismissed it with prejudice, directed us to return with a not-guilty verdict, set aside a guilty verdict, continued the case into perpetuity, releasing the defendant while he contemplated accepting the verdict, and I don’t know what else.

    Appellate judges don’t get to look at “facts”, they look — supposedly — only at mistakes of law. (Remember, I am not a lawyer; enlighen me.) (I think that this might be what your real complaint is, he’s looking at the “facts” as well as the law.)

    I can understand (although I have not paid much attention to his rulings) how someone could think that “Three strikes” convictions are such that his conscience was shocked. I can remember when the idea first came up, and the number of horrorible possiblities that were discussed. It seems that a number of them seem to be coming true, as well as the perpetual imprisionment of those who’ve killed and eaten babies on three different occasions.

    I would have written the law differently, perhaps by giving the jury (or judge, if there was no jury) the option of declaring that a conviction was a “strike” for future consideration. This, of course, would allow even the baby-eaters an additional three episodes of baby eating before being locked away forever which would be very bad (why were they not locked away forever after the first?) but it might keep a few pizza-thieves from a lifetime in prison, which would probably be a good thing.

    I don’t think judicial nullification has much to do with jury nullification. The former is about errors in law, the latter is about cases that shouldn’t have been brought. What’s the oath that judges (and appellate judges, if different) take?

    (For some reason little bits of Kafka’s In the Penal Colony keep running through my mind as I type this.)

    htom (412a17)

  28. At each level of our judicial system, I have observed that the higher you go the more focused the decisions are, this is a good thing.

    Broad decisions at the highest level can reverbrate to many unintended consequences as they expand at each of the lower levels.

    We have many years of jurisprudence to support, if we wish to continue with our system. Any broad stroke at any level creates and environment that goes counter to the limited decision necessity.

    As a civiliztion or any other social group, we accept certain ties which bind us. If we in our judical area accept meat cleaver solutions v small refinements we only hasten the day to when we have effectively knitted a gordian knot from whence we have no escape.

    Where do we go from there?

    Our aim is fair and true justice. A noble thing, but we always have to be aware that in pursuit of this goal, we too many times drop a bowing ball on our foot and that is not a good outcome.

    SlimGuy (ea6549)

  29. Posing the question, “Is nullification OK?” is like posing the question, “Is it OK to kill someone you don’t like?” It’s OK under very limited specific circumstances, that can not be expanded at all if we are to maintain a civilized society. If the reason that I don’t like this person is that he is pointed a loaded weapon at me or some other person and acting agressively, yeah, it’s OK for me to shoot. If I don’t like him because he “stole” my girlfriend, it’s not OK, no matter how much I loved her. Once in a while, a DA might go a little nuts and prosecute some poor sap who is technically guilty but did nothing that hurt anyone (e.g., driving with expired license due to oversight but no one get hurt). That’s OK by me. What is not OK is deciding that a law passing by a representative legislature and signed by an elected executive is a bad law and should not be applied under any circumstances (e.g., selling 19 year old a beer because you think that anyone who is old enough to join the army should be able to buy a beer).

    No, I’m not a lawyer.

    jb (5aa767)

  30. “do you think that’s how federal judges should behave?”
    i had to laugh. many federal judges are like life-tenured czars in their courtrooms, laws unto themselves, knowing supreme court constraints only remotely, at a great distance, as pluto knows the gravity of the sun. some of them, i couldn’t lie fast enough to keep up with. the harry pregerson exhibit doesn’t support patterico’s case, if anything, it supports nullification by providing an example. anarchy isn’t as scary as fascism.

    assistant devil's advocate (49b90f)

  31. Cliche: There are four boxes on which the Republic stands – The soap box, the ballot box, the jury box, and the cartridge box.

    Judges, by virtue of their position, are there not to judge the law, but apply it. Jurors, however, have the responsibility to judge not only the guilt of the accused, but the application of the law. This is a massive responsibility, and it can be abused, but it should not be eliminated. Our elected legislators can pass bad law. We cannot depend on the Judicial branch to invalidate such bad law. The only recourse then, when such bad law is applied, is to refuse to convict.

    I support jury nullification, but I realize that implementation of it is problematic at best. I oppose legislation from the bench.

    Kevin Baker (a4e9f0)

  32. “However, at the end of the day I, as a potential juror, still have to look at myself in the mirror and know I did my best to see that justice was done.”

    Who’s justice? Juries are there to impose public justice (i.e. according to law), not private justice. In the end its still about the oath; how can one look oneself in the mirror knowing they have sworn an oath in public to do one thing and then done another?

    tbaugh (bee8c0)

  33. Patterico — my analogy is not wrong.

    Let me quote what you bold-texted in your original post.

    “If you place your conscience above the rule of law as a juror, you have no grounds for complaint when a federal judge like Harry Pregerson does so as a judge.”

    Which statement says, flat-out, that if we have no objection to the person holding office A performing a specific action, we likewise *cannot be allowed to have* any objection to the person holding office B doing the same thing.

    What assumption is unavoidably contained within that line of argument?

    That office A (juror) and office B (judge) have identical responsibility and authority.

    Whereas I take the position that I can damn well object to a judge doing something when I don’t object to a juror doing that same thing, and not have the slightest logical inconsistency in doing so, because [b]jurors and judges ain’t the same thing[/b].

    Chuckg (c2b49e)

  34. Or to put it more simply — of *course* we hold judges to a different standard than I hold jurors.

    What, exactly, is so wrong with that?

    Chuckg (c2b49e)

  35. Being a simple man I am afraid I need a clearer explanation of our Pontiff’s logic. I understand the concern letting the flock determine in a whimsical fashion who is subject to Justice, however I am confused by His foundation. It seems unnecessary to me that the Pontiff support upholding the Rule of Law with the provided hypothetical situation. Why illustrate to the flock His obviously superior ability to determine when circumstances are so unusual or unjust as to require an exercise of His conscience? It seems to me in better fashion, not illuminate the existence of such a line in the first place. If people begin discussing when an act of conscience becomes necessary, they begin to question the authority of the State more generally. I respectfully submit that the Pontiff not present this to the people, and instead formulate dicta more suitable to the goal of maintaining the State’s role in the Guidance of Society.

