Patterico's Pontifications

3/7/2008

Balko: Asking Prospective Jurors If They Would Follow the Law Is a “Perjury Trap”

Filed under: Crime,General — Patterico @ 10:04 pm



Via Instapundit we get a link to Radley Balko on jury nullification:

The one problem with jury nullification is that judges and prosecutors often set perjury traps that pick would-be nullifiers off during the voir dire process.

As best as I can tell, “perjury trap” is the phrase invoked by people who really feel justified in lying about something — but who have inconveniently been placed under oath by those conniving bastards in positions of power.

Balko is on record as arguing that citizens have the right to deliberately mislead courts about their intent to nullify. Balko has written that he feels justified in lying to judges in support of nullification:

Patterico wants to know if nullification supporters would lie to get on a jury to nullify an unjust charge.

I’ve said before that I most certainly would.

When I called him on it, he amended his views to clarify that he does not support outright lying, but instead advocates merely misleading judges:

One small concession: As bloggers sometimes do, I was perhaps a bit rash in using the word “lie.” I wouldn’t outright lie in voir dire, though I’m sure Patterico and other opponents of nullification would interpret the misdirection I would use in answering questions to have the same practical effect. I would answer questions in a way that’s not openly false, but that certainly masks what I’d intend to do.

Apparently, Balko believes that deliberately misleading courts by Clintonesque “misdirection” is somehow more honorable than flat-out lying. But deception, whether explicit or by implication, is not only dishonest — it flouts the rule of law, which I happen to care very much about.

What Balko calls “perjury traps,” I call an effort to find jurors willing to apply the law.

In his latest post, Balko claims that the law authorizes jurors to ignore the law:

Worse, judges sometimes even wrongly instruct jurors that their only option is to consider the defendant’s guilt or innocence, explicitly instructing that they aren’t to judge the justness or morality of the law itself.

That’s because they aren’t. I’ve quoted this before, and it appears it’s time to quote it again. This is language from the California Supreme Court:

Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law. As one commentator has noted: “When jurors enter a verdict in contravention of what the law authorizes and requires, they subvert the rule of law and subject citizens–defendants, witnesses, victims, and everyone affected by criminal justice administration– to power based on the subjective predilections of twelve individuals. They affect the rule of men, not law.” (Brown, Jury Nullification Within the Rule of Law, supra, 81 Minn. L.Rev. at pp. 1150-1151, fn. omitted.) A nullifying jury is essentially a lawless jury.

We reaffirm, therefore, the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is “unable to perform his [or her] duty” as a juror (§ 1089) and may be discharged.

People v. Williams (2001) 25 Cal.4th 441, 463.

That is the law.

Yes, jurors have the power to nullify. They just don’t have the legal authority. Just like President Bush might have the power to illegally wiretap Radley Balko’s phone — he just doesn’t have the legal authority to do so.

There is a difference.

Questioning designed to identify such jurors is not a “perjury trap” — it’s the only responsible way to select jurors willing to perform their duties as required by law. Those who, under oath, deliberately seek to mislead the court about their intent to nullify — these people aren’t honorable citizens.

They’re just liars — plain and simple. They’re no different from the penny-ante con artist on the street, who distorts the truth because it suits him to do so. Or perhaps the better analogy is to the cop who lies about probable cause, because he knows the perp is guilty. If you support dishonesty in support of The Greater Good, then surely you support cops who lie to put away the bad guys . . . right? Bueller? Bueller?

Is asking cops about probable cause a “perjury trap”?

The next time I read a piece by someone who openly advocates dishonesty in the pursuit of his views, I’d really have to ask myself: why should I ever trust a single thing this person says? If he would lie to a court — I’m sorry, deliberately misdirect a court — in support of his political views . . . then why wouldn’t he deliberately misdirect me?

UPDATE: Thanks to Instapundit for the link. He doesn’t agree with me on this issue, but he’s willing to expose his readers to people who have different views, and I respect that.

489 Responses to “Balko: Asking Prospective Jurors If They Would Follow the Law Is a “Perjury Trap””

  1. I am so sick of people citing the “historical precident” of jury nullification as a defense of the practice. The jury’s job is not to determine what is legal and illegal, that is the legislative (and, occasionally, judicial) branch.

    …Or am I wrong

    JFH (c87afd)

  2. If it is just a question of determining “the facts and render a verdict”, why have a jury at all? The judge is in a perfect position to fulfill this task, since he is “schooled” in the law.

    It was my impression that the jury system was established to prevent abuse of the law by judges (as happened in England prior to the revolution). Abuse can occur from lawmakers as well as lawbreakers (see: McCain-Feingold).

    That said, I agree that “misleading” the court is wrong. Honesty is paramount both for the citizens of a country — as well as its laws.

    navyvet (0bcc0f)

  3. Well said, Patterico.

    SPQR (26be8b)

  4. If it is just a question of determining “the facts and render a verdict”, why have a jury at all? The judge is in a perfect position to fulfill this task, since he is “schooled” in the law.

    You didn’t quite set forth jurors’ duties in their entirety. It is to “determine the facts and render a verdict in accordance with the court’s instructions on the law.” Jurors’ primary task is to find the facts based on the evidence. Usually, once they have found the facts, the application of the law is simple. But finding the facts is a very important task — it’s usually what trials are all about, after all.

    Patterico (4bda0b)

  5. Well said, indeed.

    DRJ (a431ca)

  6. I guess Balko is unaware of the literal translation of the Latin phrase “voir dire” — it means “to speak the truth.”

    wls (e9f058)

  7. Did I forget to mention that Balko is an idiot?

    wls (e9f058)

  8. I’d probably find it easier to be outraged at Balko if he weren’t so skilled at finding excesses of prosecutors.

    Jaybird (f420c4)

  9. the jury is the representative and conscience of the community where the case is being tried, and nullification has been enshrined in american law ever since john peter zenger was acquitted of sedition.

    of course the california supreme court frowns on nullification, i’m sure the zenger judge wasn’t happy either. that’s their problem. jurors aren’t just computers weighing evidence like scales, they’re complex, moral beings, and they have responsibilities, and attendant rights, beyond what you’re according them in your blog.

    i support the jury’s right of nullification. i acknowledge that it isn’t always prudently exercised (o.j.). in many cases, i’d be the kind of juror a prosecutor would like to have, but not in all. the “perjury trap” statement sounds like excessive argument, and i’m not even aboard his “misdirection” fallback. i know how to craft 100 pages of answers to interrogatories without telling the opponent a single useful thing, so i have no doubt i could get on a jury (if i were ever summoned) without committing perjury. bear in mind that perjury only relates to misstatements of existing premises, not promises to execute or forbear from future action.

    reasonable doubt is the nullifying juror’s fortress, not resort to american legal history argument. called into chambers on the motion to boot me, i would carefully eschew “nullify” or any of its derivatives. reasonable doubt is a personal, idiosyncratic standard, and if i really didn’t want to convict someone, it would take an open wormhole into the past, through which we could actually view the crime taking place, right there in the courtroom, to satisfy the standard.

    assistant devil's advocate (00cdfd)

  10. ADA — a juror takes an oath to truly and fairly render a verdict based upon the evidence presented in court, and nothing else.

    Are you saying that you would vote to acquit a person about whom there is no dispute that he/she engaged in the conduct that is defined as a crime if you disagree with the decision of the legislature in its definition?

    An example would be where there is an eyewitness who is it contradicted nor whose credibility is called into question, and the defendant never denied having engaged in the conduct.

    Over a personal disagreement with the elected legislative branch that defined that crime, you would defy the will of the popular electorate by voting to acquit?

    If so, your view undermines the foundation of the criminal justice system — respect for the elected branch’s collective expression of the boundaries of acceptable behavior.

    Welcome to a Hobbesian world.

    wls (e9f058)

  11. Patterico, WLS:

    Are you two prepared to carry your absolute rejection of lying to admittedly extreme but quite realistic scenarios? How about scenarios that have actually happened in fairly recent American history?

    * How would you vote — guilty or not guilty — in a trial in 1915 against a newspaper editor accused of sedition for merely speaking out against President Woodrow Wilson’s abuses of his power?

    * How about in an internment case in 1942, when a 17 year old American citizen of Japanese descent claims actually to be Chinese-American… but the facts clearly show his grandparents immigrated here from Japan, not China?

    * How about a contemporary case where a mob boss controlled much of a city, brutalizing and murdering people more or less at will because he has the cops and the mayor in his back pocket… and then some guy whose son the mob boss killed (for refusing to pay “protection”) kills the mob boss. You are convinced that there was no reasonable way to bring the boss to legal justice; barring the assassination, he would likely stay in power for 20 more years. The evidence is clear beyond a reasonable doubt that the bereft man killed the boss. Guilty? Hope the judge is lenient?

    I do believe in jury nullification — but only in cases where the injustice of the law is so overwhelming, so staggering, that it shocks the conscience to allow it to proceed.

    That is a very high standard indeed. Certainly it’s not reached by a drug case, even though I oppose drug prohibition. Nor is it reached by a person arrested for carrying a concealed weapon without a CCW permit, even if he has been threatened by gang bangers. I would, in both cases, openly respond during voir dire that I cannot vote guilty in good conscience, and I would be booted off the jury (and probably be shouted at by the judge).

    I can think of only one case in my lifetime where I would definitely have lied (flat out lied, none of this namby-pamby misleading bullroar) to get on the jury, just so I could make it a hung jury.

    But unlike you two, I will not immolate my immortal soul to satisfy the law, even if the law is so vile that it’s tantamount to lawlessness itself.

    Would you? Would you really? Or are you really saying that in the 99.999% of cases where it’s just an annoying law, or even a bad law, but not a conscience-shocking law, you would answer truthfully?

    If so, you should recognize the actual boundaries of your seemingly absolutist pronunciamentos.

    Dafydd

    Dafydd ab Hugh (db2ea4)

  12. When was the world ever NOT Hobbesian, pray tell?

    And just for all you lawyers: I’ll worry about making my judgments on the evidence presented when ALL the evidence is presented. There are way too many laws designed to exclude evidence no matter its’ probative value.

    Laws made by the elected branch? It is to laugh. How many of the myriads of regulations people have to try to exist under never see a legislative vote? I won’t even ask how many of them are slipped in as obscurely as possible, in the dead of night “conference committee”. For that matter, how many unaccountable “civil servants” have we seen apply the “laws” in completely random fashion? They neither stand for election nor, thanks to “civil service”, can they be fired by those who do.

    I like Pournelle’s term, Anarcho-Tyranny.

    And jury nullification goes back to English common law, which is as much a part of our system as any other law and regulation.

    SDN (e52b39)

  13. “I guess Balko is unaware of the literal translation of the Latin phrase “voir dire”— it means “to speak the truth.”

    It’s French, not Latin.

    It means “See Say”

    Zero for two. Maybe Balko is not so bad after all if this guy is against him.

    BlacquesJacquesShellacques (324683)

  14. [cutting the true warstory short on both ends; the recruit is filling out the blizzard of paperwork upon entering USMC bootcamp.]

    “Recruit, your great to the seventh grandfather sailed to this country from Stolkholm?”
    “Sir, yes, sir!”
    “Then you put ‘Swedish'” in the nationality box.”
    “Sir, but ..”
    “Shut UP, Private! Swedish!”

    But he was Norwegian, they just sailed from Stolkholm. So the Corps thinks I’m Swedish, not usually a problem. (I had tried to put “American” in the box.)

    I think that prosecutors should worry more about justice and less about nullification, but I’m not going to hold my breath. It seems to me that they get upset about nullification because it “breaks the rules”, but the world has never obeyed the rules of man. The demand by the court that I promise to follow the law, when I am ignorant of an unbiased presentation of it, is beyond satire. There’s an old saying, “If you want a decision, go to court. If you want justice, go to church.”

    htom (412a17)

  15. No, Black Jack Shellac:

    In origin it refers to an oath to tell the truth (Latin verum dicĕre), in other words to give a true verdict. The word voir (or voire), in this context, is an old French word meaning “truth”. It is unconnected with the modern French word voir, which derives from Latin vidēre (“to see”), though the expression is now often interpreted by false etymology to mean “to see [them] say”.

    nk (7b0075)

  16. Voir Dire: (v) Voir dire is the opportunity to examine the jurors before their appointment as regards to their integrity and balanced approach. Voir dire means to see the person and talk to him personally with a purpose to evaluate him. Jurors are interviewed by judges and attorneys before assigning the case to them.

    http://www.legal-explanations.com/definitions/voir-dire.htm

    It’s French. Its “literal translation” has little to do with telling the truth. It means “see say” or perhaps “see speak” and means just that – an opportunity to “see” and “speak” to jurors.

    Balko may be wrong and he may be an evil idiot but your arguments won’t prove it.

    BlacquesJacquesShellacques (324683)

  17. PS My nom de plume is BlacquesJacquesShellacques, not BlackJackShellac, who is perhaps an American who does not speak the French so good.

    BlacquesJacquesShellacques (324683)

  18. #16 & 17,

    I have done quite a lot of voir dires, and possibly more of opposing witnesses than jurors. It is not only an opportunity to examine jurors (which in Cook County is very restricted — the judge doing the questioning) but also to test a witness’s credentials and competence to testify, and foundations for evidence.

    You may very well speak better French than I, but voir dire is a term of art in the law with a historical context and it no more means “to see, to speak” than “telescope” means to “talk about a brand of mouthwash”. I am correct in my #15 as was WLS previously.

    And BTW, the real French idiom is “nom de guerre” — “nom de plume” is pretentious, fake French created by some English-speaking writer.

    nk (7b0075)

  19. I’m with Dafydd on this one. I would never reject the right of jury nullification, but also believe that it should only be used in very rare instances where following the law produces an egregious miscarriage of justice. That means that baring such a perceived miscarriage of justice I will vote to convict even though I may disagree with a given law, provided the evidence supports such a verdict.

    Laws are sometimes imperfect, and sometimes they are improperly applied in a given case. In extremely rare instances those things can come together and produce a case where following the law produces a verdict that no one in good conscience would say is proper. So even though I don’t favor jury nullification, there are occasions where it is justified, and it is for those once in a million or several million cases that I reserve the right to exercise it. In a more perfect world the need to exercise it would never come up, but our world is far from perfect. Even with all the imperfections of our world I doubt that you can find one case a year where I would agree that jury nullification was justified, but over a period of years you likely could find such a case.

    If those views make me unfit to be a juror, then the courts will have to kick me off the jury panel. So far they have not seen fit to do so, but then none of the cases I’ve been on did the attorneys go into jury nullification as such. The questions were more along the line of would I be willing to render a verdict that was true and within the law based on the facts of the case as I determined them to be. One defense attorney did question me some on within the law during voir dire, but apparently my answers satisfied him and the prosecutor as well even though I made no attempt to lie or mislead them. To be honest, I was surprised over that. While we never actually talked about jury nullification, some of the questions were quite close to it and I expressed views much like I’ve done here.

    For what it is worth. I’ve been called for jury duty for four terms and during those terms I’ve been temporarily seated on a jury eight times and served on those juries seven times. So seven out of eight times I was accepted and on the eighth, a civil case, the prosecuting attorney appeared to be objecting to anyone who had a small business. The reason I say that is because a friend of mine served on that jury and he told me the prosecuting attorney made digs that were against small businesses. Jim laughed and said the judge finally told him to stop it. As it turned out he didn’t win any friends on the jury either.

    Fritz (b1ff1b)

  20. You didn’t quite set forth jurors’ duties in their entirety. It is to “determine the facts and render a verdict in accordance with the court’s instructions on the law.

    This still obviates the need for a jury (assuming the judge is capable of instructing himself on the law). The jury is not an automaton; it must determine and weigh all the facts as well as the validity of the law. If jury nullification is not to be permitted, the judge should imprison any jury that doesn’t render a verdict satisfactory to the judge. Since this hasn’t happened as yet (to my knowledge), it appears jury nullification is a feature of the criminal justice system we will have to live with…like it or not.

    navyvet (0bcc0f)

  21. Navyvet,

    The jury is vital in assessing the credibility of the witnesses and the weight of the evidence. The court can overrule its verdict when it’s against the manifest weight of the evidence but it is rare, and never done against the defendant in criminal cases.

    As for Dafydd’s argument, there may be an occasion when the fire department will dynamite a house to prevent a frire from engulfing an entire neighborhood. Balko suggests that firemen should reach for the dynamite as readily as for their water hoses.

    nk (7b0075)

  22. “nom de guerre” means name of the war and is a pseudonym taken in a war, often by a guerilla.

    “nom de plume” means name of the pen and is a pseudonym taken by an author, or a commenter.

    “voir dire” is indeed a term of art for a well known legal procedure. But it’s still French and not Latin and its “literal translation” is still not “to speak the truth.”

    If you want to argue that in the procedure commonly described by the term of art of “voir dire” a witness must speak the truth, go ahead, but the argument based on “literal translations” of the wrong language, with a weird side trip into old French, is a bad argument.

    My native language is German and I speak English well and French not so well but studied it for 13 long years. I practiced law (in English) for 30 years, did lots of voir dires too, and learned the difference between a literal translation and a term of art.

    BlacquesJacquesShellacques (324683)

  23. As far as I’m concerned, on a jury I’d cast my vote against the side that was trying to bullshit me. I am not sure what trials are, but it’s plain they are no longer about determining what happened.

    Dr. Ellen (1c7428)

  24. True Justice would be those jurors who felt so strongly that this was a unjust law having their verdict respected, case dismissed, and doing time for perjury.

    Jury nullification is a check on power, but it needs its own check as well. If you can not “do the time” how much do you really think that law is unjust? Are you only going to oppose it if it is easy to do so, or are you willing to walk your talk. “But the law is bad…” So? It is what it is.

    Too often people, and I include myself in this, oppose things that have little or no risk to us personally. The ultimate NIMBY-ism. If you were willing to take jail time to oppose what you see as an unjust law, THEN i can respect those arguments. Until then, you are posers (or “poseurs” for the pseudo-Gaul) who whimper when reality dares to intrudes into your fantasy.

    MunDane (d3328f)

  25. “Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law.”

    Then, why need juries at all? I fthey are not to weight the evidence, the facts adn the law, and then, for them to decide.

    Bill (ef1412)

  26. “That is the law.”

    Bullshit. It’s the opinion of a court.

    Billy Beck (8eba48)

  27. My interpretation of a perjury trap is an instance in which a person at risk of prosecution is asked a question with more than one answer and which requires recollection. For example, Tim Russert was asked if he had discussed the Valerie Plame case and answered he had not when in fact he had on a tape of Meet the Press. Of course, no one was interested in subjecting him to a perjury charge.

    Mike K (86bddb)

  28. Bill, did you not read any of the discussion? The jury does not decide the law.

    SPQR (26be8b)

  29. True Justice would be those jurors who felt so strongly that this was a unjust law having their verdict respected, case dismissed hung, and doing time for perjury.

    FTFY

    rhodeymark (923596)

  30. Or perhaps the better analogy is to the cop who lies about probable cause, because he knows the perp is guilty

    Prosecutors and judges support the lying cops. Law enforcement drew first blood, not Balko.

    John J. Rambalko (f43908)

  31. Patterico, if your point is that modern juries are by law (or rule) not allowed to practice nullification, I’ll concede.

    Those laws need changing.

    Walter in Denver (e03695)

  32. Lawyers view juries as irksome limitations on their ability to get their way. Prosecutors view Criminal Defense Lawyers as irksome limitations on their ability to get their way. Criminal Defense lawyers view prosecutors as irksome limitations on the ability to get their way.

    Our government is not “of the lawyers, by the lawyers, and for the lawyers”, nor should it be. Lawyers are specially trained servants, not masters. Consider a court with no lawyers. A pro per plantiff against a pro se defendant. The jury would still weigh the evidence against their own concepts of fairness, with little regard to the standards of fairness embodied in the law by other men, at an other time.

    A bureaucracy is a mindset that applies rules developed to resolve problem A to problem B. A bureaucrat not only thinks that is a good idea, but also thinks that there is no possible alternative.

    A non bureaucrat thinks about the problem at hand, and selects from his past experience, and the other experiences of his team, and tries to come up with the best solution. Imagine if a car manufacturer selected wooden wheels for his car because of some authoritative prescedent? We would still be using horses! And in the legal system, we are!

    Don Meaker (a7ec92)

  33. So after the Fugitive Slave Law was passed in 1850 you would of had no trouble prosecuting people who violated that law? Of course not, because “it is” the law and you are just doing your job.

    And then of course you’ll do you job to get people off the jury who are apposed to slavery.

    Now, would I lie to get on a jury, no. Now if the right questions aren’t asked, oh well.

    Gerald A (e0bd60)

  34. It strikes me that “jury nullification” stands in the same place as “civil disobedience.” The exercise of either should be in the interests of true justice, and with the willingness to accept the punishment for not complying with the law.

    It also seems to me that this question is the same one as with torture. There are undoubtedly times where the laws against torture should be disobeyed, but the torturer has got to be willing to accept the punishment.

    In law, there is a concept known as “the doctrine of necessity,” under which a person is justified in committing a criminal action in order to prevent a more culpable criminal action.

    All of these things seem to me to stand together. They all permit an individual to nullify, based on his conscience in a specific situation, the consequence of the law.

    As Bob Dylan observed, “to live outside the law you must be honest.” In all these instances, a person steps outside the law in order to do something that is right despite the law. One can only do that if one is honest enough to accept the punishment, as MunDane observes – in other words, to put your conscience up against the community conscience as embodied in the law, you have to acknowledge what you are doing by being willing to accept the judgment of the community in punishing you, if it comes to that.

    “Be sure you are right, then go ahead.” That’s what the Walt Disney Company said was Davy Crockett’s motto, back when I was a kid watching the Davy Crockett show on TV.

    I don’t know whether Davy said it, but it certainly captures the American spirit. In certain circumstances, one is *obliged* to stand against the law. But the only proof one has that the stance is honest is the willingness to accept the consequences.

    Harmon (eeaaea)

  35. They’re just liars — plain and simple. They’re no different from the penny-ante con artist on the street, who distorts the truth because it suits him to do so. Or perhaps the better analogy is to the cop who lies about probable cause, because he knows the perp is guilty. If you support dishonesty in support of The Greater Good, then surely you support cops who lie to put away the bad guys . . . right? Bueller? Bueller?

    In 1940, Germany invaded France.

    In 1944, the United States invaded France.

    No difference, right?

    Godwin Bueller (f43908)

  36. The reality is that in history, one can find an order of magnitude more instances of jury nullification being used to support injustice, than justice.

    If there is a law that should not be enforced, then use the political process to remove it. But if in fact, you have lost a political argument with the majority, you don’t have the right to frustrate their will by jury nullification.

    SPQR (26be8b)

  37. So let me get this straight…

    Lawyers laugh at those naive rubes who think courts are about justice. “This court ain’t about justice, son, it’s about THE LAW!”

    They set up rules on evidence exclusion and court procedures so that most reasonable citizens would think that many worthwhile facts may be omitted from the case. “No, we don’t trust you to hear everything – we want to carefully limit what you can even hear.”

    They hire consultants to cherry pick juries, specifically trying to get a jury that will return the result they want, not what will be most true or just.

    And then when a jury gets fed up with all this legal BS and returns a verdict they consider right and true, regardless of whether it makes the lawyers happy, they consider it an injustice.

    Do I have that about right?

    SickOfLawyers (0e9613)

  38. I would have no problem following the law:

    “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

    It is trail by jury, not trial by the government.

    Steve (234cc8)

  39. Steve, and the Fifth Amendment provision you mention reserves the trial of facts to the jury.

    SPQR (26be8b)

  40. It strikes me that “jury nullification” stands in the same place as “civil disobedience.” The exercise of either should be in the interests of true justice, and with the willingness to accept the punishment for not complying with the law.

    And that’s the difference between a lying Balko and lying cops and lying prosecutors.

    Cops and prosecutors aren’t willing to — and don’t have to– accept any punishment for their crimes.

    Well, law enforcement really can’t commit crimes, because anything they do is, by definition, not a crime.

    Maybe Balko has damaged his credibility by saying what he did. But cops, prosecutors, and judges lost their credibility a long time ago by not reigning in their power-hungry colleagues.

    Godwin Bueller (f43908)

  41. Voir Dire is obviously two infinitive verbs. How do you get “to speak the truth” out of that when there is no word in there for “truth,” let alone any conjugation?

    MikeT (0f01cd)

  42. I’ll be as honest and forthright as the prosecutor and the judge.

    Robert (9d5ac7)

  43. Jury nullification is a useful check on both unjust laws, as well as just laws that are being abused by Javertian prosecutors seeking to incarcerate someone on a technicality. But it only works if the desire to nullify is shared by the jurors as a panel, not just by one rogue juror.

    Steve Smith (72a7af)

  44. If there is a law that should not be enforced, then use the political process to remove it. But if in fact, you have lost a political argument with the majority, you don’t have the right to frustrate their will by jury nullification.

    What a wonderful display of amorality. Taken at face value, you have given the majority license to rape and pillage the lives, liberty and property of the minority.

    MikeT (0f01cd)

  45. About “voir dire” again. I don’t speak French at all, just a little Italian and Spanish, and right off the bat it’s obvious that it means something along the lines of “to see, to speak.”

    MikeT (0f01cd)

  46. a juror takes an oath to truly and fairly render a verdict based upon the evidence presented in court, and nothing else.
    – wsj

    It is not only his right but also his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.
    – John Adams

    It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy
    – John Jay

    Hmm… who to believe, who to believe.

    I’ll agree with Dafydd that it’s not enough to simply disagree with a law, but that injustice of the law (or, I’d add, “… or it’s application to a particular case”) is overwhelming. But the power of the people to effectively negate an unjust law (or the unjust application of the law) remains the whole point of trial by jury. A panel of forensic experts would work better if the only function of a jury was to ascertain the facts.

    I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.
    – Thomas Jefferson.

    steve (afc04e)

  47. The next time I read a piece by someone who openly advocates dishonesty in the pursuit of his views, I’d really have to ask myself: why should I why should I ever trust a single thing this person says?

    Typical Patterico. You can never merely disagree with someone, can you? It’s always, “I disagree, and the person I’m disagreeing with is a terrible person who should never be trusted!”

    It’s why it’s so hard to ever take you seriously, Patterico. Your whole shtick is about scalp collecting, and attempting to show that anyone who doesn’t see the world exactly as you do is morally flawed, and obviously motivated by nefarious forces. You rarely debate. Your first instinct is always to attack motivations.

    I fully expect you to link back to this post the next time you attacks me for something completely unrelated. “Why should we trust Balko’s latest article on X, when he said he’d lie to a court to get on a jury?!?”

    The statement is nonsense.

    Of course there are times when it’s appropriate to lie in pursuit of a moral or just ends. And yes, that would include times when it’s appropriate to lie to a court. Would you have lied to get on a jury so you could nullify someone clearly guilty of violating the Fugitive Slave Act? How about Jim Crow laws?

    If not, your only other options would be to either vote to convict, or let the prosecutor remove you to make way for someone who will.

    Wouldn’t lying about your opinion of the law during voir dire be more morally defensible than, say, contributing to returning a freed black man to slavery?

    I think most rational people would agree.

    So that quickly dispenses with your moral absolute that it’s always wrong to lie to get on a jury. Which means we’re really debating under which specific circumstances it would be appropriate.

    That’s a fine debate to have. Let’s have it. I’m perfectly willing to accept that smart, rational, morally upstanding people will define a considerable smaller set of circumstances where nullification is appropriate than I’d advocate.

    But spare me the moral absolutes and histrionics.

    Radley Balko (1f1495)

  48. MikeT, as Balko says, spare me the moral absolutes and histrionics.

    SPQR (26be8b)

  49. There are always a bunch of nuts in these threads, but let me address Daffyd’s non-nutty point of line-drawing: In the United States as I know it, I would never lie to the court, nor would I nullify.

    I don’t know enough about Daffyd’s cases to comment on them, (What was the law? What were, exactly, the facts? Were these all really jury trials?)

    But the solution – as I occasionally point out to jurors – is to write angry letters, not to nullify. Or picket the courthouse. Or get on TV.

    Operate within the rule of law.

    Look, I disagree with some laws pretty fiercely – I think creating a duty to retreat from violent assaults is just awful social policy. But if I lived in a state where that was the law, and I was a potential juror on that sort of case, I’d answer the questions truthfully, and I’d vote guilty if that were appropriate.

    Then I’d scream to anyone who would listen. And wouldn’t that be more effective, in the long run? A person’s guilt or innocence should never depend on the social policy of the jurors.

    If I lived in a different country where the laws were unchangeable through the will of the people, I certainly might feel differently. For those who mistakenly believe law enforcement is de facto exempt from the laws, I can understand why they would be for nullification.

    But I know that isn’t the case.

    –JRM

    JRM (355c21)

  50. “nom de guerre” means name of the war and is a pseudonym taken in a war, often by a guerilla.

    “nom de plume” means name of the pen and is a pseudonym taken by an author, or a commenter.

    Yes that’s what they literally mean, but you’re still wrong. Nom de guerre was used amongst the french for various reasons and not just for guerilla fighters. The “war” is considered metaphorical rather than literal, in the sense that revealing your true name would expose you to some risk. Nom de plume originated in britain amongst writers who didn’t understand the metaphorical connotations of nom de guerre.

    “voir dire” is indeed a term of art for a well known legal procedure. But it’s still French and not Latin and its “literal translation” is still not “to speak the truth.”

    Yes it is french, old french, at which time it meant to speak the truth. The fact that a modern homonym derived from an entirely seperate source exists doesn’t change the meaning of the term. Just because the words look the same, doesn’t mean they are the same.

    Taltos (4dc0e8)

  51. The only question you, the jury, are to consider is this:

    Are the defendants guilty — in the legal, not moral sense — of aiding the Franks and Van Pels?

    Godwin Bueller (f43908)

  52. I agree that juries should have the power to nullify, but that it is, as DaffyDD says, an option that should be exercised very rarely in those cases where following the law would produce a result that one views as profoundly immoral. However, officers of the court (judges and attorneys) must pretend that no such option exists, because if it did, the defense attorney would have the duty to raise the possibility of nullification in his argumentation in every case in which it might help his client. In fact, if a defendant were convicted, and his attorney did not remind the jury that they could nullify, there might be grounds to reverse the conviction on competence of counsel grounds.

    MadDoug (a06caf)

  53. Just a question that perplexes me as I read through this post and comments.
    Some commenters utilize the trenchant and compelling racial arguments from the post civil war era. My question is: Would jury nullification in those cases have impeded civil rights legislation? Jury nullification would have ensured that there would not be a miscarriage of justice. Wouldn’t that in turn have obviated the need for civil rights laws which went beyond the laws that were nullified?
    And why must we go back 130 years for examples? Could it be that current examples, ie drug dealers, are less compelling?

    tom scott (d29de4)

  54. But finding the facts is a very important task — it’s usually what trials are all about, after all.

    If finding the facts is so important, why are jurors paid only $5 a day when everyone else in the courtroom makes so much more? :)

    Steverino (2c9e20)

  55. Patterico is correct to lambaste Balko for his suggestion, because it isn’t really about jury notification at all, it’s about lying in order to promote an agenda.

    The original point Balko cites, the position of having objection to participation in furtherance of activities one objects to, in this instance the ‘drug war’, is a legitimate, defensible point of view. Nothing in the original piece indicates that carrying through on such objection would include deception or lying – it simply skips over the steps in between being called for jury duty, and finding oneself in the jury room being asked to cast a ballot for guilt or innocence. As such, a huge oversimplification of the process.

    Balko keys on this aspect, and offers what sounds like the reaction of someone who just listened to a close friend describing getting a traffic ticket they don’t believe they deserve, and offering the reply of “well, I’d have told that cop to stick it where the sun don’t shine”. Emotionally gratifying, but so far removed from likelyhood or reality as to be essentially meaningless – which is about the only way to assess Balko’s suggestion. Because his suggestion of lying/dissembling/misleading just to gain the position to be able to incite the act of jury notification based upon a pre-conceived agenda is just as reckless, although not quite so obviously dumb, as suggesting that someone should tell a cop to shove a ticket up his posterior during a traffic stop, and presupposes knowledge of how a hypothetical situation would play out, down to a tee.

    That being said, I’m all for jury notification, if such a result is believed called for by the 12 people on the jury, after going through the entire process, without preconception, hearing the arguments and facts in evidence, and then determining that, in good conscience, that such a course of action would result in a gross miscarriage of justice. Not simply that ‘the law is an ass'; but that its application, and attendant result, in a specific given situation under consideration, would be clearly asinine.

    And that, from a readily admitted layman’s perspective is a fundamental safeguard of our system of justice – which is summed up in the phrase ‘trial by jury’. Not trial by prosecutor. Not trial by judge alone (although that option does exist). Trial by a jury of 12 people, representatives of We the People, serving in their capacity of civic duty to both facilitate government of, for, and by the people; and to act as an essential ‘front line’ check against the miscarriage of state power and authority.

    As such, while Patterico’s condemnation of Balko’s ridiculous suggestion is completely warranted, I have to disagree with both his apparent concurrence with, and the portion of the California Supreme court decision he cites, which tut-tut the entire concept of jury nullification, and that, because of this portion of the decision, it is essentially ‘against the law’. A comfortable position for those intimately involved with the exercise of the powers within the system as a profession, to be sure, but a complete misinterpretation, in my humble opinion, of how the system was designed to work in the first place. To give Patterico credit, he does acknowledge that juries have the power of nullification, but I don’t agree with his position that it is illegal, and find his comparison to wiretapping to be misleading, at best, regardless of how much he believes it to be a suitable example of his argument.

    While probably unlikely, as it’s hard to imagine a circumstance that would lead to a case making it through the appellate process, and actually being granted cert, it would be interesting to see the matter come before the Supreme Court.

    Wind Rider (f58536)

  56. As a juror I HAVE HAD to interpret the law and not just the facts. The judge listed the charges that we could apply. None of us could confidently understand the legaleze. We asked for more explanation, were brought back into the court and the judge would only re-read the actual text of the incomprehensible law. So, we made up our own interpretation and convicted the person of one of the options. It was clear he had done something wrong so ‘not guilty’ was not an option we wanted to pick. I don’t see any significant difference between that and nullification.

    Glenmore (788a63)

  57. SDN, you beat me to it. I no longer have respect for the law. Pournelle’s anarcho-tyranny is a perfect description of what we have now, and I consider it my civic duty to nullify the more egregious examples whenever and however I can.

    While I do not believe most drug cases rise to this level, some do. When the legislative process has been captured by the special interest groups (and I dare you to deny that is the case, from state to federal), then jurys become the last defense of the people the legislators are supposed to be working for.

    And due to the wonderful education system we have had perpetrated upon us, most of the people are too damned ignorant to see what is happening.

    I fear for our country’s future.

    Tim McDonald (4bdfb0)

  58. Mr. Balko (#47): I read your blog and your other writings often enough so that I’m very amused at your faulting Patterico here for advocating strongly, and without always taking the trouble to advance his opponents’ arguments in their best possible light. You and hyperbole are no strangers to one another.

    There is a stunning amount of cognitive dissonance in your writing. You hold yourself out to be, and I accept that you genuinely believe yourself to be, a defender of civil liberties. But it is a very shallow civil libertarian who can fail to recognize the dangers in asserting that there are times when it is appropriate to deliberately perjure oneself.

    You choose for your hypothetical examples fact patterns that you think will gather universal agreement with you — as when you write (emphasis yours, and significant) that “of course there are times when it’s appropriate to lie in pursuit of a moral or just ends,” and you invoke fugitive slaves. But for one who passionately believes that the death penalty is always unjust and inappropriate, for example, it is a very, very short distance down that slippery slope to telling a lie to a court in order to conceal that prejudice (and the related intention to refuse to follow the Court’s instructions, and to vote against the death penalty without regard to the actual evidence). Perhaps I’ve missed your blog posts defending particular capital convictions, but tell us, if you would: Do you think it’s permissible to perjure yourself over your willingness to follow the law in capital cases?

    How about in cases involving the Iraq War? How about in cases in which an anti-war protester has, while intending only damage to property, killed a policeman?

    How about in cases involving a Republican politician, of whose corruption you’re already convinced beyond a reasonable doubt? If charges had been brought against Dick Cheney for his hunting accident in South Texas a few years ago, would it have been okay to perjure oneself to get onto that jury, to help ensure his conviction?

    I don’t know how you’ll answer these questions. Perhaps to some of them you’ll say, “No, that wouldn’t justify perjury.”

    But once you appoint yourself as being entitled to pick and choose which questions you’ll answer with a lie under oath, then you’ve committed yourself to mocking and subverting the rule of law, writ large. While I might applaud your circulating of petitions and shouting from the street-corners and exercise of your vote to try to accomplish the changes you seek, I cannot change the definitions of the terms “liar,” “perjurer,” or “oath-breaker” to exclude you from them, given your declared intentions.

    Beldar (433d17)

  59. MikeT, as Balko says, spare me the moral absolutes and histrionics.

    You certainly spared yourself of any need to respond with substance.

    You and Patterico have no problem making a morally absolute case against jury nullification, so I guess that makes you at least, a bit of a hypocrite.

    MikeT (0f01cd)

  60. This is an interesting thread that confronts a problem I’ve struggled with for years. Maybe I’ve read too many Grisham novels, but it does seem as if much trial questioning is not designed to get at the truth – but to push a point. Attorneys ask closed questions, insisting on a yes or no answer, in order to steer a witness. But the truth may be more complex than that.