    Lambda (eff840)

  36. Well, I’d do A or B. C is moral cowardice, right up there with the “if I don’t do it someone else will” line of rationalization that might lean one from choice B to choice A.

    It seems that the argument has mutated, with the labels staying the same. Originally, you were talking about Balko’s call for activist nullification, now we are talking about situational nullification. Perhaps this is good, as Balko’s argument is a straw man, but I detect a leakage of your argument from one aspect to the other.

    I really think the reason why we are talking past each other here is that, as a lawyer and prosecutor, you view the Law as something due great deference, and many of the laymen commenting see it in a lesser light. In my case as simply an attempt to define an approximation of justice, often flawed. You also seem to view the purpose of juries to be strictly limited to finding facts in a strictly controlled procedure — almost to the point of checking boxes and applying a formula. I don’t — I see juries having additionally the job of injecting judgement into the process — something that the Law, no matter how hard you try to define all possible situations, cannot provide.

    Taking the nullification perjorative out of the question, what I see is this:

    If the evidence showed beyond a reasonable doubt that the defendant was guilty of a breaking a valid law, but common sense told you that such a result was nonsense, would you:

    a) follow the law and convict;
    b) follow your common sense and acquit; or
    c) ask to get off the jury, so that someone lacking common sense could convict?

    I know this isn’t what you think you asked, but that’s how it reads to some of us.

    The point of a jury is not only to find the facts according to the law — it is also to protect the law from itself. You may want to consider if the law is better served with this kind of escape valve than not. The stricter the system, the more brittle it is, and the less likely it will work in all cases — simple engineering principles.

    Kevin Murphy (0b2493)

  37. Questions for you, Patrick:

    Who works for whom? Does the jury work for the court, or the court for the jury?

    Whom does the Constitution make supreme? Why is that?

    Kevin Murphy (0b2493)

  38. “If the evidence showed beyond a reasonable doubt that the defendant was guilty of a breaking a valid law, but common sense told you that such a result was nonsense, would you:….”

    But of course, when the genie is out of the bottle, and jurors are informed that they may “nullify”–indeed, have a “right” to– you can’t limit it this way. It would also include “If the eivdence showed beyond a reasonable doubt that the defendant was guilty of breaking a valid law, but your conscience told you that this sort of conduct shouldn’t be made criminal, would you:….”

    So as a juror I could swear to render a verdict in accordance with the facts and the law, but actually decide to acquit (which could mean simply hanging the jury if other don’t agree with me) because as a matter of my own personal sense of justice I don’t think violations of drug laws, or tax laws, or firearm laws, or laws against pedophelia, or name your offense, should be punished.

    Why have an oath at all?

    tbaugh (bee8c0)

  39. Do not equate judges with juries. Judge and jury are not the same by any stretch. While I agree that juries should be expected to follow the law as much as reason allows I also believe that it is unrealistic to expect that juries must be bound by law in the same manner as judges, simply because juries play a different role from a judge. Of course, this also presumes that the law in question is already clear, concise, and not open to interpretation or dispute among the judge and jurors.

    ThomasD (21cdd1)

  40. as some of the comments have alluded to, this article conflates two very different issues: jury nullification and judicial activism. i would like to primarily address jury nullification.

    re: jury nullification, i will concede that there is no strong argument for the legality of its use. however, jury nullification is a form of civil disobedience used to address an imperfect legal system. you assume in your article that the legal system is perfect (another issue that some of the comments have alluded to). this assumption is dubious and both sides of the legal spectrum can point to imperfections. one could make the anarchy arg and say that the law, despite imperfections, is set by the legislature and must be followed. this again assumes that our legislative system is perfect and fair. without debating the legsilative system’s possible shortcomings and even assuming it is operating correctly, democracy allows for the people to object and protest laws through different means. jury nullification is one just mean. if we ignore the right to protest, we ignore the origin of our country’s founding, and a fundamental difference between democracy and fascism.

    re: judicial activism, i’d like to point out that your use of judge pregerson’s dissents is meaningless. his dissents carry absolutely no precedential weight in the law. by the time judge pregerson files his dissent, he is most likely fully aware that the dissent means nothing except as a symbollic vote of his conscience. the use of judge pregerson is merely another way to stoke the destructive polarizing flames that are far too prevalent in american politics today.

    veinofbutler (f496b0)

  41. You have a great blog, here, Patterico. You make it so excellent with the material you choose to post. So, even when we hand you your head, you should hold that head up high.

    [Thanks, but I think it’s an illusion. The fact that I’m at work and unable to respond (and posting this small note on my lunch break) doesn’t mean I’m getting my head handed to me. Indeed, many of the people here seem to assume I am against nullification in every single instance, though I say otherwise in the post. There is a lot of “I resent these high-handed lawyers” business going on, though as a juror I would feel constrained by the same principles I articulate here. Many don’t seem to get that I’m making an analogy. Saying “judges and juries aren’t the same” without more, as many have, or arguing that jurors have less power than judges, are, I think, supremely unconvincing ways to respond to the analogy. Stealing $1 million and stealing $100 aren’t “the same” and don’t have the same effect. But if I argue that the $100 thief has no standing to criticize the $1 million thief, because he himself is a thief, it is not a compelling rejoinder to note that “they aren’t the same thing” or that the thefts are on a different scale. So what? Both are stealing. And both Pregerson and the nullifying juror are trashing a rule of law, set up by the consent of the governed through a democratic process. — P]

    RJN (e12f22)

  42. Pat:

    Thanks for furthering the discussion. After the flame war that erupted recently on another thread, I’m somewhat reluctant to post again. Having said that, I acknowledge and apologize for the part I played in it.

    But I cannot go along with your point here. A juror who is opposed to or simply refuses to follow the Judge’s instructions on the law will, most usually cause a jury to hang. Although we’ve all assumed for purposes of this discussion that nullification is common and widespread, in fact it is not.

    A juror who is refuses to deliberate or to follow the law and is cajoling or attempting to convince his/her colleagues to do the same is, in almost every case, reported to the judge. If the misconduct is substatiated, the offending juror{s} is/are dismissed and replaced with alternates. An entire jury refusing to follow the law is a rarity.

    In any case, when it happens, it affects only a single case resulting in mistrial or acquital. But when a federal judge or a majority of a federal panel, either appellate or the Supremes themselves, refuses to follow the law, the decision, if allowed to stand, becomes the law of the land.

    The recent decision by Judge Taylor-Diggs in Michigan is an example. Roe v. Wade is another. Although it is likely that Judge Taylor-Diggs’ ruling will be reversed, there is no such guarantee that “Roe” will suffer the same fate.

    The enormity of the power of the federal judiciary was discussed by Justice Scalia in a speech he made in the last year or two. He pointed out that when a federal court declares a particular law to be unconsitututional or an activity, in this case, abortion, to be a constitutional right, the debate over the issue is removed from public discourse. It is over!! The Supremes have spoken. No laws can be made at the federal or state level in contravention the position taken by the federal court.

    I can’t cite the case or comment off the top of my head, but all lawyers, law students and historians will remember it well: A Supreme Court Justice at one time said something to this effect: “Standing alone, my opinion on any issue of constitutional significance bears little weight; but when joined by four of my brethren of like mind, I am the law of the land.” O.K., I paraphrased. Even though I enclsed the passage in quotes, it is not exact. The quotes are there more for emphasis than anything else. But the essence of the statement is right on.

    Federal judges are scary powerful. The occasional wayward juror is merely a nuiscance.

    Ms. Judged (5c27b9)

  43. Since every one of us is guilty of serious law breaking on an almost daily basis, all it takes to deprive a citizen of his freedom is the desire by someone in a position of importance.

    Did you know it was a crime to “carry a prescription medication in an unapproved container” even if prescribed for you. Put your heart pill in a day of the week pilbox and you could go to prison. And don’t laugh, after Martha Stewart we all know you can be put in prison for a meaningless infraction.

    Doug_S (0a73e1)

  44. Another great example of why lawyer jokes will never go out of style. You guys think yourself too self-important.

    All power derives from the people. Legislators, prosecutors, and judge are all employees. The Founding Fathers were quite aware of the problems with letting the inmates run the asylum and insisted on the check of the jury system. It serves as a final quality control check point on the processes of writing and applying laws.

    The twelve citizens on the jury take that responsibility seriously in almost all cases. Willynilly nullification happens but is rare, more rare than the law writing and application processes running amok.

    The right and duty of the jury to have final say on particular instances that come to trial are the way it is. It is also the way I want it to remain.

    If you think otherwise, try suggesting a Constitutional amendment and we’ll see how far it flies.

    Whitehall (efb88d)

  45. The difference is the judge SUPPOSED to follow the law, this is a nation of the RULE OF LAW.

    But, the ballot box, the cartridge box, and the jury box, are means by which the people can address directly injustices. For 12 people to come to the realization that a mis-carraige of justice is happening, if far different than a rogue judge deciding what the law should or shouldn’t be.

    And despite the fact that it is possible that some guilty people would get off via jury nullification, the far more important goad is that an innocent person not go to jail for a bad reason.

    Telling the judge that because we expect the jury to vote their conscience he can to is wrong. He is SUPPOSED to APPLY the law, but the jury should always be allowed (indeed, instructed) to judge the law concurrent with their judgement of the defendent. If we did this maybe we would have fewer capricious prosections.

    scott wilkinson (cb2474)

  46. APatterico,

    I haven’t read the other comments yet – busy day – but … well said! I wondered if you were gonna go in this direction.

    ras (a646fc)

  47. A few years back, the State of Nevada did away with the right to a jury trial in criminal misdemeanor cases if the maiximum possible punishment was 6 months or less in jail.

    The U.S. Supreme Court, in reviewing a challenge to that law, held that there in no federal constitutional right to a jury trial in such circumstances. As far as I know, that law is still on the books in Nevada. Any Nevada criminal lawyers or judges on line who could comment?

    BTW, if such a law passed in California, the trial backlog in most Courts would be cut significantly as would the costs of court operation.

    Worth it? Fire away.

    Ms. Judged (5c27b9)

  48. I am amazed that you posed this question of the Judge vs the Juror. You have to know this is an “apples and oranges” choice. The Judge is part of the legal system 24/7/365. The Juror is brought in to represent the “people” and is an outside influence.

    Bill Millan (0b61a8)

  49. Patterico’s Readers:

    Lest I become the poster-boy for rampant and licentious nullification, let me reiterate my standards for that step.

    The most drastic step a people can take against a government that oppresses them is to take up arms against it and foment a revolution. One should never do that “for light or transient causes,” but only, as the Declaration continues,

    — When a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism.

    Then and only then.

    The most drastic step — short of an armed takeover of the building — that an individual juror can take against a government that is oppressing an individual defendant is to vote “not guilty,” even when all the evidence points to legal guilt beyond any reasonable doubt.

    The only circumstance under which a juror should undertake such a step is when, denied that step, the juror would seriously consider the “armed takeover” scenario.

    Whether he would go so far or would chicken out is both irrelevant and also no indicator of his own courage; even a brave man can decide not to start a one-man war that would probably be futile. But unless the juror sees the injustice unfolding before his eyes to be on a moral plane where he would literally cheer, and account it justice served, if the defendant broke free and escaped… then he should not contemplate juror nullification.

    We have, alas, reached such a level many times in American history; we have reached that level several times in my lifetime. But it is very rare nonetheless. In the vast majority of cases, even those on laws that I think are very wrong, I would not have considered jury nullification.

    It would have to be in a case in which, as another great thinker said recently,

    — The fabric of society was being ripped apart by laws that, for example, criminalized being Jewish or Arab, or legitimized slavery again. [Emphasis added]

    It needn’t be limited to those specific laws, but it must be a law or application that was as bad as those… one that “shocks the conscience of the decent.”

    Then and only then.

    Dafydd

    Dafydd (6e94cd)

  50. patterico, I would have thought that you would have a better understanding of the legal system, since you are a prosecutor. This is probably a very telling sign that the judicial system has changed so dramatically from what it is supposed to be.