    I liked Dr. Helen’s comment best, “I am not sure what trials are, but it’s plain they are no longer about determining what happened.”

    Maybe it’s helpful to clarify what exactly is being nullified here. If a person has made up his mind before even being appointed to the jury, then the jury itself and the jury process has been nullified. The false juror is not really participating in the effort to find the truth.

    On the other hand, it may be the *law* that is nullified, even though the trial proceeded fairly and the entire jury heard and evaluated the evidence, but decided not to apply the law as it was envisioned some months or years before in Washington. Or it may be the *judge* (or the “system”) who is nullified, if the jury perceives that the local law enforcement is corrupt or pursuing an agenda, using the law as a tool to abuse its opponents.

    It seems to me that good cases have been made here for nullifying the law or the judge – on occasion. Or at least for the system allowing for that possibility. But nullifying the jury by refusing to even consider the evidence on each side – that would nullify the entire system of law – the law, the judge, the prosecutor, the defence, and the community. It would be like trying to have a reasonable debate with a person who refuses to speak anything but gibberish.

    (And here I’m hoping that no one considers this comment an example of such a debate.)

    Don (7321d7)

  61. An Essay on the Trial by Jury –Lysander Spooner

    Horatio (55069c)

  62. If jury nullification is so reprehensible, why isn’t prosecutorial discretion equally vile? We regularly read of would-be victims using deadly force against their assailants, with prosecutors declining to drag the unfortunates into court to pay for breaking the law. Doesn’t this thwart the same laws that jury nullification thwarts?

    Face it, prosecutors rarely press charges against these people for the same reason a jury would see fit to find them not guilty even in the face of overwhelming evidence: To do so would be a miscarriage of justice. And when prosecutors do try to punish these victims again for their crimes of self-defense, it is entire proper for juries to slap them down.

    Jeffersonian (c5c337)

  63. “Typical Patterico. You can never merely disagree with someone, can you? It’s always, “I disagree, and the person I’m disagreeing with is a terrible person who should never be trusted!”

    Radley: to be fair, you do much the same thing on your blog. I don’t know how many times you have ridiculed someone for holding a different point of view. Or called them dishonest or power hungry or any number of things other than possibly coming to a different conclusion than you based on their interpretation of the facts.

    Having said that, I do mostly agree with Radley on nullification. We have a guy here who is going up on his three strikes and your out conviction. His last crime was walking out of a filling station with a sandwich he didn’t pay for. Yes, he is a life long criminal. Yes, he has probably done things he hasn’t been caught at that he should probably be in jail for. No, if I was on the jury, I couldn’t vote to convict knowing he would be going to jail for 20+ years for shoplifting a sandwich. The law is the law, but the law is also supposed to be fair.

    Radley is not always right, and is a bit arrogant with those who disagree with him, but he has done some extremely fine work in exposing the abuse of the law by government and the police as well as absolute travesties of justice such as the Cory Maye conviction. While I disagree with a lot of what he says and am annoyed by his attitude sometimes with those who disagree with him, he does really good work that I don’t see others doing. While he may or may not be wrong on this particular topic, I see nothing to make me doubt him on other topics.

    buzz (e09efa)

  64. OK, how about this.

    Last year I was on a federal jury trying a monetarily large mail fraud and conspiracy case. The defendants were two minor players, facing 18 counts each.

    The judge’s instructions said they were guilty if they’d participated in a scheme to defraud. The problem was, each of the defendants was completely uninvolved in their co-defendant’s deals. There were also counts involving deals that neither defendants were involved in – in fact, deals that they had been deliberately kept from knowing about. There were charges involving deals that occurred before they joined the company and after they left. There were charges involving deals that were clearly not fraud – there was zero evidence or testimony about those deals, just the charge.

    By the judge’s instructions, if they had taken any part in any of the fraudulent deals, they were guilty of mail fraud in ALL of the deals.

    BUT there was also an instruction that said they were only guilty if they’d done stuff to help the conspiracy along.

    Ultimately, I found I could not convict a defendant for a crime I knew they did not commit, did not have knowledge of, and did not benefit from. A few weeks before Saddam Hussein had been hung for doing exactly that. It might be legal in the US for me to participate in collective punishment, but I wouldn’t do it.

    ELR (dd9e9f)

  65. Let’s suppose that the city of Los Angeles passed a law that criminalized the reporting of illegal aliens to the Feds. A California appeals court has ruled the law constitutional.

    A police officer who reported an illegal alien drunk driver to Immigration is on trial for violating this law. The city intends to “make an example” of him and is throwing the book.

    You utterly oppose the law and feel that the police office was doing his moral duty and should be honored rather than jailed. Further, you feel that if any “example” is to be made, it should be in a very public upbraiding of the city and it’s immoral law.

    You are called for jury duty. You are asked if you will uphold this law and render a verdict solely based on the evidence.

    Your choices: Lie, and then vote to nullify. Or tell the truth and pass the duty over to someone who supports the law.

    The legal choice is clear. The moral choice is not. Note: lawyers may not get this last part.

    Kevin Murphy (0b2493)

  66. Jeffersonian (#62): Excellent point. I’m with you (and Daffyd and Radley) on this one.

    Actually one of the commentators on Radley’s Reason piece made another good point: that if enough potential jurors openly assert a right to nullification during voir dire, even if they are all rejected as jurors, it might drag out cases long enough that prosecutors start thinking twice about going forward with the more questionable ones.

    Joshua (c9e984)

  67. I have been struck from a jury panel because I strongly indicated that I not only would need to make a determination of the facts but would also need to read the statute to determine if the facts supported the alledge guilt or innocence based on my reasonable interpretation of the statute.

    The accused may have clearly committed the alledged event which he is accused of said crime, however, I dont think it would be jury nullification if the not guilty consisted of applying the correct facts to the correct interpretation of the statute.

    I realize that my position is contrary to the accepted position.

    Moving the discussion to the civil courts, (for example personal injury claims) The decision is supposed to be based only on facts presented in the case. However, I would make the decision both on the facts presented plus facts which were omitted but which should have been presented. similar to the rule whereby documents withheld should be construed to be in favor of the other party.

    Joe - Dallas (d29492)

  68. In fairness to Mr. Balko, my last sentence in my comment above (#58) ought to have read: “While I might applaud your circulating of petitions and shouting from the street-corners and exercise of your vote to try to accomplish the changes you seek, I cannot change the definitions of the terms ‘liar,’ ‘perjurer,’ or ‘oath-breaker’ to exclude you from them, on at least a ‘would-be’ basis, given your declared intentions.” I don’t accuse Mr. Balko of having yet committed any of these transgressions; and if he’s ever summoned for jury duty and examined as a prospective juror by any lawyer who’s had access to his writings, he’ll likely be promptly excused for cause based on his avowed willingness to lie, whether he’s actually been called upon to tell one yet or not.

    Beldar (433d17)

  69. The anti-nullification position is based on the naked power and greed of lawyers who want to control every aspect of our lives. The game of criminal law is rigged so lawyers filter out many of the best and smartest jurors. It is necessary and appropriate for a juror to vote for justice, no matter what corner the legal monopoly club wishes to paint him into.

    Patterico rails against the intentional misleading of lawyers in a court of law because he and his brotherhood of fascists hate the competition. Lawyers wish to be judge, jury and executioner by any means necessary, including the intimidation of free thinking jurors.

    Horst Graben (d736b6)

  70. ELR (#64): Your story provides a good example of what jury nullification, properly defined, is not.

    You apparently thought that under one of the Court’s instructions, the defendant should not be found guilty.

    By definition, jury nullification occurs only when the jury believes that under the law as given to them by the judge, and under the facts as proved by the prosecution beyond a reasonable doubt on every element of the crime as charged, the defendant is guilty — but they nevertheless refuse to convict.

    The system has lots of play in the joints that typically works in favor of the defendant. Prosecutorial discretion, mentioned (and sort of but not quite really explained) above, is one feature of the system that may result in charges that might be brought, and might be proved beyond a reasonable doubt, nevertheless not being brought.

    Another huge source of play in the joints are in the constitutional requirement of proof beyond a reasonable doubt and the legal definition of circumstantial evidence. In theory, the necessary quantum of proof for conviction ought not vary from case to case, crime to crime, or statute to statute. Nor, in theory, should jurors be less willing to draw reasonable inferences in some cases than in others. In practice, however, it does: Some real-life jurors frequently require a stronger showing of proof, and are less willing to make circumstantial inferences from the proof that is presented, when the crimes charges are unpopular (or sometimes so-called “victimless”) crimes (e.g., solicitation of prostitution). But if the jury, or even one juror, is voting to acquit because it/he has a reasonable doubt, or because of a refusal to draw a reasonable inference from circumstantial evidence, then that’s not, technically speaking, jury nullification.

    Yet another source of “play in the joints” has to do with the specific intent requirement that’s written into the definition of most crimes. Unless there’s been a confession, the defendant’s subjective intent almost always has to be proved circumstantially.

    Beldar (433d17)

  71. Mr. Graben (#69): Dammit, you’ve discovered our conspiracy. But just you wait.

    Patterico is looking into your IP address. Soon we’ll compel your ISP to give us your home address. And then he and I will be on your doorstep, Mr. Graben, or maybe in your bedroom, injecting ourselves into your next argument with your wife. (We’ll flip a coin to see which of us gets you, which your wife.) This is indeed because of our naked power and greed to control every aspect of your life.

    Govern yourself accordingly.

    Beldar (433d17)

  72. Yes, yes, yes. We are each and everyone of us wiser and kinder than the majority of our fellow citizens. Nullify away.

    nk (7b0075)

  73. #71

    Damnit, I was informed the first step would be goon-squads! I joined this conspiracy with the understanding I would be doing some goon-squading…

    Scott Jacobs (d3a6ec)

  74. FYI, the conclusion from Glenn Reynold’s 2000 article on Jury Nullification:

    “Given that the current criminal justice system is failing both at convicting the guilty and at protecting the innocent, perhaps it is time for a significant change. Reempowering the jury, through both appropriately couched nullification instructions and other structural mechanisms, is likely to improve the situation considerably. Considering the truly miserable record of the criminal justice system in recent years, the burden should be on its defenders to explain why such a change is not in order.”

    DRJ (a431ca)

  75. And actually, I got distracted from my argument.

    This isn’t _really_ about perjury, which is an extreme course of action at best. It is about the permissibility of the question “Will you blindly adhere to the law as the judge explains it to you, even though you come to believe that it is unconscionable or unconscionable as applied?”

    The real argument is whether a defendant’s right to a jury trial includes the right to convince a jury of his peers that the LAW that he is accused of violating deserved to be violated, or at least ought not be enforced in his case.

    Because if it does then the question at issue (and/or exclusion of jurors based on their answer) is as unconstitutional as exclusion on the basis of race or religion. Questions about which ARE impermissible.

    Balko calls it a “perjury trap” but what it is is just a question that, by his lights, should be impermissible as it is an attempt by the state to marginalize the right to trial by jury, and that he feels that any answer is acceptable to an impermissible question.

    Kevin Murphy (0b2493)

  76. What is the purpose to the jury? If it is just facts judges can do that. Those opposed to jury nullification want to protect the sanctity of the law over justice. A man that murdered his daughters rapist I would aquit. I dont think our society will collapse with a jury ignoring the law, anymore that letting the guilt free due to evidence obtained illeagaly

    iowa (c4553e)

  77. am so sick of people citing the “historical precident” of jury nullification as a defense of the practice.

    That’s certainly understandable in any opponent of jury nullification, since every single solitary case you can point to in history as a justification for the right to trial by jury, the Zengler case, the Penn case, you name it, every one was a case of jury nullification.

    Jury nullification is why we have juries, period. If you’re going to ban it, you might as well abandon trial by jury, you’ve abolished it’s purpose.

    I suspect the legal fraternity would do exactly that, if they thought they could get away with it. It has not exactly escaped notice that every time in the last century our government has helped another nation craft a constitution, it’s told them to omit this right.

    Brett Bellmore (fa46b6)

  78. Bellmore, your understanding of the beliefs of the “legal fraternity” is poor.

    SPQR (26be8b)

  79. Am I wrong about the advice given Japan after WWII, or Iraq just recently? I don’t think I’m silly to see a deep connection between the fact that we help people to write constitutions which omit the right to trial by jury, and the way the legal system does it’s best to reduce juries to the proverbial mushrooms.

    The legal community doesn’t like trial by jury. It’s so irksome having somebody outside their closed community making the final decision in these cases…

    Brett Bellmore (fa46b6)

  80. “If jury nullification is so reprehensible, why isn’t prosecutorial discretion equally vile?”

    The anti-nullers need to deal with this.

    Billy Beck (8eba48)

  81. Dear Mr. Dyer: Your #68 has a perverse result. Saying what you intend to do, being honest, will get you excused from a jury. But having an agenda and keeping it dark, will let you succeed in conducting your experiment. Something wrong here.

    Next, I’d like to hear why jury nullifcation is horrible (and it certainly can be as many acquitted Klansmen from the South in the 1920s will show), but unreviewable prosecutorial discretion is the lifeblood of justice.

    How about voir dire for the officers of the court, drawing a salary or fees, as well as for the draftees, cannon fodder worht $15 a day? For example:

    1. How often are the presiding judge’s instructions on what the law is, or jury charges, overturned when appealed? What sort of experience does a judge have for conducting trials, e.g. is this the first murder trial she’s ever conducted?

    2. How many cases of this sort has the prosecution tried? Is the prosecutor a blowhard in the manner of Vincent Bugliosi who preened about winning 105 out of 106 cases, while not mentioning the ones he plea bargained out or dismissed to keep the average up? How often has the prosecutor filed a case, and later dismissed it because it blew up on him? Has the prosecutor ever talked about a jury’s duties, while neglecting to mention her own? How often does the prosecutor use jury consultants? Has a jury consultant been used on this jury?

    3. How many of the officers of the court have had ethics complaints against them?

    4. All officers to fill out long questionnaires filled with detailed personal information that the jurors could take home and discuss among themselves. If said information gets out to the public, well, that’s the way it goes.

    All thse questions to be asked under oath, with a bailiff ready to haul a balky officer of the court off to the jug on the serious charge of contempt of the jury, should the officer start crabbing and squawking.

    Why shouldn’t a jury know these things? I mean, besides there being no law that would require these nosy indignities to be inflicted on the officers? After all, as police and prosecutors are fond of telling us again and again, an honest officer has nothing to hide.

    I’ll admit that lay folks seldom have a high opinion of said officers. But that’s because they have set themselves above us, and that camera angle is never flattering. You need only consider Prosecutor Reed Walters of Jena 6 fame who faced an unwilling assembly of Jena High School students, took a pen out of his pocket, and said, “I can ruin your life with the stroke of a pen.” Even Mr. Frey had to admit that, as a prosecutor, this was something he would never say. Or Judge Charles Breyer, of the Northern District of California who presided over the trial of Ed Rosenthal for mass growing of marijuana. Rosenthal had an agreement with the City of Oakland to grow this marijuana, but Judge Breyer refused to let this fact come out at trial. The jury is to determine what the facts are, but shucks, how’s a prosecutor supposed to keep his conviction rate up if such “inflammatory” facts are let through? Rosenthal was duly convicted. PS–Did the prosecutors ever go after the city of Oakland for agreeing with Rosenthal about the marijuana? What do you think?

    This conflict between prosecutors and defense, and more broadly, between lawyers and the laity will never be completely resolved. At the moment, I think the lawyers have it far too much their own way, thanks to the drug war. This assertion does not do justice to lawyers, who would argue that two wrongs do not make a right. One wrong doesn’t either.

    Sincerely yours,
    Gregory Koster

    Gregory Koster (d0cb4f)

  82. I’m not sure I understand why it is ok for a prosecutor, judge, or panel of judges to “nullify” but not jurors. I’m sympathetic to concerns about the rule of law, but I don’t understand why the undue deference to to the opinions of members of the legal profession and contempt for the opinions of “the people”. Or are you going to seriously argue that members of the legal profession strictly contrain themselves to determining whether to prosecute and/or convict based solely on the law and evidence available? Since that is clearly not the case, I’d be interested in hearing an argument explaining why it is appropriate for prosecutors to decide not to prosecute when they have ample evidence of guilt, or why it is appropriate for judges to decide a case contrary to the text the law…but why it is not appropriate for citizens who are not members of the legal profession to do so.

    MikeMangum (602077)

  83. I strongly disagree with your interpretation of the law, and with your assessment of those who disagree with you. I don’t care what the California Supremes say, I don’t live in California. If this is how the State is run, I wouldn’t ever want to live in California. Fortunately, the Supreme court has not, to the best of my knowledge, declared jury nullification illegal. Until they speak, you can’t claim jury nullification illegal in the US.

    Shakespeare was right.

    John (08eb34)

  84. Mr. Koster,

    I’ll defer to Beldar’s superior wisdom and and knowledge of the legal process but I want to make one related point: Most Americans realize the value of vigorous economic competition but we still pine for the relative peace of cooperative ventures and wonder “Why can’t we all just agree?”

    There is a similar dichotomy in law. We want people to get along but the legal system is based on the principle of zealous advocacy that often translates into contentious proceedings. It would be nice if we could resolve disputes without contention but time and experience have shown that zealous advocacy is more likely to result in justice.

    DRJ (a431ca)

  85. “Those who, under oath, deliberately seek to mislead the court about their intent to nullify — these people aren’t honorable citizens.

    They’re just liars — plain and simple.”

    The same sort of thing was said about MLK:

    Those who purposefully and publicly disobey a law simply because they think it is unjust, and justify it to themselves by calling it “civil disobediance” – these people aren’t honorable citizens. They’re just lawbreakers – plain and simple.

    And the same sort of thing was said of our founding fathers:

    Those who rebel against lawful authority simply because they don’t recognise that authority’s legitamacy – these people aren’t honorable citizens. They’re just rebels – plain and simple.

    The same sort of thing was also said of the jurors who refused to convict in the Star Chamber, wasn’t it?

    MikeMangum (602077)

  86. What a truly interesting thread!

    Without remarking upon the merits of jury nullification, or the morality of perjury, I’ll add only this: Police officers, prosecutors and judges claim for themselves wide discretion not only in applying the law to the many cases that come before them, but also in deciding the very legitimacy of the law itself. (See, for example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).) But these same officials insist that jurors, drawn at random from the putative sovereign, are entitled to no discretion at all in the enforcement of our law, even when that discretion is limited to a single outcome.

    It is of course possible that our courts and their officers have a compelling and principled case to make for the standards that they themselves have promulgated. It’s also possible that these standards reflect an extraordinary degree of institutional self-interest, and self-aggrandizement. Which is it? Perhaps the history of government generally is an instructive guide.

    Paul S. (289d5e)

  87. Mr. Bellmore (#79): Iraq and Japan were both countries that had no tradition of trial by jury in the way that we interpret that right, given our common-law heritage from Great Britain. Indeed, even in the modern U.K. and such other common-law countries as Canada and Australia, the right to jury trial has been substantially abridged, especially in civil cases.

    As for what lawyers prefer: I can’t speak from first-hand knowledge about either prosecutors or criminal defense lawyers, but I can say with a high degree of confidence that in civil cases, your assumption is exactly backwards. Essentially all of the real trial lawyers I know (i.e., lawyers who regularly and actively try cases, as opposed to always settling them) strongly prefer to try their cases to juries. Most of the civil trial judges I know would far rather preside over jury trials, too.

    I do recall Patterico writing here, and reading other prosecutors’ similar views elsewhere, to the effect that those of us who participate daily in the criminal and civil justice systems, including their jury trials, are generally not only the most knowledgeable about those systems, but their fiercest defenders and proponents.

    Every time a jury is asked a question, for example, about whether a practice or action was “reasonable,” the system is taking a measurement using twelve citizens, good and true, as a proxy for the conscience of their community. After twenty-seven years as a participant in it, I’m still regularly astonished and frequently reminded of how well the system works on the whole. With all its flaws and its occasional misfires, I’d still not trade our American jury trial tradition for that of any other country in the world, past or present.

    Mr. Koster (#81): Judges’ and lawyers’ qualifications are indeed tested, and far more thoroughly and intrusively than those of most jurors. We operate subject to more rigorous codes of conduct and professionalism, and while I think the bar and bench and their respective regulatory authorities can and should do better, the worst of us are indeed culled. But it’s not the job of jurors to do that testing or culling, nor are they particularly well qualified to do so by virtue of being jurors. (Bar and judicial conduct committees do indeed typically include “public,” i.e., non-professional, representatives, and I agree that that’s a good thing.) The questions asked of jurors are indeed intrusive and personal and sometimes pernicious, but the ability to demand that sacrifice of some dozens of your fellow citizens is part of the privilege you’d enjoy as an accused defendant entitled to be tried by a jury of your peers; and it’s the rare case indeed that such privacy intrusions cause any real or lasting damage or even inconvenience.

    Beldar (433d17)

  88. wls (#10): welcome to a hobbesian world.

    planet earth is a cage with about six and a half billion rats on two legs running around fouling it and competing for the available resources. quality of life equals available resources divided by the number of rats, uh, people competing for them. there will be winners and losers, boss rats and slave rats. the successful competitor avoids becoming a slave rat and captures enough resources to sustain him and his loved ones.

    assistant devil's advocate (efe988)

  89. Mr. Mangum: Martin Luther King didn’t advocate perjury. He tried to get his society to change pernicious laws through conventional channels. In the meantime, to highlight their pernicious nature, he advocated open and honest civil disobedience — with the full expectation and acceptance of those laws’ adverse consequences. In fact, he frequently demanded the imposition of those consequences, since suspended sentences and dismissed charges didn’t make his political point nearly so clearly — and that became yet another effective technique for embarrassing the powers-that-were in the Jim Crow South. The founders of the American republic likewise did what they did openly, knowing that if they failed, they’d pay with their own lives and their entire families’ properties and honor.

    These aren’t precedents to support lying when being questioned for potential jury service.

    Beldar (433d17)

  90. Balko calls it a “perjury trap” but what it is is just a question that, by his lights, should be impermissible as it is an attempt by the state to marginalize the right to trial by jury, and that he feels that any answer is acceptable to an impermissible question.

    Yeah, I think there’s merit in that comment. Back when Bill Clinton was equivocating about sex with that woman, I did a little thinking about lying.

    The conclusion I came up with is that a “lie” is a statement or act, or failure to do either, that misleads a person entitled not to be misled.

    So when the Nazis show up at your door, & ask you whether you are hiding any Jews in the basement, it’s not a lie to tell them “no,” even though your basement is full of Jews. Reason being, the Nazis have no right to be told the truth.

    Likewise with the courts. If the judge or counsel asks questions which are intended to get you to disclose whether you would nullify, the issue is whether the court or counsel have a right to a truthful answer.

    If you believe that nullification is one of the functions of a jury trial, then it’s not wrong to conceal that from the court – because the court & counsel have no right to know that’s how you believe if they are going to use that answer to exclude you from the jury, thus negating one of the functions of the jury.

    So this whole issue about whether it is proper to “lie” on voir dire is a red herring. The real issue is whether jury nullification is properly a function of the jury.

    I’m not entirely sure of the historical evidence for that function, but I’m pretty sure of the practical utility of the function. The potential for nullification is – as implicitly recognized in some of the comments – related to the question of prosecutorial discretion. That discretion is informed, in part, by whether the jury is likely to convict.

    Seen in that light, I believe that prosecutorial discretion & jury nullification are both proper aspects of the prosecutorial power.

    In other words, jury nullification ensures that the power of prosecutorial discretion does not rest entirely with the prosecution. That’s not to say that there are not other things that also limit the prosecution. But ultimately, the judgment about whether someone should be prosecuted has to lie with someone, & I would certainly prefer that judgment to be made not only by the prosecutor who brings the case, or the judge who insures that the prosecutor is operating within the bounds of the statute, but also by a jury who can decide whether this is what we had in mind when this law was passed.

    Harmon (eeaaea)

  91. If registration wall, try this link.

    nk (7b0075)

  92. it’s a completely off topic side issue but language is always fun. A little googling does reveal that “voir dire” does in fact mean “to tell the truth”. “See [them] say” is a false etymology based on modern french not the Anglo-Norman french the term is derived from.

    [Anglo-Norman, to speak the truth : Latin vērus, true; see wērə-o- in Indo-European roots + Latin dīcere, to say; see deik- in Indo-European roots.]
    – American Heritage Dictionary

    Etymology: Anglo-French, “to speak the truth”
    – Merriam-Webster’s Dictionary of Law

    [Origin: 1670–80; < AF, equiv. to OF voir true, truly + dire to say]
    – Dictionary.com unabridged

    Steve (afc04e)

  93. “when i use a word” said humpty dumpty in rather a scornful tone, “it means whatever i want it to mean.”
    “i didn’t think you could make a word mean so many different things” replied alice.
    “well, i can” replied humpty dumpty, “and that isn’t the issue. it’s who is to be master, that’s all.”
    –lewis carroll

    you know my uncle, he’s as honest as me
    and i’m as honest as a government man can be.
    –the grateful dead

    assistant devil's advocate (efe988)

  94. Those who keep saying that the law is against nullification are mistaken. I have taken the time to find four court decitions that hold that it is a right. Three are from state supreme courts and one which is absolutely conclusive is by the US Supreme Court. They along with my full response to this post is here.
    http://anglosphereunionnow.blogspot.com/2008/03/lying-and-jury-nullification.html

    Steph Houghton (597a77)

  95. Steve,

    I agree that language origins can be fascinating. It’s one reason I encouraged our kids to take Latin. They probably would have been better off taking French or Spanish but I still hope it will pay off in the long run.

    DRJ (a431ca)

  96. Steve #93,

    It is not off-topic at all. Black Jack Shellac attacked WLS over this and by extension Patterico on the issue of honesty.

    nk (7b0075)

  97. nk #91 Sparf does not mean what you think it means.

    Steph Houghton (597a77)

  98. Steph,

    Read it carefully. Three times. Maybe four. Print it out and underline it. It’s an essay on jury nullification. It cites two old precedents (maybe) which imply that it is permissible. A lot more which say that it is not. And the decision is that jury nullification is not part of American law.

    nk (7b0075)

  99. nk, it’s off-topic in that it has nothing to do with the merits of jury nullification. Back-and-forth ad hominem arguments about an honest mistake over the etymology of a legal term (which at least one online legal dictionary also made) are off-topic in the way that all ad hominem arguments are off topic.

    But, like a said, language is fun so I jumped right in 😉

    Steve (afc04e)

  100. Gee what’s it been like 90 days since the last time Patt went off on Radley?

    Should we align Patts views with those of Nifong’s for his use of broad brush condemning and condescending comments?

    I could almost swear it’s like a couple kids in a sand box fight.

    Personally I like both of them and think highly of both of them as well. Neither is 100% correct all the time, but neither deserves eternal condemnation for such.

    Patt note DRJ’s post #74 above. :)

    As to the subject of this thread, nullification is a CITIZENS tool to send a message to judges, lawyers and legislators, not one to be carried on your belt with your leatherman, but available when needed. A dozen citizens will also make the decision when to open the drawer and use the tool for the case they are responsible for at the time.

    TC (1cf350)

  101. “In 1940, Germany invaded France.

    In 1944, the United States invaded France.

    No difference, right?” – Godwin Bueller

    When the United States invaded it was known as “French-Speaking Germany” (aka Jew-Free France).

    Correction Dept (3e5893)

  102. TC #101,

    Perhaps I should have said so in my earlier comment #74 but I think Prof. Reynolds is wrong on this subject. Not to mention his over-the-top rhetoric — I don’t see any basis for his conclusion that the American criminal justice system is “failing” and has a “miserable record.”

    DRJ (a431ca)

  103. Proof positive that I am fossilizing as we speak, (and I’m not as old as Hillary or John and slightly older than Barak):

    How in the world is this even remotely up for serious debate? If I go INTO the courtroom and lie, “misdirect”, conceal, obfuscate, parse and shade my answers…in order to effect an outcome upon a case that I have not yet heard ANY evidence, nor been given instructions on the law by the court, nor even heard argument from either counsel…. in what parallel universe am I to be considered a “fair and impartial juror of his/her/their peers”?

    Mr. Balko, it seems, would have no theoretical problem with me sitting on a case in which he fights for his life, and I, selected from the venire can impose my political and personal will upon his fate with his blessing.

    Whereupon, I intentionally evade detection during voir dire to further advance my political and personal animus toward Mr. Balko.

    The facts are irrelevant and the law and instructions by the court, even moreso. My intention in being seated at the outset, is solely to impose my will upon the proceedings. Oh, his shrewd lawyer and the namby-pamby judge have excluded evidence about his blog and writings, but I know that he is an admitted liar and therefore because I disagree with his “outside the courtroom” politics and positions…I vote to hang him and hang him high.

    I make the law in CFBleacherWorld and I am bound by no other. I don’t trust the system to work within its confines, so I make it work for me, inside mine.

    I sit as the Stealth Judge, making my own rulings on what is admissible, which laws to apply, which instructions to ignore. I sit as a super-legislator making, enacting and enforcing my own laws as I see fit. I’m the New Millenium’s Self-Absorbed Man, and if I want Balko fried, no sissy system with all its pomp and ritual should stop me.

    My only hope though, is that the eleven suckers chosen to sit with me don’t feel the same way too, only in a different direction.

    Look, I’m no babe in the woods. The whole reason I found it disagreeable for federal judges to conduct voir dire in my stead, was because I could get a sense when someone had an agenda if I chatted with them myself. And yes, parties lie, witnesses lie, people self-enforce laws all the time on the highways…yes, I get it.

    But we are a nation of self-governing neighbor citizens and the law is a process of ours, not a thing of ours. If you seek justice and honor from it, you have to contribute justice and honor to it.

    .

    cfbleachers (4040c7)

  104. Amen, CFBleachers, and I wish I’d said it.

    DRJ (a431ca)

  105. nk. It’s also worth reading the dissent. Also an essay on jury nullification but coming to the opposite conclusion. As for me I don’t hold the courts in any higher awe than any other branch of government. They are as capable of getting it wrong as congress, or the executive. Which is of course why I believe jury nullification is a legitimate right and part of the whole point of having juries (based on the quotes by Adam, Jay, Jefferson I cited above as well as Hamilton’s bit about the importance of juries in Federalist 83 I think I’m in good company). It is not surprising that judges have ruled that it is an illegitimate exercise of the jury’s power, the courts are one of the powers checked after all. But such checks and balances are the genius of our system, and of course the powers being checked don’t like it when it happens.

    Steve (afc04e)

  106. Did this whole mess start (that is, quizzing potential jurors about their belief in jury nullification) when the (was it the courts or the legislatures?) began forbidding nullification as an argument brought up by the defense? If so, could the solution be to remove that restriction?

    htom (412a17)

  107. DRJ, I really did not read any of glens’s piece, “Not to mention his over-the-top rhetoric” Which is why I do not read his stuff. I pointed it out only because it appears to have been written a decade ago by somebody else supporting what the writers of a Television program said to Time magazine that Radley choose as a subject in a thread.

    Radley, then goes on a short discussion and specifically focuses on the “WAR on Drugs” and gets reamed out for it.

    Not intended to sound as if you supported the subject or not, more just that Radley was really not the author of the subject.

    Lying, ethics, morality and on and on and on. EVERYBODY lies, (or pick your favorite alternate term)!

    TC (1cf350)

  108. I’ve had two voir dire experiences as a potential juror. The first time, I told the judge I couldn’t abide by the strictures of the law. The prosecution bounced me. But I was deeply conflicted. I knew I could never, in good conscience, abrogate my sacred right to nullify. I recognized and understood that the odds I would resort to nullification were incredibly remote, but I just couldn’t bring myself to giving up the possibility.

    The second time, I ended up being the foreman. I had decided in the intervening time that I would take the oath as dictated by the California Supreme Court and trust that I wouldn’t have to exercise nullification.

    I’ll do it again. I’ll do it everytime.

    The bottom line is that I have every intention of following “settled law,” but if that law ends up offending my deeply-held sense of justice, the law loses. This would be an extreme rarity.

    Ed (8166cd)

  109. TC #108,

    I see your points, and I didn’t think you were pointing out that link because it was mine. I figured it was because it was the Instapundit’s.

    I like Prof. Reynolds a lot and respect his writings but that one isn’t one of my favorites. I think reasonable people can disagree about the validity of jury nullification but I have a problem with those who advocate the use of deception (like Balko) or who suggest the criminal justice system is miserable (like Reynolds). I hope they are both using heightened rhetoric to make a point, but I still think it’s unfortunate.

    DRJ (a431ca)

  110. nk #99 I have read Sparf carefuly more than once. I am law student writing a paper on this subject. The opinion is saved to my lap top. While I think the majority is wrong, they do not say jury nullification is unlawful, only that they don’t like it and that judges don’t have to instruct jurys about it. In any event they dissent is clearly the better arguement with the older precident. The fact is if anyone had a right to say what trial by jury means in the context of the US Constitution it was the First Chief Justice of the United States and the unanimous Supreme Court. They did in Georgia v. Brailsford, 3 U.S. 1 (1794) They held that you and patterico are wrong.

    Steph Houghton (597a77)

  111. Steph Houghton,

    When the Sparf Court ruled that a trial court judge did not have to instruct a jury about nullification, was that a holding or dictum? I thought it was a holding. If so, doesn’t that make Sparf precedent on that subject?

    DRJ (a431ca)

  112. Blackjackshallec — “Voir Dire” is “Old French” which is a dialect of Latin.

    And it means, according to Black’s Law Dictionary: “To speak the truth.”

    WLS (68fd1f)

  113. Steph,

    My Constitutional Law professor was a regional director of the ACLU. I graduated from law school believing that no law was valid unless necessary to advance an overwhelming state interest and was the least restrictive means. You won’t be a lawyer until you have put your law professors behind you. The rule of thumb is one year away from them for each year you spent with them.

    And a majority of the Supreme Court saying they don’t like jury nullification and no judge need instruct it to the jury is law. No matter how much more attractive the dissent is.

    nk (7b0075)

  114. Mr. Houghton (#95 & others): Modern federal criminal law not only refuses to approve jury nullification, it gives the federal trial courts real teeth to root it out. See, e.g.., United States v. Kemp, 500 F.3d 257, 303 (3d Cir. 2007), cert. denied, 2008 WL 219248 (2008)(case citations & footnotes omitted):

    While it is undisputed that in certain circumstances, district courts may discharge a juror for cause during deliberations, see Fed.R.Crim.P. 23(b), we have yet to enunciate the appropriate standard. Any standard must accommodate two clashing interests. First, it is clear that “a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the government’s evidence.” Any other rule would eviscerate the right to a unanimous verdict of guilt. On the other hand, courts agree that a district court has the authority to dismiss a juror-even during deliberations-if “that juror refuses to apply the law or to follow the court’s instructions.” That is because “a juror who refuses to deliberate or who commits jury nullification violates the sworn jury oath and prevents the jury from fulfilling its constitutional role.”

    As I recall it being taught to me in law school, the law on jury nullification in the state courts varies slightly from state to state, but the opinion that Patterico quoted from the California Supreme Court is certainly recent, and entirely definitive for that state. Its Texas counterpart is Hill v. State, 90 S.W.3d 308, ___ (Tex. Crim. App. 2001)(emphasis in original), which makes the precise distinction between power and legal authority that Patterico made in his original post:

    Although a jury of eleven can render a verdict in a criminal trial, this does not mean that a trial judge must require a jury of eleven to render a verdict. There is an enormous difference between having the “power” to do something and being required to do it. For example, a jury has the power to return a verdict that flies in the face of the law and the facts,[FN11] but that does not mean that a trial judge must require jury nullification.

    Footnote 11 in turn reads:

    See Ramos v. State, 934 S.W.2d 358, 367 (Tex. Crim. App. 1996) (“As for the so-called right to jury nullification, … [t]he jury has the power to nullify, but the appellant does not have the right to a jury who will nullify”); Mouton v. State, 923 S.W.2d 219, 221-22 (Tex. App. — Houston [14th Dist.] 1996, no pet.)(“while jury nullification may exist as a part of our justice system, it is not a legal standard and is not a constitutional right of the defendant. The court’s duty is to instruct the jury on the law”).

    The Ramos case, in turn, points out that the United States “Supreme Court has expressly stated that ‘nullifiers’ may constitutionally be excluded from the jury,” 934 S.W.2d at 367, citing Lockhart v. McCree, 476 U.S. 163, 72 (1986).

    I would be very surprised if this were not the majority rule, or close to it. I would be very surprised if many, or even any, states permit defendants to obtain jury nullification instructions in modern practice, or if any refuse to permit defense arguments explicitly based upon jury nullification, or if any seat jurors who’ve testified in voir dire that they intend to engage in it.

    Beldar (433d17)

  115. Dear Cfbleachers: You write:

    “How in the world is this even remotely up for serious debate? If I go INTO the courtroom and lie, “misdirect”, conceal, obfuscate, parse and shade my answers…in order to effect an outcome upon a case that I have not yet heard ANY evidence, nor been given instructions on the law by the court, nor even heard argument from either counsel…. in what parallel universe am I to be considered a “fair and impartial juror of his/her/their peers”?

    That’s easy: you are in the same universe whereby a prosecutor, “bound to ‘do justice'” never puts his thumb on the scale, and treats all cases equally, a universe where “prosecutorial discretion” does not exist. You do not say so explicitly, but I think you are a working lawyer. What this non-lawyer wants is for the lawyers to follow the same rules they prescribe for everyone else. Why shouldn’t jurors know if either side has hired jury consultants? Why shouldn’t jurors know how often a presiding jduge is reversed on appeal? Why shouldn’t jurors know how often a prosecutor plea bargains case as opposed to trying cases? Why is juror ignorance so desirable?

    Further, juror nullification is almost always a refusal of juries to convict. The converse, when juries convict out of prejudice, has the safeguard that the judge can throw out the verdict. Functionally, juror nullification gives the same results as proscutorial discretion. If one is obnoxious, the other is equally so. The only objection I can see to jury nullification is that the jury can’t always get the facts and guidance it needs, having no investigative powers of its own, and always facing a judge’s arbitrary power with no real defense. In the Rosenthal case, the only reason the jury voted to convict was that the judge, at the behest of the prosecution, refused to let the jury know that Rosenthal had been growing marijuana at the city of Oakland’s behest. So they did not know what they needed to nullify an unjust result.

    For DRJ: I’m greatly obliged to you for the striking image in your 84. The problem I have with it is that, once again, the jury has no real power or ability to find out what bamboozlement is going on with zealous advocacy. Want proof? When the Nifong imbroglio was heating up, the Durham defense bar issued a statement saying that Nifong played by the rules, and gave everyone a fair shake. This carried weight precisely because it was by Nifong’s adversaries. But it blew up in the defense bar’s face. There’s two possibilities:

    1. The Durham defense bar is composed of ninnies.

    2. The Durham defense bar knows dam well which side its bread is buttered upon, and at the time they issued the statement, thought Iron Mike was going to continue to be the DA.

    If 1) is true, ‘zealous advocacy’ is a rigged game. If 2) is true, ‘zealous advocacy’ is a cynical fraud, fed to suckers to keep them quiet. Neither of these possibilities is heartening, leading to a third conclusion: working attorneys would do better to keep still about real flaws in the system, lest the suckers see how bad it is. Is this why examples that nullificationists bring up are so often ignored?

    Sincerely yours,
    Gregory Koster

    Gregory Koster (d0cb4f)

  116. I’m finding those who are arguing for jury nullification more than a bit disturbing because so often above we see people assert that they would be striking a blow against lawyers or judges in doing so.

    It is difficult to find any place in state or federal jurisdictions where the criminal law is judge-made as in common law. It is all statutory these days. If you think that there is an unjust statute on the books, then it is your fault as citizens/voters, not the fault of the courts.

    SPQR (26be8b)

  117. Mr. Koster,

    It’s dangerous to use outlier cases like the Duke case to make policy decisions. Sometimes things don’t work the way they are designed but that doesn’t mean the design was at fault.

    DRJ (a431ca)

  118. I know people like Balko; folks who at times opine that they’d do everything they could do to get on a jury involving X, because they don’t hold with laws involving X. Or Y or Z or whatever.

    Call that “activist nullification.” You primarily see this in death penalty cases, and sometimes in drug cases, where someone fundamentally opposed to the law lies to get on a panel with the intent to block a conviction or death penalty regardless of the facts. Patrick utterly hates this, and I can understand that.

    But more common, and far more valuable, is what I will call “situational nullification”, where a juror, who answered the original questions truthfully and without reservation finds that they are so morally offended by matters that are brought out during the trial that they cannot in good conscience return the verdict that the bare facts would support.

    Now, some would argue that they are duty-bound to report their inability to convict and be replaced by someone who can. But to someone in that moral position, that would be pretty much the same as acquiescing in the process themselves.

    Example: A man is charged with assulting a police officer. Clearly he did stike the officer and the judge instructs the juror that this is all he may consider. Yet, he also knows from testimony that the officer repeatedly slurred the man’s wife and heritage using gross and repugnant language. He himself might have tried to strike the officer in a similar situation.

    So he votes to acquit.

    This is valuable, as not only does it reflect community standards of justice, but it informs those in the system that their discretion needs to be retooled. Were it not for nullification of this sort, there would be no “prosecutorial discretion” as there would be nothing pushing back.

    And yes, there are travesties like the OJ trial where this kind of outrage can be manipulated to twisted ends. But Furman probably did plant that glove…

    As with all things, both situational nullification and prosecutorial discretion can be abused. Doesn’t make them wrong. What is wrong is when a juror or a prosecutor attempts to convict a person when they know it to be unjust.

    Kevin Murphy (0b2493)

  119. Huh? I can think of more than a few wrong-headed laws and regulations, and don’t feel the least responsible for the creation of any of them — I advocated against them before they came into being, and have continued to call for them to be repealed.

    I’m not a great fan of either initiative or referendum, either.

    I see jury nullification as being the same as proscutorial discretion in charging and judicial override of a guilty verdict.

    Someone who intends to vote to hang or to not convict because of their opinion of the law before they’ve heard the case are (in my arrogant opinion) no different than a dishonest witness| cop| prosecutor| defense lawyer| judge. You have to hear the case before making the decision to nullify.

    However, to claim that there is some crime in truthfully stating that you might — not will — is just usurping the power of the jury.

    htom (412a17)

  120. Jury nullification is simply human beings standing up and being human, instead of enforcing laws that require them to be less than human.

    And the law brings it on itself. SPQR is right that, to the extent that legislator-drafted laws are insanely unjust, it is our own fault for allowing them to be so. That doesn’t mean we should allow such laws to continue to imprison us when we see how horrible their effects can be.

    When the law requires humans to be inhumane, or family members to betray their family, being a citizen becomes a burden, not a benefit. It can never be otherwise.

    If I am ever placed in a position of sending a non-violent drug law offender to prison for decades, I will feel trapped by my obligations as a citizen, and simply want to escape — just as, I’m sure, the accused does.

    We all become prisoners of unjust laws – these laws do not just imprison those convicted under such laws. They hold us all captive. Everyone in a jury box is already in jail, if they are forced to make decisions under laws they know to be unjust.

    Phil (6d9f2f)

  121. If any group should feel responsible for laws and regulations, it should be the legal profession whose members inhabit the system. The rest of us are just going about life, entrusting you guys to GET IT RIGHT.

    When you fail, all we can do is pick up the nearest blunt object handy. If it is nullification, fine, we’ll use that. If it can be done at the ballot box (assuming you lot don’t block us in court), we’ll do that.

    The idea is that we don’t really want to be bothered, and when we are we want to take care of it before “American Idol” comes on.

    Rather than whining about our “Hulk Smash” lack of finesse, get it right at your end and we won’t have to.

    Kevin Murphy (0b2493)

  122. Probably the most effective case of “jury nullification” on record can be seen here, where one man stopped a government’s intended punishment of “wrongdoers.” And I bet he paid dearly for it as those authorities were not amused.

    Kevin Murphy (0b2493)

  123. Beldar – “Judges’ and lawyers’ qualifications are indeed tested, and far more thoroughly and intrusively than those of most jurors. We operate subject to more rigorous codes of conduct and professionalism, and while I think the bar and bench and their respective regulatory authorities can and should do better, the worst of us are indeed culled. But it’s not the job of jurors to do that testing or culling, nor are they particularly well qualified to do so by virtue of being jurors.”

    Yes, the qualifications of members of the legal profession are tested…by other members of the legal profession. How many other industries are allowed to regulate and police themselves? Not surprisingly, as happens any time an industry polices itself, the legal industry is doing a terrible job of it, as admitted by the ABA itself, calling self policing of the legal industry a “scandalous situation” and “too slow, too secret, too soft, and too self-regulated”.

    http://www.abanet.org/cpr/reports/mckay_report.html

    The legal profession is a guild with quasi official status, and that guild has an enormous impact on governance. The governance of that guild is not composed of people who must stand for election before the general population nor people who are appointed by those who must face the electorate. It also happens to be the only profession of which I am aware that is functionally immune to malpractice claims.

    The application of the law is just as important as the actual text of a law. Do we need to discuss penumbras and emanations? Or the disparity in the treatment between male and female victims of domestic violence by the legal profession?

    It is an explicitly stated principle of our polity that the ultimate justification for governance and the law is the acceptance of the citizenry and their recourse to its modification. That applies just as much to the application of the law as it does to the creation of the law.

    Members of the legal profession certainly have greater knowledge of the law and its application than the general population, but the general population has a significantly greater claim to ultimate authority over the law and how it is applied. That is, assuming you believe that “Governments are instituted among Men, deriving their just powers from the consent of the governed”. A system where citizens have no say in the rules governing the application of the law is not consistent with that idea.

    And Beldar, regarding your argument that MLK and our founding fathers accepted the consequences of disobeying the law; I agree completely. I was not making the argument that someone who lies during voir dire should not be punished for doing so, I was arguing that they shouldn’t be forced to answer some specific questions to serve on a jury. Frankly, the only question should be whether they know any of the parties involved in the case, if they can be impartial, and if they are citizens.

    I was also arguing about the disdain for people who would put themselves in a situation to accept those consequences by lying during voir dire. The only way to involve yourself in civil disobedience against the disempowerment of the jury is to lie. The lie itself is the civil disobedience. Decrying that as dishonest is exactly the same as calling MLK a criminal. They are both technically true, but somehow there isn’t the same negative moral judgement attached to MLK’s actions.

    If, for instance, the courts in the early 1800’s could have disqualified potential jurors based on their views regarding squatter’s right, our country’s history would have been profoundly different. I think it is disgusting how much of your views they ask during jury selection now, and if you hold certain views you are disqualified from serving on a jury. I don’t recall in my readings of the Constitution where juries are to be composed only of individuals with ideologies that are acceptable to the those in power.

    MikeMangum (602077)

  124. Mike #124:

    “Frankly, the only question should be whether they know any of the parties involved in the case, if they can be impartial, and if they are citizens.”

    If a potential juror lies to get on a jury with the goal of a nullification verdict, s/he has already decided what the verdict should be. How is a juror impartial when s/he has already decided what the verdict should be?

    DRJ (a431ca)

  125. DRJ – “If a potential juror lies to get on a jury with the goal of a nullification verdict, s/he has already decided what the verdict should be. How is a juror impartial when s/he has already decided what the verdict should be?”

    I won’t disagree with that. If someone goes into it with the mindset that they *will* nullify, that is just as wrong as the legal system trying to weed out those who believe that it should be an *option*.

    If a potential juror simply believes that nullification is one of his tools and his duties as a citizen and moral human being, I don’t find anything wrong in him refusing to allow the courts to pack the jury with compliant sheep.

    MikeMangum (602077)

  126. Mike,

    I think you are drawing the same distinction that Kevin Murphy #119 drew between activist and situational nullification. I admit it’s a tempting argument but the line between the two is subjective. No one but the nullifier knows whether they are an activist nullifier who intended to nullify before s/he ever walked in the courthouse, or a situational nullifier who unexpectedly ended up a conflicted juror. Given that even the most determined debaters agree jury nullifications should be rare, I don’t see why we would want a legal system that makes it easy to do both.

    Furthermore, I don’t think anyone here has said jury nullification is impossible and never occurs. I think the question is whether or not it’s correct to object when someone openly announces they approve of using deception in order to pursue a goal of jury nullification. I think it’s not only correct to object, it’s required.

    DRJ (a431ca)

  127. Dear DRJ: “If a potential juror lies to get on a jury with the goal of a nullification verdict, s/he has already decided what the verdict should be. How is a juror impartial when s/he has already decided what the verdict should be?”

    The same way a prosecutor who presses forward with a case he is sure has no merit. Nifong? No can’t bring him up because, “It’s dangerous to use outlier cases like the Duke case to make policy decisions. Sometimes things don’t work the way they are designed but that doesn’t mean the design was at fault.” Great. Any case that goes wrong because the prosecutor can be called an outlier, and hence excluded. But citing less well known cases brings forth the response “I don’t know that case and hence can’t comment.” I bitterly regret not taking Sleight of Hand from Professor Houdini at law school in learning how to dispose of inconveniences the laity persist in bringing up, when not ignoring them entirely. Good heavens, DRJ, I think it is fair to say that many of the laity in this nation are schizophrenic about law as a profession, oscillating between yelling, “Hang them!” and “Hang onto them!”

    Why hold juries and jurors, draftees at $15 a day to higher standards than officers of the court? Nor have I heard ANY, let alone persuasive, arguments about why jurors shouldn’t know more about their officers.

    Sincerely yours,
    Gregory Koster

    Gregory Koster (d0cb4f)

  128. I assume all the pro-nullification people here would be in favor of a pro-law-enforcement individual lying his way onto a jury so he can vote to acquit a cop, no matter what the facts, on the theory that it’s always wrong to charge cops with crimes.

    Patterico (4bda0b)

  129. I’ve enjoyed this read…

    And, I respect the opinions of all, regardless of their position…

    My fear of “jury nullification” falls hard on Balko’s argument: If someone on a jury has a really outrageous view of the law, something completely contrary to the existing social, legal, and moral standings, and they get on the jury, and nullify.

    What do we do then???

    reff (59b2ad)

  130. Mr. Mangum, thanks for the follow-up comment (#124). Very briefly:

    I’m reasonably confident that in every state, the right to practice law is pursuant to a license controlled, directly or indirectly, but ultimately, by the state legislature. Even in states that don’t directly involve lay citizens in licensing and license revocation decisions, that’s where the ultimate authority lies, state by state. Admission to federal courts is always dependent on an underlying state bar admission; likewise, a position on the bench generally requires a law license, and in many states, those are directly-elected positions (either in partisan or recall elections), and/or else the appointing official (typically a state governor) is responsible to the voters for his judicial picks.

    Regarding your argument that “The only way to involve yourself in civil disobedience against the disempowerment of the jury is to lie”: That is, at best and by definition, a way to affect one case and one case only. If the case is a controversial and highly publicized one, the objector might do more good for his cause, if not that individual defendant, by telling the truth and then doing everything in his power to point out — from his newly privileged position as “struck juror” — the merits of his cause. Turning yourself into a human spanner wrench and then, via perjury, throwing yourself into the system in order to break it down (temporarily and in a single case) is in fact a very poor way to fix it. I don’t see much honor there, not even hypothetically.

    Beldar (433d17)

  131. DRJ – “Furthermore, I don’t think anyone here has said jury nullification is impossible and never occurs. I think the question is whether or not it’s correct to object when someone openly announces they approve of using deception in order to pursue a goal of jury nullification. I think it’s not only correct to object, it’s required.”

    If someone is being deceptive with the goal of nullifying no matter what (activist nullification), I agree. I don’t think there is anything wrong with being deceptive to prevent a jury from being packed with overly compliant jurors, in fact I believe that it is a duty of a citizen to prevent it. There is a difference between “pursuing a goal of nullification” and retaining the right and duty of nullification. The system should not put someone in a position to force them to say under oath whether they will be compliant jurors and to say that they will abandon their own judgement. The entire reason and justification for jury trials is that ordinary people are allowed to use their own judgement to render a verdict, by specifically bringing in people from outside of the legal profession.

    MikeMangum (602077)

  132. Radley #47, as usual you missed the point. Let’s assume, for argument’s sake, that perjury may be morally justifiable as the lesser evil in some extreme situations. Taking that as a given, can you identify a single situation in which it would be morally justifiable to lie to a judge (while under oath) to prevent a bad law from being applied in a single instance, yet not morally justifiable to lie to the general public (while not under oath) to get that same law repealed altogether?

    If the answer is yes, I can’t wait to hear your explanation. But if it is no, then why on earth should Patterico or anyone else believe a word you say, at least when discussing the issues you’ve already identified as being worth lying for?

    Xrlq (62cad4)

  133. Mr Koster (#128 and elsewhere), my friend: You’re an individual with an keen sense of curiosity. Some of the information about which you’re curious — for example, how often a particular trial judge has been reversed — is public information available to citizens generally. Offhand, I can’t think of another profession besides judges that so doggedly and systematically memorializes, indeed catalogs and cross-references, the specific occasions on which its members’ decisions have been overturned by those above them in the chain of responsibility, and the detailed reasons why!

    But because our system doesn’t subject judges to juror (or citizen) control in particular, individual cases, it’s not pertinent to anyone who’s acting in his/her proper capacity as a juror. And it could be very misleading. If you know, for example, that a particular trial judge has a 40% reversal rate in criminal cases (which would be exceptionally high for most judges in most places), what would you do with that information? Ignore his instructions in your particular case?

    No, sir, that way lies anarchy and mob rule, not the Rule of Law. Use the other means available to try to citizens to replace bad judges, prosecutors, or lawyers. Sometimes those means are frustratingly slow (as with rogue prosecutor Nifong, for example), but they’re not non-existent, nor even trivial. (Just ask now disbarred, disgraced, and bankrupted former rogue prosecutor Nifong.)

    Beldar (433d17)

  134. reff (#130): I’m not sure if this relates to your question or not. But in doing some quick research this afternoon on the present status of the law, state and federal, on jury nullification, I was reminded that the issue of jury nullification was much discussed in the context of the death penalty during the last 35 years. In fact, that accounts for most of the recent occasions on which the SCOTUS has mentioned jury nullification.

    The way the issue came up was in the context of states with mandatory death sentences in certain types of cases. Those resulted in comparatively large numbers of jury nullifications — and if lesser charges were unavailable to the jury upon which they could still convict, it resulted in more than a few murderers going absolutely free. That, in turn, was part of the “arbitrariness” of the pre-1972 capital punishment laws that led to them being struck down en masse by the SCOTUS in Furman v. Georgia and its companion cases. As a result, death penalty states had to rewrite their laws to do away with “mandatory” death sentences and to instead explicitly permit jurors to acquit capital defendants based on their unfettered consideration of “mitigating circumstances.” And when they did so, Gregg v. Georgia and its companion cases lifted the moratorium on death sentences and resulted in the resumption of executions, albeit only for convictions under the new statutes.

    It can be argued, then, that a sufficient pattern of jury nullification can eventually effect a change in the law, either by courts or by legislatures (or a combination of both).

    But again, that amounts to a recognition that jury nullification sometimes happens, and that there may be broader consequences when it does. It doesn’t logically support the position that juries should be informed of their (non-existent) “right” to nullify, nor of their (practical, extra-legal) “power” to do so. And it emphatically doesn’t support Balko’s argument that people should perjure themselves in order to permit them to practice jury nullification in cases about which they feel particularly strongly.

    Beldar (433d17)

  135. Perhaps a discussion of the “Fully Informed Jury” would be in order?

    A Juror should also be able to judge the law, as well as the guilt or innocence of the accused.

    martin (86a2e8)

  136. A Juror should also be able to judge the law, as well as the guilt or innocence of the accused.

    Except that the lawyers don’t put on evidence about the law; they put on evidence about the guilt or innocence of the accused. So the jurors’ judgment on the law would be based entirely on their prior prejudices, and not on the evidence heard in court.

    That no doubt appeals to those who want to decide everything based on their previous prejudices. But it’s not what trials are supposed to be about.

    Patterico (4bda0b)

  137. Patterico, I believe that the main appeal of jury nullification is to those who can’t deal with being on the losing end of a democratic process on their pet policy issue.

    SPQR (26be8b)

  138. Mr. Koster,

    Using Nifong as an example is emotionally effective but, as Beldar noted earlier, let’s be fair: Look what happened to him at the hands of the legal system you deplore.

    Furthermore, show me comparable examples where embezzling accountants have been publicly outed by the accounting hierarchy, dangerous doctors have been publicly ruined by the AMA, or similarly devastating public sanctions have been levied by a licensing board against a professional.

    My point is not to excuse or glorify lawyers. We’re human, we make mistakes, and we can do better. But I wouldn’t direct the kind of venom I’ve seen here at doctors or accountants unless I had something more than emotional rhetoric and one notorious example.

    DRJ (a431ca)

  139. Beldar, in response to comment #132:

    Yes, a juror who uses his own judgement and decides that a finding of guilty is unconscionable, in spite of the law, is only going to affect the case he is currently hearing. That is the limit of a juror’s responsibility.

    “If the case is a controversial and highly publicized one, the objector might do more good for his cause, if not that individual defendant, by telling the truth and then doing everything in his power to point out — from his newly privileged position as “struck juror” — the merits of his cause.”

    That strikes me as being very activist in nature, and that isn’t what I was referring to. If someone wants to be an activist, they have many other options than in the jury booth. But when you are called upon to be a juror, you are called upon to render a verdict based upon your judgement of what is just. A juror doesn’t insert himself into that position, he is called to fill that role.

    This is a quote that I agree whole-heartedly with.

    http://anglosphereunionnow.blogspot.com/2008/03/lying-and-jury-nullification.html

    “To return to the question which began this argument, what should people do when they are being subject to the jury packing process by a judge, prosecutor, and defense attorney who are colluding to allow the judge to act Ultra Vires. If a truthful answer would help the judge in his usurpation of authority not granted to him by the constitution, then it is to his own conscience that each venireman must have resort.”

    To allow yourself to be removed from consideration because you believe that it is a juror’s responsibility to use his own judgement to determine a just result, *as applied to that particular case*, is to acquiesce in an abuse of power and abandon an important responsibility as a citizen. IMO.

    MikeMangum (602077)

  140. “Patterico, I believe that the main appeal of jury nullification is to those who can’t deal with being on the losing end of a democratic process on their pet policy issue.”

    I think you’re right.

    Nobody is addressing my “nullification to acquit cops” example. Nor has anyone seriously grappled with my “cops lie to get the guilty guy” question. I wonder why that is.

    Patterico (50c5a0)

  141. Beldar, I can actually understand that a jury might have a problem in a “mandatory” death sentence case if the evidence presented left a possible sense of ‘reasonable’ doubt that the actions of the accused might have mitigation. Mandatory death when there is a mitigating circumstance would be hard for even the most hardline death penalty advocate, because there is no recourse if there is a chance of being wrong.

    My question poses the reverse of that possibility, I think. What about the person who believes that no matter what, no matter how many rules, laws, policies the society imposes on an action, that juror would vote not-guilty because they choose to ignore the possibility of the law. Balko argues, in my readings, that if a person believes the law to be immoral, they can do whatever it takes to be allowed to nullify. I seem to remember we had a similar discussion to this at another time and I questioned the possibility that this could happen, and it would destroy the jury system if allowed to occur. I think this type of behavior has led to the belief by the African-American minority that the jury system can’t be trusted, hence the “joy” at the Simpson verdict. I don’t have a problem with the Simpson verdict, because I don’t think the jury nullified the decision; they may have simply got it wrong. But, Balko advocates the possibility that the juror has the right to nullify because of personal beliefs, REGARDLESS of the law involved.

    All this can do is lead to the possibility of legitimate societal goals involving crime to be completely ignored by the actions of ONE PERSON.

    That scares me….

    reff (59b2ad)

  142. Patterico, your example is very similar to the point I am trying to make. Society would be completely opposed to your example, because it breaks down the justice system at its roots. But, Balko’s point is exactly your example: one person, believing completely that it would be wrong to convict a police officer, could get a bad cop off, and Balko would be forced to admit it would be the correct decision.

    Right, Radley???

    reff (59b2ad)

  143. Mike #140,

    In the American jury system, jurors aren’t there to do justice. Their job is to determine the facts. It may surprise you to learn that, while legal systems in some countries promise justice, American law does not. Instead, we promise a fair process … but the basis for this promise is the belief that justice is more likely to result when we use a fair process than from using other methods.

    That may sound strange but it’s an amazingly good idea and it has many ramifications, including our preference for juries. That’s not true in other countries. For instance, I think it’s true that in Singapore, all matters are heard by judges and there are no juries. In civil law countries like France, a magistrate makes rulings but also conducts the investigation and recommends whether charges will be brought and what they will be. These procedures might seem unfair to us but in countries where the goal is justice, fairness generally isn’t an issue.

    DRJ (a431ca)

  144. DRJ–

    Who is there to do justice? Clearly not the defense counsel, unless it’s a coincidence with an innocent client. The prosecutor? Maybe but probably not — he’s got a job to do in the process, too. The judge? As the other neutral party there, I would hope so. but given that the also-neutral jury is there to fulfill a role, why should the judge care about justice either. As long as the law is followed and things don’t get out of hand, the process has had it’s day.

    Does it matter if there is justice? Of course it does, because that’s what the people expect to have done. If it doesn’t work right, they’ll change it (see 3 strikes or the removal of 3 CA Supreme Court justices in the 70’s). And they also strongly believe in the jury system. WHy? Because they think that the jury is the last bastion of common sense in the courtroom, and often the only one, Perry Mason not being real.

    Kevin Murphy (0b2493)

  145. The process is there to do justice, Kevin.

    Think of it as a Ford assembly line vs. hand-crafted cars. The assembly line process may not be as pretty but it’s consistent. The hand-crafted job can be a thing of beauty but only if it’s done perfectly every time.

    I should also add that “justice” is in the eye of the beholder.

    DRJ (a431ca)

  146. Who is there to do justice? Clearly not the defense counsel, unless it’s a coincidence with an innocent client. The prosecutor? Maybe but probably not — he’s got a job to do in the process, too.

    That’s pretty glib. Just because I have a job to do doesn’t mean I’m “probably not” there to do justice. I consider seeking justice to be the very definition of my job responsibilities.

    Patterico (4bda0b)

  147. Justice? “Twe’re justice done who’d ‘scape whipping?”

    Man is a wolf to man. But unlike wolves, he knows it. And also, unlike wolves, being a tool-builder, he made himself a tool to enable him to live with his fellow men. And he calls it *Law*.

    And where that tool is broken is called Darfur and Somalia and Cambodia and Rwanda and Congo and Kenya and more than a few other places.

    You don’t like judges telling juries what the legislature said the law is? Darfur is just the place for you.

    nk (7b0075)

  148. 139# DRJ;
    “Using Nifong as an example is emotionally effective but, as Beldar noted earlier, let’s be fair: Look what happened to him at the hands of the legal system you deplore.”

    The only reason we know about Nifong is the national nature of what got exposed, Nifong represents just ONE that got caught, and got caught by the wrong people! But he by no means stands allone, Allgood, Scruggs, another one in VA that uses questionable tactics, they keep sprouting up all across the country, all with a common link, the Legal Industry!

    “Furthermore, show me comparable examples where embezzling accountants have been publicly outed by the accounting hierarchy, dangerous doctors have been publicly ruined by the AMA, or similarly devastating public sanctions have been levied by a licensing board against a professional.”

    Ever heard of Enron, Anderson Cooper, oh there are plenty of them?

    “My point is not to excuse or glorify lawyers. We’re human, we make mistakes, and we can do better. But I wouldn’t direct the kind of venom I’ve seen here at doctors or accountants unless I had something more than emotional rhetoric and one notorious example.”

    Of course not. But when case after case after case continue to grow out of the record books, one needs to take pause, especially those within the industry. They are the ones that allow such to happen and they are the ones that will reap the offspring of the Mike Nifong’s around the nation. And yes us dumb Citizens will prejudge you by industry association.

    Oh and you bring up at least two other industries that need their asses kicked across a couple of states as well! I figure if we can get one cleaned up, then we can apply the same formula and fix the rest. One at a time and here, it’s the legal industry.

    TC (1cf350)

  149. Nifong is a red herring in this discussion.

    With the Nifong’s in prosecution, there is no excuse for jury nullification. There is no argument that rape and sexual assault are unjust laws. The role of the juror in determining the factual elements of the crime is the role that stops someone like Nifong when the prosecution goes to trial, not nullification.

    SPQR (26be8b)

  150. What do you do for a living, TC, just out of curiosity?

    Patterico (4bda0b)

  151. Patrick–

    I really don’t want to discuss this with reference to you or any particular prosecutor. I believe you have a rule about that, so I will abide by it.

    Kevin Murphy (0b2493)

  152. I just wonder what TC and the others would say if a juror intentionally lied to get on Nifong’s jury intending to nullify a guilty verdict?

    Stashiu3 (460dc1)

  153. #129
    I assume all the pro-nullification people here would be in favor of a pro-law-enforcement individual lying his way onto a jury so he can vote to acquit a cop, no matter what the facts, on the theory that it’s always wrong to charge cops with crimes.

    #120 … Someone who intends to vote to hang or to not convict because of their opinion of the law before they’ve heard the case are (in my arrogant opinion) no different than a dishonest witness| cop| prosecutor| defense lawyer| judge. You have to hear the case before making the decision to nullify.

    Must have been too abstract a statement. Where, there, do you see such consent? The snarky question, of course, is why ever would you charge such a person, rather than giving him two weeks off with pay?

    I’d be more impressed by the idea of prosecutors (in general, I have no idea if those here who are prosecutors do this) “seeking justice” (as opposed to the idea of seeking convictions) if they didn’t bewail the lack of justice when they don’t get a conviction; they (and defense lawyers, too, when they lose) are probably too emotionally bound to their loss to proclaim the abstract good, at a guess.

    htom (412a17)

  154. TC,

    I don’t think accountants were responsible for bringing Enron and their conspirators to justice.

    I know there are problems in every profession, including the law, and I wish there could be 100% compliance in exposing wrongdoing. But I don’t see evidence of widespread abuse the way you make it sound, and I’m sure that watchdog groups, legal clinics, and the media would love to take action if you have any examples.

    Furthermore, how do these claims support the notion that the legal system has failed? Do you really want to throw the whole thing out and start over?

    DRJ (a431ca)

  155. Kevin,

    Forget I personalized it, then. I just think there are a lot of people out there who truly *enjoy* taking the position that prosecutors, by and large, are bad people who are just out to hurt innocent folks. It rubs me the wrong way because I work with them every day and I know it’s not true. We’re human beings with flaws, like everyone else, but if the people who are so fond of trashing us were actually to meet us, they might feel differently. (Well, they’d probably be so wedded to their preconceptions that they wouldn’t change them; they’d just say: “Well, *you guys* aren’t so bad, but the other ones out there are!”

    Patterico (4bda0b)

  156. I’d be more impressed by the idea of prosecutors (in general, I have no idea if those here who are prosecutors do this) “seeking justice” (as opposed to the idea of seeking convictions) if they didn’t bewail the lack of justice when they don’t get a conviction; they (and defense lawyers, too, when they lose) are probably too emotionally bound to their loss to proclaim the abstract good, at a guess.

    htom,

    We wouldn’t bewail bad outcomes if we weren’t convinced we had the right people to begin with. It’s because we believe we’re doing the right thing in prosecuting the case that we are disappointed if a juror or two (or, much more rarely, an entire jury) disagrees that the proof was there.

    Patterico (4bda0b)

  157. Patrick–

    The comment I made was in reference to a comment by DRJ, which asserted that any “justice” our system produces was an expected by-product only, and that no actor was really there to do “justice.” By this he absolved the jury from needing to care about it.

    I was responding with a bit of reducio ad absurdum. Except for the defense counsel who is supposed to be purely out for his client’s interests, the other players have strong interests in justice. Which was my original point.

    When a juror’s deliberation leads him to an honest choice between justice and law is where the concept of “nullification” has some use. Not to be confused with people seeking particular cases that they can lie their way onto to “fix” the system.

    Kevin Murphy (0b2493)

  158. I saw this early in the discussion, and I’m sorry, but I don’t have the patience to wade through the rest to see if anyone else jumped on this point. So, here goes…

    nk @ 21…
    “The jury is vital in assessing the credibility of the witnesses and the weight of the evidence.”

    If the jury is so vital in this role, why haven’t we (the system) allowed the jurors to actually pose questions to witnesses? In all types of trials?

    I would think it might accomplish more if jurors were more involved, and judges less so. Let the attorney’s get in the face of the jurors. That might result in some very interesting verdicts.

    Another Drew (8018ee)

  159. addendum…
    Plus, jury nulification is the one sledge hammer that we, the people, hold over the head of the Judicial Branch. And, woe to him who tries to take it away (anyone seen Rose Bird lately? – an example of someone in the JB who pissed-off the public at large).

    And it is, The People, that this entire experiment in Republicanism is about, isn’t it?

    Another Drew (8018ee)

  160. “If the jury is so vital in this role, why haven’t we (the system) allowed the jurors to actually pose questions to witnesses? In all types of trials?”

    I’m a civil lawyer, and the court I practice most in actually does allow the jury to ask questions of witnesses, by writing the questions anonymously and having them read by the judge. I had one trial where the jury asked several questions of each witness; normally, though, they only ask one or two questions per trial, if that.

    I don’t think I’ve ever seen any lawyers concerned by it. It’s actually helpful for the lawyers to know what the jury is interested in.

    Phil (0ef625)

  161. If the jury is so vital in this role, why haven’t we (the system) allowed the jurors to actually pose questions to witnesses? In all types of trials?

    Because what the jury hears is according to law. Democratically established, long-established law. Would you like me, a juror, at your trial for skulking with intent to loiter, ask you whether at the age of fourteen you had a crush on your social studies teacher?

    nk (7b0075)

  162. What jurisdiction do you practice in, Phil? In mine, the jurors only get to ask what’s on the record (transcript).

    nk (7b0075)

  163. In the military you are told you must follow all legal orders. This means you are not to follow illegal orders. Similarly I believe we must follow the law unless it give a result that shocks the conscience (or whatever the proper phrase is).

    I finally thought of a real example to consider: California’s medical marijuana law vs the federal prohibition of marijuana use. I forcefully opposed the initiative that created this California law, because it looked like an attempt to damage the state’s ability to prosecute true violations of the law with respect to pot use. However, now that it is the law in California, I believe it is a legitimate law based on the right of the state to determine proper medical practice in the state.

    If I were on a federal jury for a marijuana case where the defendent had legitimately followed the California medical marijuana law (grown by patient or caregiver for personal use in small personal quantities and recommended by the doctor), I would refuse to convict the defendent.

    This would be jury nullification, based on my belief that the federal government was not given the right to exclusively determine medical practice, thus the right is reserved to the state or the people. I do think it is proper for the federal government to regulate drug use that is not part of legitimate medical treatment and is abuse of the drugs.

    To clarify, I haven’t heard of a case that satisfies my criteria to refuse conviction, because it seems that in the actual cases I’ve read about, a large marijuana growing co-op is invariably involved, thus violating even the California medical marijuana law.

    Ken (245846)

  164. If the jury is so vital in this role, why haven’t we (the system) allowed the jurors to actually pose questions to witnesses? In all types of trials?

    I’ve done trials before judges who allow jurors to write questions and submit them to the judge, who decides whether the question will be asked of the witness.

    I think it’s a great idea. As Phil says, it helps to know what jurors are thinking.

    I wish final argument could be a conversation, in which jurors get to ask me questions, even as I present my argument to them. It’s very frustrating just to be talking *at* them.

    Patterico (4bda0b)

  165. NK, the jurisdiction I’m talking about is a county superior court in the midwest. It’s a fairly recent procedural change, from what I understand.

    Phil (0ef625)

  166. Ken,

    You would not be allowed to sit on that federal jury, with your viewpoints — unless, of course, you lied to the court about what your viewpoint is.

    Would you lie to get on the jury, to enforce your own personal view of the interaction between state and federal governments (a view, by the way, which has been rejected by the courts)?

    Patterico (4bda0b)

  167. Patterico #165 & Phil #166,

    I don’t like it. I want to make my own case. And if the question is against me, I only want one prosecutor in the courtroom.

    nk (7b0075)

  168. A lot of this talk about jury nullification I think is spurred by the sense of injustice regarding our drug laws.

    I reviewed a case recently in which a defendant was sentenced to 50 years for selling baggies of crack to a police informant. He got multiple felonies racked up, in which he was lured repeatedly to a site within 1000 yards of a school, so the prosecutor could charge him with multiple A felonies.

    It’s just madness, to me, to put someone in jail for half a century for selling someone something that person wanted to buy. That sort of madness is right up there with the Soviet practice of sending political dissenters to the Gulag. It just boggles the mind.

    It’s that kind of frustration that gets one thinking about jury nullification. As a general rule, I’d prefer that juries followed the law, because I respect the importance of a predictable legal system. But if I had a chance to nullify huge charges like that against a non-violent drug offender I’d do it in a heartbeat.

    Phil (0ef625)

  169. “Using Nifong as an example is emotionally effective but, as Beldar noted earlier, let’s be fair: Look what happened to him at the hands of the legal system you deplore.

    Furthermore, show me comparable examples where embezzling accountants have been publicly outed by the accounting hierarchy, dangerous doctors have been publicly ruined by the AMA, or similarly devastating public sanctions have been levied by a licensing board against a professional.”

    Show me comparable examples where accountants have had as much of a media spotlight on them as Nifong did. Arthur Andersen is the only case I can think of, and it has essentially gone out of business, even though the SC unamimously overturned the conviction. If Nifong hadn’t been subject to such intense media scrutiny, he likely would have faced no consequences at all, along with a non-trivial chance that 3 innocent men would be in jail for a crime that never happened. The start of the investigation into Nifong’s conduct was due to massive media and political pressure and the fact that clear and overwhelming evidence of misconduct and obstruction of justice was made public. If that is what is required to even start an investigation, that says something. What was the punishment to Nifong beyond losing his license to practice law for a few years? Oh, that’s right, a 1 day jail sentence and a $500 fine. A “lay” person would almost certainly be convicted of obstruction of justice for colluding with a DNA testing lab to wthhold evidence. If you are using Nifong as an example of how well the self regulation system works, you are losing that argument.

    Notice also that members of all of those other professions can be functionally held accountable for malpractice. The AMA doesn’t *need* to be as concerned about policing doctors, because they have the very earnest help of the legal profession. There is no outside authority to police the legal community…that’s the point.

    It is generally understood principle that asking an industry or group of people to police itself is asking for problems. Not only is that the case with the legal profession, but there is no appeal to an outside authority. Imagine the medical industry being given sole right to police it’s own members, have the primary say in how those rules are applied, and if some *outside* entity brings forward evidence of malfeasance, the issue is referred to the industry to deal with.