    [And they say we lawyers are arrogant! I think I understand the system just fine. I am making an argument as to how I think others should see it, and my argument squarely lines up with the current state of the law. — P]

    Jury Nullification is the last saving grace for a defendant when going up against a government intending on punishing someone not deserving of it. In an honorable society, we wouldn’t have to worry about people nullifying because of prejudicial issue or siding with a defendant because of something like race/gender/lifestyle…but it happens. Does that mean that if a small percentage of people openly abuse the system, that we shut that avenue of the system off? If thats the case, lawyers and judges would have been removed long ago.

    [But refusing to follow the law is not a legitimate avenue for a juror. The law is crystal clear on this point. If a juror declares that he cannot follow the law, the judge has a *duty* to remove that juror. — P]

    To answer your specific question about judges….judges aren’t supposed to decide guilt or innocence based on their ideology. They are to interpret the laws as they apply in a constitutional light and to nullify the law themselves if it is not constitutional.

    Guilt or innocence is the prerogative of the jury as WE understand the facts and the law, not according to the judges instructions on what the law is/should be.

    For the last 70 years we’ve had judges in high courts deciding away our rights according to their ideology/conscience when they are not imbued with that kind of power.

    dksuddeth (ac44fb)

  51. Dear Lord, man.

    How on earth am I supposed to get utterly bored with blogging if you insist on writing interesting posts like this?

    You really are infuriating.

    Cassandra (c9069a)

  52. Allow me to be consistent and suggest that you would not substitute your conscience for the “rule of law” in the way you’ve set this up. You nailed virtually everyone on this post, but then wrote this:

    1) I have said I would nullify in extraordinarily unusual circumstances, and provided a link to that post in this one, to clarify the boundaries of what I am talking about. I would ignore the rule of law as a judge as often as I would as a juror: only when the fabric of society was being ripped apart by laws that, for example, criminalized being Jewish or Arab, or legitimized slavery again. If I were a judge called upon to apply those laws, I wouldn’t. But that would be because the rule of law would no longer be worth saving.

    I believe that as a judge in this case you would rule based on the higher law of the Constitution, and your decision would spell out very clearly that this subordinant law was in violation of the true law of the land. Therefore declaring the “rule of law” repugnant to the Constitution — which is part of a judges duty, no?

    This is nullification as libertarians define it, but not an individual subverting the law in favor of their beliefs.

    Ipso fatso.

    Leopold Stotch (c947e7)

  53. OK, a few q’s back at the lawyers here, cuz this has been one of the best sets of posts I’ve ever enjoyed; truly thought-provoking:

    1. Is jury nullification, when appropriate (and yes, we’re talking about occurrences that are few & far between) actually consistent with the position that judges must follow the law, in that both are intended as checks on judicial tyranny? This applies only when, of course, the jury nullifies because they believe to do otherwise would violate the letter or spirit of the law, aot when they do it just cuz they wanna make the rules.

    2. Why does the current oath require fealty to the judge’s instructions rather than directly to the law? Would it not be more consistent to have a jury swear to uphold (and if necessary to reconcile the letter and spirit of) the law as best they understand it?

    3. Come to think of it, would it be fair to say that those few times where jn can be justified are often where juries think that the letter of a law is being applied overly-literally and against its spirit and intent, such as by prosecuting one consenting teenager for sleeping with another cuz their ages are a couple of years apart?

    ras (a646fc)

  54. If an FBI agent coame to your door and asked to talk to you because he was investigating a neighbor for possible child abuse and interstate transport of a child, here is what a competant lawyer would advise:

    Do not agree to an interview. Say, “My lawyer will contact you, please give me contact information”. Say nothing else.

    Because, the FBI is permitted to lie about the reason for questioning you, it may be the $15 in federal benefits claimed somehow by you at some time or the billing of your wife who is a doctor and gets federal medicare moeny at times.

    A lie to an FBI agent can result in you in prison for lots of time, no underlying crime, no harm proven. The FBI may review the case file minutes before talking to you, you may answer from memory what seems true to you at the moment but later proves a false statement to a government official.

    No mens rae requirement, an innocent lie and you are in the big house, consult a lawyer. There are a thousand other ways you can be convicted of a crime anyway.

    Doug_S (0a73e1)

  55. It appears to me that much of this debate is framed over what the ultimate role of the jury is — or should be. The argument against jury nullification appears to sum up to “the role of the judge is to determine the law; the role of the jury is to decide the facts”. It’s an internally consistent view, and one strongly espoused by the legal profession.

    The argument for jury nullification appears to be that the law is written for the general case, and there are times when “correctly” applying the general case to the particular case results in and unjust outcome — sometimes so unjust that the jury should over-rule the “correct” application of the law.

    I don’t know what I conclude on this, and it is an issue I have thought about on each of the several times I’ve been called to a jury. In general, a jury should decide the facts — but one of the roles of the jury, if I understand the evolution of them in English law, was to act as a check and a defense for the accused against the arbitrary action of the law (e.g. Art 39 of the Magna Carta). The closest thing in the “no nullification” view of the world would appear to be executive clemency — which does not appear to me equivalent.

    There is no easy answer to jury nullification; to say that it is always appropriate is to deny the rule of law. To say that it is never appropriate is to claim the infallibility of the law and the court. Neither is a satisfying position. But if I must choose the mechanism to deal with the place where the law and justice are in conflict, I would rather place that faith in a jury of citizens than in a single judge.

    On a related note, to claim

    If you place your conscience above the rule of law as a juror, you have no grounds for complaint when a federal judge like Harry Pregerson does so as a judge.

    sets up a false equality; if the roles of the judge and jury are different, then the moral principles governing their behavior may be different.

    Mark (005214)

  56. There’s precious little argument on this thread specifically explaining why the rule of law applies to citizens and judges — but not jurors.

    Most people say simply: why, judges are not jurors.

    As if that is an argument.

    Most also proceed from the entirely false assumption that jury nullification is a right, not just a power that results from the fact that we have made not-guilty verdicts unreviewable (wisely, in my view).

    It most certainly is not a right. The California Supreme Court has spoken on this quite plainly. Jurors have no legal right to ignore the law, and if they declare they do, the judge has a duty to remove them from the jury.

    But the structure is set up so they have the power to do this. This is a necessary side-effect of making not-guilty verdicts unappealable — the idea being that we should not invade the province of the jury.

    There’s a lot of talk about the Founders in this and other threads, but I’m a Scalia textualist. The words that mean something to me are the words they enacted into law, through the Constitution and statutes. And there is no Constitutional or statutory provision that says jurors may ignore the law.

    As for the talk of “justice” and “consent of the governed” — well, in an earlier nullification thread from last year, a fella named Xrlq put it well:

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

    Damn well said.

    Patterico (de0616)

  57. sets up a false equality; if the roles of the judge and jury are different, then the moral principles governing their behavior may be different.

    The difference is that judges are supposed to rule on the law, while juries are not. That means that if anything, we should be more tolerant of the Harry Pregersons who import “conscience” into the law than to jurors who aren’t supposed to go there. Of course, if you buy the premise that juries are supposed to rule on both law and fact, then there is no principled reason for distinguishing “conscientious” judges from “conscientious” jurors. So depending on your perspective, advocating jury nullification is either just as bad as championing Harry Pregerson, or it’s worse. Take your pick.

    Xrlq (f52b4f)

  58. Good points, Xrlq.

    Also, Pregerson’s abandonment of the rule of law can be fixed. The jury’s can’t.

    Also, nobody making the “but Harry Pregerson creates precedents!” argument has responded to my counterargument: what if he were a federal district judge (trial judge) whose decisions don’t create precedent? Would it be okay then? Bueller?

    Patterico (de0616)

  59. Pattterico

    For those of us who don’t have the familiarity you do with the judicial system, please list which courts decisions do create precedent, is it only the supreme court or at which levels does this occur.

    I have reviewed some court opinions that seem to refer to precedents at many levels of the court system

    This is not a snark comment but a true desire to learn.

    [Appellate courts issue decisions that bind the courts below them. That’s binding precedent, which is the kind I was referring to. Any court can write a decision that can create a persuasive and non-binding “precedent” — but that’s no different from jury nullification, which can create a non-binding example that may persuade others to do the same (e.g. the Zenger case). Now that you understand this, are you in favor of activist trial judges who don’t create binding precedent, the way you approve of activist jurors (hey, I like that term)? — P]

    SlimGuy (ea6549)

  60. SlimGuy–

    You need an appellate decision (either by the court of appeals or supreme court of a jurisdiction) to create what’s called “mandatory authority” for the purposes of controlling precedent. Trial court decisions are, at best, persuasive authority, and no other court is obliged to adopt logic that has merely persuasive status.

    Federal Dog (9afd6c)

  61. There’s precious little argument on this thread specifically explaining why the rule of law applies to citizens and judges — but not jurors.

    Because most of us, I believe, realise that you’re defending a rigged system. (Rigged: Judge asks before the trial “Will you convict if I tell you to?” and you’re saying that anybody who says “I’m not going to say that” or “I’ll decide that later” will be booted in favor of those who say “yes”.)

    Most people say simply: why, judges are not jurors. As if that is an argument.

    Works for me.

    And even you admit that you would “nullify” – given the right reason. Which means it’s all hypocritical. You get to decide that, but not me.

    (absent circumstances so unusual that the entire fabric of society has broken down).

    Err. So only you get to have that discretion?

    That’s the entire problem with your argument.

    You feel that you have the needed, required discretion. Because you get to decide who to prosecute and for what. (Unless you’re going to say that you’ve never failed to prosecute when you were aware of a breach in the law, and you’ve never asked for less than the maximum, you’ve been using your discretion).

    Your [the government prosecutor] discretion means that a Judge’s discretion comes after yours. Then, the Judge gets some ability to use discretion, which you seem to be mostly accepting of.

    But then you say that jury cannot have any discretion. The Jury is not allowed to determine justice based on their own life experience.

    Yes, this introduces all sorts of idiots and idiotic decisions into the process. Yes, this makes things harder for the prosecution, the court, the defense.

    You fail to follow your logical train of thought through: If the jury is not allowed discretion, why do we have a jury?

    Jurors have no legal right to ignore the law, and if they declare they do, the judge has a duty to remove them from the jury.

    Again, this is rigging the system. That’s the problem with arguing this point. You’re not debating if it’s a good idea to rig the system. You are refusing to even debate if the system is rigged.

    Instead, you want us to come and “attempt” to convince you that the system has never been rigged, and anyone who thinks it has, should be removed from the discussion.

    You’re right, of course. The explicit Constitional requirement for a jury to be present does not specifically say “and to rule on the law”. And you’re right in that the average jury ruling on the same law is pretty heebie-jeebius.

    I really think that the Founders totally under-and-over-estimated the lawyers that would follow.

    So, in short: the aquittal of William Penn was incorrect, and the imprisonment of the Penn jury was correct. The releasing of said jury was incorrect, and they should have themselves been charged with crimes?

    Charging the jury with criminal sanctions for failing to convict. Wow. I can’t see any problem coming from that.

    And no, you haven’t explictly called for that. But you have implicitly.

    That’s why I haven’t addressed forcing jurors to “obey the rule of law” – because that [criminal sanction], is the only logical outcome.

    Unix-Jedi (651a1b)

  62. There are so many things that I wish I had time to say, but I will stick with my original point. Patterico, you have already outlined your agreement with the power of jury nullification. You don’t get to be the only one who decides when the “Fabric of Society” is breaking down. Don’t you get it? You are not The One that gets to decide that the crime of being Jewish is the final straw. You are an idiot if you believe that being a Jew can’t be criminalized with a seemingly intact “Fabric”. Or do you think the courtroom would be burning down around your little tribunal while the Jews were being sent to their final resting place? Of course you mean the breakdown of the “Moral Fabric” an even more difficult to define point of no return.

    Your quoting Xrlq there just adds to the phenomenal air of arrogance permeating the discussion. “12 semi-randomly selected individuals of average (or less) education” the “full informed (runaway) jury movement”. The wine-sipping libertarian. God forbid he or she make a decision of conscience.

    Why isn’t this discussion about a mob of 12 with the pitchfork and torch sending people to prison? If I remember correctly we don’t usually have a problem hanging people. I mean get a few people together and deciding guilt has always been easy right? Justice is just a rope and a tree away.