    I don’t see this an incredibly pressing problem, nor would I want to be the one responsible for the solution, but it *is* a problem.

    Patterico – “I just think there are a lot of people out there who truly *enjoy* taking the position that prosecutors, by and large, are bad people who are just out to hurt innocent folks. It rubs me the wrong way because I work with them every day and I know it’s not true. We’re human beings with flaws, like everyone else, but if the people who are so fond of trashing us were actually to meet us, they might feel differently.”

    I don’t think prosecutors are bad people, I think the incentive structure is a little messed up. A prosecutor is rewarded for successful convictions. There is very little repurcussion for *wrongly* convicting someone, except the possibility of being made to look foolish by 60 minutes for particularly egregious cases of wrongful conviction. It’s my opinion that the incentive structure is also the reason why prosecutors load up on the charges; spit on the sidewalk and get charged with “public expectoration”, “conspiracy to commit public expectoration”, “expectorating in a non expectorating zone”, “obstruction of justice” (for wiping it up with a napkin afterwards), “contributing to the delinquincy of a minor” (some kid saw you doing it), etc. etc. When prosecutors load up on 8 charges for what is basically one act, you know they are flinging crap in the hope that some of it sticks. But that’s an entirely different discussion.

    MikeMangum (602077)

  170. A lot of this talk about jury nullification I think is spurred by the sense of injustice regarding our drug laws.

    Well, sure. As SPQR said above: “Patterico, I believe that the main appeal of jury nullification is to those who can’t deal with being on the losing end of a democratic process on their pet policy issue.”

    The problem you have is that your pet policy issue is going to be different from the next guy’s. Maybe some juror’s pet policy issue is seeing to it that cops are never convicted. OK for that guy to lie his way onto a jury to nullify a case against a cop? I haven’t seen a single libertarian address that issue yet, though I brought it up a while back.

    “[I]f I had a chance to nullify huge charges like that against a non-violent drug offender I’d do it in a heartbeat.”

    Would you lie your way onto a jury to do so?

    Patterico (4bda0b)

  171. When prosecutors load up on 8 charges for what is basically one act, you know they are flinging crap in the hope that some of it sticks. But that’s an entirely different discussion.

    Well, in most cases, if it’s really one act, then there will be punishment for only one of the crimes, even if there are convictions on all of the crimes. But sometimes alternative charges are necessary because a) you’re not sure how a jury will view the defendant’s conduct, or b) some crimes are subject to different time credits from others.

    Take a guy who drives drunk and kills someone. He might be charged with gross vehicular manslaughter while intoxicated, driving under the influence, and driving with an over .08% blood alcohol content. That’s totally standard charging, and it’s not flinging crap to see what sticks — it’s presenting different charges. Maybe the jury won’t find gross negligence, but will find DUI. Maybe the BAC is “only” .09% and the prosecutor worries that the jury won’t convict of the over .08% count, but will still believe that the defendant was under the influence. Maybe the DUI counts are charged because, with a great bodily injury allegation, he will have to serve 85% time instead of 50% time.

    What concerns me is that someone like you won’t have any idea what the various reasons are for charging three separate crimes for one act. You won’t know that DUI with a PC 12022.7 allegation gets you 15% prison credits, but a PC 191.5 conviction could entitle you to 50% credits. You’ll just see a lot of charges, and you’ll blame the prosecutor for “piling on” without knowing the reasons. And the prosecutor won’t be presenting evidence at trial as to why there are three charges, so you won’t be told the reason.

    There is a lot of damage done by jurors who speculate about the reasons for things, because they want to be smarter than everyone else. Often, when the speculation starts, they get everything spectacularly wrong. For example, some folks who possess drugs and are unquestionably guilty will take the case to trial even though the only punishment they will receive is a drug treatment program. They hope — and it happens — that know-it-all jurors will think: “Why is a slam-dunk case like this going to trial? It MUST BE A THREE STRIKES CASE!! I AM VOTING TO ACQUIT!”

    Patterico (4bda0b)

  172. I reviewed a case recently in which a defendant was sentenced to 50 years for selling baggies of crack to a police informant. He got multiple felonies racked up, in which he was lured repeatedly to a site within 1000 yards of a school, so the prosecutor could charge him with multiple A felonies.

    I have no idea what state you’re practicing in, or whether this was a federal or state case. But I feel confident that either 1) large quantities were involved, 2) the defendant had an absolutely wretched record, or 3) both 1 and 2. Now, I don’t say that to defend a 50-year sentence for dealing baggies of crack, if indeed that happened. But there’s enough mythology out there about the harshness of drug laws that I would be interested to know the whole picture about the case you describe, to communicate to people just what it was that caused the case to fall within such a harsh sentencing range.

    Patterico (4bda0b)

  173. Dear Mr. Frey: I don’t know if I qualify as a libertarian, but let me take a crack at your 171, viz:

    “OK for that guy to lie his way onto a jury to nullify a case against a cop? I haven’t seen a single libertarian address that issue yet, though I brought it up a while back.”

    Here’s your answer, in the legal style:

    Any defense lawyer will peremptory any cop who tries to get on a jury concerning police misconduct. Therefore your question is meaningless and need not be answered.

    See how easy it is to use process to thwart questioning? It resembles bad faith and can cause much of the resentment that the laity feels towards lawyers in general.

    All right. Let me address your question in good faith: Would it be right for a cop to lie his way onto a jury on a case involving police misconduct? Mr. Balko would have to say yes, or expose himself as a fraud. I do not think it would be right to do so, for all the frustrations being on a jury can cause, whether it is the drug case that bother Mr. Balko (and me) or the police misconduct example you brought up. That’s the trouble with jury nullification. For every “good” result Mr. Balko could name, I could counter with bad examples from the South of the 1870s-1950s refusing to convict whites who gave blacks the works. The side effects are as bad as the curative powers.

    Having tried (I hope) to address your question, let me toss one back at you that I brought up before but have not seen anyone address; Why shouldn’t the officers of the court have to tell the jury, under oath, if they have hired jury consultants? No one likes to feel that they are puppets, and the citizenry might be interested to know if jury consultants “work.”

    Sincerely yours,
    Gregory Koster

    Gregory Koster (d0cb4f)

  174. Here’s your answer, in the legal style:

    Any defense lawyer will peremptory any cop who tries to get on a jury concerning police misconduct. Therefore your question is meaningless and need not be answered.

    Except that I didn’t say the juror is a cop. What I said was:

    Maybe some juror’s pet policy issue is seeing to it that cops are never convicted. OK for that guy to lie his way onto a jury to nullify a case against a cop?

    Why shouldn’t the officers of the court have to tell the jury, under oath, if they have hired jury consultants? No one likes to feel that they are puppets, and the citizenry might be interested to know if jury consultants “work.”

    Because it has nothing to do with the question to be decided by the jurors: can the prosecution prove beyond a reasonable doubt with admissible evidence that this defendant committed the crime(s) with which he has been charged?

    I’ve never used jury consultants and almost certainly never will. Anecdotally, I think they could be helpful, just like any second perspective is always helpful, but I think it’s a bad idea to rely on them to the exclusion of your own instincts.

    Patterico (4bda0b)

  175. Mr. Koster (#174): Other than satisfying your curiosity, what value would there to to any juror in knowing whether either side had engaged jury selection consultants? Does that change any evidence or the credibility of any witness? Does it change the result? If so, the juror who so concludes is violating his oath to consider only relevant evidence admitted in open court.

    For what it’s worth, I am extremely skeptical of the actual ability of jury consultants to help select (or de-select) jurors effectively. In a jury trial just under a year ago, I learned that the other side was using the most prestigious and highly paid consultant in Texas, but I learned that only through their voluntary waiver — as most courts treat jury consultants’ work under the guidance of the lawyers who hire them as being covered either by “consulting expert” or derivative “attorney work-product” privileges. The single juror who was subjected to the most intense questioning, but as to whom the court rejected their challenge for cause, their consultant advised them to leave on the jury. He turned out to be the foreman, and my client’s strongest proponent in the jury room.

    I think your fears of being “manipulated” don’t give adequate respect to the innate common sense of most jurors, which is also a quality that collectively grows to become more than the sum of its parts in most jury deliberations. And while both sides are certainly trying their best to sway you, there are two sides.

    Finally: The jurisdictions with which I’m acquainted permit counsel to make challenges for cause before they exercise their peremptory strikes. You’d almost always prefer that your challenge for cause be granted if it will save you a strike to use on someone else. So the defense lawyer in your hypothetical certainly would try to get the cop excused for cause, and he’d probably succeed. And Patterico’s hypothetical wasn’t about a cop trying to get on a panel to exercise jury nullification in favor of other cops anyway, but rather, at least as I understood it, about a strong supporter of cops.

    Beldar (433d17)

  176. And Patterico’s hypothetical wasn’t about a cop trying to get on a panel to exercise jury nullification in favor of other cops anyway, but rather, at least as I understood it, about a strong supporter of cops.

    Correct — because I know that peace officers (specifically defined by statute) are exempt from jury service in California. Judges aren’t; D.A.’s aren’t; cops are. That’s why I didn’t say the juror was a cop.

    Patterico (4bda0b)

  177. “Well, in most cases, if it’s really one act, then there will be punishment for only one of the crimes, even if there are convictions on all of the crimes. But sometimes alternative charges are necessary because a) you’re not sure how a jury will view the defendant’s conduct, or b) some crimes are subject to different time credits from others.”

    If I understand what you are saying here, it sounds like it would be ok to charge someone with capital murder, first degree murder, second degree murder, and manslaughter, all for the same wrongful death, in the hopes that the jury finds one of those charges has merit. If that is the case, a prosecutor should be forced to pick which of those charges he thinks he can convict on, and only present that charge. If he fails to get a conviction on that charge, that’s it. IMO, If a prosecutor thinks he can probably get a conviction of murder, but not 1st degree murder, the only charge brought forward should be murder. He should not be able to “shotgun” charges to see what maximum charge the jury will find compelling, with a spread of charges to maximize the chances that a jury will find one of them compelling. It seems to me, as a lay person, that the person is essentially undergoing double jeopardy in one trial. That’s assuming I’m understanding you correctly.

    “Take a guy who drives drunk and kills someone. He might be charged with gross vehicular manslaughter while intoxicated, driving under the influence, and driving with an over .08% blood alcohol content. That’s totally standard charging, and it’s not flinging crap to see what sticks — it’s presenting different charges.”

    Sorry, but to me that does indeed seem like trying to see what sticks. I understand that you are trying to be strategic with your charging, but I don’t think this is fair. The vehicular manslaughter charge is seperate, but the driving under the influence and the “driving under even greater influence” (0.08% blood alchohol) seem very much like charging twice for the same crime. If there was a different statue for each 0.01% of blood alchohol, and a drunk driver (who didn’t hit anyone) had 0.11% blood alchohol, would you charge that person 10 different times? It seems to me that a prosecutor should have to pick one of them, not all of them, preferably the highest charge he thinks he can get to stick.

    “it’s not flinging crap to see what sticks — it’s presenting different charges.”

    I’m not sure I understand the difference. It sounds like semantics.

    MikeMangum (602077)

  178. Patterico,

    I would not lie to get on the jury. Just hope I wasn’t asked the question that would require a lie. If asked, I’d defend my position that you say the courts have rejected.

    I think the federal supremecy is clear for two statutes on the same subject area of the law (if the Constitution says the federal is given powers in that area), but I claim the state and federal statutes for my example are not in the same area.

    The California medical marijuana law is about the practice of medicine (a state controlled issue, doctors are licensed by the states, not the feds). The Federal drug law is about abuse of controlled substances. My assertion is that if you are using marijuana in conformance with a medical process allowed by state law, then you by definition are not abusing a controlled substance.

    Then the question becomes: can the federal government overrule the state and say a certain medical practice that the state would like to allow cannot be used? I think the federal government can only succeed at that if the practice in question is fairly obviously quackery. I don’t think the “medical use of marijuana” has been proven or dis-proven to that degree.

    I do think if controlled doses of the active ingredients of marijuana can be supplied at a reasonable price in conventional pills, that would be a winning argument in favor of using those pills and not allowing the marijuana as a medical procedure.

    Also studies should be done to determine whether there really is any value to “medical marijuana”.

    My bias is that the tenth amendment should be interpreted to favor the states where there is doubt. This would tend to keep the federal government constrained, presenting less risk to the states and the people.

    Ken (245846)

  179. This road is becoming very long and twisted.

    DRJ, I can bet you mega bucks it took accountants to unravel what the Enron accountants raveled. As well for the misdeeds of Anderson. It was also an accountant that created the keys for a Fed to put Al Capone in prison. (I know long long time ago).

    Patt, I can’t tell you what I do or I would have to…. naw, Hospitality business, owner mgr, 40 yrs, raised in it from a small child. Computer biz for 15 yrs as well.

    Intentionally lying to gain a spot on a jury. Probably not a very good idea. I really don’t think many could actually pull it off all the way to nullification, though some could. I don’t fit that lock. But I still support it as I stated earlier, a CITIZENS tool available to send a message now and again.

    As far as rampant problems with the legal industry? I do think there are such problems. From AG’s down to PD’s and all the civil folk in between. There are more than a few judges that will fit the folder as well. Why do I feel this way?

    Easy, the legal industry has failed to police itself yet continue to drive up the cost of all other industries to stay in business. Businesses operate today with the constant fear of a lawsuit. Perhaps one for 54 mill from a sitting judge cuz ya lost his pants? Or somebody stumbles over a parking feature that your insurance co. lawyers forced you to put in, despite 30 years of ZERO incidents!

    I know there are many good people in the industry as well, gawd knows there are some pretty crappy hotels, most of which have no overseeing organization to help them be better. (Chain affiliation or such).

    Every time an attempt is made to create a database of lawyers, designed for the non club members in hopes they can find the right one for whatever it is they may need at the time, the result is usually a suit. At the same time many folks would not consider a two diamond AAA rated property to spend the night in. All the time remaining totally ignorant of what the standard actually defined.

    We are all complex folks, and usually formed by our own experiences as well as the shared experiences of others around us.

    It’s late, I’ll withhold my usual rant for another thread. With Beldar, Patt, DRJ and many others here, there is a wealth of legal opine and all views are valid. We have some bad laws and when the lawyers abuse them what makes them think that citizens do have the same right?

    “America is at that awkward stage. It’s too late to work within the system, but too early to shoot the bastards.”

    TC (1cf350)

  180. “The California medical marijuana law is about the practice of medicine (a state controlled issue, doctors are licensed by the states, not the feds). The Federal drug law is about abuse of controlled substances. My assertion is that if you are using marijuana in conformance with a medical process allowed by state law, then you by definition are not abusing a controlled substance.

    Then the question becomes: can the federal government overrule the state and say a certain medical practice that the state would like to allow cannot be used? I think the federal government can only succeed at that if the practice in question is fairly obviously quackery. I don’t think the “medical use of marijuana” has been proven or dis-proven to that degree.”

    States rights, the REAL reason we fought the civil war!

    TC (1cf350)

  181. I wonder if Balko would Like to try a case with a jury filled with “Balkos'” How the hell does the world operate if each person gets to decide what “Right” is?
    I was called to sit on a Child Abuse Case.
    There was an episode of similar behavior in my wifes family.- One strike
    During our Voir Dire panel, it becomes apparent to me that I (as a RN) had taken care of the victim. However, it was before the event that led to the current charges-Strike two
    none of the questions I was asked, addressed (unbelievably to me) any of my issues. I caught myself already forming an opinion on the defendant, prosecutor and the defending attny.-Strike three
    Thankfully the omnibus question of “anyone having any reason that they should not be seated.” Was asked. I spoke up and was excused.
    Would I have been lying had I not spoke up? Pat said something about know-it-all jurors. I could have easily slipped into that role right then and there and justified my silence that my personal experiences had more fully informed me to judge this man and his case.
    NK statement @ 168 I don’t like it. I want to make my own case. And if the question is against me, I only want one prosecutor in the courtroom. spurs me to ask; If the prosecutor can’t be interested in what the Jury is thinking, then why don’t you keep your $15, and leave me
    completely out of the process? In the overall tone of the Law pros, throughout this thread, that the jury is usually a bother and can really screw things up.
    It seems to me that the jury should be required to validate the law in their conviction or acquitting of a defendant. Surely the laity has little input into the creation or legislation of the law. We can’t vote on the repeal of bad laws after they’re enacted. When then, can the people (and by extension our society) check against the output of the priesthood of Legislators and lawyers?
    I know this:
    1) A decent legal system can’t permit lying regardless of the reason. I mean really, when do you stop lying?
    2)Our present legal system merely supplies the illusion of a fair trial by jury. Pat said it himself (And I expect him to be a decent lawyer) He doesn’t like talking at the jury. But those in control don’t want to be bothered explaining themselves and/or the Law over and over again.
    3) Jury nullification should somehow be codified and permitted. Nice idea, a real sombitch to do. But who checks against dumb law?

    paul from fl (47918a)

  182. Just a quick note on the cop stuff. First, juries are already extremely reluctant to convict cops. But that’s assuming the case ever makes it to trial. Too many prosecutors use their discretion (which, as has already been pointed out in this thread, is a prosecutor’s own way of nullifying the law) to make sure it never gets that far. Even cops who get caught openly flaunting the law rarely face the same charges and sentence someone not wearing a badge would face for breaking the same law.

    (See the category of “police professionalism” posts on my site for a couple years worth of examples.)

    So if everyone in America were made aware of their power to nullify, no, I’m not particularly worried about cops getting away with crimes. Because frankly, that problem couldn’t get much worse than it already is.

    Radley Balko (1f1495)

  183. Neat. Now answer the original question: why should we believe anything you say on a topic you’ve already identified as worth lying about to a judge? If it’s morally acceptable to lie under oath just to prevent the application of a particular law in a single instance, isn’t it equally justified to lie to the rest of us to get that same law repealed altogether?

    Xrlq (62cad4)

  184. re #137,
    Who says that ordinary people are incapable of thinking without having a lawyer and a judge prefilter, predigest and pre-determine what they can hear?

    True, lawyers and judges conspire (for all practical purposes) to seat the dumbest and most manipulatable jurors, so how can we expect intelligent results from them? But if we actually had a jury of our peers, they would be perfectly fit to decide, for example, simple cases of unconstitutionality of a law, or in the application of it.

    Imagine a man defends his family in his home, and the jury is told “he lives in the city, he fired a gun, there is a law against firing guns in city limits. Therefore he is guilty of discharging a firearm in city limits”. The judge tells the jury not to judge the validity of the law. The jury in this case isn’t fit to judge that there should be no law that prevents someone from self-defence with a gun in city limits????

    martin (86a2e8)

  185. re #181
    That is why federalism is good, the 17th amendment is bad (and needs repealing), and why juries should be able to decide if enforcing drug laws is a federal responsibility. Obviously, if citizens had the power that they were supposed to have, they would need to pay better attention in school, and schools should bring back “civics”.

    martin (86a2e8)

  186. A roiling discussion, Patterico. Thank you.

    #162, and others

    If the jury is so vital in this role, why haven’t we (the system) allowed the jurors to actually pose questions to witnesses? In all types of trials?

    Because what the jury hears is according to law. Democratically established, long-established law. Would you like me, a juror, at your trial for skulking with intent to loiter, ask you whether at the age of fourteen you had a crush on your social studies teacher?

    Democratically established? I thought that the rules of evidence were established by the courts? You need to consider the possibility that the jury might be able to ask questions that they don’t get to hear the answers to, just like prosecutors and defenders do. Sending the questions to the judge solves the non-problem you present (snark: perhaps the lawyers should have the same gag; I’m not really in favor of that, letting the judge speak for the jury I’d think a good compromise.)

    At the age of fourteen, my social studies teacher was also one of my football coaches, and I hated him (I’ve never figured out why.) Cheryl and Susan, though … never mind.

    #several — I have no desire to lie under oath, period, regardless of the supposed reward. If placed in a situation where I had conflicting oaths, I’m not sure what I’d do.

    #172

    … What concerns me is that someone like you won’t have any idea what the various reasons are for charging three separate crimes for one act. You won’t know that DUI with a PC 12022.7 allegation gets you 15% prison credits, but a PC 191.5 conviction could entitle you to 50% credits. You’ll just see a lot of charges, and you’ll blame the prosecutor for “piling on” without knowing the reasons. And the prosecutor won’t be presenting evidence at trial as to why there are three charges, so you won’t be told the reason.

    There is a lot of damage done by jurors who speculate about the reasons for things, because they want to be smarter than everyone else. Often, when the speculation starts, they get everything spectacularly wrong. For example, some folks who possess drugs and are unquestionably guilty will take the case to trial even though the only punishment they will receive is a drug treatment program. They hope — and it happens — that know-it-all jurors will think: “Why is a slam-dunk case like this going to trial? It MUST BE A THREE STRIKES CASE!! I AM VOTING TO ACQUIT!”

    Well, then, you could explain to the jury why that’s been done. Berating us (speaking as a jury that I’ll probably never be on) for our ignorance of both law and legal practice and then having the process and practice keep us in that state of ignorance … what do you expect? Do you really have so little understanding of how people think? Oh, wait, you do understand, you just don’t like the results of your keeping the jury ignorant. Perhaps ignorance is not a solution to the problem.

    Three strikes … that’s a different topic, I hope. Might have been a good idea.


    Mike Mangum — good point about the incentives being messed up.

    htom (412a17)

  187. “democratically established law”???
    Put down that crack-pipe of self delusion. First, we the people rarely vote on laws, we vote for the bums who vote for the law. That isn’t democracy, just to quibble.

    Also, most of the rules in courtrooms come from judges rulings, and from precident, right? Or are there actual laws, voted on by the people that say how lawyers can exclude certain people from juries, or that repeat offenders have the right to go into a courtroom wearing the veil of complete innocence?

    martin (86a2e8)

  188. Rules of criminal procedure are codified, in the Constitution and in statutes. As are most rules of evidence. Some, such as the exclusionary rule, are case law but they have their bases in the Constitution. Jurors’ qualifications are according to statute. The presumption of innocence is not explicitly stated in the U.S. Constitution but it is in state constitutions and statutes.

    nk (5ce644)

  189. XLRQ (#184):

    There are about a dozen answers to your question. But the most obvious is that I’m a journalist, and make my living off my credibility (never mind that you and Patterico don’t seem to think I have any–plenty of other people apparently do).

    I write about events that are pretty easily verifiable by anyone with a phone and/or an Internet connection.

    It would pretty stupid of me to make stuff up.

    Radley Balko (1f1495)

  190. Patterico your question about lying to get onto a jury panel, I’ll just put it this way: I don’t condemn someone else for nullifying as a juror. As I said, we’re human beings first, citizens second. I’m highly suspicious of anyone who wants to get his fellow citizens to promise not to be human beings first. And that is effectively what someone is doing if they ask another citizen to promise not to nullify as a juror.

    If you don’t want people to be human beings first — if you think it’s safer for everyone to be loyal to the state first, their human instincts second — then, well, that’s your perspective. We disagree.

    Phil (0ef625)

  191. Balko is wrong but, that is not the disgusting part.

    Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law. As one commentator has noted: “When jurors enter a verdict in contravention of what the law authorizes and requires, they subvert the rule of law and subject citizens–defendants, witnesses, victims, and everyone affected by criminal justice administration– to power based on the subjective predilections of twelve individuals. They affect the rule of men, not law.” (Brown, Jury Nullification Within the Rule of Law, supra, 81 Minn. L.Rev. at pp. 1150-1151, fn. omitted.) A nullifying jury is essentially a lawless jury.</b

    We reaffirm, therefore, the basic rule that. jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is “unable to perform his [or her] duty” as a juror (§ 1089) and may be discharged.

    People v. Williams (2001) 25 Cal.4th 441, 463.

    Our ideal? Your just a judge,you only get to rule an opinion on the law.
    Whim? Gee, thanks for your opinion on “We Te People…”,so much for a fair trial by my peers.

    They? As in: Our ideals,their subversion (We’re good,your bad).

    Subjective predilections of twelve individuals. Wow!, we poor unwashed masses yearning to be free.

    A nullifying jury is essentially a lawless jury. When did any Pro-Null say that ALL laws are invalid? Lawless,no just without THAT law.

    Why not tell the truth,say you cannot be fair?

    So? How does a bench ruling now differ from a jury trial?

    SteveofTheNorth (8447d8)

  192. edit above, PIMF dang! :)

    SteveofTheNorth (8447d8)

  193. This is great. I’ll never have to serve on a jury, ever! All I must do is explain that I’d never vote to convict anyone under the Fugitive Slave Act or Jim Crow, or any other such bad law: that is, I 100% believe in jury nullification. I hope I can submit proof by postcard. Those trips to the courthouse are annoying.

    tehag

    tehag (f11d4b)

  194. Just a quick note on the cop stuff. First, juries are already extremely reluctant to convict cops. But that’s assuming the case ever makes it to trial. Too many prosecutors use their discretion (which, as has already been pointed out in this thread, is a prosecutor’s own way of nullifying the law) to make sure it never gets that far. Even cops who get caught openly flaunting the law rarely face the same charges and sentence someone not wearing a badge would face for breaking the same law.

    (See the category of “police professionalism” posts on my site for a couple years worth of examples.)

    So if everyone in America were made aware of their power to nullify, no, I’m not particularly worried about cops getting away with crimes. Because frankly, that problem couldn’t get much worse than it already is.

    Well, that’s just using your cynical attitude about the prosecution of cops to evade the question. Whether your cynical attitude is correct or not doesn’t change the fact that some cops are indeed prosecuted. So when it does happen, is it acceptable for a pro-law enforcement individual to nullify in their favor? Let’s say the juror is well-intentioned: he thinks the community makes up its mind based on biased media reports, and the juror is going to STRIKE A BLOW FOR JUSTICE! by making sure the cop gets off regardless of that public sentiment (or, incidentally, the evidence).

    The cops who beat Rodney King were prosecuted, and two were convicted by the feds. OK for a juror to nullify in the federal trial because he feels it was unfair to prosecute them in federal court after they were tried in state court?

    Is it OK if the jurors in the Simi Valley trial thought those cops were guilty, but nullified because they were pro-cop?

    The cops who killed Kathryn Johnston were prosecuted, and had they not pled, would have faced trial. OK to nullify in their favor?

    We had Rafael Perez up on charges for stealing cocaine from the evidence locker. Before he provided information on Rampart, he was tried, and a jury hung as to his guilt. OK if the jurors voting not guilty nullified?

    David Mack is serving a federal prison sentence for armed robbery. Would it be OK if he had been set free because jurors nullified and hung up his trials?

    Please don’t pretend like cops aren’t ever brought to trial or prosecuted. Cops are put on trial across the country every year. Whether it’s as many as you like isn’t the issue here; the issue is that it happens. And if we have a merry view of nullification, that a juror can nullify anytime he doesn’t like the prosecution in general — even if he knows the defendants are guilty — then it’s going to be harder to put bad cops in jail.

    Patterico (4bda0b)

  195. Patterico, it’s such a narrow and silly point, it borders on ridiculous. But to answer your questions, yes, I’d take my chances.

    The benefits of making the public aware of their power to nullify immoral laws or the wrongful application of good laws would far outweigh the risk of the possibility that some law and order juror might nullify to acquit a few of the handful of bad cops that actually get prosecuted every year.

    And by the way, the Rodney King cops were only tried in federal court because they were first acquitted in state court. Which proves my point that juries tend to be reluctant to convict cops, anyway.

    And the cops in the Kathryn Johnston case were permitted to plead to relatively light sentences, considering what they did. If a citizen not wearing a uniform had unlawfully broken into an elderly woman’s home, killed her when she tried to defend herself, then attempted to frame her to cover the whole thing up, I’m pretty sure they’d be appealing a death sentence right about now. Those cops will still be relatively young when they get out of prison.

    So once again, “prosecutorial discretion” helps dirty cops get preferential treatment. But God forbid we let jurors nullify when a guilty verdict, while correct on the law, would result in an obvious injustice. That would undermine our faith in the criminal justice system!

    Radley Balko (1f1495)

  196. And the cops in the Kathryn Johnston case were permitted to plead to relatively light sentences, considering what they did. If a citizen not wearing a uniform had unlawfully broken into an elderly woman’s home, killed her when she tried to defend herself, then attempted to frame her to cover the whole thing up, I’m pretty sure they’d be appealing a death sentence right about now. Those cops will still be relatively young when they get out of prison.

    I agree that their sentences were too light. But cops have to be prosecuted within the same criminal justice system as everyone else. When people work to undermine the law, they make it harder to prosecute bad cops, too.

    Patterico (4bda0b)

  197. “[T]he most obvious is that I’m a journalist, and make my living off my credibility (never mind that you and Patterico don’t seem to think I have any–plenty of other people apparently do).”

    Well, I think it undermines your credibility for you to write that you would deliberately mislead a court, under oath, in support of your particular agenda. It makes people wonder whether you might shade the truth when writing an article, not under oath, in support of your particular agenda. That’s a self-inflicted wound, by the way. I didn’t make you write it. You decided on your own to write it.

    Patterico (4bda0b)

  198. Meh. Plenty of people seem to disagree with you that it’s even a “wound” at all.

    Radley Balko (1f1495)

  199. Yes, well, those people are liars and oathbreakers too, so I’m not sure how proud of that support you should be…

    Scott Jacobs (d3a6ec)

  200. I’m trying to imagine a cop so bad that he would actually go to trial.

    The vast majority of the cases where cops are caught on camera doing stuff end up with the cops on paid leave. Maybe, every now and again, the cops end up being fired… but a cop being tried? Taken in front of a jury by a prosecutor?

    Jaybird (f420c4)

  201. Jaybird,

    Did you read my comment? Rafael Perez was tried. Four Rampart cops were tried and convicted (with the conviction reversed by a judge). David Mack is in federal prison. These are just a few high-profile examples.

    Among a certain group of people it is chic to act like cops are never prosecuted anywhere. However, they are. It may not be numbers high enough to satisfy the radical libertarians — because we have to operate within the same system that the radical libertarians are working to undermine with their support for dishonesty in court and flouting the law. But prosecutions do indeed happen. Sorry to burst your bubble.

    Patterico (4bda0b)

  202. Balko:

    Officer Evil is on trial for manufacturing probable cause to get a search warrant to enter a home. (Don’t act like such prosecutions never happen; the Kathryn Johnston cops were facing just such a prosecution, whether you like their sentence or not.)

    But the case against Officer Evil hinges on a piece of evidence that was obtained unlawfully by Officer Good, who operated with the best of intentions, but a poor grasp of the Byzantine ins and outs of Fourth Amendment law.

    Now Officer Good is on the stand, and is being asked about his actions. He can mislead the court, and the evidence will be admitted, and Officer Evil will be punished for his evil actions. Or Officer Good can tell the truth, and Officer Evil will go free. If he is freed, Officer Evil might even sue to get his job back — and be back out on the street oppressing innocent people.

    Since you support misleading courts to prevent injustices, would you advise Officer Good to mislead the court in this case, so that Officer Evil can be punished for his misdeeds?

    Patterico (4bda0b)

  203. If I am one of those people who fall over themselves in an effort to be chic (radical libertarian chicks put out, you know), would it make me more chic to say “man, it sure seems like the system cares a hell of a lot more about protecting its own than it does about pursuing justice”?

    Since I worry about what everyone else in my circle thinks about me, I wonder if it is not phrased strongly enough or is it so self-evidently untrue to anyone with even a lick of integrity or honesty (why, look at Rafael Perez! David Mack!) that of course everyone with as much contempt for the law as radical libertarians like me will see me as someone who might take over for Radley’s House Of Lying To The Gullible after he becomes the Libertarian Nominee for President in 2012 or 2016 and has to give it up?

    Jaybird (f420c4)

  204. Jaybird,

    What do you say to my hypo in comment #203 — other than the dodge of responding “It would never happen because cops don’t get prosecuted”?

    Patterico (4bda0b)

  205. Few rules of evidence are codified in the constitution. The bulk of them are invented in case law. Sometimes for good reasons, sometimes for crappy ones.

    In this case, lawyer-client privilage put a man in jail for 26 years. We have scumbag lawyers winning all kinds of tort cases on less evidence and less malice. How is it he gets off scott free? Why can he not be sued and lose everything?

    martin (86a2e8)

  206. Oh, I’m sorry! I was too busy deliberately and dishonestly dodging your hypothetical to answer it!

    Let’s look at it: “Now Officer Good is on the stand, and is being asked about his actions. He can mislead the court, and the evidence will be admitted, and Officer Evil will be punished for his evil actions. Or Officer Good can tell the truth, and Officer Evil will go free. If he is freed, Officer Evil might even sue to get his job back — and be back out on the street oppressing innocent people.”

    Hrm.

    I’ve always felt that police officers (as well as judges and prosecutors) ought to be held to a higher standard. Part of me think that the Good Officer should say “here are the circumstances under which I found that evidence” and then the judge can tell the jury “Under no circumstances are you allowed to take that evidence into consideration!” before the jurors go off to deliberate.

    Perhaps the jurors could be informed that under no circumstances are they allowed to engage in jury nullification before they go into that deliberation room to ensure that a fair outcome to the trial is reached.

    I looked over my answer a second time to make sure that I didn’t dodge your question but I have the sinking feeling that you’re going to accuse me of being dishonest anyway.

    Jaybird (f420c4)

  207. re#203

    Officer good should face contempt of court and risk some jail time (not nessessarily felony time) and the evidence should stand, if the jury buys the whole thing. This morality tale is really about the stupidity of Miranda type rulings that the courts have no right to make. They ignore the victim, and turn our justice system into a game among the rest of the players.

    martin (86a2e8)

  208. XRLQ and Patterico are right. If Balko will lie under oath to affect a jury verdict, why wouldn’t he lie to his readers in his professional life? Balko’s response was that he can’t mislead people because it may adversely affect his credibility as a journalist, but he also doesn’t think admitting he would lie under oath has hurt his credibility. This is logic?

    In addition, Balko discounts as “narrow, silly” and “bordering on ridiculous” Patterico’s questions that test how far he will go in his jury nullification quest. This doesn’t sound like a journalist who will dig to the bottom of every story. It sounds like someone who stops digging when he hears what he wants to hear.

    DRJ (a431ca)

  209. I object to the idea that evidence should be excluded. When someone who commits a crime against me goes free because a third party makes a mistake, then that is injustice to me. If a judge both hides evidence from a jury, and forbids me from taking justice in my own hands, then I am just a subject, not a citizen.

    martin (86a2e8)

  210. Patterico, I didn’t see your question earlier about what jurisdiction the 50-year crack sentence came from.

    Here’s the decision (the 50-year sentence was reversed on appeal and reduced to 20 years, because the dealer was lured to the location):
    http://www.in.gov/judiciary/opinions/pdf/03070801jgb.pdf

    The drug war is a true lesson in how atrocities can sneak up on a nation of generally good people. Reading that case, and seeing how our judicial system can now methodically send people to jail for decades for passing little baggies of drugs between them at a convenience store, made me realize how little difference there is between my country and China or Dubai, where people get executed or jailed for life for such things. Seriously, what’s the big difference between putting someone away for 50 years and executing them?

    Somehow, people dumbly play along, as though there’s some rhyme or reason to it all. While we end up with the highest prison population in the world. It’s insanity, but a slow creeping insanity that everyone accepts.

    Phil (0ef625)

  211. DRJ, I would have found your post a lot more compelling if you left out the parts where you were attacking Radley and kept only the parts where you were showing how his argument was faulty or, at least, had exceptionally negative consequences.

    That’s right, I’m talking about your signature.

    Jaybird (f420c4)

  212. That went over my head, Jaybird. Which part do you mean – the first paragraph or the second? Or both?

    DRJ (a431ca)

  213. Oh, calm down. I wasn’t saying you *had* dodged the hypo, just that I was hoping to get a direct answer rather than the dodge often employed by the radical libertarians. I got a direct answer (at least from “part of” you):

    Part of me think[s] that the Good Officer should say “here are the circumstances under which I found that evidence” and then the judge can tell the jury “Under no circumstances are you allowed to take that evidence into consideration!” before the jurors go off to deliberate.

    So at least part of you thinks that an officer should not lie to the court, even to obtain a good result. Does that part of you agree that potential jurors should not lie to the court, even to obtain a good result?

    Or do you have a different opinion of what jurors should do, because of the different standard that you believe should apply to police officers?

    Also, if there is another part of you that feels completely differently on these issues, tell us what that part thinks too.

    Patterico (4bda0b)

  214. Phil,

    Based on the sentencing rules I’m used to, that’s a very high sentence. It appears there were three buys of a total of 6-7 grams of crack — several hundred dollars’ worth, but hardly a large-scale operation in the grand scheme of things. Also, the guy has a history, but it’s hardly the worst:

    Bell’s criminal history includes the following convictions: class B misdemeanor battery, three counts of class D felony dealing in marijuana, class D felony maintaining a common nuisance, two counts of class D felony failure to remit Indiana Withholding Tax, class B felony dealing in cocaine, class A misdemeanor possession of marijuana, and class C felony dealing in marijuana. The court found no mitigating factors.

    In California, the guy would be charged with three counts of violating Health and Safety Code section 11352, which carries a range of 3, 4, or 5 years. A prior drug dealing conviction would add 3 potential years. The two additional charges would yield another 2 years 8 months total, for a total maximum exposure of 10 years 8 months. (This is approximate; the total exposure could be one more year if he had recently been to prison; two more years if he had recently been to prison twice, etc.) Depending on the details of his record and the strength of the case, such a person would probably be offered between 3 and 6 years before trial, and would serve only half that time, meaning a total actual sentence of 1.5 to 3 years.