    Lambda (5eeb34)

  63. What if some aspects of formal education actually lowered our ability to use good real-world judgement, rather than raising it?

    Nah, never happen. They only teach truth.

    ras (a646fc)

  64. Also, nobody making the “but Harry Pregerson creates precedents!” argument has responded to my counterargument: what if he were a federal district judge (trial judge) whose decisions don’t create precedent? Would it be okay then? Bueller?

    Definitely not OK, but not nearly as harmful, either. If someone could convince conscience-boy to depublish all his rulings, I could almost live with that result. Almost.

    Xrlq (f52b4f)

  65. Patterico,

    About your statement “there is no Constitutional or statutory provision that says jurors may ignore the law.”

    So? – the Constitution is explicit in Amendment X of the Bill of Rights:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. ”

    I read that as the power of judgment of the law in a trial is reserved to the people as represented in the panel of the jury.

    Whitehall (efb88d)

  66. XRLQ:

    Patterico has already said that he supports JN in a tiny set of extreme circumstances. How about you? Would you ever, under any circumstances, vote not guilty, even if you had no reasonable doubt that the defendant committed the actions that were duly declared a crime by a properly seated legislature, and upheld by the relevant court authorities?

    Ever? Under any circumstances?

    Dafydd

    Dafydd (6e94cd)

  67. What’s the differnce between “circumstances so unusual that the entire fabric of society has broken down.” and “Whenever I think it’s justified?”

    Joe (3406ee)

  68. Dafydd:

    Patterico has already said that he supports JN in a tiny set of extreme circumstances. How about you? Would you ever, under any circumstances, vote not guilty, even if you had no reasonable doubt that the defendant committed the actions that were duly declared a crime by a properly seated legislature, and upheld by the relevant court authorities?

    Ever? Under any circumstances?

    Yes, but only under extreme circumstances. I mentioned in a prior thread that I wouldn’t hestitate to nullify if we were living in Nazi America, where being a member of a given race warrants a death sentence, but for some odd reason we’ve still kept the jury system around so no one gets sent to our version of Auschwitz (Gary? Trenton? Denver?) without first being convicted of being a member of the targeted race by a jury of one’s peers. In that situation, thumbing my nose at the rule of law would not bother me in the least, as the law itself would be so bad that the rule of law is no longer worth preserving. In a somewhat less egregious case, I might rationalize that my nullifying the law in one isolated case won’t cause the entire legal system to crash and burn, but will encourage other juries to nullify in other, unpredictable cases. In that case I’d try to estimate how much damage my nullificaiton would do to the rule of law (directly or indirectly), and then ask myself if preventing one individual miscarriage of “justice” was really worth it. Nine times out of ten, at least, it wouldn’t be.

    Xrlq (a0a088)

  69. Long ago and far away, I was not the defendant, who I’ll call Joe.

    Joe is out cross-country skiing in the winter, in the National Forest deep in Wisconsin; taking pictures, sipping on brandy from a flask. He comes upon a running automobile, stopped by the side of the state highway going through the forest. Upon closer examination, he discovers the driver, slumped over the center of the bench seat (a newer car, actually, but this happened in the sixties.)

    The driver is unconscious. Non-responsive to voice, pain, eyes don’t track light. Seems to have a high temperature, and his breath is very sweet. Looking in the glove box, and then on the floor of the car, an empty insulin vial and syringe are found. Diagnosis (for someone who’s paid attention in first aid class, Joe was a medic): diabetic coma. Immeadiate medical attention in a hospital is required. Cell phones (and CB) didn’t exist at the time, and even now, in that area, there’s little cell coverage.

    Joe thinks for a couple of minutes, examining his map. He moves the driver, gets in the car and drives to the nearest hospital, and hands the unconscious driver to the ER.

    He’s then arrested by an cop who notices the smell of brandy on his breath. He admits to drinking, being in possession of an open container (the flask) and blood is drawn for testing.

    Joe is then arrested and charged with drunken driving.

    The local prosecutor, campaigning on a “lock up the drunken drivers” platform, brings the case to trial.

    Evidence is that the BAL was 0.16, barely illegal at the time. The defense manages to display the whole story over the objections of the prosecution.

    Motion to dismiss is denied, motion for directed acquittal is denied.

    It’s in your hands, one of the twelve jurors.

    Guilty of DUI, or not?

    htom (412a17)

  70. If properly instructed on the necessity defense, sounds like an oath-consistent NG, presuming those facts are credited.

    tbaugh (bee8c0)

  71. Dickens wrote “If the law supposes that…the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

    I think the question might be this: Is that why the Framers gave us trial by jury?

    I submit that it is.

    Pablo (08e1e8)

  72. For some reason all this reminds me of the high school principal who expels a student for sharing his asthma inhaler with another student who is clearly suffering an asthma attack.

    The principal’s choices:

    1) Follow the zero tolerance rule and expel both students for passing drugs on campus.

    2) Ignore it and be glad that the other student didn’t die from the attack, and never mind the district’s policy.

    3) resign as principal if he cannot do #1.

    Now this isn’t the same as a jury oath, but why is that more important than the principal’s duty to follow the school’s rules? Any slippery slope you care to apply, applies here.

    Kevin Murphy (805c5b)

  73. #70 … necessity defense.

    OK, now I’m confused (probably because I’m not a lawyer, remember.) I can think of few, no, no cases of “jury nullification” that are not some form of the necessity defense. Is the jury nullification being talked of, only the refusal by the jury to convict because they don’t think that -any- conviction under that law could be just? It’s not the circumstances of the particular case, it’s the law in the particular case?

    htom (412a17)

  74. XRLQ:

    In comment 66, I asked you:

    Would you ever, under any circumstances, vote not guilty, even if you had no reasonable doubt that the defendant committed the actions that were duly declared a crime by a properly seated legislature, and upheld by the relevant court authorities?