    I have no idea what credits are available to the defendant in Indiana. But I agree that 20 years — even if it were to be served at half-time — seems extraordinarily high, based on what I’m used to seeing.

    Patterico (4bda0b)

  215. I don’t think that an officer should lie to the court, even to obtain a good result.

    Neither do I think that officers should plant drugs on perps that they *KNOW* are guilty, in order to make sure that the perps go away for a good long time.

    Neither do I think that evidence should be suppressed by the prosecution (see the Ed Rosenthal case) in order to get a better outcome this time around.

    And, no, neither do I think that prospective jurors should be able to lie in order to sneak onto a jury.

    But… I don’t think that judges should be able to ask “hey, you think it should be illegal in theory to smoke marijuana even if you have a note from your doctor and even if your state has laws making it okay to smoke marijuana because the Federal Laws trump state laws, right?”

    I think that the juries should have the laws presented to them, I think the evidence should be given to them, and I think that they should be able to nullify if it comes to that.

    There aren’t a whole lot of tools that The People have when it comes to dealing with prosecutorial overreach and they have even fewer when it comes to dealing with laws passed before they were born.

    To sum up, it strikes me that there are many, many actual injustices going on within our system. The hypothetical injustice of jury nullification being added to the injustices going on would, so it seems to me, result in fewer net injustices.

    You seem to be focusing on “THEY WANT TO ADD MORE INJUSTICE TO OUR SYSTEM!!!” rather than the viewpoint that the net injustices would go down.

    I’ve gotta say, I lean towards the viewpoint that it’s because you’re a prosecutor that you are inclined to say that the problems with your side of the railing aren’t that bad.

    In the same vein, it is my status as a potential juror that inclines me to say that the problems with my side of the railing aren’t that bad either.

    Jaybird (f420c4)

  216. And, no, neither do I think that prospective jurors should be able to lie in order to sneak onto a jury.

    Do you think they should be able to deliberately mislead the court, if they don’t outright lie? (Say, the judge asks the jurors to raise their hands if they support jury nullification, and the juror doesn’t raise his hand — which, I suppose, people could argue is not a “lie” but just a misleading omission.)

    I’ve gotta say, I lean towards the viewpoint that it’s because you’re a prosecutor that you are inclined to say that the problems with your side of the railing aren’t that bad.

    I agree, though perhaps not for the reason you think. It’s because I’m a prosecutor every day of my life, and have extensive experience with how real prosecutors actually handle cases, that I feel comfortable with the assertion that, by and large, most prosecutors do the right thing most of the time.

    Phil’s right; we’re human, and we make mistakes, as do all humans. I am completely with him in terms of wanting to recognize that. For example, I am on record as being very concerned about wrongful convictions, especially in death cases, and I am a supporter of the work of the Innocence Project.

    Patterico (4bda0b)

  217. I have no idea what credits are available to the defendant in Indiana. But I agree that 20 years — even if it were to be served at half-time — seems extraordinarily high, based on what I’m used to seeing.

    As I understand it, half-time is the norm in Indiana, so assuming this guy keeps his nose clean, he’ll be out in 10.

    So the 50-year sentence would have meant he’d be out in 25. Again, assuming he’s a good boy for 25 years.

    California’s laws do seem less oppressive. I of course understand the policy reasons for making drug dealing illegal, and enforcing that law with prison time — heck, you can go to jail for failing to pay fines long enough. Of course there have to be consequences for lawbreaking.

    It’s these insanely long sentences that keep piling up that amaze me. I suppose if I lived in California I wouldn’t be as concerned. But I see sentences like these cross the appellate docket a lot here in the midwest.

    Phil (0ef625)

  218. “the judge asks the jurors to raise their hands if they support jury nullification”

    Am I allowed to say that I don’t think that the judge should be able to ask this?

    Or would that be dodging?

    I know you see stuff like the aforementioned Rosenthal case as a huge exception to the way stuff normally happens. Please understand that we (those of us outside of the courtroom) see that and think “that’s a particularly egregious example of stuff that probably happens every day”.

    Jury Nullification is seen as a balance against the injustices that we see in the hopes that there will be less injustice at the end of the day.

    Far too often, any criticism of excesses on the part of prosecutors/judges/lawyers and whatnot gets the “yes but” treatment.

    Surely you can sympathize with how people who aren’t exposed to the majesty of the law as often as you are might be tempted to engage in a little “yes but”ing themselves?

    Or is that different?

    Jaybird (f420c4)

  219. Am I allowed to say that I don’t think that the judge should be able to ask this?

    Or would that be dodging?

    Am I allowed to argue that I don’t believe in the exclusionary rule? Well, sure. I’m allowed to argue that, and you’re allowed to say you don’t think the judge should be able to ask the question.

    But we *have* the exclusionary rule, and those in the system have to respect it whether we like it or not.

    And the judge *does* get to ask you that question, so you have to answer it whether you like it or not.

    I know you see stuff like the aforementioned Rosenthal case as a huge exception to the way stuff normally happens. Please understand that we (those of us outside of the courtroom) see that and think “that’s a particularly egregious example of stuff that probably happens every day”.

    Ed Rosenthal served one day for violating a federal law. Reasonable people can disagree about whether the prosecution was just, but if that’s one of the more egregious examples out there, then I’m not too worried. Frankly, I’m more concerned about the drug dealer in the case Phil mentioned facing 20 (or 50!) years for selling three bags of cocaine, with no serious/violent felonies on his rap sheet.

    I’m good with people questioning the system. It should be questioned. I don’t like lazy and self-congratulatory stereotyping. And I see far too much of that from the radical libertarians.

    Kudos to you, Jaybird, for taking on my hypo about Officer Good and Officer Evil. I could be wrong, but even though I suspect Balko is reading every comment in this thread, I don’t think we’re going to be getting a direct response from him on that question. Given his past statements, it’s hard for him to come up with a good answer to it.

    Patterico (4bda0b)

  220. Who would win playing heads-up on “Moment of Truth”? Patterico or Balko? Easy money if you go with Patterico.

    Mr. Balko, an oath is a solemn promise that you will do something. In court, that something is to tell the truth. A man is only as good as his oath. When you say you would lie under oath, that is telling us how good your word is. Once you give up your credibility by saying you would lie under oath, I don’t have any reason to believe you wouldn’t lie when you’re not under oath.

    You’re not under oath when you write your articles and therefore don’t even have that much obligation to tell the truth. Why should I believe you hold yourself to a higher standard in writing your articles than when in court? Your belief that many of your readers find you credible is based on their ignorance of your position, not on knowing your position and believing you anyway. Jury nullification is wrong. It follows the reasoning of the lynch mob, not justice. The rules of evidence are there for a reason and, while admittedly not perfect, are forever being modified to make them as fair as possible in the pursuit of justice while maintaining fairness.

    I think DRJ mentioned above that the purpose of the court was fairness, not justice because our system believes that justice will be the usual result. What about “The Blackstone Ratio”?

    “Better that ten guilty persons escape than that one innocent suffer.”

    By advocating jury nullification, you are advocating that being “innocent until proven guilty” is an empty phrase. An honest man must always be honest, a liar is always a liar even if he happens to tell the truth. Two final questions… if you would break your oath in court, what oath wouldn’t you break? Why should anyone believe it?

    Stashiu3 (460dc1)

  221. There aren’t a whole lot of tools that The People have when it comes to dealing with prosecutorial overreach and they have even fewer when it comes to dealing with laws passed before they were born.

    Laws passed before you were born can be changed today — if you can get it accomplished within the system. Your beef is that you haven’t done that. So keep trying.

    Patterico (4bda0b)

  222. “Ed Rosenthal served one day for violating a federal law. Reasonable people can disagree about whether the prosecution was just, but if that’s one of the more egregious examples out there, then I’m not too worried.”

    Let me put on my Patterico hat for a second and ask:

    “So you don’t care that the system does stuff like stack the deck against the defendant and keep the jury from hearing relevant evidence so long as the outcome is one you find inoffensive?”

    In two or three minutes I’ll check to see if you’ve responded to this post. If you haven’t, I’ll point out that it’s such a good point that you’re obviously dodging it.

    Jaybird (f420c4)

  223. “So you don’t care that the system does stuff like stack the deck against the defendant and keep the jury from hearing relevant evidence so long as the outcome is one you find inoffensive?”

    I’m on record as saying that I would like to have juries hear pretty much everything we know. I said it to stir up a little controversy, and I’m not sure whether I’d really take it that far in reality, but in general I think prosecutors would do a lot better if juries knew everything we know about, including the defendant’s record, gang ties, etc.

    Technically, the judge in the Rosenthal case was correct: the evidence appears to have been irrelevant. But I would favor liberalization of evidentiary rules if it went both ways — though maybe not quite to the extent that I proposed in the past.

    Patterico (4bda0b)

  224. I can’t help but notice that you’re dodging my post.

    Jaybird (f420c4)

  225. Jaybird,

    I don’t put you in the category of someone trying to dodge questions.

    Patterico (4bda0b)

  226. I can’t help but notice that you’re dodging my post.

    How so? I thought I answered it pretty directly.

    Patterico (4bda0b)

  227. So you don’t care that the system does stuff like stack the deck against the defendant and keep the jury from hearing relevant evidence so long as the outcome is one you find inoffensive?

    Here’s as direct an answer as I can give you.

    1) I disagree with your assumption that the system stacks the deck against the defendant. In general, the deck is stacked in favor of the defendant, with the high burden of proof placed on the prosecution, and the requirement of unanimity. That’s our system.

    2) Specifically as to the Rosenthal case, I think that under our current rules of evidence, the ruling was correct, from what I know of the case. But I would favor liberalizing the rules of evidence, as long as it ran both ways.

    Patterico (4bda0b)

  228. Darn it!

    Anyway, part of the fundamental problem is how effectively the system works in the first place.

    I’ve been called to jury duty a handful of times.

    I’ve found myself thinking about the grand jury system and so on and so forth as I sit there filling out a form that asks me what my favorite television shows are… and the nice judge shows up and tells us that we’re an important part of the process, everyone has the right to a fair trial, the majority of cases we’re going to hear today are domestic abuse and DUI cases… and, right around 11AM, we all get told we can go home as all of the defendants have cut deals. (All three times I’ve been called in, this has happened.)

    Anyway, I found myself thinking that all of the defendants were probably guilty. Domestic Abuse? How bad does it have to be to not only get the cops to show up but to get the cops to make an arrest and then get this stuff through a grand jury? Of *COURSE* the guy is guilty! Same for DUI!

    I GOT A ROPE RIGHT HERE!

    But when it comes to a number of laws that *ARE* unjust… well, I have much sympathy for the argument that the citizens have the right to act as a check against injustice. Even if the injustice is created through the following of the law to the letter.

    The citizens can say “nope, not this time” and bring things back into balance.

    Even if it’s just for one case.

    Jaybird (f420c4)

  229. I find this interesting.

    Xrlq asked Balko:

    Neat. Now answer the original question: why should we believe anything you say on a topic you’ve already identified as worth lying about to a judge? If it’s morally acceptable to lie under oath just to prevent the application of a particular law in a single instance, isn’t it equally justified to lie to the rest of us to get that same law repealed altogether?

    And Balko replied:

    There are about a dozen answers to your question. But the most obvious is that I’m a journalist, and make my living off my credibility (never mind that you and Patterico don’t seem to think I have any–plenty of other people apparently do).

    I write about events that are pretty easily verifiable by anyone with a phone and/or an Internet connection.

    It would pretty stupid of me to make stuff up.

    I find it interesting that, of the dozen potential answers to the question “Why wouldn’t you mislead people in your journalism?” Balko didn’t say “Because it would be wrong.” Rather, his answer has to do with the damage his credibility would suffer if he got caught.

    Patterico (4bda0b)

  230. “Technically, the judge in the Rosenthal case was correct: the evidence appears to have been irrelevant. But I would favor liberalization of evidentiary rules if it went both ways — though maybe not quite to the extent that I proposed in the past.”

    I don’t see how “He was doing X with a license granted by The State” could ever be irrelevant for a trial taking the guy to court for doing X.

    Ever. Ever ever.

    Jaybird (f420c4)

  231. Jaybird,

    I hear you — but I ask you to understand that the laws *you* think are unjust aren’t the same laws the next guy thinks are unjust.

    The guy sitting next to you in the jury room might think it’s unjust to prosecute cops, because they have a tough job, have to make split-second decisions, etc.

    So he might have much sympathy for the argument that the citizens have the right to act as a check against what he considers to be the injustice of charging cops with crimes. Even if the injustice is created through the following of the law to the letter.

    He thinks: the citizens can say “nope, not this time” and bring things back into balance.

    Even if it’s just for one case.

    Patterico (4bda0b)

  232. I don’t see how “He was doing X with a license granted by The State” could ever be irrelevant for a trial taking the guy to court for doing X.

    Ever. Ever ever.

    OK. That’s your opinion and I respect it. But the courts see it differently.

    I could say: I don’t see how “Defendant voluntarily admitted he committed the crime” could ever be irrelevant. Or “Defendant was caught with the murder weapon in his hand.”

    Ever. Ever ever ever ever ever.

    But if he wasn’t read his Miranda rights, or the search or seizure was technically unlawful, the courts see it differently.

    Patterico (4bda0b)

  233. Fair enough.

    But we’re back to the problems where the stuff that cops have to do to land in the dock is worse than the stuff that you or I would have to do to end up there.

    Just google “suspension with pay investigation”. Boggle at the stuff being investigated.

    Jaybird (f420c4)

  234. Are you assuming the allegations are true in the Googled results?

    Because, you know, criminal suspects do sometimes make up stories about cops.

    I’m not saying always. But plenty of times.

    I think cops are entitled to the same presumption of innocence everyone else receives. But too often I see “journalists” willing to uncritically accept any story of official misconduct, just as they uncritically accept any tale of innocence offered by a criminal defendant.

    Patterico (4bda0b)

  235. I’m one of those wacky people who sees “the prosecution suppressing evidence that would pretty much result in the defendant being found guilty by 99% of all juries” as different than “the judge saying that the jailhouse confession of a criminal cannot be introduced”.

    I can show you a non-zero number of cases where corruption got a confession or corruption resulted in a weapon being found in a defendant’s hand. I’m not talking hypotheticals that involve my thumb on the scale. I’m talking “stuff that happened”. That’s the justification for laws like the Miranda ones and the other evidenciary laws that are found so inconvenient.

    Like it or not, those laws are a check on the power of The State (remember us Radical Libertarians? We like those things.)

    What’s your defense for “He had a license granted by The State to do X” not being admissable evidence during a trial for X?

    Because miranda laws exist too and it’s only fair that both sides have to work a little harder?

    Jaybird (f420c4)

  236. “Are you assuming the allegations are true in the Googled results?”

    All of them? No, god help us if they were.

    A non-zero amount? Oh yeah.

    And now you can point to any number of cops caught on video tape being convicted and going to jail and, see?, the system works!

    And my original argument about how the system is somewhat tilted in favor of the whole “protect your own” thing will be lost when you point out that the worst of the worst do make it to trial and get convicted.

    Jaybird (f420c4)

  237. I don’t think a person should lie to get on a jury. But I also don’t think they should have to lie to get on that jury. What I think about jury nullification should never come up.

    “It is not only his right but also his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.
    – John Adams”

    I remember this quote from a junior high school civics clas almost 30 years ago. It’s a darn shame that our legal system has found it necessary to refute the ideals of our founding fathers.

    I agree with several of the others here about having information witheld from the jury. A suspects prior criminal activity is most certainly a factor when weighing the odds of whether he has a propensity for doing illegal activities. A good example of this is the second load of pot that Aldrete was charged with bringing in before the trial began in the Ramos-Compean case. This impeaches his credibility as a witness when he claimed that he was a first time mule. But the jury was not allowed to hear about it so they had an improperly biased view of him as an honest man.

    Also, same crime, multiple charges of varying degrees seems like the shotgun approach and just seems unfair on it’s face.

    The idea that we, the people, voted for the laws and are responsible for them is just ludicrous. We, the people voted for Prop 187, which passed with a large majority in the polls. Overturned by the courts. We voted for Prop 22, which the politicians have simply ignored and are now trying to have negated by the CA Supreme court. How many hundreds of STUPID new laws are enacted each year with no input from the public as part of much larger bills or budgets?

    As to why the laity don’t generally trust lawyers, I can’t speak for anyone else, but I have worked for too many of them. I hear the schemeing, manipulation and often outright lying to try and get what they want out of the court. Justice is never even a consideration until they are giving their closing arguments. (Disclaimer: Most of the lawyers I have worked with are civil attorneys. I terminated my association with a defense attorney after seeing him knowingly lying to get his clients off or reduced sentences. I have not worked with any prosecutors.)

    I will give all the lawyers here the benefit of the doubt because I don’t know any of you and becasue not all members of any group are bad.

    BTW, in San Diego, CA, there are 16,384 attorneys practicing within the city limits. There are 1710 police officers. I can’t find records that indicate how many civil and criminal trials there are each year here.

    Jay Curtis (8f6541)

  238. “the prosecution suppressing evidence that would pretty much result in the defendant being found [not] guilty by 99% of all juries”

    No. The judge ruling irrelevant evidence that would pretty much result in the defendant being found not guilty by 99% of all juries.

    And technically, the evidence is irrelevant. It is not a defense to federal drug possession laws that the state has entitled you to possess the drugs.

    Patterico (4bda0b)

  239. “It is not a defense to federal drug possession laws that the state has entitled you to possess the drugs.”

    Sez you.

    I see it as a Constitutional issue (10th, mostly) waiting to be resolved by the Supreme Court.

    But we’ve officially veered off topic.

    Jaybird (f420c4)

  240. I’m giving my opinion as to the state of the law, not my opinion as to what the state of the law should be.

    Patterico (4bda0b)

  241. Does the State of the Law hold that jury nullification remains legal?

    Jaybird (f420c4)

  242. I think I might have addressed that in the post.

    Patterico (4bda0b)

  243. It’s a simple yes or no question, Patterico.

    Jaybird (f420c4)

  244. well well well. balko brings up jury nullification in the context of ‘the legal system going to great lenghts to exclude jurors who think drug laws immoral’ from juries, and now we have patterico – whose profile identifies him as a prosecutor – attcking him for that stance.

    go figure. how *dare* the proles assume that *they’re* the most important people in a courtroom? how *dare* they diss the officers of the almighty state so?

    nom de guerre (9374ee)

  245. It’s a simple yes or no question, Patterico.

    OK. Since you can’t be bothered to read the post for the answer I’ve already given: the answer is no.

    Now this is officially a waste of my time. Nice talking to you.

    Patterico (4bda0b)

  246. And, of course, the point is not whether I can get you to agree with the statement that jury nullification is legal.

    It’s more my irritation that when we start talking about “Justice/Injustice”, the topic switches to “Hey The System Works This Way”, when we start delving into “Whether The System Should Work This Way”, the topic immediately switches back to “What? You Want Injustice?”, and when we start exploring “Justice/Injustice” a bit more, we go back to something like “I’m giving my opinion as to the state of the law, not my opinion as to what the state of the law should be.”

    Dude, you’re a prosecutor and, as such, you’re very good at this. I’m sure you can sway a jury of people who manage to not put “CSI” or “Law and Order” on their list of favorite television shows.

    But I find it frustrating that when we start talking about the way it ought, you talk about the way it is, and when I start talking about the way it is, you jump to the way it ought.

    Jaybird (f420c4)

  247. nom de guerre,

    I’m not attacking the role of jurors, who play an important role.

    I’m attacking the stance of someone who claims the right to mislead the court under oath regarding whether he will follow the law — and who declares any questions along those lines to be a “perjury trap.”

    Would you lie to get on a jury and nullify, nom de guerre?

    Patterico (4bda0b)

  248. Oh, wow! That’s, like, the third time we’ve posted at the same time!

    Though, to be honest, I thought that you would have at least agreed that jury nullification was cool in theory.

    Ah, well. You’re a prosecutor.

    You’re far more in tune with the majesty of the law and how it works and how it ought to work and the ability to jump between those two topics at will.

    I’m just a member of the jury pool.

    Jaybird (f420c4)

  249. I find it frustrating that when we start talking about the way it ought, you talk about the way it is, and when I start talking about the way it is, you jump to the way it ought.

    OK, but you’re not being fair to me. I have made it quite clear where I stand on all this. Jury nullification is not permitted and *ought* not be permitted.

    Ed Rosenthal’s license *is* technically irrelevant, but lawyers *ought* to be able to put on evidence that is relevant to the big picture if that principle goes both ways.

    I said all that.

    As for federalism issues, I am on record as saying that Raich was wrongly decided.

    BECAUSE OF THE AUTHORITARANISM!!

    Patterico (4bda0b)

  250. “would you lie to get on a jury and nullify, NdG?”

    oh, we’re doing questions now? great! would you initiate and demand and ramrod prosecution on a cop or ADA you found out lied to a jury, patterico? a practice so allegedly common that cops invented the word “testilying” for it?

    if the answer’s ‘yes’, then how many cops have you prosecuted for doing that? how many cops/ADA’s in LA county have EVER been prosecuted for perjury? is it a large number? it should be, right? because it’s *wrong* to lie in court, right?

    nom de guerre (9374ee)

  251. Though, to be honest, I thought that you would have at least agreed that jury nullification was cool in theory.

    The standard I would apply was well articulated by Xrlq in this comment:

    [I would nullify] 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.

    Even given some injustices here and there, we are not in a situation today where the law is so bad that the rule of law is no longer worth preserving. That’s why I continue to encourage people who don’t like the laws to work within the rule of law to change it.

    Patterico (4bda0b)

  252. oh, we’re doing questions now? great!

    Yeah, but you’re not doing answers, so why should I?

    Over and out.

    Patterico (4bda0b)

  253. Though, to be honest, I thought that you would have at least agreed that jury nullification was cool in theory.

    You didn’t ask for theory… you specifically asked:

    Does the State of the Law hold that jury nullification remains legal?

    Talk about switching back and forth. Maybe you should check back through the thread and see who’s actually initiating the switches? No, you already showed you don’t care to do that.

    Stashiu3 (460dc1)

  254. Sometimes it helps to consider analogies. It’s my understanding that a hospitalized patient has the right to leave the hospital even if his doctor hasn’t released him. It’s called leaving AMA or “against medical advice.” Doctors are allowed to question patients about their attitudes and don’t have to tell patients they can leave AMA. I assume one reason for that is because a percentage of patients would leave before release, even though their doctors felt they still needed medical attention or observation.

    No doubt the libertarians here believe patients should be told about their right to leave AMA and shouldn’t have to answer questions about it, and I’m sympathetic with that view since I’m not keen on the nanny state in health care. However, I also know that I won’t check out AMA without understanding all the risks, and I’m not sure everyone is that careful or knowledgeable.

    Thus, I think it’s a good balance to let people have the power to leave AMA but not to prevent doctors from questioning patients, nor require that doctors tell them they can leave AMA. Similarly, in law, jurors have the power to nullify but I think it’s a good balance to let courts inquire about their views and not require that judges tell them about nullification.

    DRJ (8b9d41)

  255. Article I Section 19. In all criminal cases whatever, the jury shall have the right to determine the law and the facts. – my state constitution.
    It might be different in California or soviet russia, but where I am, that’s the law. Our founders recognized the historical common law heritage of a meaningful trial by jury.

    arbitrary aardvark (166c72)

  256. arbitrary aardvark, a meaningful trial of the facts.

    SPQR (26be8b)

  257. Stashi, by “cool in theory”, I meant nothing more than “legal… if you find yourself in the jury box without having committed perjury to get there”. (I had a friend make it almost to alternate juror status a year or so back… I asked him if he were asked the jury nullification question… he said he wasn’t.)

    I apologize for slipping into imprecise language.

    For the record, the research I’m doing (okay, wikipedia) seems to indicate that Jury Nullification is not, in fact, illegal.

    So you may want to get to editing that page, Patterico. It’s not surprising that wikipedia got something so spectacularly wrong, but that it remained so for as long as it has.

    Let them know what for and that jury nullification is not, in fact, legal.

    Jaybird (f420c4)

  258. While oat and aboat, I also stumbled across this post.

    http://patterico.com/2005/07/28/radley-balko-on-jury-nullification/#comment-18542

    How time flies, no?

    Anyway, it looks like there are a number of state constitutions that totally disagree with you on whether or not jury nullification is legal.

    “State Constitutions ratified before you were born can be changed today — if you can get it accomplished within the system. Your beef is that you haven’t done that. So keep trying.”

    Jaybird (f420c4)

  259. Your assumption is that the language cited supports nullification. But look closer. Beldar gave you the law in Texas: the defendant is not entitled to a jury that will nullify, and jurors announcing their intent to nullify can legally be removed from the jury. Yet Texas is one of the states listed in that commenter’s list of constitutions tthat supposedly recognize the right to nullify. So the courts don’t interpret the language you have cited in the way you do.

    Patterico (4bda0b)

  260. See, I think that we’re talking past each other.

    On the one hand, if someone who was really big into jury nullification lied about it and sat on a jury and voted the guy not guilty just to make a point, heck yeah there’d be a miscarriage of justice.

    But if a group of people who never once saw an episode of “The Practice” all got onto a jury and sat back there and deliberated in good faith and it comes out that one of them says “you know what, I think he did break the law but this is a bad law…” and he or she got two or three other people nodding along and they were either able to convince the other 8 *OR* hang the jury…

    That strikes me as being perfectly legal.

    As a matter of fact, that strikes me as an example of the system working.

    Now perhaps that is significantly different from what Radley and you and I are talking about when we say “Jury Nullification” (I assume we’re talking about Radical Libertarians lying to judges so rapists can go free when we say it) but if you use that definition… I have to say that that seems to be part of what the fathers intended when the system was created at the outset.

    More to the point, that definition seems to be legal. More than legal, ratified into many State Constitutions.

    Jaybird (f420c4)

  261. (I had a friend make it almost to alternate juror status a year or so back… I asked him if he were asked the jury nullification question… he said he wasn’t.)

    He was. He just forgot.

    Every single juror in the State of California must take an oath when they are sworn in:

    Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

    So even if he wasn’t asked about “nullification” in jury selection (which I believe) or whether he would follow the law in jury selection (which I find much harder to believe), he still took an oath to follow the instructions of the court.

    Patterico (4bda0b)

  262. But if a group of people who never once saw an episode of “The Practice” all got onto a jury and sat back there and deliberated in good faith and it comes out that one of them says “you know what, I think he did break the law but this is a bad law…” and he or she got two or three other people nodding along and they were either able to convince the other 8 *OR* hang the jury…

    That strikes me as being perfectly legal.

    As a matter of fact, that strikes me as an example of the system working.

    It strikes me as a juror disregarding his oath.

    Patterico (4bda0b)

  263. Jaybird,

    If a juror listened to the evidence and only at that point did he decide nullification was appropriate, why would he ever have to lie to or mislead the court during the initial voir dire — before he ever got on the jury?

    DRJ (8b9d41)

  264. Jury nullification may be legal in France (don’t know, don’t care) or some other jurisdiction… I thought we were talking about the United States, focusing on California since that’s where Patterico practices.

    In 1988, in U.S. v. Krzyske, the jury asked the judge about jury nullification. The judge responded “There is no such thing as valid jury nullification.” The jury convicted the defendant, and the judge’s answer was upheld on appeal.

    In 1997, in U.S. v. Thomas,[20] the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).

    We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

    In 2001, a California Supreme Court ruling on a case involving statutory rape led to a new jury instruction that requires jurors to inform the judge whenever a fellow panelist appears to be deciding a case based on his or her dislike of a law.[21] However, the ruling could not overturn the practice of jury nullification itself because of double jeopardy: a defendant who has been acquitted of a charge cannot be charged a second time with it, even if the court later learns jury nullification played a role in the verdict.

    It seems that since 1988, jury nullification has been found to be a no-no. Here is the link from Wiki since you didn’t give one.

    Stashiu3 (460dc1)

  265. Oh, if you’re asking me “do I think it’s cool to lie under oath”, let me assure you and state for the record:

    It is NOT cool to lie under oath.

    As that could be misinterpreted due to imprecision, I’ll say again. It is wrong to lie under oath. The only circumstances under which it is not wrong to lie under oath involve stuff like “Nazis” and “Jews in the basement” and similar situations where the law is so unlawful in the first place where it would be immoral to follow it.

    Jaybird (f420c4)

  266. Stashi, that was *TOTALLY* the link I was looking at. Despite the stuff you pointed out to me, the webpage still seems to be under the impression that Jury Nullification is still legal and the courts are working to find ways to close loopholes to keep it from happening… but it still seems to be legal.

    “It strikes me as a juror disregarding his oath.”

    And this is where we get into an argument over whether a judge saying a law is unconstitutional is an example of The People’s Elected Representatives being thwarted by Judicial Activism or whether a judge saying a law is unconstitutional is an example of one of the branches of government acting as a check/balance against the excesses of another of the branches.

    Jaybird (f420c4)

  267. And this is where we get into an argument over whether a judge saying a law is unconstitutional is an example of The People’s Elected Representatives being thwarted by Judicial Activism or whether a judge saying a law is unconstitutional is an example of one of the branches of government acting as a check/balance against the excesses of another of the branches.

    Not really. My statement was: “It strikes me as a juror disregarding his oath.” Which it is. That’s pretty hard to dispute. I gave you the oath. It encompasses an agreement to follow the court’s instructions.

    If you think taking the oath should not be required, or is unconstitutional, you’re free to tell that to the judge. But if you take it, and then violate it, then you have violated your oath. Plain and simple.

    Patterico (4bda0b)

  268. Despite the stuff you pointed out to me, the webpage still seems to be under the impression that Jury Nullification is still legal and the courts are working to find ways to close loopholes to keep it from happening… but it still seems to be legal.

    Seems the stuff I pointed out were actual court decisions. The stuff you’re pointing to is the opinion of whoever last edited the page. Which is the better indicator of what is legal?

    Stashiu3 (460dc1)

  269. Jaybird,

    The Wiki link describes nullification as a power, not a right — they are similar but not the same. It also mentions that some view nullification as a violation of the juror’s oath.

    And I don’t see how this has anything to do with declaring laws unconstitutional.

    DRJ (8b9d41)

  270. Oh my.

    Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

    “No, your Honor, I can’t take that oath.”

    Now what happens?

    htom (412a17)

  271. Now what happens?

    The judge will likely ask you why not. You will tell him or her. He or she will become angry and ask you why you didn’t tell us that before. Ultimately, however, you will not be seated as a juror.

    Patterico (4bda0b)

  272. Was I ever given a chance before this to refuse, or told that this would be required? Assuming not (because I would have objected then; I may have been told I would be sworn, but not the particular oath involved),

    “Your Honor, I cannot in good conscience take the oath as stated, because the wording could lead me into having to choose to violate either this oath or other oaths I’ve taken, and I would prefer not to have wasted the court’s time if such circumstances arise.”

    (Now you get to play angry judge; don’t worry, I’ve survived being held in contempt in both court and the legislature.)

    htom (412a17)

  273. Gregory, in reply to your #116 on my #104, you say:

    You do not say so explicitly, but I think you are a working lawyer. What this non-lawyer wants is for the lawyers to follow the same rules they prescribe for everyone else.

    I have tried jury trials in multiple jurisdictions, a large number in federal courts, yes.

    Why shouldn’t jurors know if either side has hired jury consultants?

    For what purpose? I mean, I really wouldn’t care one way or the other, but I’m not sure that would be germane to any issue in the case.

    Why shouldn’t jurors know how often a presiding jduge is reversed on appeal?

    Again, I’m not understanding why that would be important for a jury to know. What legitimate “prospective juror” purpose would that serve? I think it may serve the purpose of the parties to know, but that statistical fact in a vacuum would be of almost no use for any legitimate function of a juror.

    Why shouldn’t jurors know how often a prosecutor plea bargains case as opposed to trying cases?

    I’m trying to relate these questions to the original point made about Balko…who has stated that he would lie (then amended to “lie with more skill”)to get ON a jury, in which he had not heard evidence, been instructed on the law or heard even argument from counsel.

    He SAYS he would do this, in order to “nullify an unjust charge”.

    My entire post in #104 consists of exposing this fallacy for what it is…a thinly veiled attempt to infuse his biased politics into a courtroom setting under the pretense of “jury nullification”.

    He isn’t “nullifying” an improper “charge”, he is pre-ordaining a result about a case in which he knows nothing other than where his politics align.

    He and his disciples here have steadfastly dodged, ducked, bobbed and weaved, turning themselves into pretzels to avoid the seminal question, raised by my #104 once…and by Patterico at least a half dozen times.

    Turn the political tables whereby it is your favorite whipping boys who are charged with a crime (cops, in this instance) and someone with an opposite political bent is a prospective juror. Is it ok for them to lie (with great skill or otherwise), to GET ON the jury…in order to impose their pre-ordained bias upon the verdict?

    Balko weasel-words his way around the question, because his position is based upon a fallacy. If you don’t know anything about the case, you can’t possibly know that it’s an “improper charge”. So how…at that point in time…can you justify lying to get on the jury to “nullify” it?

    His slip is showing here. What he really wants to do, is stick it to the “cops” because he doesn’t like cops, prosecutors, the “establishment” and he wants to infuse his politics into the judicial system and has to come up with some fraudulent, bogus, inane excuse for doing just that.

    This isn’t just civil disobedience, it is civic dissonance. He wants the entire country and all of its systems to fit nicely into his little echo chamber of a world, and in BalkoWorld, lying, cheating, stealing, to obtain those ends…justifies the means.

    Which is why he would never write a piece of journalism that was fair, thoughtful and objective,…because those traits serve no purpose in BalkoWorld. How could they? He is intent on placing little Balko-bombs into every element of our system of laws, until they reflect his and his alone, belief system.

    Why is juror ignorance so desirable?

    What you frame as “juror ignorance” I believe is a misnomer. The things upon which jurors should consider are limited to facts that are germane. They are enlightened on those and the others are simply not a part of the process.

    cfbleachers (4040c7)

  274. Radley (#190):

    There are about a dozen answers to your question. But the most obvious is that I’m a journalist, and make my living off my credibility (never mind that you and Patterico don’t seem to think I have any–plenty of other people apparently do).

    The reason Patterico and I don’t think you have much credibility is that both of us have, on multiple occasions, taken the time to fact-check some of your more questionable assertions. Most of your readers are essentially cult followers, who see no more reason to check up on the veracity of your statements than the average Moonie sees to check upon Rev. Moon.

    Nevertheless, if you have credible evidence that getting caught lying in print would harm your credibility in a way that a perjury conviction would not, I’d be keen to see it.

    I write about events that are pretty easily verifiable by anyone with a phone and/or an Internet connection.

    And when you do, Patterico, myself and a few other bloggers with too much time on our hands use said phone and/or Internet connection to verify your facts, and point them out when they don’t check out. Nothing ever happens, though, since most of our readers aren’t big fans of yours anyway, and hardly any of your readers are interested in hearing any evidence that their lord and savior might be wrong after all. So trust me, you’ve got nothing to fear.

    But perhaps I err. Maybe getting caught in one itsy-bitsy lie in print is all it takes to shoot your credibility to hell. If so, let’s point to the most obvious, visible and recent lie, namely the reference to a “perjury trap” that forms the basis of this post. Do you honestly believe that the reason judges ask prospective jurors if they intend to apply the law as written is not to weed out would-be nullifiers by getting them to tell the truth, but rather, a nefarious attempt to trick them into lying under oath? If so, I’ll grant that you are not a liar, just the world’s most clueless journalist. But if not, then why the hell would someone so concerned about his own credibility use such a dishonest phrase to describe a procedure he knows full well has fuck-all to do with trapping people into committing perjury?!

    Xrlq (62cad4)

  275. Xrlq, I’ve been wondering how the previous misrepresentations Balko has made has affected his career as a journalist.

    SPQR (26be8b)

  276. And so I ask the question “Why does the judge make you take such an oath?”

    Which turns the discussion, I hope, into a metadiscussion of the purpose of the law. The law exists to provide Justice. Right?

    If the law ceases to provide Justice, the law has ceased to do the thing for which it was created. Do we agree on that? Because, if we don’t, then we’re talking past each other again and that’s something I think we ought to try to avoid.

    Jaybird (f420c4)

  277. #277 Jaybird

    Then you agree that it’s against the law to nullify? Because you never answered my question at #269 I wasn’t sure. It seems now that you accept that jury nullification is against the law. Is that correct? Otherwise, I can’t answer your question because it means one thing if you believe nullification is legal and something else if you don’t.

    Stashiu3 (460dc1)

  278. Jaybird, sure if you redefine “justice” as “not being convicted of a law that some randomly selected juror believes is unjust”.

    But that is putting one person’s policy preferences on the pedestal as “justice”.

    SPQR (26be8b)

  279. The court asks jurors to take an oath, because the system is probing for a conscience. In Balko’s case, he freely admits, he has none.

    For those who do, however, the oath has value. If your word of honor has value to you, then it has value to the system. And you provide value to the system. If your word is meaningless and you have no honor, you have no value to the system.

    The law exists to seek justice, for all, equally. Even cops and prosecutors when they are parties.
    Even big corporations.

    In seeking justice, some folks believe that if the result they seek in an individual case may not be achieved, they can derail the process and replace it with their own individualized outcome.

    Who gave you that authority? Who are you, that you arrogate to yourself the right to unilaterally decide the end result of a particular case?