    You responded rather glibly, to say the least, in comment 68:

    Yes, but only under extreme circumstances. I mentioned in a prior thread that I wouldn’t hestitate to nullify if we were living in Nazi America, where being a member of a given race warrants a death sentence, but for some odd reason we’ve still kept the jury system around so no one gets sent to our version of Auschwitz (Gary? Trenton? Denver?) without first being convicted of being a member of the targeted race by a jury of one’s peers.

    I understand this was said to make my entire “hypothetical” sound laughable, thus eliminating the necessity to seriously consider it. But surely you cannot be unaware that many prosecutions pressed in my own not-so-lengthy lifetime presented exactly the sort of moral dilemma I had in mind.

    I take it, then, that you would vote to convict a black man for refusing to move to the back of the bus; that you would vote to convict a wife who had other than “missionary” style sex with her husband in their own home; and that you would vote to convict the rescuer in Htom’s tale in comment 69.

    Not, we all understand, that you would agree with these laws; but the law is the law. You’d rather see a few individuals go to prison for nothing than jeopardize the entire system by not convicting when you were told to do so.

    Can’t make an omlet without breaking a few eggs.

    Or have I misunderstood your rather extreme example of what you would require to engage in JN? Would you have voted not guilty in any of the scenarios I listed above?

    Suppose you were on the jury in a rape case where you believed the defendant was probably guilty — but you couldn’t say guilty beyond a reasonable doubt. But then, suppose the judge (wrongly) instructs the jury that if they believed the defendant was more likely than not guilty, they must convict.

    Knowing that instruction was completely and flagrantly false… would you vote guilty anyway, because you had sworn to follow the judge’s instructions on the law? Would you vote guilty hoping like heck that the appellate court overturned the verdict?

    And if they didn’t, would your response be anything stronger than “oh, well”?

    Or would you announce you couldn’t follow the instructions, allow yourself to be removed from the jury, knowing that the alternate would vote guilty in your place?

    You don’t have to postulate that a Nazi dictatorship has seized power in America; every year, there are one or two cases prosecuted somewhere in the country that are jaw-droppingly unjust. You need only look to history… and recent history at that.

    So how about taking the question more seriously, please?

    Thanks,

    Dafydd

    Dafydd (6e94cd)

  75. Htom, jury nullifications on the basis that a law is “unjust” are not necessity defenses. Pro-FIJA libertarians would nullify any victimless crimes, whether or not exigent circumstances existed under which the defendant could reasonably argue he “needed” to snort coke, hire a prostitute, or whatever.

    Dafydd, I don’t know why you thought my comment was glib. You asked my position on nullification, and I referred you to a prior comment, and further elaborated that in cases shy of “Nazi America” I’d still consider nullification, but weigh it against the damage to the rule of law I’d be inflicting by doing it. If a judge instructed me to convict on a preponderance of evidence, I’d send a written question to him asking him (1) whether he didn’t really mean beyond a reasonable doubt, and (2) if not, what law school he had flunked out of. I’d probably get kicked off the jury at that point, but if for some reason I didn’t, I’d nevertheless vote to acquit, because in this instance I’m 100% sure what the law says, and this judge simply didn’t get it. Are you aware of any real-life cases where this has happened?

    As to your other examples, I would probably vote to convict the couple of kinky sex, unless I thought they had been singled out for improper reasons (e.g., the law has been on the books for 100 years, but no one has been charged until now, and the guy just “happens” to be the D.A.’s worst enemy). I would vote to acquit the black guy who didn’t want to ride on the back of the bus, as Jim Crow is among the cases where the law was so bad that a little anarchy may be the lesser evil. As for htom’s rescuer, I’d acquit him on the basis of necessity, not by nullifying an otherwise reasonable law against drunk driving.

    Xrlq (44e5d0)

  76. As for htom’s rescuer, I’d acquit him on the basis of necessity, not by nullifying an otherwise reasonable law against drunk driving.

    What if the instructions didn’t allow for it? Suppose you were told that if you find 1) That the driver was over the legal BAC for operating a vehicle and 2) That the driver was operating a vehicle while #1 was true, you must find him guilty. The judge does not give you the option to acquit on the basis of necessity.

    Your oath requires you to follow the Judge’s instructions. What do you do?

    Pablo (efa871)

  77. I’d vote to nullify.

    Xrlq (44e5d0)

  78. BTW, most of these are cases where courts of appeal can, would, and probably should be the ones to reverse a judge’s erroneous ruling. Jurors aren’t supposed to “pre-appeal” such rulings by ignoring them. My concession that I probably would nullify in that last case, or in the case of the rogue judge who’s never heard of proof beyond a reasonable doubt, should not be construed as arguments that any juror should do so. Today I nullify a judge ruling for specifying an obviously wrong standard; tomorrow some self-styled Constitutionalist Super-Patriot (TM) nullifies a judge ruling that specifies a correct standard the Constitutionalist Super-Patriot falsely believes to be false.

    [Right. I am somewhat sympathetic to the argument that jurors shouldn’t convict someone of violating a law that is unconstitutional. But in a land where, to many, “it’s unconstitutional” means “I disagree with it,” that’s a recipe for anarchy. — P]

    Xrlq (44e5d0)

  79. I’m late to this thread but I’ve at least skimmed most of the comments, and I hope I’m not just repeating somthing someone else as written.

    Jury nullification is one of the system’s fail-safes. It, along with judicial discretion and prosecutorial discretion, allows society to apply its collective common sense in making laws that apply to the great majority of circumstances, without having to make laws that apply also to every obscure circumtsance our imaginations can conjure. Of course, the broader the discretion we allow various actors in our judicial system, the greater the potential for arbitrary decisions. Our response to the potential for capriciousness has often been to drastically reduce the discretion allowed to actors within the system(mandatory sentences, for example). There’s a problem, though: as we narrow the scope of discretion, we must make our laws ever more complex, in order to address variations in facts previously handled by responsible exercise of discretionary authority.

    Xrlq gives us OJ’s acquittal as an example of injustice caused by jury nullification. But was jury nullification really the cause? I recall a post not long ago in which our host pointed out some of the evidence, notably OJ’s testimony, but also some other information, that was available to the civil trial jury that was not made available to the jury in OJ’s murder trial. So, was it jury nullification, or was it our society’s legalistic response to the possibility of abused discretion that kept important informatoin from the jury and caused the injustice?