    What the Balkoloids don’t seem to grasp, is that this is a system, this is a process…not a thing. You don’t own it. It is a communal responsibility not an individual whim that drives the process.

    If everyone simply engage in the self-absorbed illusory grandeur that Balko bestows upon himself, how does the system not break down entirely? What value would it have at all, if we simply replace it with this feckless anomy?

    It is delusional to think that the system could operate with each individual making up his own rules as he went along. The rules are there to give the process a chance to work. Appeals are there to give the process a chance to correct.

    If you derail the process with a bunch of liars and self-aggrandizing, grandstanding political saboteurs…it can’t correct, because it is necrotic from the outset.

    cfbleachers (4040c7)

  280. Patterico 263 It strikes me as a juror disregarding his oath.

    The great principles of the constitution are intimately known. They are sensibly felt by every American. It is scarcely extravagant to say they are drawn in and imbibed with the nurse’s milk and first air. Now, should the melancholy case arise that the judges should give their opinions to the jury against one of these fundamental principles, is a juror obliged to give his verdict generally, according to this direction, or even to find the fact specially, and submit the law to the court? Every man, of any feeling or conscience, will answer, ‘No.’ It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court. American law obliges no man to decide a cause upon oath against his own judgment.

    Steve (afc04e)

  281. The California medical marijuana law is about the practice of medicine (a state controlled issue, doctors are licensed by the states, not the feds). The Federal drug law is about abuse of controlled substances. My assertion is that if you are using marijuana in conformance with a medical process allowed by state law, then you by definition are not abusing a controlled substance.

    Then the question becomes: can the federal government overrule the state and say a certain medical practice that the state would like to allow cannot be used? I think the federal government can only succeed at that if the practice in question is fairly obviously quackery. I don’t think the “medical use of marijuana” has been proven or dis-proven to that degree.”

    Sure they can. The prosecutor only needs to prove the marijuana possession involved some type of interstate commerce. Otherwise, the jury would need to know the difference between a corn field and a marijuana plant.

    Steve (234cc8)

  282. Steve,

    I’d say it’s more than extravagant, it’s hogwash. How many Americans can name the number of Constitutional Amendments or even outline the first ten? Just because something “feels” right to a person doesn’t make it right. Your flowery rhetoric sounds wonderful and rosy, but doesn’t have any basis in reality.

    Besides, we’re talking about “Perjury Trap”, remember? How is asking someone if they will abide their oath an invitation to perjury? If his conscience starts to bother him after the trial has begun, he can ask to be dismissed. What he can’t do is disregard his oath and go against the law, knowingly doing so before any evidence is heard or instructions by the court given.

    Should soldiers who take the oath of enlistment be allowed to disregard the orders of those appointed over them (if those orders are lawful) just because they disagree with them? Should they be able to pick and choose which battles to fight and how they are to be fought? Or is having them take the oath an invitation to treason?

    Stashiu3 (460dc1)

  283. Out of curiosity, how is the difference between “one person’s policy preferences” and “Justice” measured?

    Jaybird (f420c4)

  284. “It seems now that you accept that jury nullification is against the law.”

    I’m not sure I do.

    My definition of “against the law” means that “men can come to your house with guns and tell you to come with them and shoot you if you don’t.”

    Is nullification an arrestable crime?

    If it’s not an arrestable crime, which I am not seeing that it is…

    What do you mean by “against the law”?

    Jaybird (f420c4)

  285. If I libel someone and get successfully sued for it, it’s because it was “against the law”, correct? Even though I wasn’t arrested? It’s not that hard a question.

    Stashiu3 (460dc1)

  286. Has anyone ever been successfully sued for jury nullification?

    I mean, other than those guys who found William Penn not guilty.

    Jaybird (f420c4)

  287. That doesn’t answer the question. It doesn’t matter if someone has been successfully sued or arrested. Do you accept that it’s against the law, based on the court cases I cited dating back to 1988? Again, it’s not that hard a question. Will you answer it or not?

    Stashiu3 (460dc1)

  288. I already said “this is what illegal means to me”. I’ll grant that my definition was too narrow.

    Instead of “illegal” meaning “people can come to your house and arrest you”, I should have had it broad enough to mean “people can come to your house and tell you that you have a civil suit against you and if you don’t show up, you can lose your house”.

    I ask you: Has anyone ever had either of these happen to them because of jury nullification?

    Other than those guys who found William Penn innocent, I mean.

    If they haven’t… I’m wondering what definition of “illegal” you’re using because it seems to be a definition of “illegal” that doesn’t entail any form of sanction which just strikes me, one of those wacky Radical Libertarian types, as odd.

    Unless, of course, you’re arguing that the guys who found William Penn innocent didn’t get half of what they deserved.

    In which case I think we’ll have hammered out the difference between your perspective and my perspective to the point where I’ll be willing to say “Yeah, we’re both wasting our time here.”

    Jaybird (f420c4)

  289. I already said “this is what illegal means to me”. I’ll grant that my definition was too narrow.

    Gracious of you.

    I ask you: Has anyone ever had either of these happen to them because of jury nullification?

    Answering a question with a question. Again. Lame.

    Unless, of course, you’re arguing that the guys who found William Penn innocent didn’t get half of what they deserved.

    Irrelevant to the question.

    “Yeah, we’re both wasting our time here.”

    Apparently, I am. A simple yes or no seems beyond you. It’s amazing to me how many self-described “Libertarian” folks resemble dishonest liberal trolls when they show up here. Patterico was right.

    Stashiu3 (460dc1)

  290. so let’s recap. american law is based on 600? 700? 800? years of english common law, law that got along just fine without juror interrogations. voir dire is how old? 50 years? introduced here in the land of the free and the overlawyered, yes?

    and, if the wiki articles cited above are correct, 200-300 years of common law re jury nullification has now been declared null & void by the almighty state, yes? “zenger schmenger”, right? the all-powerful lawyers in robes took it upon themselves to remove this freedom from the people, yes? who the hell elected THEM?

    so we now have a system where ….
    * the state packs their juries with compliant sheep
    * rejecting those who show any hint of backbone, or lack of deference to the berobed lawyers
    * overturning some 800 years of common law tradition and precedent to do so
    * holding those proles to a *much higher* standard of honesty than they hold themselves to (total number of LA county law enforcement types prosecuted for perjury over the last 50 years = the statistical equivalent of “zero”.)

    aaaaaaand, of course, the officers and prosecutors of the state think this is a *fine* system they’ve crafted for themselves, defending it loud and often. as i said before: go figure.

    yes, i would lie to get on a jury for the purpose of nullification, patterico. telling lies to members of a foully corrupt police state seems to me to be a wonderful idea. fight the enemy in any way possible. since i gather you think lying in court is a crime, i ask again how many cops and law enforcement “professionals” have you put behind bars for perjury? is it a large number?

    nom de guerre (9374ee)

  291. nom,

    The right of kings goes back much longer, we don’t follow that anymore, do we? Based on common law doesn’t mean bound by common law. Since you’re so convinced that everyone is corrupt and we’re in a police state, where is there a better system? Iran? Mexico? I’m interested in where you think the legal system is better than here.

    I’m pretty sure in a police state you’d be locked up already. Also, since you’d lie under oath, why should anyone believe anything you say when you’re under less obligation?

    Stashiu3 (460dc1)

  292. telling lies to members of a foully corrupt police state seems to me to be a wonderful idea. fight the enemy in any way possible.

    The Anarchist Wing of the Libertarian Party, ladies and gentlemen! Give him a round of applause, will you? Thank you. Thank you very much.

    Patterico (4bda0b)

  293. How many Americans can name the number of Constitutional Amendments or even outline the first ten? Just because something “feels” right to a person doesn’t make it right

    Fortunately, the Constitution is not a living, breathing document with feelings.

    Steve (234cc8)

  294. So far, it seems to me that those who oppose jury nullification are part of the “justice” system and those that support it are not. This in and of itself, tells me a lot. Those in power do not want their power questioned.

    As most of the legal minds here like to point out, precedent is important in determining the law. However, the only precedents that they have cited in this thread are those decided in the last 100 years, not any of the precedents prior. As noted above by others, there are quotes from the Founding Fathers and Chief Justice John Jay of the first Supreme Court that support jury nullification as a right. If precedents are so important, why is this one ignored? Isn’t it possible that a single rogue judge decided that precedent was bad and incorrect? And it was this judge that changed the entire system at his whim? Anti-nullers argue that a single person shouldn’t be able to decide the law, but that is what they actively support, a single person (the judge) deciding the law.

    Using the example of a pro-law enforcement individual trying to get on a jury to acquit a cop is just dishonest. That argument is based on the cop’s occupation, not on any law. The correct argument would be a pro-law person that doesn’t believe any law should apply to the police. But again this would be wrong because all are to be equal under the law.

    Jury nullification is the last bastion of the governed to control the tyrannical government. The Founding Fathers understood a simple fact, government WILL become corrupt and oppressive, if not properly kept in check by the citizens. To those who argue, “If you don’t like the system, use the proper channels to fix it,” I must say follow your example. Drug prohibition is effectively NO different that alcohol prohibition, except when they banned alcohol, they at least understood that it was UNCONSTITUTIONAL, hence the need for the 18th amendment. Pray tell, how can some drugs now be banned without an amendment to the Constitution? Sounds like judicial activism to me.

    The reality is that the legal profession will create any and all rules that it can in order to exclude anyone not part of the system. Anyone that might question the almighty government will be excluded from participating. Those who might think for themselves, excluded. Those who understand the Constitution and its intent to limit government, excluded.

    I think whether a lawyer used a jury consultant or not is relevant information for a jury. It goes to the lawyers credibility, along with how many times they plea bargain or a judge is overturned. How do I know that the prosecutor is telling the truth, because he said so? I want evidence that I’m dealing with someone I can trust and believe.

    Also, I don’t think I’ve read any good responses to the question of what the difference is between, police and prosecutor discretion and jury nullification? Seems to me in both cases, one person is deciding how to apply the law, the exact reason you anti-nullers oppose nullification. How can you justify a prosecutor choosing not to enforce the law, but not justify a jury doing it? Could it be because the jury isn’t an active member of the system?

    If power corrupts, absolute power redefines corruption.

    Sean (e1d31a)

  295. Fortunately, the Constitution is not a living, breathing document with feelings.

    So, is asking someone to abide by their oath a “Perjury Trap”? Is having a soldier take the oath of enlistment a “Treason Trap”?

    Stashiu3 (460dc1)

  296. So far, it seems to me that those who oppose jury nullification are part of the “justice” system and those that support it are not.

    Might seem that way… anything solid to back that up? I’m opposed and not part of the justice system or legal profession. So far, it seems to me that those who support jury nullification are just like someone who wants control of a jetliner in an emergency because they just don’t trust the pilot. Never mind that they’re not qualified, they “feel” they could do a better job. (Wow, making assertions without data and just based on feelings is fun… never mind about giving something solid to back it up, I can see where this is like crack for you guys. Yes, that’s sarcascm)

    It goes to the lawyers credibility, along with how many times they plea bargain or a judge is overturned. How do I know that the prosecutor is telling the truth, because he said so? I want evidence that I’m dealing with someone I can trust and believe.

    So, pretty much everyone in the courtroom is on trial with you there… interesting.

    How can you justify a prosecutor choosing not to enforce the law, but not justify a jury doing it?

    There’s a difference between not enforcing a law and making a professional assessment that there is not evidence beyond a reasonable doubt for a conviction. Is this another Libertarian outed as an anarchist? Nobody should be trusted because they might become corrupted?

    Stashiu3 (460dc1)

  297. Why are so many leftists pretending to be libertarians now? Is it a planned thing, or just that they are self-deluded? Do they really think they can pass themselves off as libertarians, or just know that arguing leftist positions are losing propositions? So many questions this morning… and OT, so I’ll go run errands. I’ll be interested in your answers Steve and Sean… really.

    Stashiu3 (460dc1)

  298. It’s OK for a cop to ignore a crime.
    It’s OK for a prosecutor to ignore a crime.
    It’s OK for a judge to overturn a verdict.
    But it’s not OK for twelve jurors to refuse to convict.

    Nobody should be trusted because they might become corrupted?

    Like jurors? That’s what this is really about: trusting the jury. Other forms of jury distrust are the attempts to move to six member juries and the active discussion (among the legal community) of having “professional juries”.

    If we can’t trust our neighbors, we’re doomed.

    htom (412a17)

  299. It’s OK for a cop to ignore a crime, if there’s not sufficient evidence a crime was committed.
    It’s OK for a prosecutor to ignore a crime, if there’s not sufficient evidence that a crime was committed, or that the accused did it.
    It’s OK for a judge to overturn a verdict, if the procedures to establish guilt were not followed, or there is evidence a previous trial was in error.
    But it’s not OK for twelve jurors to refuse to convict, if they are doing so in violation of their oath, based on their disagreement with a law , and/or before hearing any evidence.

    There, it’s fixed now. Glad to help.

    Stashiu3 (460dc1)

  300. The historical comments about jury nullification are taken out of context of the time and historical English practice. At the time they were written, judges commonly commented to the jury about their views of the weight of the evidence and in English practice around the time of the American Revolution, English judges had the power to direct a jury to return a particular verdict and compel that with criminal sanctions.

    Reading commentary of the era without understanding that results in a false impression of what is being discussed.

    SPQR (26be8b)

  301. Stashiu3-

    “Might seem that way… anything solid to back that up?”
    No, exactly why I used the word “seems.” I know that Patterico, DRJ, nk at least are lawyers or former. If I recall correctly, SPQR and Xrlq are or were in the system. These are the major supports of denying the right to nullification. Of the commenters that support the right, I’m not aware of any being lawyers. So, yes I was speculating based on my current knowledge.

    “So far, it seems to me that those who support jury nullification are just like someone who wants control of a jetliner in an emergency because they just don’t trust the pilot. Never mind that they’re not qualified, they “feel” they could do a better job.”
    If the “common” citizen isn’t qualified, why are they part of a jury to begin with? This is the exact argument I would expect from someone that doesn’t believe the government exists at the will of the governed.

    “So, pretty much everyone in the courtroom is on trial with you there… interesting.”
    If the person is providing information relevant to a case, damn straight their credibility is on trial. You expect me to just believe everything I hear without weighing whether the source of the information is credible or not? I, as a juror, am there to determine the facts and truth. I cannot properly do that job without ALL of the relevant information. That relevant information includes the credibility of ANYONE providing evidence, whether you think so or not.

    “There’s a difference between not enforcing a law and making a professional assessment that there is not evidence beyond a reasonable doubt for a conviction.”
    By that logic, there is no need for a jury as others have noted previously. If the prosecutor thinks that there is enough evidence, then just convict and execute. The prosecutor wouldn’t bring the case unless he was confident he was right, right? And prosecutors NEVER file charges that aren’t supported by the evidence, right? Congress NEVER passes laws that are unconstitutional, right?

    “Nobody should be trusted because they might become corrupted?”
    Exactly. Your blind faith in the system is the fundamental problem. I, and the Founding Fathers, am skeptical of government because it is run by man, and man is corruptible.

    Sean (e1d31a)

  302. Sean, law is a second career for me. I opposed jury nullification long before entering law school.

    SPQR (26be8b)

  303. Sean:

    So far, it seems to me…

    That would be weaselspeak for “I’ve got absolutely no evidence to support this statement, but I’d like to ‘throw it out’ there anyway.”

    … that those who oppose jury nullification are part of the “justice” system and those that support it are not. This in and of itself, tells me a lot.

    It tells us plenty about your thought process, sure. Beyond that, the most it shows is that the more one knows about how the justice system works, the less fond of jury nullification one is likely to be.

    As most of the legal minds here like to point out, precedent is important in determining the law. However, the only precedents that they have cited in this thread are those decided in the last 100 years, not any of the precedents prior.

    Well, duh. Newer precedents always control over older ones. That’s how precedents work.

    As noted above by others, there are quotes from the Founding Fathers and Chief Justice John Jay of the first Supreme Court that support jury nullification as a right. If precedents are so important, why is this one ignored? Isn’t it possible that a single rogue judge decided that precedent was bad and incorrect?

    If it were true that a single judge had decided the current precedent, maybe, but even then I’m not sure why you think a precedent issued by Judge A is any less of a rouge precedent than an earlier one by Judge B, aside from the fact that you happen to agree with B. Beyond that, what makes one judge-made law any holier than the other?

    Anti-nullers argue that a single person shouldn’t be able to decide the law, but that is what they actively support, a single person (the judge) deciding the law.

    Hogwash. It is universally agreed that judges, like juries (except in the case of you nullificationists, in which case it’s unlike juries) must apply the law as written and as interpreted by higher courts. To do anything else merits reversal on appeal, or worse.

    Using the example of a pro-law enforcement individual trying to get on a jury to acquit a cop is just dishonest. That argument is based on the cop’s occupation, not on any law.

    So what? The O.J. jury nullified because of the defendant’s occupation, not any law. Countless juries have nullified on account of the victim’s race, not any law. Even the rare instances where nullification has produced a good result – Zenger, for example – have little or nothing to do with any law.

    The correct argument would be a pro-law person that doesn’t believe any law should apply to the police. But again this would be wrong because all are to be equal under the law.

    Oh, I see. You favor nullification if the jury nullifies for a reason you agree with, but oppose it if they don’t. Guess what: if given the green light to nullify, they’re not going to ask you for permission every time.

    Jury nullification is the last bastion of the governed to control the tyrannical government.

    If by “the governed” you mean whoever had his ideas lose in the democratic process, and by “tyrannical government” you mean whoever won, I don’t disagree. I’m just not sure why you think that’s a good thing. If there’s one thing worse than majority rule, it’s the rule of those with ideas so kooky they can’t even get a majority to go along with them.

    Pray tell, how can some drugs now be banned without an amendment to the Constitution? Sounds like judicial activism to me.

    Me too, but I’m not sure what that has to do with juries, who aren’t exactly known for their constitutional expertise.

    The reality is that the legal profession will create any and all rules that it can in order to exclude anyone not part of the system. Anyone that might question the almighty government will be excluded from participating. Those who might think for themselves, excluded.

    Right. The reason you can’t vote isn’t because you committed a felony, or didn’t bother to register in the first place. It’s because the Gummit has figgered out that you might question its almightiness. Lest even commenting on this thread be construed as “participating,” you’d better quit now before you get arrested and hauled off to Siberia, Detroit, or wherever else they we send all those dissidents who dare think for themselves.

    Also, I don’t think I’ve read any good responses to the question of what the difference is between, police and prosecutor discretion and jury nullification?

    The reason you haven’t seen a “good” response is that there’s a limit to how good an answer can be when the original question was retarded. The best I can do is suggest you bone up on the basics of how the legal system works. Here’s a hint: cops and prosecutors represent the state, who is a party to the case. Both parties to the case have a right to pursue the legal strategies available to them, or not to pursue them. Judges and juries, by contrast, are supposed to be neutral umpires; it’s not their job to force either party’s hand except where the law requires it.

    To illustrate, suppose your next door neighbor negligently destroyed your property. You like your neighbor, so you’re not sure you want to sue him, but you are sure, after consulting a good lawyer, that you can, and that you will recover good money if you do. By your logic, if the law clearly provides that you can sue him, then it must follow that you must. Either that, or to the extent you have a right not to sue the guy simply because you don’t want to, a judge or jury must have the same unlimited right to rule against you, not because the law supports that decision but simply because they don’t want you to win.

    Xrlq (b71926)

  304. Stashiu3-
    “It’s OK for a cop to ignore a crime, if there’s not sufficient evidence a crime was committed.
    It’s OK for a prosecutor to ignore a crime, if there’s not sufficient evidence that a crime was committed, or that the accused did it.”
    Again, by this rational, why do we need juries? We should just trust the cops, prosecutors, and judges to do their jobs. If charges are brought, you must find guilt. That is your fundamental argument because of your blind faith that cops and prosecutors will always do the right thing.

    Sean (e1d31a)

  305. No, Sean, that’s not Stashiu3’s argument at all. He was simply pointing out that your “Its OK …” list was flat out wrong.

    In opposing jury nullification, we are not stating that the jury is useless, that’s a stupid misrepresentation. The jury has an important role in weighing the evidence, we just don’t think they have a role in weighing policy. That’s the legislature’s role.

    SPQR (26be8b)

  306. Pretty arrogant to conflate yourself with the Founding Fathers when you advocate undermining the very system they established.

    If the “common” citizen isn’t qualified, why are they part of a jury to begin with?

    They’re qualified to be on a jury… not to be a defense attorney, prosecutor, or a judge.

    That relevant information includes the credibility of ANYONE providing evidence, whether you think so or not.

    There is a difference between providing evidence and presenting evidence. If you don’t trust anyone to do their job without your full knowledge and oversight, how do you eat at a restaurant?

    By that logic, there is no need for a jury as others have noted previously.

    Except that is how the system ensures a fair trial, not by giving jurors arbitrary and capricious veto over the rule of law… small detail to you I’m sure, but important.

    Your blind faith in the system is the fundamental problem.

    No, your blind faith that nobody can determine truth except yourself is the fundamental problem. The system has checks and balances which are constantly being refined to ensure fairness.

    Stashiu3 (460dc1)

  307. No, Sean. Stashiu3 is in the medical field and understands triage. With limited resources, you treat the most serious injury with the highest possibility of success first. The most hopeless which will consume the greatest OR time, personnel, blood and medicine, last. Same thing with charging crime. A serious crime, with strong evidence, gets tried. A not-so serious gets pleaded or diverted. One where the evidence is weak and the likelihood of proving guilt beyond a reasonable doubt small gets dismissed. On this last point, prosecutors have an ethical duty not to bring a case to trial if they do not have a good faith belief that they can prove guilt beyond a reasonable doubt.

    nk (5ce644)

  308. Xrlq:

    you’d better quit now before you get arrested and hauled off to Siberia, Detroit, or wherever else they we send all those dissidents who dare think for themselves.

    Why you gotta pick on Detroit? I grew up in Detroit. I still have family in Det… oh,… never mind.
    😉

    Sean,

    That is your fundamental argument because of your blind faith that cops and prosecutors will always do the right thing.

    That’s not my fundamental argument and I’ll thank you not to put words into my mouth. Matter of fact, just mentally add the pejorative of your choice at the end of any comment I address to you. I don’t want to overtly curse or insult someone on Patterico’s site, so I’ll just consider it assumed. plzkthx

    Stashiu3 (460dc1)

  309. “Why are so many leftists pretending to be libertarians now?”

    I think it’s that, before, the libertarians were making the calculus and seeing that the anti-communists were, by far, the lesser evil when it came to being anti-statist.

    Now that the Communists are gone, the anti-communists are doing their best to use the apparatus of the state to do things like Prescription Drug Benefits and the TSA and opposing gay marriage (for The Children) and you name it.

    The Libertarians aren’t Leftists. The Righties have merely become more Statist and are assuming that the people who are standing farther and farther away are the ones who are moving.

    Jaybird (1994ca)

  310. No, exactly why I used the word “seems.” I know that Patterico, DRJ, nk at least are lawyers or former. If I recall correctly, SPQR and Xrlq are or were in the system. These are the major supports of denying the right to nullification. Of the commenters that support the right, I’m not aware of any being lawyers. So, yes I was speculating based on my current knowledge.

    Oh, I get it. While you may have said “part of the ‘justice’ system” and “[t]hose in power,” all you really meant was “anyone who actually knows enough about the legal system to earn a law degree and pass at least one bar exam.” And when you said “do not want their power questioned,” all you really meant was that you didn’t want your poorly thought out ideas questioned by anyone who, unlike you, apparently, knows the first thing about what they are talking about.

    Once you cut through all the lofty rhetoric, you’ve basically admitted that the less real knowledge a person has about our legal system, the more likely they are to agree with you. The only question is why you seem so damned proud of that.

    Xrlq (b71926)

  311. “Well, duh. Newer precedents always control over older ones. That’s how precedents work.”
    So you’re saying that prior precedent doesn’t matter and doesn’t need to be followed. Because this is a clear case where prior precedent was IGNORED.

    “Here’s a hint: cops and prosecutors represent the state, who is a party to the case.”
    This is the EXACT reason they should NOT be trusted. They exist for the protection of the state, not the citizens. The jury is the last defense against a tyrannical government.

    “To illustrate, suppose your next door neighbor negligently destroyed your property. You like your neighbor, so you’re not sure you want to sue him, but you are sure, after consulting a good lawyer, that you can, and that you will recover good money if you do. By your logic, if the law clearly provides that you can sue him, then it must follow that you must. Either that, or to the extent you have a right not to sue the guy simply because you don’t want to, a judge or jury must have the same unlimited right to rule against you, not because the law supports that decision but simply because they don’t want you to win.”
    Your right for a civil trial. But in this example, I would say that the prosecutor MUST charge my neighbor with destruction of private property and let a jury decide guilt. The prosecutor should NOT have the power, much less the right, to not file charges. In what criminal matter does the victim have the right to file criminal charges and bring them to court? Thanks for the apples to oranges example though.

    Sean (e1d31a)

  312. The Libertarians aren’t Leftists.

    True Libertarians aren’t leftists. Pretend Libertarians are another story.

    The Righties have merely become more Statist and are assuming that the people who are standing farther and farther away are the ones who are moving.

    So you’re one of the self-deluding ones, eh? Keep telling yourself that, ok? When you get thrown in jail for “speaking truth to power” you might have a case. Until then, not so much.

    Stashiu3 (460dc1)

  313. BTW, my question to Radley is still open: when you described questions designed to weed out would-be nullifiers by getting them to tell the truth under oath as a “perjury trap,” where you (1) lying, or (2) exposing yourself as the world’s worst-informed journalist?

    Xrlq (b71926)

  314. Your right for a civil trial. But in this example, I would say that the prosecutor MUST charge my neighbor with destruction of private property and let a jury decide guilt. The prosecutor should NOT have the power, much less the right, to not file charges. In what criminal matter does the victim have the right to file criminal charges and bring them to court? Thanks for the apples to oranges example though.

    You really don’t understand the first thing about the legal system or the law, do you? (insert pejorative)

    Stashiu3 (460dc1)

  315. Mr. Balko,

    In addition to Xrlq above, any answer to this comment would be greatly appreciated.

    Stashiu3 (460dc1)

  316. Your [sic] right for a civil trial. But in this example, I would say that the prosecutor MUST charge my neighbor with destruction of private property and let a jury decide guilt.

    In a police state, perhaps. But the state has never been under an obligation to pursue criminal charges against anyone, any more than any party (including the state) has been under an obligation to pursue civil charges against anyone. If you’re a party to the case, you have a right to forfeit the game if you want. The ump doesn’t have the same right to forfeit the game for you if you don’t.

    In what criminal matter does the victim have the right to file criminal charges and bring them to court?

    None. The victim can only pursue civil charges. Which, fortunately, the judge and jury must give a fair hearing to pursuant to law. If a civil jury nullifies, the case will rightly be reversed on appeal.

    Xrlq (b71926)

  317. Two long, very interesting posts this weekend about legalities, morals, ethics…

    Those who generally favor the law or the rules believe in them…

    Those opposed to the rules favor the idea that an individual can break/violate/ignore the rules when they believe it to be the right thing to do….

    I’ll ask the same question again:

    If a person who believes something completely contrary to the existing rules, morals, societial codes, ethics, and believes it strongly, does that person get to violate everything because of their beliefs?

    I ask this question specifically of those who think that jury nullification is acceptable.

    I ask it as well to those who believe the lawyers who followed the rules and didn’t disclose their client’s involvement in a crime.

    Yes, I am arguing against breaking the rules, or the laws, because the opposite is anarchy, where any one person can set the agenda, regardless of their personal beliefs.

    That, to me, is incredibly scary….

    reff (bff229)

  318. Prosecutorial discretion is a seriously debated subject in death penalty cases. How do the Gregg and Furman standards which seem to prohibit unfettered jury discretion whether to impose the death penalty allow the prosecutor unfettered discretion whether to request it?

    But I doubt that “gotcha”-playing anarcho-libertarians would understand or appreciate that giving someone the power to keep some possibly guilty-of-something fellow human beings off the gurney or out of a prison cell is a good thing.

    nk (5ce644)

  319. BTW, my question to Radley is still open: when you described questions designed to weed out would-be nullifiers by getting them to tell the truth under oath as a “perjury trap,” where you (1) lying, or (2) exposing yourself as the world’s worst-informed journalist?

    Both, obviously!

    So because your definition of “perjury trap” is different from mine, I’m either a liar or ill-informed? As far as I know, it’s fairly loosely-defined term (the Democrats and Republicans seem to have varying definitions of the term depending on who’s sitting in the witness chair).

    I’d say that if a prosecutor or judge asks a question during voir dire that forces a would-be nullifier to either lie or forfeit his enshrined-in-American-and-English-law-history power to nullify bad laws by refusing to convict, that’s a trap. If you want to nullify, you’d have to commit perjury.

    Apologies if I’ve offended your preferred definition of the term.

    I’m outta’ this thread, now. Don’t really have time to respond to every challenge laid at my feet.

    Radley Balko (1f1495)

  320. Stashi, I don’t think that I’m “speaking truth to power” here. I think that I’m just giving my opinion.

    If, however, you think that “compassionate conservativism” is not much more statist than, say, Reagan’s interpretation of how the gummint should act… well. I suppose we’ll be talking past each other again.

    “No, you see, the Prescription Drug Benefit increases Liberty!” is one argument you may want to explore. “If Muslim Terrorists kill you, how much Liberty will you have then?” is another. “The Democrats would be worse!” is yet another.

    Now, this is not me “speaking truth to power”. This is just me calling them like I see them and I fully expect to have zero to close-enough-to-zero-as-to-make-no-difference impact on anyone else’s perspective, of course.

    But you don’t get to tell me that the Republican Party hasn’t significantly changed since the Berlin wall fell.

    Jaybird (1994ca)

  321. Jaybird, ignoring for the moment your complaints about conservatism, there is a trend these days for left/liberal people to claim to be libertarian when they plainly are not – as they support the usual menu of statist solutions.

    SPQR (26be8b)

  322. “If a person who believes something completely contrary to the existing rules, morals, societial codes, ethics, and believes it strongly, does that person get to violate everything because of their beliefs?”

    And to answer a question with another question: If a personal moral code is not sufficient grounds to stand up against the established order… what would be sufficient grounds?

    Jaybird (1994ca)

  323. Oh, SPQR, please understand that my response to people saying “you libertarians are X” is for me to think “dude, they just called me an X!” and not “well, I need to keep in mind the fact that they surely did not mean me but really meant those other (slurs) over there.”

    Jaybird (1994ca)

  324. “But the state has never been under an obligation to pursue criminal charges against anyone”
    And this doesn’t expose the “justice system” as a farce? The power of the law and how it is imposed is solely in the hands of the state? The citizens have no right to justice?

    Sean (e1d31a)

  325. Jaybird, that personal moral code goes against everything established by society, right?

    Before you argue about slavery, or those 100 year old arguments, remember, we’ve already done that. In Balko’s case, we have 200+ years of previously decided case law that, for the most part, rejects jury nullification. In the defense lawyers case, we have the same example. Both have been argued time and time again, and found to be what they are.

    So, the “personal moral code” in your question is just that: Personal. And, no, it would not be sufficient grounds to violate the existing legal standards in the law, because those points have already been argued in the law. If new ones come up, they can be argued after the fact, as the law provides.

    So, no, that would not be sufficient grounds to stand up against the established order, because that same established order has already argued those points, and set the rules.

    reff (bff229)

  326. Sean, look at the ballot next you time you vote for District Attorney.

    SPQR (26be8b)

  327. Stashiu3 #283… I’m sorry, my flowery hogwash was a setup, although I share the sentiments the words weren’t mine… I was just curious if we had strayed so far from our founding principles that to present the founding father’s words and arguments directly as though they were my own (rather than citing them as an appeal to authority) would provoke sharp disagreement. The hogwash is that of John Adams, chosen somewhat at random from among nearly identical statements from Hamilton, Jefferson and Jay any of which would have served my little (admittedly unfair) experiment as well.

    The founding fathers were extremely clear in their statements that they considered jury trial essential because it was a check on the arbitrary power of government. It was considered THE prime protection against tyranny. It’s one of the few points upon which the federalists and anti-federalists agreed. In their various writings jury trial is expounded as a protection against unconstitutional laws, a tyrannical executive and a corrupt judiciary.

    Side note: I’ve changed my nom de guerre/plume since there is at least one other “steve” posting and people are understandably getting us confused. The comment immediately following my hogwash wasn’t mine for instance.

    SteveB (918a29)

  328. I can’t wait for Radley’s next post, calling a driver’s license application a perjury trap. Driver’s licenses are unconstitutional, right libertarians?

    nk (5ce644)

  329. Reff, as much sympathy as I have for the “we’ve solved all of the injustice problems!” argument, I still put the “well, now we no longer need jury nullification” in the “well, now we no longer need the 2nd Amendment” category.

    It strikes me as pie-in-the-skyism.

    Those folks who say that the US is turning into Nazi Germany are, of course, nutzo. But part of the reason it is not turning into Nazi Germany is because of a presumption of Liberty and a presumption of the limits of power of the state.

    Now, granted, when you think “jury nullification”, you probably think of OJ and when I think of “jury nullification”, I think of the aforementioned Rosenthal case (which, granted, did not involve nullification but the jurors, once they got outside and found out more facts for the case, were *TICKED*).

    All that to say, the Fathers, in their wisdom, left us a great many tools to protect our own Liberty.

    The argument that we no longer need them is one that makes me somewhat queasy.

    Jaybird (1994ca)

  330. BTW, my question to Radley is still open: when you described questions designed to weed out would-be nullifiers by getting them to tell the truth under oath as a “perjury trap,” where you (1) lying, or (2) exposing yourself as the world’s worst-informed journalist?

    Both, obviously!

    So because your definition of “perjury trap” is different from mine, I’m either a liar or ill-informed?

    Absolutely. You can’t just lie through your teeth, get called on it, and then weasel your way out by redefining “yes” to mean no, “is” to mean isn’t, “up” to mean down, “black” to mean white, “Radley” to mean credible, or “perjury trap” to mean anything other than an attempt to entrap someone into commiting perjury.

    As far as I know, it’s fairly loosely-defined term (the Democrats and Republicans seem to have varying definitions of the term depending on who’s sitting in the witness chair).

    Not loose at all. A perjury trap is created when the government calls a witness for the primary purpose of obtaining testimony that can later be used to prosecute him for perjury. United States vs. Chen, 933 F.2d 793, 796-97.

    I originally thought that your use of the phrase “perjury trap” left us with only two possibilities. Now, I see three:

    1. You honestly believe that the government asks would-be nullifiers about their views on nullification, not to keep them off the jury by getting them to tell the truth, but to trick them into lying so they can be prosecuted for perjury later. You are the world’s most uninformed journalist.
    2. You know full well that the purpose of the voir dire questions at issue is to exclude truthful jurors from service, not to catch dishonest ones in the act. However, you were too lazy or stupid to figure out that the phrase “perjury trap” has any established meaning, and threw it out to stir the pot. You are a very irresponsible journalist.
    3. Same as #2, only you did know what “perjury trap” means. You are a liar, both for using it in the first place and for falsely pleading ignorance now.

    I’d say that if a prosecutor or judge asks a question during voir dire that forces a would-be nullifier to either lie or forfeit his enshrined-in-American-and-English-law-history power to nullify bad laws by refusing to convict, that’s a trap. If you want to nullify, you’d have to commit perjury.

    By that logic, all testimony under penalty of perjury is a “perjury trap,” ‘cuz if you tell the story you want the trier of fact to believe, rather than the truth, the whole truth and nothing but the truth, you’d have to commit perjury. Even if one were to accept your analogy of a trap, a purported “trap” aimed at getting people to tell the truth is about as far removed from a perjury trap as it gets.

    I’m outta’ this thread, now. Don’t really have time to respond to every challenge laid at my feet.

    In other words, you’ve been caught in a lie, and compounded it with another Clintonian definitional lie (depending on what the meaning of “is” is, he wasn’t really lying, either), but you don’t really care because most of your cult followers don’t read this blog anyway.

    Xrlq (b71926)

  331. So much for that journalist/credibility theory, eh, Xrlq?

    SPQR (26be8b)

  332. nk-
    “Driver’s licenses are unconstitutional, right libertarians?”
    Not at the state level, but a Federal driver’s license would be unconstitutional.

    Sean (e1d31a)

  333. Jaybird, go back and read again…I placed in my post the statement that if new things come up, we can go back in to the law and deal with it, after the fact. That specifically says that none of this is settled…

    This is neither statism or “pie in the sky” but a belief that our system does make the changes necessary for the extremes, but only after a review of the existing laws/facts.

    But, the tools the Founding Fathers left us involve us working on these problems in the law, not in our own minds while sitting on a jury, or, in a law office while deciding to violate the lawyer/client privilage.

    And, that is what you are arguing against right now….

    I can’t imagine you agree with Balko, or with those who think the lawyers should have violated privilage, if you wrote what you wrote….

    And, that is my point….

    reff (bff229)

  334. And we’re back to the question I asked in response to your question:

    If a personal moral code is not sufficient grounds to stand up against the established order… what would be sufficient grounds?

    And, of course, the insight that when I think of Jury Nullification, I think of unjust laws being applied unjustly (e.g., drug war laws). When you seem to think of Jury Nullification, you think of stuff like OJ.

    I’m percolating an essay on the concept of “contempt for the law”, actually. I think it has to do with the assumption that “everybody does it” and only people who are particularly bad at it get caught. It’s cool for Presidential Candidates to use illegal drugs… so long as they aren’t stupid and don’t get caught. It’s cool to have a poker game in the basement… just don’t be stupid about it. It’s cool to drive over the speed limit, just don’t be stupid.

    And so when someone gets busted for any of the above, the general assumption is that they were breaking the law like absolutely everybody does but doing so in an egregious manner or in huge quantities so, yeah, of course they should have been arrested.

    Jaybird (1994ca)

  335. “the tools the Founding Fathers left us involve us working on these problems in the law”

    My experience with having laws changed have been spectacularly unfruitful.

    I suppose I just need to suck it up.

    But remember that question I answered your question with?

    “If a personal moral code is not sufficient grounds to stand up against the established order… what would be sufficient grounds?”

    The answer I’ve found to that question informs my perspective on this.

    It seems the answer you’ve found informs yours as well.

    Jaybird (1994ca)

  336. > They’re just liars — plain and simple. They’re no different from the penny-ante con artist on the street

    Wow, what an ass you are. There’s no difference between standing up against laws you don’t believe in and theft?

    To extend your Bush analogy – if he really believed Balko was a terrorist and was planning an attack, shouldn’t he tap Balko’s phone, even if it’s against the law? The law trumps everything else, including common sense and reason? F— that, and f— you. Typical prosecutor’s attitude.

    brett (553dfa)

  337. Jaybird, and remember it was you that reminded us all of the tools our Founding Fathers left us with…

    I’m simply saying we use them…and that sometimes, it may be after the fact…

    reff (bff229)

  338. Brett…if they are “standing up” against laws that are contrary to the accepted morals, ethics, and beliefs of the nation that passed the law..

    Then Patterico is simply correct…

    That is the part you seem to forget…that this nation has been working in the legal system for some 200+ years on those laws, and while there may be times we don’t like them, they have been vetted again and again, so, lying to the court is contrary to not only those laws but the existance of the process that made them….

    reff (bff229)

  339. #328 SteveB

    The hogwash is that of John Adams, chosen somewhat at random from among nearly identical statements from Hamilton, Jefferson and Jay any of which would have served my little (admittedly unfair) experiment as well.

    And you don’t believe the reality has changed since then? We don’t have 200 years of legal doctrine and precedent? We’re not 200 years removed from governmental tyranny? We do still have jury trials you know. How many judges do you think are giving unconstitutional directions to jurors (cases which would be overturned later anyway if it were to happen)? Even Adams acknowledges that such a case is “melancholy” meaning rare. We have changed our remedy for these rare cases from what it was 200 years ago (nullification) to what it is today (judicial appeal).

    The only thing unfair about your quote is that it is irrelevent to the reality of today. Things change, nullification is illegal and unnecessary.

    Stashiu3 (460dc1)

  340. Brett,

    If I don’t believe in the laws against theft, do I have to follow them? If so, why? If I don’t believe them to be just laws, I should be able to ignore them as I choose.

    Ignoring laws is not standing up to them, it’s breaking them. Standing up to them means working to get them changed. Your version of standing up to them is the same as any penny-ante crooks. Typical liberal’s attitude.

    Stashiu3 (460dc1)

  341. Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law. As one commentator has noted: “When jurors enter a verdict in contravention of what the law authorizes and requires, they subvert the rule of law and subject citizens–defendants, witnesses, victims, and everyone affected by criminal justice administration– to power based on the subjective predilections of twelve individuals.

    I don’t understand the problem with subjectivity here. Everything has some degree for subjectivity in it save perhaps mathematics. If you are asking people to arrive at a conclusion as to the facts, there is going to be subjectivity involved. And if this is all that is required of a jury, why not simply replace it with a sophisticated computer that uses bayesian reasoning to arrive at the answer of guilt or innocence and be done with the jury entirely?

    Steve Verdon (94c667)

  342. “Things change, nullification is illegal and unnecessary.”

    I find this argument unmoving when it’s used to defend McCain-Feingold, I find it unmoving here.

    Out of curiosity, is there a particular law that makes jury nullification illegal or are we just talking about judges interpreting the constitution to read that such a thing would be illegal even though, at the time of the State Constitution being written, jury nullification was included because things had not yet changed?

    What’s the difference between that and judicial activism, by the way?

    Jaybird (1994ca)

  343. reff, I replied in the other thread.

    (For those who don’t know, I am not a lawyer of any kind.)

    htom (412a17)

  344. This thread has now managed to consume my entire weekend, what with trying to follow the arguments and researching related topics. (“Doctrine of mental reservation”? Haven’t thought about that in years, but thank goodness for Wikipedia–assuming it’s correct)

    I hope temperatures aren’t too high for some questions.
    First, let me say I tentatively find myself in the Dafydd camp as to jury nullification. Also, it seems that the “nullers” have the better part of the argument that this was, at the time of the Founding, not only a recognized power, but a right of juries. The “anti-nullers” make a good case that this is currently seen as a power only. They rightly point out that most of the pro-nullification examples are either pretty old or hypothesize fairly unlikely situations. Further, SPQR makes a good point above that we must read the old cases in the context of the times. I wonder, though, whose argument that ultimately bolsters. Given the fairly draconian punishments inflicted on jurors who nullified, the finding of a right would have been of major importance.

    Second, to address (in part) Patterico’s question before asking my own–I agree that the system will fail if jurors can get away with perjuring themselves. (More red meat: I argued for the Clinton impeachment on the basis that we simply could not, as a society, allow the chief law enforcement official in the nation to skate for perjury, irrespective of whether you agreed he should have been in that position in the first place.) It is just as bad to have people gunning for a spot on a jury when they have pre-judged the case. I would not do either. Please allow me to punt on the perjury trap question, for now, since I just am not familiar with that issue.

    Lastly, when I refer to nullification, I really am using it as sloppy shorthand for the supposed ability of the jury to review the law as well as the facts, not to claim that a jury could or should entirely disregard the law. Nor am I making the case for substituting any juror’s whim in place of careful review of facts and law. I recognize that this is a subtle distinction and that it is open to abuse. I am not evading, but don’t have a coherent answer yet to that accusation. Again, may I punt for now?

    OK, my questions:

    1. If, and I say if, nullification was a recognized common law right of juries at the time of the writing of the Constitution, would that translate into a substantive right of a defendant to have such an empowered jury via the Sixth Amendment?
    I think the answer is yes, although it could be argued that the 14 Amendment might have done away with that requirement.

    2. If I answer during questioning or volunteer on my own that I believe in the power of the jury to review the law as well as the facts, or state that I could not take the oath, do I open myself up to any criminal or civil punishment for telling the truth? After all, I would be admitting that I would not follow the law as stated by the judge, even if that event never comes to pass.

    3. Would the answer to (2) be the same if I had some official capacity or license. For example, if I were an attorney myself, a peace officer, judge or even a notary (notaries take an oath to protect the Constitution and laws before qualifying), would I open myself up to sanction for answering that I believed in the right to nullify?

    4. I think that somewhere up the thread it was claimed that a reader was put on a jury despite having said he believed he had the right to nullify. If true, and if the prosecutor and judge were fully aware when they allowed him to serve, would or should the juror be subject to sanction if he later did what he said he might? Would the answer be the same if he also fit into one of the professions in (3), above?

    5. Finally, a question regarding a more recent but slightly tangential situation in the law. I understand that it was an accepted, if not common, practice for prosecutors to strike jurors on the basis of race, whether to achieve balance or to exclude jurors thought to be sympathetic to the defendant. I seem to recall this becoming a big issue in the late 80’s or early 90’s, or at least that is when it entered my consciousness.

    It strikes me now that this practice, if it occurred as I remember, represented a kind of test for potential nullifiers. The question:

    Say that under such a regime I am a juror with some African-American ancestry, but have “passed.” During voir dire the prosecutor starts asking me questions I recognize as being designed to detect that ancestry without coming out and asking openly. I won’t lie, but am I right to deflect or evade those questions, knowing what is intended and that I have no chance of persuading any official in the court that this is improper?

    Does anyone think a prosecutor or judge would have been right to go after a juror under such circumstances?

    I am especially interested in whether Patterico and Beldar have any more thoughts on this subject. I realize though that certain professional obligations may limit the ability to answer some of these questions. And, of course, I would like to know what the rest of you think. You are responsible for my education on the subject to this point, after all.

    Patterico: I want to thank you for providing the forum and attracting such a high caliber of commenters. I have been reading you for a long time and really appreciated the way you dissected the torture issue. Somewhat the same thing is going on in this discussion. The tensions between the rights of the state and the individual conscience can never be fully resolved, else we would not still be reading the Greeks, but at least here we seem to get to a point where we understand what everybody’s argument actually is.

    fat tony (1c9df3)

  345. > Ignoring laws is not standing up to them, it’s breaking them. Standing up to them means working to get them changed.

    So Rosa Parks should have just contacted her elected representatives, then?

    brett (553dfa)

  346. #342 Jaybird

    See my #290 and don’t bother responding to me, it wastes time for both of us. You can’t answer a simple yes or no question but expect responses to your own. I no longer care what you find compelling or where it compels you.

    Stashiu3 (460dc1)

  347. Brett, a 50 year old law, a bad one at that, that society has fought for the next 50 to change, overcome, etc., etc., and so forth, ad infinitum…

    Try again…and get into the 21st century this time…

    reff (bff229)

  348. So Rosa Parks should have just contacted her elected representatives, then?

    Did she lie about being African-American? Skip the strawman and answer the question. Just like with Jaybird, it’s a yes or no. If I don’t agree with the laws against theft, do I have to follow them? Yes or no?

    Stashiu3 (460dc1)

  349. Did she lie about being African-American? Skip the strawman and answer the question. Just like with Jaybird, it’s a yes or no.

    It is an irrelevant question. Sometimes breaking the law, is what it takes, that is what Parks did, that is what King did, and that is what others in that tradition have done.

    Really, it isn’t hard to grasp, so stop being deliberately obtuse and asking moronic “yes/no” questions.

    Sheesh.

    Steve Verdon (94c667)

  350. What’s moronic about it? Both questions directly applied to the points they were making and they ignored it because to answer would negate their argument.

    It’s a strawman because civil disobedience is not the same as jury nullification. Jury nullification is not standing up to an unjust law, it’s undermining the system from within, and to compare the two is disingenuous.

    It’s not that hard to grasp, but Jaybird and brett apparently can’t get it. Do you? Sheesh.

    Stashiu3 (460dc1)

  351. Stashiu3 #339 And you don’t believe the reality has changed since then? We don’t have 200 years of legal doctrine and precedent? …. We’re not 200 years removed from governmental tyranny?

    No I don’t believe reality has changed. Human nature in 2008 is much the same as in 1778, people are still people and thus untrustworthy. The genius of our founders was that they didn’t fully trust anyone, not the federal government, nor the states, not the executive, nor the legislature nor the courts. They didn’t trust “the people” either. All are set in balance against the others. That system they set in place is WHY we’re “200 years removed from governmental tyranny” But, we grow complacent about those checks and balances, we remove a check here, we remove a balance there. We may be 200 years removed from arbitrary government tyranny in our past but I don’t know how many years we are removed from it in our future. I DO know we creep a little closer to it every time we dismantle one of those constitutional checks.

    SteveB (afc04e)

  352. It’s all good Stashi, I’m down with us talking past each other.

    I just hope you remember this conversation the next time someone you disagree with politically is making political Federal Prosecutor appointments. Maybe you will find my arguments somewhat more convincing then.

    Jaybird (1994ca)

  353. What’s moronic about it? Both questions directly applied to the points they were making and they ignored it because to answer would negate their argument.

    Rosa Parks was not under oath, was not a prospective juror, and was under no obligation to tell the truth in regards to any questions put to her. Further, it was in response to the point of changing the laws. You “law and order absolutists” seem to shudder in horror at the idea of people breaking laws to bring about change even when done so in a peaceful manner as with Parks, King, et. al.

    It’s a strawman because civil disobedience is not the same as jury nullification. Jury nullification is not standing up to an unjust law, it’s undermining the system from within, and to compare the two is disingenuous.

    That is your take on it. Glenn Reynolds, a law professor, has a different take on it. I see it as an area for debate even though you see it as an issue for no debate.

    It’s not that hard to grasp, but Jaybird and brett apparently can’t get it. Do you? Sheesh.

    Oh, I get your point, I just happen to reject your absolutist stance on this.

    Seriously if you have such a problem with jurors making decisions why not replace them with a computer that relies on Bayesian reasoning? I asked this question before and got no answer. Maybe people thought I was joking, I’m not. We currently use bayesian algorithms for detecting spam, some modifications and we could use it to determine guilt or innocence. All we’d need is that subjective initial probability…ohhh…wait. There is that subjective thing that so many people are terrified of. Nevermind that it would also require an explicit statment as to what probability of guilt is sufficient pass the “beyond a reasonable doubt” test. Guess the “objectivists” really don’t like objectivity as much as they claim.

    Steve Verdon (94c667)

  354. That’s a fair answer if you believe people are untrustworthy. I don’t happen to agree, but if that were hypothetically given, we can’t just wipe out 200 years of court decisions and jurisprudence. We might unload of bunch of legalistic crap (without a doubt) but we’d inherit back all the problems that have been worked through since that time. You can’t pick and choose because who decides what to keep from the last 200 years and what to toss? David Duke is going to have different ideas than I do, and yours would be different than mine I’m sure.

    That’s why undermining the system is so dangerous… not because it may serve justice in one particular and extreme case, but because everyone will have a different idea of when it should be applied. Given that we are not now in a totalitarian society (you’ll give me that, correct? 😉 ) jury nullification cannot be justified as a right, although it will always be a power. Giving people the right to abrogate their oath in a free (if flawed) society will lead to the breakdown of that society. How can any person’s word be held valid if breaking it carries no consequence?

    Stashiu3 (460dc1)

  355. We reaffirm, therefore, the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is “unable to perform his [or her] duty” as a juror (§ 1089) and may be discharged.

    As an aside, I must say, I’m quite happy that Patterico put this up. Now I have a get out of jury duty for free card. I’ll declare, truthfully, that I have been leaning in favor of jury nullification and hence I could not, under California law, discharge my duty as a juror in a satisfactory manner.

    Now, if I could just get them to stop sending me the summons so I don’t have to waste my time.

    Steve Verdon (94c667)

  356. Rosa Parks was not under oath, was not a prospective juror, and was under no obligation to tell the truth in regards to any questions put to her.

    Which is why it was a strawman. It did not relate to the point at hand.

    That is your take on it. Glenn Reynolds, a law professor, has a different take on it. I see it as an area for debate even though you see it as an issue for no debate.

    I didn’t say it was unworthy of debate, just that it was unrelated to the point at hand. A misdirection from a losing argument.

    Oh, I get your point, I just happen to reject your absolutist stance on this.

    On whether it was a strawman? Or whether jury nullification is illegal? Either way, you’re free to reject the point, it doesn’t make it moronic. I don’t have a problem with jurors making decisions… within the law. I have a problem with a lot of decisions made outside the law. Why is that a bad thing?

    You seem to be placing me in positions I haven’t taken, then castigating me for them. Maybe if you address what I say instead of what you assume I stand for, you might make more sense. Take your moral authority someplace else, I support civil rights and what it took to get them. I’ve already said that civil disobedience is different than jury nullification and why. To try an paint me shuddering “in horror” at what it took to get them is absolutely wrong. Do you want to cut to the chase and call me a racist now? Doesn’t make it so, but you can feel all superior afterwards so it should be worth it.

    Stashiu3 (460dc1)

  357. Jury nullification is not standing up to an unjust law, it’s undermining the system from within, and to compare the two is disingenuous.

    It is not “undermining the system from within” if it was intended from the beginning to be PART of the system. IF as the nullers insist jury nullification was fully intended to be one of the effects of jury trials then the system is not being undermined, it’s merely working as intended. In fact the counter argument is that by disabling one of the intended functions of the system the anti-nullification rulings and oaths are undermining the system.

    Of course they don’t “get it”. They don’t “get it” because they disagree with your premises. Obviously you don’t agree with their position, but be fair with your opponents arguments.

    SteveB (afc04e)

  358. Now, if I could just get them to stop sending me the summons so I don’t have to waste my time.

    So you wouldn’t lie to get on the jury to nullify? That’s what this has been about, remember? Balko says it’s ok, many of us strongly disagree. If you don’t want to be on a jury, what has your point been? Or are you just moralizing from a theoretical perspective?

    Easy to do when you’re never going to put yourself to the test.

    Stashiu3 (460dc1)

  359. stashiu–jury nullification was understood at the time of the Founders to be the power of the citizenry to block prosecutions that were politically motivated or otherwise unfair. Hence it is part of the right to trial to jury, as referenced in the Constitution.

    Juries are not triers of law, in the sense that they do not determine what the law is. A jury doesn’t decide for itself what the meaning of manslaughter is: they are supposed to go by what the judge tells them on such points.

    But jury nullification is not a judgment on the law: it’s a judgment based on the fact that the prosecution should never (in the eyes of the jury) have been brought in the first place. The linkage of trier of fact and jury nullification goes back to the first case in which the (English) judiciary recognized it (the jury which refused to convict William Penn–I don’t recall at the moment the actual case name)–although even then the judges admitted it only in the most backhanded fashion, by deciding that no jury could be prosecuted for nullifying.

    Now judicial decisions have denied that right, and judges and lawyers over the years have crafted the voir dire to try to exclude people who feel strongly enough to nullify. The oath breaking comes in only because modern lawyers put it there. But that does not mean the right is no longer there. It only means that the judiciary and lawyers actively attempt to keep people from exercising that right.

    kishnevi (a250b2)

  360. It is not “undermining the system from within” if it was intended from the beginning to be PART of the system.

    But it’s not part of the system NOW. That’s the point… not whether it should be, but whether it is. Jurors will always have that power, but in our current system they don’t have the right. If you believe that right should be returned, then work to get it returned. Ignoring it is undermining the system as it stands just because it’s not the way you want it.

    Obviously you don’t agree with their position, but be fair with your opponents arguments.

    If I’m the one dealing with things as they are, not as I want them to be, how is that unfair?

    Stashiu3 (460dc1)

  361. Thanks kishnevi,

    I understand the position and the motives behind it. Given what the system is now however, it is not legal to nullify based on law and precedent. Whether it should be is another question and I am open to the idea, but not at the expense of knowingly and with aforethought breaking an oath. I hold no weight with oath-breakers. You know this about me, right? :)

    There is no “perjury trap” here… under oath, you tell the truth (unless you are able to invoke the 5th amendment) or face consequences. If telling the truth means you don’t get to be on a particular jury, so be it… you don’t get on. Once you do get on, you follow your oath. If you believe nullification should be legal, then you work for it… even using civil disobedience if it comes to that. But you don’t break your oath.

    Stashiu3 (460dc1)

  362. “precedent”

    I’m one of those nuts who thinks that the wrong thing does not cease to be the wrong thing even if you do it twice in a row.

    Jaybird (f420c4)

  363. Stashiu3 – Let me say I don’t think jury nullification should be a common practice. I’m not advocating willy-nilly nullification of any law that strikes any juror as being wrong. The founders in their writings made clear that they expected it to be the rare exception in rare cases BUT they affirmed it as their jurors right, and even their DUTY (and an awesome responsibility) in those rare cases.

    Let me compare it to the 2nd amendment. I believe the 2nd amendment was also instituted as a check on government power. BUT, being pro-2nd amendment doesn’t mean believing that it’s OK to start shooting whenever a law you disagree with is passed. And, the unlikely and extreme nature of a situation arising that would justify taking up arms against one’s government doesn’t make the 2nd amendment a dead letter or (for me at least) an argument for it’s repeal.

    SteveB (afc04e)

  364. kishnevi,

    btw, did you email DRJ? There is some info DRJ wanted to send you.

    Stashiu3 (460dc1)

  365. He did, Stashiu. Thanks for following up.

    DRJ (a431ca)

  366. Stashiu3 – I can respect your position. For the record the particular oath being mentioned in much of this conversation is the one used in California state courts. In some states the law is to the opposite effect and judges are *required* to inform juries that they are to judge the law as well as the facts (Maryland at least, and I think Indiana as well).

    SteveB (afc04e)

  367. BUT, being pro-2nd amendment doesn’t mean believing that it’s OK to start shooting whenever a law you disagree with is passed.

    Ok, now we may really have a disagreement! 😉

    Like I said, I understand the reasoning and that it used to be an understood right… but it’s not in the Constitution and it’s been held not to be a right today. Going outside the system to make it a right is undermining the system. That’s what I’ve said all along. I cannot countenance someone intentionally lying under oath with the intent to break that oath. If they feel the law is wrong, then change the system (hard, but not impossible, it changes all the time).

    If I were a juror and it turned out to be one of those rare cases where it was truly an unjust law, I would ask to be excused and publicly work to change what I had refused to be a part of. If held in contempt for it, that’s civil disobedience based on my morals, still working within the system. But I don’t break my oath.

    Stashiu3 (460dc1)

  368. In some states the law is to the opposite effect and judges are *required* to inform juries that they are to judge the law as well as the facts (Maryland at least, and I think Indiana as well).

    Then that’s the oath I would follow once I took it. Maybe Balko should move to Maryland? Or another country (I was going to bash France there, but I don’t consider them liars… maybe Venezuela… it’s ok to bash Venezuela this week, right?), since an oath means nothing to him.

    Stashiu3 (460dc1)

  369. Stashiu, just to be clear, I would probably the sort that piped and said “I can’t convict because I don’t think this law is constitutional” if asked. And being a lawyer, there’s a high chance that I wouldn’t get on the jury in the first place. (Called several times for jury duty, never gotten further than voir dire.)

    Also, jury nullification was not thought of by the Founders as just one juror forcing a mistrial. It was the twelve jurors voting to acquit. In effect, it was the community acting as a whole to nullify the prosecution. One juror voting to acquit because he thought the law was wrong is not nullification–at best it kicks the can down the road for a new jury to convict, unless enough other jurors voted for acquittal to persuade the prosecutor not to pursue a second trial.

    But let me propound to you this. Suppose as a juror you are told to swear your oath based on the provision that Patterico quoted well well upstream on this thread–that states the jury is to decide the case based on the evidence and the law as stated to them by the judge, and nothing else. Suppose you are like me, and view that as an illegitimate usurpation of a right that belongs to the jury–something that the judge has no right to say. Would you say that the illegitimacy of the provision frees you from observing that oath even though you swear it? Or that you have to either fulfill it if you swear it, or stand up and say that you can not in good faith swear it?

    I’m guessing from your previous comments it would be the last alternative (and it would be the one I would choose). Is that correct?

    kishnevi (a250b2)

  370. I agree it’s the latter, Kishnevi, and I’d love to be in the courtroom if someone did that.

    DRJ (a431ca)

  371. Stashiu, please bash France. I know plenty of nice people from Venezuela. They aren’t liars. (Of course, one big reason I know them is because they are in the US to get away from Hugo.) Whereas I don’t know any pleasant people from France. :)

    There, I’ve probably ticked off half a dozen people of French descent who post here.

    kishnevi (a250b2)

  372. You’re absolutely correct. Gotta stand up and say, “Can’t do it your honor.” Once I’ve sworn though, I abide by my oath and follow the law… even if the judge refuses to excuse me when asked and it means I end up having to convict. I’d then publicly (in the courtroom) apologize to the person I just convicted and then I’d be on the courthouse steps afterwards telling everyone with a camera why I did it. If that got me held in contempt, to jail I go. To me, that’s the honorable course.

    Stashiu3 (460dc1)

  373. You’ll need to excuse me now, I need to do some of my own posts. This has been too good to stay away from though… Thank you Patterico for a great thread.

    Stashiu3 (460dc1)

  374. There, I’ve probably ticked off half a dozen people of French descent who post here.

    Oh goody! We can turn it into a flame thread and get at least 400 more comments out of this (none about nullification, but traffic is traffic, right?)

    j/k P 😉

    Stashiu3 (460dc1)

  375. We can turn it into a flame thread and get at least 400 more comments out of this (none about nullification, but traffic is traffic, right?)

    Well, noticing the number of comments to this point, I’m curious. Patterico, how many more comments do we need to break the Pontification record for most commented on post?

    kishnevi (162496)

  376. This one had 758. We’re almost halfway there.

    Patterico (4bda0b)

  377. Stashiu – I am a huge proponent of bashing the French at every available opportunity. I have not watched the news in a couple hours, so I might have missed it. Did France surrender to someone while I was working out?

    JD (626b4c)

  378. This one had 758. We’re almost halfway there.

    Is that a crack about my weight?

    Did France surrender to someone while I was working out?

    A six-pack and a whole pizza with the works is not “working out”. Just sayin’

    This is a flame-thread now, right? kishnevi’s with me, aren’t you? Or stick with France-bashing, ’cause I can do that too. 😉

    Stashiu3 (460dc1)

  379. That was funny, stash. FWIW, jury nullification, to this non-lawyer, is the pinnacle of self-importance, where a person puts their own feelings of right and wrong above that which they have sworn an oath to. What kinds of cases have the most frequency of jury nullification?

    Oh, and France, you are teh suxXor.

    JD (626b4c)

  380. Sarkozy is pretty cool though. Not much else going on there worth anything except mocking laughter though.

    What kinds? I would bet drugs.

    Stashiu3 (460dc1)

  381. That was my thought too, but I could not find any good stats on jury nullification.

    JD (626b4c)

  382. Gotta leave for a bit. I’m not sure we’re going to stretch this one to a new record my friend… and another waterboarding thread would probably die out. Maybe a … wait a second, I’ll use that one myself.

    😉

    Stashiu3 (460dc1)

  383. That was my thought too, but I could not find any good stats on jury nullification.

    Probably because most times it’s not provably nullification… “lone juror holdout” might be a good search term.

    Be well.

    Stashiu3 (460dc1)

  384. I tried. But this was not my A-game. For some strange reason, I am just not all that motivated tonight. You would think that seeing Spitzer take it in the poop chute in such a manner would put a spring in my step, but sadly, no.

    JD (626b4c)

  385. JD,

    I don’t know if jury nullification is common. I think there are times when jurors decide not to convict someone even though they believe something bad happened and/or that a law has been broken. I’m not sure if Patterico would include those cases as jury nullification. I view them as reasonable doubt cases.

    The closest I ever came to nullification was 20 years ago when I served on a traffic case jury. The defendant was a police officer from a neighboring city charged with speeding in a school zone – going 45 in a 20 – and he represented himself. Because it was “just” traffic court and the defendant appeared pro se, the judge gave him more latitude and he was allowed to testify that he would lose his job if found guilty of this traffic offense. Normally, that would not be allowed as irrelevant. He also admitted under oath that he was going 40 mph, but he claimed the school zone hours were not in effect.

    The charging officer, who was a brand new cop issuing her first ticket, testified the school zone hours had been in effect for over 40 minutes, so you had to believe one or the other but you couldn’t realistically decide that one was mistaken.

    Most jurors were in favor of finding the defendant not guilty because they didn’t want him to lose his job. That was clearly a merciful result and probably a just one, too, but I suppose acquitting him could be considered nullification since he virtually admitted the offense. But not everyone was willing to acquit, so the jury hung.

    In my mind, what sets these cases apart from the Balko scenario is that most jurors go into a case with an open mind and a willingness to convict or acquit depending on where the evidence takes them. It’s rare for people to object to specific laws, although they sometimes have problems with the application of the laws in a specific case. Sometimes lawyers have that problem, too. That’s what makes law so challenging.

    DRJ (a431ca)

  386. By the way, I’m doing my part to keep this thread going.

    DRJ (a431ca)

  387. DRJ, WLS, Patterico, nk, SPQR, Beldar, and all the rest of you lawyer folks. FWIW, when an actual nuts and bolts legal issue comes up, you are the first ones I look to. Your opinions carry great weight, at least with me.

    JD (626b4c)

  388. In the spirit of DRJ at 386, I note that Patterico seems to be ducking my questions at 344.

    Yes, I am kidding. What with the unfolding Spitzer story, it is perfectly understandable that Patterico would use that as an excuse to duck my questions.

    Still kidding. BTW, where is that link to the “ust kidding” post?

    Anyway, we can beat the waterboarding thread if we try. Should that require me to fling baseless charges at our host, I am willing to sacrifice as have so many others before me.

    fat tony (1c9df3)

  389. Well, JD, that’s nice of you to say, but if a criminal legal issue comes up, stick to the others, not me. My specialty is intellectual property.

    SPQR (26be8b)

  390. My specialty is intellectual property.

    Other people’s I assume?

    (wait… are we flaming or not? And was that too subtle?)

    😉

    Stashiu3 (460dc1)

  391. And here I thought we were buddies, Stashiu3.

    😉

    SPQR (26be8b)

  392. Different kind of flaming my friend… much different.

    heh.

    Stashiu3 (460dc1)

  393. You can rely on me, JD. Only one of my former clients is still in prison. (And that’s only because of Illinois’s execution moratorium.) 😉

    nk (5ce644)

  394. JD #384,

    Lack of sleep, stress from the combination of home remodeling and the new addition, or all of the above?

    And thanks for including me with such good company. It’s strange you said that, because just the other day I wished I had you to consult on an insurance claim.

    DRJ (a431ca)

  395. Where’s kishnevi? He had a good one at my site the other day that I’d never heard before. I was truly laughing out loud! I don’t want to steal it though, so maybe he’ll drop in.

    Stashiu3 (460dc1)

  396. Stashiu3, hehe.

    Oh, and by the way, JD, you should have put Beldar earlier in the list of names than mine.

    SPQR (26be8b)

  397. SPQR – I care very little about the specialties. You folks have good perspective, good approaches to thinking. Ironically, it rarely leads to all of you agreeing on something, but it is educational just to follow along.

    JD (626b4c)

  398. fat tony,

    I’m very tired but I enjoyed your comment quite a bit. It’s what I wish we had more of: respectful debate.

    Let me try.

    1. If, and I say if, nullification was a recognized common law right of juries at the time of the writing of the Constitution, would that translate into a substantive right of a defendant to have such an empowered jury via the Sixth Amendment?
    I think the answer is yes, although it could be argued that the 14 Amendment might have done away with that requirement.

    I guess I don’t know what you mean by “a substantive right of a defendant to have such an empowered jury.” You mean where the judge tells the jury they can disregard the law?

    2. If I answer during questioning or volunteer on my own that I believe in the power of the jury to review the law as well as the facts, or state that I could not take the oath, do I open myself up to any criminal or civil punishment for telling the truth? After all, I would be admitting that I would not follow the law as stated by the judge, even if that event never comes to pass.

    Absolutely not.

    3. Would the answer to (2) be the same if I had some official capacity or license. For example, if I were an attorney myself, a peace officer, judge or even a notary (notaries take an oath to protect the Constitution and laws before qualifying), would I open myself up to sanction for answering that I believed in the right to nullify?

    Nope.

    4. I think that somewhere up the thread it was claimed that a reader was put on a jury despite having said he believed he had the right to nullify. If true, and if the prosecutor and judge were fully aware when they allowed him to serve, would or should the juror be subject to sanction if he later did what he said he might? Would the answer be the same if he also fit into one of the professions in (3), above?

    It’s not true, as I observed in a later comment. No juror in this state is seated without first swearing an oath agreeing to follow the court’s instructions.

    5. Finally, a question regarding a more recent but slightly tangential situation in the law. I understand that it was an accepted, if not common, practice for prosecutors to strike jurors on the basis of race, whether to achieve balance or to exclude jurors thought to be sympathetic to the defendant. I seem to recall this becoming a big issue in the late 80’s or early 90’s, or at least that is when it entered my consciousness.

    It strikes me now that this practice, if it occurred as I remember, represented a kind of test for potential nullifiers. The question:

    Say that under such a regime I am a juror with some African-American ancestry, but have “passed.” During voir dire the prosecutor starts asking me questions I recognize as being designed to detect that ancestry without coming out and asking openly. I won’t lie, but am I right to deflect or evade those questions, knowing what is intended and that I have no chance of persuading any official in the court that this is improper?

    Does anyone think a prosecutor or judge would have been right to go after a juror under such circumstances?

    It’s illegal to dismiss a juror for racial reasons, so such questions would never be asked.

    Patterico (4bda0b)

  399. You can rely on me, JD. Only one of my former clients is still in prison. (And that’s only because of Illinois’s execution moratorium.) 😉

    So you’re due for an acquittal? Then you can raise your rates!

    Stashiu3 (460dc1)

  400. DRJ – All of the above. Huge time crunch trying to finish before the little one arrives – about 3 weeks and counting. We are in the homestretch with the rebuild, but delays like having to send back 750 sf of tile keeps pushing that finish line further and further out. Come hell or high water, I will have it all done before baby Madeline arrives.

    JD (626b4c)

  401. nk – At one point, my mother worked on the Steidl appeals, as well as the Hernandez case, from up in your neck of the woods.

    DRJ – I am always happy to help out, if I can.

    JD (626b4c)

  402. “It’s illegal to dismiss a juror for racial reasons, so such questions would never be asked.”

    That is the state of the law today; but, I think that “fat tony” was asking about then (“… it was an accepted, if not common, practice for prosecutors to strike jurors on the basis of race…”). What would have been the legal exposure under the parameters of his question (never can tell, times might change; again)?

    Another Drew (8018ee)

  403. Oh, no, JD, I’m fine. I was just wishing for someone I could trust and I feel that way about you.

    DRJ (a431ca)

  404. I really like the name Madeline, JD.

    DRJ (a431ca)

  405. I have no clue what I have done to earn such praise, but I am flattered. Trustworthy, I like to think I am. Right, rarely if you ask my better half.

    JD (626b4c)

  406. Madeline Grace, in sha’allah.

    JD (626b4c)

  407. As an aside, I must say, I’m quite happy that Patterico put this up. Now I have a get out of jury duty for free card. I’ll declare, truthfully, that I have been leaning in favor of jury nullification and hence I could not, under California law, discharge my duty as a juror in a satisfactory manner.

    Now, if I could just get them to stop sending me the summons so I don’t have to waste my time.

    Well, I’m pleased that you’re pleased you don’t have to sit on a jury. I don’t like to try cases to people who don’t want to serve.

    In a related vein — and this doesn’t apply to Steve Verdon, whose opinions are sincerely held — but it’s relevant to the question of people not wanting to be on juries:

    It’s a common thing at trials: some juror will say something that sounds outrageous, and seems patently designed to get them dismissed. We go to sidebar and one of the attorneys tries to get the juror dismissed for cause. The judge sometimes refuses, saying he or she thinks the juror is just lying to get out of jury service.

    Sometimes I will agree with the judge — but I’ll still strike that juror. I don’t want someone who would lie to get off a jury, any more than I want someone who would lie to get on. I don’t want liars, period.

    That means that, in my trials, liars get rewarded by not having to serve. But you know what? There are enough good citizens out there who, while not thrilled about serving, recognize that it is a serious responsibility and are relatively happy and proud to do it. Good for them. Those are the people I want to try my case to.

    And they have an important and tough job. It’s not like there isn’t plenty of judgment involved even if you’re willing to follow the court’s instructions. Facts are always heavily disputed. Motivations are questioned. It’s tough stuff, and demands the best judgment of 12 minds working together.

    And anyone who thinks I’m trying cases to 12 compliant sheep, with all due respect, doesn’t know what the hell they’re talking about.

    Patterico (4bda0b)

  408. You know, I’d love to see some of the crazed libertarian clowns in this thread try to prosecute someone. Surely they would want to do it if the defendant was someone they consider evil — you know, like a cop. (As opposed to someone oppressed by the system — you know, like someone who peddles drugs to schoolchildren.)

    That would be the most entertaining thing I could possibly imagine, watching an ideological libertarian trying to prosecute a cop, and shaking with rage because he can’t get 12 people to sign onto his ever-so-passionately held beliefs and arguments.

    You can’t persuade 12 people if you come across like a crazed ideologue.

    I would be laughing so hard watching this, I tell you, I’d take a week of vacation just to watch it.

    Patterico (4bda0b)

  409. Patterico, the refreshing part of trial work is that the jurors so often do take the case seriously – sometimes more seriously than the parties or their attorneys.

    SPQR (26be8b)

  410. I see Balko pled “lack of time” for his inability to explain why he answered the question why wouldn’t you lie in your journalism with a response that amounts to because I’d get caught.

    That really would take some time to explain.

    Patterico (4bda0b)

  411. It’s a common thing at trials: some juror will say something that sounds outrageous, and seems patently designed to get them dismissed.

    As well all know, I am no lawyer. But, at work, I get to attend a lot of civil trials. Some potential jurors got so far out of their way to get out of jury duty it is literally funny. I heard one juror say that he did not think that he could decide fairly in a slip and fall case at a grocery store because he claimed he once got food poisoning from food he purchased there. That did not get him kicked, so next time around, he went back to that, claiming that the company did not take his complaints seriously enough, and then added that his religion, which he declined to identify, did not allow him to sit in judgment of another. Then, for added benefit, he said that that the plaintiff reminded him of his grandmother, who had recently passed away. Eventually, the Judge cut him loose.

    JD (626b4c)

  412. #398 Patterico

    You know answering that in parts might have boosted you up to 450 without us having to do all this work, right? And this on-topic stuff for a flame-thread is very distracting. 😉

    But since you insist on staying with the topic, have you ever encountered someone trying to nullify?

    Stashiu3 (460dc1)

  413. I see Balko pled “lack of time” for his inability to explain why he answered the question why wouldn’t you lie in your journalism with a response that amounts to because I’d get caught.