    The oath of a juror is important, we shouldn’t dispense with such a requirement, nor should a juror disregard his oath. But breaking an oath is not the same thing as disregarding it, and if the proper regard of a juror for his oath serves to limit his willingness only to those circumstances in which the juror sees no other way to avoid a serious injustice, then the oath, even if broken, has fulfilled its purpose.

    TNugent (6128b4)

  80. Oops. the last paragraph should have included the words “to nullify” after “willingness”

    TNugent (6128b4)

  81. Thank you, I’ve learned something that I thought I knew and was wrong about. Now I think I understand some of the volume of the argument — on both sides — about jury nullification; I thought it was about necessity and didn’t see what the loud fuss was about.

    Granny Grower gets a not guilty verdict through two possible paths: the jury nullifies the law because they think the law is unjust (nullification), or the jury votes to acquit because they think she’s acted under duress (her actions were driven by the consequences of the disease treatment, rather than something she freely chose to do.)

    htom (412a17)

  82. Pat, in your response to Xlrq, you express some sympathy for, but reservations regarding, nullification to avoid supposed unconstitutional application of law. Just wondering: why your sympathy for supposed unconstitutionality as a reason for nullification but not for injustice? At least if the juror’s reason is to avoid injustice rather than unconstitutionality, he’s applying principles which are within his competence (his presence on jury should suggest that we presume that he’s competent to know an injustice when he sees one). Constitutional interpretation, at least for purposes of deciding whether to apply a law enacted by our usual legislative process, isn’t something we usually entrust to a single person without some possibility of review, which a jury’s decision doesn’t get.

    Does it really make sense to think that our unofficial toleration of jury nullification for the purpose of avoiding injustice, as subjectively perceived by the jurors, would result in or even contribute to a breakdown of the rule of law? It seems that such a proposition confuses cause and effect. I would be concerned that the separation of laws (as distinguished from law as a concept) from society’s notions of justice that would lead to greater frequency of jury nullification, suggesting that parts of the system other than the juries are failing, not that jury nullification is a snowball of lawlessness rolling downhill becoming ever more out of control.

    It’s not really a snowball. It’s more like e. coli: dangerous except in its proper place, where it’s not only harmless, but essential to the body’s health (Bet you didn’t think anyone would compare jury nullification to a colon-dwelling bacteria.)

    TNugent (6128b4)

  83. Dafydd, Xrlq and htom, re hthom’s comment # 69:

    No affirmative defense of necessity, no OSTENSIBLE reliance on jury nullification.

    You attack the case in chief. Lab tests are not irrebuttably presumed to be proof beyond a reasonable doubt even in strict liability cases. The defendant can argue their accuracy and reliability and in the end it is entirely up to the jury to give them whatever weight it wishes. So here is my short argument to the judge for admmitting the evidence and the closing argument to the jury:

    “The machine said that my client had a blood alcohol level of 0.16. Yet, it is undisputed that he correctly diagnosed a person dying from insulin shock and did precisely every right thing to save that person’s life. And he did save that person’s life. And there is no evidence whatsoever that his so-called drunkenness endangered any person or property in the process. That he did not drive that car — that unfamiliar car — perfectly. Members of the jury, you have the evidence of the machine and the evidence of a human life being saved. WITHOUT ANY EVIDENCE THAT ANY OTHER HUMAN BEING WAS ENDANGERED! No matter what the machine says, the HUMAN evidence is that my client DID NOT BEHAVE LIKE A DRUNK. I submit that’s reasonable doubt.”

    If you have not seen “Anatomy Of A Murder”, I highly recommend it. If it teaches a lesson, it is to meet the jury halfway. Sure, they’re sympathetic to the defendant who shot his wife’s rapist but why not help them by bringing up the defense of irresistible impulse so that they do not feel that they are violating their oath?

    nk (2ab789)

  84. Just wondering: why your sympathy for supposed unconstitutionality as a reason for nullification but not for injustice?

    Whose justice? People have very different opinions about what is justice.

    Of course, they have different opinions about unconstitutionality, which is the root of my reservations. But at least with constitutionality there is often a right answer.

    Patterico (de0616)

  85. XRLQ:

    Thanks, X. But here is my problem. You respondes thus:

    As to your other examples, I would probably vote to convict the couple of kinky sex, unless I thought they had been singled out for improper reasons (e.g., the law has been on the books for 100 years, but no one has been charged until now, and the guy just “happens” to be the D.A.’s worst enemy). I would vote to acquit the black guy who didn’t want to ride on the back of the bus, as Jim Crow is among the cases where the law was so bad that a little anarchy may be the lesser evil. As for htom’s rescuer, I’d acquit him on the basis of necessity, not by nullifying an otherwise reasonable law against drunk driving.

    …All of which strikes me as eminently reasonable. But I’m having a hard time reconciling this reasonable litany of cases in which you would acquit, even though a literal reading of the law would require conviction, with this:

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

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

    Your ringing denunciation of JN appears to be at odds with your reasonable enunciation of circumstances in which you would engage in it.

    I wish folks would say what they actually mean. What you actually believe appears to be pretty much what I (and our host) believe; even so, you portray yourself as rather more ideologically pure than I.

    Why don’t we agree that we all approve of jury nullification now and again; we only differ on the precise circumstances that should provoke it… and not very much even there.

    Dafydd

    Dafydd (6e94cd)

  86. […] A three-judge panel of the Ninth Circuit, featuring “judge of conscience” Harry Pregerson, issues a wacky liberal ruling relating to a recall election. The Ninth Circuit reverses en banc. […]

    Patterico’s Pontifications » Pregerson Slapped Down Again (421107)

  87. now that i’ve read this full article, I have to say that something is missing. As jurors, we are judging both the defendant, the law, and the way the system applies that law. As the jury, we are not a part of that system, but it’s overseers. Isn’t that why the defendant is allowed a jury of his/her peers? to make sure that he/she is being treated fairly within the system?

    DKSuddeth (ac44fb)

  88. Patterico, if a spammer was the alleged victim, would you support jury nullification then?

    Christoph (9824e6)

  89. Cute question.

    The answer is no.

    Patterico (de0616)


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