    My 6 year old daughter could help him out. Always tell the truth. Always be nice to others. Always listen to your teachers. That way, othing takes all that long to figure out, and your default setting is to be honest.

    JD (626b4c)

  414. Patterico, the refreshing part of trial work is that the jurors so often do take the case seriously – sometimes more seriously than the parties or their attorneys.

    Yup.

    The frustrating part is when one lunatic wastes the efforts of a group of otherwise intelligent, earnest, and attentive jurors.

    Every trial lawyer knows the experience of talking to jurors after a case and realizing: “I lost the case when I accepted the panel with Juror #12″ or whoever. And the whole two-week trial was a complete waste of time from that point forward, because it didn’t really matter what the evidence was. The trial was over the second the D.A. said: “We accept the panel.”

    That’s a large part of what angers me about some of these self-righteous [expletive deleted]s on this thread. They feel the right to take a process that 11 other people are taking seriously and turn it into a complete waste of time because of their precious little personal agenda.

    And they call *lawyers* arrogant. These people are the pinnacle of arrogance.

    Patterico (4bda0b)

  415. With #414, you nailed a reaction that I’ve been trying not to express. 😉

    SPQR (26be8b)

  416. Staying up to watch the shuttle launch. NASA TV or NASA live link

    Under T-20, minor clouds, clear to launch.

    htom (412a17)

  417. But since you insist on staying with the topic, have you ever encountered someone trying to nullify?

    Not as such. But . . .

    My wife once talked to a secretary who came back from jury duty boasting of having hung up a jury using the following reasoning: “Yeah, he was guilty, but I just wasn’t going to be responsible for sending another brother to jail.”

    Every D.A. has had a hung jury where 11 jurors are standing around shaking their heads saying: “That juror just kept saying he would never trust a single thing a cop ever said because he was once mistreated by a cop. We all knew he should have told the judge that in jury selection, but we didn’t know what to do. We told him that was improper and has nothing to do with the evidence, but he wouldn’t listen.”

    Here’s my favorite story:

    I did a misdemeanor embezzlement trial once that hung 11-1. The bookkeeper embezzled several hundred dollars over the course of several weeks. She was charged with grand theft because the amount exceeded $400. Some of the embezzlement happened when her boss was in town, and some happened when he was out of the country.

    11 jurors thought she was guilty as charged. One juror voted only for petty theft, because, he said, the boss was a Jew, and Jews are dishonest. So, he believed that the defendant was stealing when the boss was out of the country. But when the dishonest Jew boss was in the country, this juror figured the boss was the one doing the stealing.

    By the way, the boss was an Egyptian.

    The lady failed to appear for her retrial. She was arrested months later and another D.A. took a plea to a petty theft charge.

    Every D.A. can tell you similar stories of crazy prejudiced jurors who make a mockery of a system that most jurors are trying to make work.

    Patterico (4bda0b)

  418. Goodnight, all.

    JD (626b4c)

  419. Seems like so far my specialty has let down yours.

    Stashiu3 (460dc1)

  420. Goodnight JD. If/when you read this, congrats on the new addition… love the name.

    Stashiu3 (460dc1)

  421. By the way, Beldar hit it out of the park above when he said:

    Another huge source of play in the joints are in the constitutional requirement of proof beyond a reasonable doubt and the legal definition of circumstantial evidence. In theory, the necessary quantum of proof for conviction ought not vary from case to case, crime to crime, or statute to statute. Nor, in theory, should jurors be less willing to draw reasonable inferences in some cases than in others. In practice, however, it does: Some real-life jurors frequently require a stronger showing of proof, and are less willing to make circumstantial inferences from the proof that is presented, when the crimes charges are unpopular (or sometimes so-called “victimless”) crimes (e.g., solicitation of prostitution). But if the jury, or even one juror, is voting to acquit because it/he has a reasonable doubt, or because of a refusal to draw a reasonable inference from circumstantial evidence, then that’s not, technically speaking, jury nullification.

    It’s well-known among D.A.’s that it’s much harder to get a verdict in a simple drug possession case than in a case with a victim. The reasonable doubt standard, which is theoretically the same in all cases, gets much, much higher all of a sudden. If the cops testify differently about one fact, it’s INCONSISTENT!!! If they testify the same about all the facts, THEY GOT THEIR STORY STRAIGHT!!!

    For you conservatives, it’s like arguing with one of the less reasonable Democrats on this site: if the person doesn’t *want* to be persuaded, they won’t be. And with drug cases, many more people don’t want to be persuaded.

    You don’t need nullification for any of this. It’s just how juries work.

    Patterico (4bda0b)

  422. “Beldar hit it out of the park above when he said …”

    OK, that’s always a redundancy.

    SPQR (26be8b)

  423. So how do you keep sane jury members from conducting “wall-to-wall counseling” with someone like that? The temptation has to be there.

    Stashiu3 (460dc1)

  424. Thanks, Patterico.

    Now that the thread has restarted, allow me to plead lack of time myself (and lack of sleep). I’ll think on this overnight and come back tomorrow.

    Another Drew: you are right as to time frame. I am thinking of pre-Baston era trials, or even pre-Swain. (Actually, I never heard of either case until today. Still, it sounds cool to refer to cases this way. I almost feel like a real lawyer.)

    fat tony (1c9df3)

  425. I think that’s purely because the defendant takes on , in part, the role of the victim. You can’t get the clean separation you’d otherwise have, you have this abstract victim (“the law has been violated”) and some poor smuck sitting there. People identify with him (or her) and you’ve lost the audience.

    (T-9:00 and 32 minutes left in a scheduled hold. I don’t think I’m going to stay up more.)

    Very strange things happen in the world, too, and sometimes reasonable inferences are incorrect. Long ago, I was a TA and one of the students came on “begging day” and asked for an incomplete, because she’d had such a bad quarter. She’d been in a car wreck, broken her leg (she was wearing a cast.) Two weeks later, she’d been in another car wreck, breaking her arm (also in a cast.) A week later her fiancee was killed in an airplane accident and just a week ago her roommate had been raped. Prof didn’t believe her; the reasonable inference was that she was scamming us, and sent two of us to check it out. All true, and she’d kept a “B” average!

    htom (412a17)

  426. You can’t get the clean separation you’d otherwise have, you have this abstract victim (”the law has been violated”) and some poor smuck sitting there.

    Yeah, although the real victims of drug dealing — other than the addicts and their close friends and relatives — are the people who live in communities destroyed by dealers. Imagine trying to raise kids in an area where drug dealers attract a constant stream of lowlifes.

    I know, you think the magic cure is legalization; I think it’s not that simple and legalization will increase usage; yada yada yada. I’m not so interested in reviving the drug legalization debate here — even to get the thread over 500 comments! My point is just that under the system we have, drug dealers do actually have victims. You just have to travel to the neighborhoods to see it.

    When I worked downtown I would periodically go to Skid Row on one of my drug sales cases there. The dealing was constant; the cops would point out people across the street doing hand-to-hand transactions right in front of us. I’d take my camera to take pictures of the crime scene. One person walked by one of these times and yelled at me: “Don’t just take pictures! DO SOMETHING about it!” I’m trying, I thought. You probably don’t even realize it, but I’m trying.

    Patterico (4bda0b)

  427. htom,

    Read SEK’s Acephalous site for a collection of crazy anecdotes so nutty you can’t believe they all happen to one person — but they do.

    Patterico (4bda0b)

  428. I lived in the Phillips neighborhood of Minneapolis for twenty years — the NYT called it “Murderapolis” — and I know what a hell most of my neighbors lived in. (Well, we lived in it too, but because it was around us; they had it in their souls.) I don’t think, really, that it was the drugs, though, that were the problem. It was the lack of hope. They saw no way out, up, or better. Try as much as you would, they’d take the drugs to escape the hell, not realizing that five blocks down the street was the University of Minnesota, willing to give them the education that would let them move to (insert choice of rich neighborhood) and a better life. Just wouldn’t do it.

    The last year, another car of ours vandalized, another attempted burglary of our home, two drive-by murders (and people asking me why I didn’t shoot the shooters), cops telling me we should move out, a LEO sgt telling me to carry concealed illegally, … it just got to be too much, and we moved out. In many ways we miss it.

    htom (412a17)

  429. Yup, and I think it all traces back to damage done by the welfare state . . . but that’s another question for another day.

    Patterico (4bda0b)

  430. And we’re out of that 45 minute hold and doing Main Engine H2 purge. T-3:45

    htom (412a17)

  431. Five minutes into the flight, all OK. Wish I could get down there to see one take off, even in the daytime (I don’t think they have any night launches left for the Shuttle program.)

    htom (412a17)

  432. htom,

    I watched it via the link you provided. Very nice. Thanks.

    DRJ (a431ca)

  433. You folks who think I don’t trust juries, and that I want to hide things from you — please read this.

    Every word. Please. It’s my proposal to do away with the rules of evidence, and let jurors hear EVERYTHING.

    There’s potentially a little hyperbole there — but not that much.

    I could be OK with jurors deciding the facts and the law if we got to put on evidence about the law and why it is the way it is. What I don’t like is jurors ruling on the law when they’re not supposed to, when I don’t get to put any evidence to explain why the law is the way it is in this case.

    For example, you vote not guilty because you think it’s a three strikes case — and you’re right, it is . . . but I didn’t get to tell you the specifics of the defendant’s record that make it appropriate that he go away for life for this offense.

    Click the link and then tell me I’m an elitist who doesn’t trust juries.

    Patterico (4bda0b)

  434. I MENTION ED ROSENTHAL! There’s your teaser.

    Patterico (4bda0b)

  435. “I don’t happen to agree, but if that were hypothetically given, we can’t just wipe out 200 years of court decisions and jurisprudence.”
    No, instead you’ll wipe out ~800 years of precedent. The right to nullify has been in common law since then. So, where is there more support in court decisions and PRECEDENT? Again, activist judges not liking the rules set before them.

    “If you believe that right should be returned, then work to get it returned.”
    WRONG!!!! If you want the RIGHT removed, you work to remove it. There was no amendment and/or law that removed the right. A judge (or judges) unilaterally decided that the right doesn’t exist. This is NOT how you describe the system should work.

    “My point is just that under the system we have, drug dealers do actually have victims. You just have to travel to the neighborhoods to see it.”
    Your right and during prohibition of alcohol the drink dealers had victims too. The REAL question is, are they victims of the dealer or the law?

    “I could be OK with jurors deciding the facts and the law if we got to put on evidence about the law and why it is the way it is. What I don’t like is jurors ruling on the law when they’re not supposed to, when I don’t get to put any evidence to explain why the law is the way it is in this case.”
    This is what “trial by jury” meant to the Founding Fathers. You had what you wanted until you (the legal profession) changed it and made it something less. This is why us crazy nullers KNOW it to be a right that activist judges have stripped from us. Don’t blame us for wanting back what you have stolen from us.

    Sean (fdf4f9)

  436. Because I know ! Stomps foot.

    Thanks, Stash. Racist.

    JD (75f5c3)

  437. Thanks, Stash. Racist.

    heh 😉

    Don’t blame us for wanting back what you have stolen from us.

    Nobody here stole anything. You know that, right? Pretty dishonest of you there to blame anyone here for things that have been happening for over 30 years at least.

    But most of your comments have the same dishonesty because your whole rant shows that you KNOW!!!!1!eleventy!! what it is and are just railing that it’s “not how it should be!!!1!” That’s your problem Sean, you can’t deal with reality because you disagree with it. I would rather accept how things are and work towards the reality I want instead of throwing a temper tantrum. That’s why most of us here can answer questions honestly and you can’t.

    Stashiu3 (460dc1)

  438. “you (the legal profession)”
    That is the you I referred to. I’m sorry you didn’t understand. But it is very clear that many of you given the chance would have stolen the right from us.

    We, the PEOPLE, created this government and give it its rights. The government does not give us rights, it can ONLY take rights away. Trial by jury is the last say that the governed (those who gave the right to government in the first place) have against a government acting outside its rights. We, the PEOPLE, have ever right to strip government of the rights WE gave it to begin with. If you don’t understand this to be the intent of the Constitution and Founding Fathers, I am sorry, you are truly lost. Some of us in this nation understand that the government exists solely by the will of the people, and the will of the people can remove that government.

    Sean (fdf4f9)

  439. And what question can’t I answer honestly?

    Sean (fdf4f9)

  440. Because I know ! Stomps foot. Twice.

    Racist.

    JD (75f5c3)

  441. Sean doesn’t get that the “right” does not exist. But the “power to use the act” does exist.

    He also doesn’t understand that the ability to change the law has also not been taken away. He thinks it has, but it has not.

    reff (bff229)

  442. But it is very clear that many of you given the chance would have stolen the right from us.

    I’m a nurse genius (read that with or without a hyphen, whichever annoys you most), but lawyers don’t want to steal your rights either. Most laws are well-intentioned and meant to protect rights, but there are sometimes unintended consequences. If you wipe off your spittle-flecked monitor and read the thread, you won’t see anyone trying to take away rights. You’ll see people acknowledging reality. You might like to try it.

    And here you go. And here. And here is me pointing out your dishonesty before. None ever answered or acknowledged. And here is an example of you being wrong on pretty much every point, with this answer showing it. This from you is just ignoring reality or hoping for anarchy, not sure which.

    Stashiu3 (460dc1)

  443. I have a response for you Sean, but I think it’s in moderation because of too many links.

    Stashiu3 (460dc1)

  444. There we go… heh.

    Stashiu3 (460dc1)

  445. Sean:

    No, instead you’ll wipe out ~800 years of precedent. The right to nullify has been in common law since then. So, where is there more support in court decisions and PRECEDENT? Again, activist judges not liking the rules set before them.

    Sean, do you have any idea how goofy you sound, arguing for “common law” out of one side of your mouth while decrying a long line of “activist” judges on the other? Or are you just trying to further bolster your non-credentials by reminding us all why, by your own admission, hardly anyone with a law degree or bar admission under his belt will endorse your crackpot theories?

    Common law is judge-made law, nothing more and nothing less. Reversing old precedents and replacing them with new ones is as old as the common law itself. You can’t call it a good precedent if you liked the result 800 years ago, but call it “stealing” if a more modern judge held otherwise 100 years ago, and all since have followed suit. What the judiciary giveth, the judiciary can taketh away. Sorry if that bursteth your bubble, pal.

    Xrlq (b71926)

  446. The court asks jurors to take an oath, because the system is probing for a conscience. In Balko’s case, he freely admits, he has none.

    So, let me make sure I have this straight…

    If you believe that you should simply answer the questions with no regard for justice or morality, even in the face of a patently immoral law, you have a conscience.

    If you are willing to risk criminal prosecution to ensure that the state does not convict someone who has done no harm, you have no conscience.

    Did I understand that right?

    Phelps (a5d538)

  447. “Common law is judge-made law, nothing more and nothing less.”

    I always wonder about this when I read someone extolling the common law and then decrying “judicial activism”. Of course, the concepts are not co-terminous, and not all judge-made law is improper activism. Nonetheless, if certain aspects of the common law are enshrined as constitutional guarantees, I question whether “the judiciary can taketh away.”

    Patterico at 398 kindly answered my five questions. I’m satisfied with answers 2-4. More than satisfied, actually, since it appears I can take a “brave moral stance” consequence free.

    Question 1 dovetails with Xrlq’s observation above:

    fat tony: 1. If, and I say if, nullification was a recognized common law right of juries at the time of the writing of the Constitution, would that translate into a substantive right of a defendant to have such an empowered jury via the Sixth Amendment?
    I think the answer is yes, although it could be argued that the 14 Amendment might have done away with that requirement.

    Patterico: I guess I don’t know what you mean by “a substantive right of a defendant to have such an empowered jury.” You mean where the judge tells the jury they can disregard the law?

    Given your most recent post about expanding the rules of evidence, I’d like to think that you are engaging in a little hyperbole here. Rather than arguing for ignoring the law, I prefer to say “determining the law”, or in older terms, “finding the law.” By the way, I agree with much of what you say in that new post and willl comment there later.

    But, even if we accept the idea that we are talking about ignoring the law (as I recognize some are–when they aren’t talking about subverting it outright), my question, slightly rephrased is this:

    If the American understanding at the founding was that juries rightfully could determine both law and facts, did the Sixth Amendment provide a substantive right of a defendant to such an empowered jury?

    My take is that it does guarantee the right to a jury as then envisioned by the common law: 12 jurors, unanimous verdict necessary, with the right to nullify or act on conscience. From what I read, it seems the 14th Amendment may have done away with some of these requirements, and thus may be read to have eliminated the jury’s right to decide law. If not, I don’t think the judiciary can just taketh away, regardless of the perceived benefits of so doing or the “archaic” nature of the right. In this sense, the analogy to the Second Amendment is instructive.

    Ultimately, I think my point is that rather than quibble over whether this is a right or mere power of the jury, the proper focus is to what degree this is actually a right of the defendant.

    As to my question 5, I have done a little more reading, so I’ll try again:

    fat tony: …”
    Say that under such a regime I am a juror with some African-American ancestry, but have “passed.” During voir dire the prosecutor starts asking me questions I recognize as being designed to detect that ancestry without coming out and asking openly. I won’t lie, but am I right to deflect or evade those questions, knowing what is intended and that I have no chance of persuading any official in the court that this is improper?

    Does anyone think a prosecutor or judge would have been right to go after a juror under such circumstances?”

    Patterico: “It’s illegal to dismiss a juror for racial reasons, so such questions would never be asked.”

    Another Drew was right that I was referring to the past. I’ve since discovered that exclusion by race has been forbidden by the Supreme Court from as far back as 1879, so this question may be moot.

    Even so, I think it makes for an interesting academic discussion. Maybe not entirely hypothetical, however, given the limited remedies pre_Swain and Batson. It think you would agree that a certain amount of disguised racial elimination has occurred and may still occur, though much more rarely.

    It’s very easy for me to sit here and say I wouldn’t lie in court. I think the idea is abhorrent to our system of self-governance. Still, I wonder how I would have responded if I were a “passing” black jury candidate in the 1950’s South and a prosecutor started fishing for indicia of race. Clearly improper, but without much hope of remedy–how could I prove the reason for a peremptory challenge? Even after Swain, you’d have to prove a systemic bias across the whole county to have any hope, and that case was about a defendant’s rights, not the right of a citizen to fulfill his civic duties with jury service.

    I can say this much, however. I would be hard pressed to convict such a juror of anything for evading such questioning, and would find it difficult even if it could be shown he had perjured himself.

    This, to me, is the essence of proper nullification. Does the law, as applied to the facts of the case, result in justice? If not, I need not reject the law itself to say that I cannot vote guilty under the circumstances. Dafydd said it best when he compared this standard to one judges commonly apply: does the outcome shock the conscience?

    I guess I may be a nuller after all. Now I’m off to read and respond to the new thread.

    Finally, I promise no hard feelings if you move to kick me off one of your juries at some later date. I’ll even point you to this comment if you need to show cause.

    fat tony (1c9df3)

  448. fat tony: 1. If, and I say if, nullification was a recognized common law right of juries at the time of the writing of the Constitution, would that translate into a substantive right of a defendant to have such an empowered jury via the Sixth Amendment?

    I don’t think so. If the framers had intended to constitutionalize every aspect of the jury system as it existed in 1791, they probably would have left clearer evidence of that intent. I’m not sure such a rule would benefit juries all that much, anyway, on balance.

    I do think that if courts were to recognize any “right” of jurors to put the law itself on trial, it would behoove them to also allow lawyers to argue the pros and cons of the law in question each time. Query whether that would help the average drug dealer, who hasn’t personally robbed a liquor store or murdered a competitor over a turf war, but will have the jury sit through countless stories of other drug dealers who did.

    Xrlq (62cad4)

  449. So, is asking someone to abide by their oath a “Perjury Trap”? Is having a soldier take the oath of enlistment a “Treason Trap”?

    One should never dislike someone based solely on race, creed or religion. Once you get to know them, you will find several reasons to dislike them. There is no reason to lie to get on the jury.

    Just as you argue soldier is authorized to disregard unlawful orders, the jurist may disregard unconstitutional direction. Asking to be excused from the jury would be a violation of the oath to follow the Law.

    To answer the questions: no and no.

    Steve (8676b2)

  450. Wrong, steve. Point anyone to anywhere in the law where jurors are expressly empowered to determine the Constitutionality of laws.

    JD (75f5c3)

  451. JD:

    Wrong, steve. Point anyone to anywhere in the law where jurors are expressly empowered to determine the Constitutionality of laws.

    Probably the same place where soldiers are expressly empowered to decide for themselves which orders are or aren’t lawful, and happily ignore all orders that violate their own subjective determination of The Law.

    Steve:

    Asking to be excused from the jury would be a violation of the oath to follow the Law.

    You obviously have no idea what you’re talking about (and I presume that like Sean, you’re actually proud of that fact), but FWIW, even literally asking a judge to excuse one from jury service violates no oath. Jurors are free to make that reqest if they want; it’s just that the judge is under no obligation to honor that request. It sure as hell doesn’t violate any oath to tell the truth, the whole truth and nothing but the truth, and then let the chips fall where they may. On the flip side, it most certainly does violate the oath to (1) lie under oath to get on a jury, (2) lie under oath to stay off of a jury, (3) lie under oath to get a defendant convicted, (4) lie under oath to get a defendant acquitted, or (5) lie under oath for any other reason.

    There’s your free clue for ya. Don’t spend it all in one place.

    Xrlq (b71926)

  452. Xrlq:

    “I don’t think so. If the framers had intended to constitutionalize every aspect of the jury system as it existed in 1791, they probably would have left clearer evidence of that intent.”

    That is exactly the point I am getting at. Right now I am trying to dig up cases that support or attack that idea. One case, Patton, keeps coming up. I haven’t seen the full case, but excerpts indicate that the 6th Amendment did in fact constitutionalize much of the then extant jury system. But, it also specifically lists the jury as having the power to determine facts as being guaranteed, with no mention of any power/right to determine law.

    It’s possible that this right was so self-evident, at least to the founders, that nobody really thought to spell out exactly what was protected. Most of the early cases seem to take it for granted that this was not only a power, but a right. And, of course, the Penn and Zenger trials do figure prominently in the development of revolutionary thought.

    My gut impression is that this is a guaranteed right, but I can still be persuaded otherwise. My interest in that aspect is more historical/philosophical.

    “Query whether that would help the average drug dealer, who hasn’t personally robbed a liquor store or murdered a competitor over a turf war, but will have the jury sit through countless stories of other drug dealers who did.”

    As to the policy implications, VR had a great idea in the other thread, “A Challenge…”. Let the defendant argue nullification, but if he does, he opens the door to all the stuff Patterico wants to bring in. It seems fair to me. Would some variant of that idea satisfy your concerns?

    My impression is that nullification is occurring anyway. Better to bring it out into the open and force jurors to think about what they are doing and why. As I said over in the other thread, make it a feature and not a bug.

    fat tony (1c9df3)

  453. DRJ #386 – Yes that situation was clearly jury nullification. You thought the defendant was guilty but you voted to acquit because you thought the punishment (in the particulars of the situation) would be unjust.

    The anti-nuller position is that you’re only function is to honestly judge the facts and only the facts. Considerations of justice and the law were beyond your purview. In voting to acquit someone you knew was guilty because you thought the punishment would be unjust makes you a “lawless juror” and an oath-breaker.

    The pro-nuller position (mine) is that you performed precisely the function in the system you were supposed to.

    SteveB (41d938)

  454. Wrong, steve. Point anyone to anywhere in the law where jurors are expressly empowered to determine the Constitutionality of laws.

    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.

    No part of the constitution authorized the power of judicial review. The judicial branch gave itself the power in Marbury v Madison.

    Steve (8676b2)

  455. There’s your free clue for ya. Don’t spend it all in one place.

    There is no reason to lie. If the evidence presented at the trial shows the government has the authority to bring the charges, the individual should be found guilty. The assertion that a jurist should ask to be excused from the jury simply because the prosecution failed to present the necessary evidence is absurd. Whether aknowledged or not, the Constitution is included in the Law.

    Steve (8676b2)

  456. No part of the constitution authorized the power of judicial review. The judicial branch gave itself the power in Marbury v Madison.

    I am no Constitutional lawyer, but if you are arguing that Marbury v. Madison is unconstitutional because judicial review is not specifically an enumerated right, then one might also suggest that you are a bit batty.

    But, I like that line of thinking. Look at all of those issues that the Supremes have weighed in on that are not expressly enumerated, and all of the issues that the Feds have meddled in based on an expansive reading of the Constitution.

    JD (75f5c3)

  457. Let’s begin with McCulloch v. Maryland!

    In the interest of keeping ths thread alive, I offer up the following:

    “Whereas the Articles of Confederation established a “Perpetual Union”, and Whereas the Preamble to our current Constitution endeavored to create a “more perfect union,”

    Resolved, Secession is not a right of any State in the United States of America.”

    There, that ought to reinvigorate things.

    fat tony (1c9df3)

  458. Steve #455, even if one were to accept your tortured reading of the Tenth Amendment, it wouldn’t follow that jurors have a right to do anything, only that the states may assign those powers to jurors if they want to.

    Steve #456, I agree that there is no good reason for a juror to lie. Judges don’t ask jurors if they are willing to apply The Law According To Steve. They ask if they are willing to apply the law as instructed by the judge. If the truthful answer to that question is “no,” then that is the only acceptable answer to give.

    Xrlq (b71926)

  459. Point anyone to anywhere in the law where jurors are expressly empowered to determine the Constitutionality of laws.

    US Constitution
    The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.

    SPARF v US

    Majority Opinion
    The general question as to the duty of the jury to receive the law from the court is not concluded by any direct decision of this court.

    Dissenting Opinion
    The duty of the jury, indeed, like any other duty imposed upon any officer or private person by the law of his country, must be governed by the law, and not by willfulness or caprice. The jury must ascertain the law as well as they can. Usually they will, and safely may, take it from the instructions of the court. But, if they are satisfied on their consciences that the law is other than as laid down to them by the court, it is their right and their duty to decide by the law as they know or believe it to be.

    Georgia Constitution
    In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be judges of the law and the facts.

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

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

    Oregon Constitution
    In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law,
    and the right of new trial, as in civil cases.

    Steve (181816)

  460. In other words, Steve, other than a handful of state constitutions, you can’t.

    SPQR (26be8b)

  461. Steve:

    Thanks for the pointers to state constitutions. How have courts in those states interpreted these provisions? I understand that Illinois and Maryland decisions have narrowly circumscribed this right. Do you know?

    I’d like to find a state that treats the right broadly, then research to see if the parade of horribles are evidenced.

    fat tony (1c9df3)

  462. Illinois case: A victim of a burglary sees someone wearing his expensive leather jacket that was stolen from his home a few days ago walking down the same street he’s walking on. He pulls out his gun and demands it back. During the conversation the gun goes off and he not only ruins his jacket but he is on trial for felony murder and possibly capital murder. The jury finds him guilty of armed robbery and involuntary manslaughter.

    Jury nullification? No. He had a decent lawyer who argued successfully that there was never an intent to kill and the gun went off by accident. The jury had all the laws pertaining to homicide before it and picked the one that best fit the facts. That’s what “determining the law” means.

    nk (8a8387)

  463. My fault. Steve wrote Indiana, I read Illinois.

    nk: are you saying the jury does have the power to determine the law? I’m not being sarcastic, I just thought that you believed it was facts only. Also, what happens in mixed law and fact issues?

    fat tony (1c9df3)

  464. fat tony, no nk is saying that the jury gets to decide what law actually applies to the facts – not to decide the validity of the law.

    “Mixed law and facts” are a term of art in the legal world that really arises because of appellate procedure. There are things that sound like “factual” questions that courts have decided are questions of law. I’m blanking on a good example, but they are things where precedent says that a particular fact pattern is or is not meeting a legal test or legal definition as a matter of law. These have become categorized as “mixed questions of law and fact” mostly so that appellate courts do not feel they have to defer to the factual determinations of the lower court and get the fun of deciding them all over again.

    This also became a way of taking certain questions out of the hands of the jury. US Supreme Court decisions have, for the purposes of Federal trials, put such “mixed questions of law and fact” into the hands of the jury on a constitutional basis. Similarly to factual conclusions that support sentence enhancements, those now also have to be submitted to the jury for federal criminal prosecutions.

    None of this means that the validity or constitutionality of the law itself is put in the hands of the jury.

    SPQR (26be8b)

  465. SPQR:

    Thanks for puncturing my balloon.

    fat tony (1c9df3)

  466. My thanks, too, SPQR. And for the life of me, I cannot think of a question of mixed law and fact off the top of my head, either. Could it be our legal training made it impossible for us to mix the two?

    nk (8a8387)

  467. SPQR:

    That may not come across in the manner intended. Seriously, thanks.

    fat tony (1c9df3)

  468. No worries, fat tony. You are welcome.

    nk, I’m just blanking for some reason. An example will come to us.

    SPQR (26be8b)

  469. I suppose the ultimate issue is always a question of both law and fact. “Officer, in your opinion, was the defendant driving recklessly?” “Objection, calls for a legal conclusion which is solely the province of the court/jury.”

    nk (8a8387)

  470. nk, I’ve found the best way to confuse a judge is to start an argument over whether or not something is an “ultimate fact”. Especially in California where the appellate courts misdefine it in about 50% of appellate decisions.

    SPQR (26be8b)

  471. Here’s an article about mixed questions of law and fact that includes this *hopefully helpful* excerpt (footnotes omitted):

    “The Supreme Court has in recent years employed what might be termed a “policy” approach to mixed questions. “The fact/law distinction,” the Supreme Court wrote in Miller v. Fenton, “at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is in a better position than another to decide the issue in question.”

    In Ornelas, for example, the Court held that probable cause and reasonable suspicion are reviewed de novo. These issues, the Court noted, are “commonsense, nontechnical conceptions” dealing with the factual and practical considerations on which reasonable peopleact. So characterized, probable cause looks a lot like negligence, a classic jury question. Nonetheless, because of the need to “unify precedent” and ensure consistent application of a constitutional requirement, the Court held that those issues must be reviewed de novo.”

    DRJ (a431ca)

  472. Patterico #422:

    It’s well-known among D.A.’s that it’s much harder to get a verdict in a simple drug possession case than in a case with a victim.

    As I noted in another thread, your conviction rate would skyrocket here by empaneling addicts in recovery on these cases.

    Where illicit drugs are involved, there is always a victim involved, even if you have to dig out a microscope to find ’em.

    EW1(SG) (84e813)

  473. Xrlq #461

    The States of Maryland and Georgia assign the power to judge the law and facts. This power is covered by the 10th amendment.

    The states of Oregon and Indiana recognize the right of the jury to determine the law and facts. This right is covered under the 9th amendment.

    The citizens of these four states cannot be stripped of their Constitutional rights in federal court. Through application of the equal protection clause of the 14th, the citizens of all States are conferred these powers and rights at the federal level.

    Steve (181816)

  474. This thread is not going to reach a 1,000 comments without a little help:

    A mobster is on trial for first degree murder. The case looks hopeless. In a desperate effort, he contacts a juror and tells him: “There’s a $100,000.00 in it for you if you can persuade the jury to bring in a verdict of murder in the second degree.” But he doesn’t hold much hope.

    Surprisingly to the gangster, he is found guilty of murder in the second degree. He gives the juror a bag full of cash, and tells him: “Here’s your $100,000.00. I can’t tell you how grateful I am. The case looked hopeless to me.”

    The juror says: “It was looking hopeless to me, too, at the beginning. Everybody else wanted to acquit.”

    nk (8a8387)

  475. Steve, that was really confused. Federal courts cannot be compelled to apply state procedures. The 14th Amendment does not force the Federal government to recognize “rights” created by the states’ laws / constitutions. This is explicit from the Supremacy clause of the US Constitution.

    SPQR (26be8b)

  476. fat tony #462

    Sorry, I am not a lawyer nor do I play one on TV. My government teacher, in high school, taught us the difference between a Constitutional Republic, a democracy and an oligarchy. I just read the majority and dissenting opinions for cases that interest me, and draw my own conclusions.

    From what I can tell, Charles Pratt, Lord Camden, and William Murray, Lord Mansfield started a debate in the late 18th century. Camden argued the jury judged the law and Mansfield argued the jury received the law from the judge. Camden prevailed in the US but Mansfield in Britain. Mansfield’s views did not take hold here until 1835 in US v Battiste.

    Steve (181816)

  477. Well, then, you could explain to the jury why that’s been done. Berating us (speaking as a jury that I’ll probably never be on) for our ignorance of both law and legal practice and then having the process and practice keep us in that state of ignorance … what do you expect? Do you really have so little understanding of how people think? Oh, wait, you do understand, you just don’t like the results of your keeping the jury ignorant. Perhaps ignorance is not a solution to the problem.

    I just saw this comment.

    You don’t think that, in a case where the defendant is facing nothing more than a drug program, that I wouldn’t want to tell the jury that?

    I’m not allowed to.

    Patterico (4bda0b)

  478. SPQR #476

    The assertion depends on your interpretation of the Constitution. I subscribe to Barnett’s original meaning and the presumption of liberty.

    Accordingly, the 9th amendment means: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwards, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights.

    I assert the right of the jury to judge the law and the facts existed at the time the Constitution was ratified and do not fall under the category of created rights.

    Steve (181816)

  479. I think that the prosecution, defense, and judge have all failed the jury, the defendant, and justice in not so informing the jury (and not just in drug cases.)

    htom (412a17)

  480. Whatever. You’re saying that, by playing by rules that are there to protect the defendant, I have failed justice. You can’t blame me. If I violate the rules, the judge simply declares a mistrial — so the jury never hears it anyway — and I get brought up on disciplinary charges.

    It’s patently unfair of you to blame the prosecution for juries not learning about potential punishment. I know you enjoy blaming us, but it’s just flat-out unfair of you.

    Patterico (4bda0b)

  481. I’m not at all sure that the rule “protects” the defendant; I suppose if the punishment was trivial and without future consequence it might.

    I’m not blaming you, other than that you’re also a part of a system that seems designed to perpetuate ignorance. So am I. I do not know what to do about it. (I do know I can type a lot better without my hand in a splint; I’m going to be even briefer than normal for the next three weeks!)

    htom (412a17)

  482. The States of Maryland and Georgia assign the power to judge the law and facts. This power is covered by the 10th amendment.

    In state courts in Maryland and Georgia, sure.

    The states of Oregon and Indiana recognize the right of the jury to determine the law and facts. This right is covered under the 9th amendment.

    Sez you. Got any authority for that? No, FIJA pamphlets are not authorities. Even if you were right about the Ninth Amendment having anything to do with this, the references to state constitutions would be irrelevant.

    The citizens of these four states cannot be stripped of their Constitutional rights in federal court.

    SPQR (no relation) was right, you really are confused. The federal government is governed by the federal constitution, not by any state constitution.

    Through application of the equal protection clause of the 14th, the citizens of all States are conferred these powers and rights at the federal level.

    With all due respect, you are an idiot.

    Xrlq (62cad4)

  483. But Xrlq,

    He used the word “conferred”. That’s means he’s right… it’s right there in his comment… “conferred”. Howzabout that? Huh?

    ROFL!! Isn’t that the same reasoning proponents of gay marriage use? If it’s legal in one state, it now has to be legal in all states. And no fair making a federal Constitutional amendment because it’s already legal. Besides, it’s not the Federal Governments business… it’s not in the Constitution. So one State gets to dictate to all the other states, but not the Federal Government (because they’re evil!!)

    Liberals crack me up sometimes. Just sayin’

    Stashiu3 (460dc1)

  484. the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwards, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. (emphasis added)

    The only right nature recognizes is our right to reenter the food chain.

    nk (8a8387)

  485. nk 485:

    The only right nature recognizes is our right to reenter the food chain.

    Er, presumably you mean as fertilizer; but I would suggest that confronting a, oh, say a grizzly on its home turf would be a stark reminder that you’ve never left the food chain.

    😉

    EW1(SG) (84e813)

  486. EW1(SG),

    Yes, definitely. Or even confronting a bacterium on own home turf. Our blog friend, Xrlq, objects to the phrase “social contract” but all we have that we call “rights” are agreements, spoken and unspoken, and expectations from each other among ourselves.

    nk (8a8387)

  487. Xrlq #483

    There is no need to convince a judge or lawyer, just a jury. Balko recommends lying in order to get on the jury. Perjury charges have a willingly and knowingly clause attached: …the government must demonstrate that the defendant did not have a subjective belief, however irrational or unreasonable, …, If the defendant had a subjective good faith belief, no mater how unreasonable… and … it is beyond debate that false testimony provided as a result of confusion, mistake, faulty memory, carelessness, misunderstanding, mistaken conclusions, unjustified inferences testified to negligently, or even recklessness does not satisfy the “knowingly ” element.

    Any prospective jurist can take the oath and answer all questions honestly. If, after weighing the evidence, the evidence shows the law to be wrong, then it may be judged as so. A “good-faith belief” defense based on the Constitution and the Supreme Court opinions written by Justices who took an oath to uphold the Constitution presents more challenges to the government than just lying. These documents are admissible as evidence to the defendant’s state of mind.

    This thread has confused what is moral and ethical with what is legal. With all due respect, it is not illegal to be an idiot.

    Steve (181816)

  488. Interesting point about Clinton. Actually, the questions asked him were a perjury trap. They designed the question specifically to exclude oral sex. Whatever your political inclinations, you’d have to agree these were people out to get somebody. Given the parameters of what he was asked, Clinton was truthful.

    michaelj (d6376a)


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