Patterico's Pontifications

3/11/2008

A Challenge to Nullification Proponents

Filed under: Crime,General,Public Policy — Patterico @ 12:16 am



Those of you who think that juries should be allowed to judge the fairness of the law as well as whether the defendant is guilty: answer me this. If you’re going to judge something, shouldn’t you be given all the facts relevant to that decision?

Because you aren’t getting them under the current jury system.

So, for example, if you’re going to take it upon yourself to decide whether to vote guilty or not based on the sentence you think the defendant will get, shouldn’t you be told exactly what the sentencing options are, and the full details of the defendant’s record — including the facts of his previous offenses and how long he spent in prison for each offense? Shouldn’t you be told about similarly situated defendants and what they received?

You aren’t getting those facts under the current jury system.

If you are going to vote based on your view that drug peddling is a victimless crime, shouldn’t the prosecution have the chance to show the way the defendant’s drug dealing has victimized the neighborhood? Shouldn’t you hear from the neighbor who constantly begs the cops to get these dealers (including this defendant) off the street because they are dealing drugs in front of schoolchildren? Shouldn’t you hear from the family of the addict whose life, and the lives around him, have been ruined by the poison the defendant has peddled? Shouldn’t you hear from the experts who have studied the likely effects of legalization and concluded that it will result in more narcotic usage in society as a whole, including more drug usage by children?

But the authors also found that any form of legal commercial sales would significantly increase the amount of drug use in society. Even if each drug user consumed fewer drugs, an increase in the total number of people using drugs could translate to more problems, overall, for society.

You aren’t getting those facts under the current jury system.

How can you make a decision if the parties aren’t even allowed to present evidence on the question you have taken it upon yourself to decide?

It seems to me that if you favor nullification, one of two things is true: either 1) you have to be confident in your ability to make decisions on these questions without evidence presented by both sides — in which case you are arrogant and overconfident of your own superior knowledge — or 2) you have to support an incredible liberalization of the rules of evidence, along the lines of the proposal I set forth in this post. Read that post, in which I (somewhat hyperbolically, but only somewhat) propose doing away with the rules of evidence and telling juries every possibly relevant fact, including the defendant’s criminal history, gang membership, etc. Then tell me whether I’m really an elitist who wants to hide evidence from juries.

If we implemented that proposal, I’d be a lot more comfortable with giving jurors the authority to decide the law as well as the facts.

Now see if you can find a single defense attorney on God’s Green Earth who would feel comfortable with that proposal. You won’t . . . because they know that jurors knowing all the facts — including the full details of the defendant’s criminal history, gang ties, and so forth — would result in more convictions, not fewer.

98 Responses to “A Challenge to Nullification Proponents”

  1. I support jury nullification, but based on common law tradition, not whim. In the English common law tradition, there are things you don’t do, no matter who swore to what.

    For one thing, if the case is really about smashing a religious sect, and the law is just an excuse, even if the prosecution has got the defendants dead bang, you don’t convict.

    (Personally, I think Islam is a mortal threat to our civilization, because it threatens out culture, which I see as more fundamental than our written laws; and I think we ought to have laws that ensure Islam diminishes in our states. But if I was on a jury and became convinced that what the case was really about was putting the defendants in jail for being Muslim, I would not convict, regardless of my oath or the facts, or any feelings I might have about Islam. Because that’s justice, in our tradition, and it’s for everyone, even enemies of our tradition.)

    Or, if I became convinced that the case was really about union-smashing, and some law was being used purely instrumentally to bring that about, again I would not convict. Because that’s part of the tradition of legitimate, necessary jury nullification.

    I think it’s wrong for juries to buckle to pressure, including the pressure of an oath, in cases like this, because it’s a proud part of our history that jurors have been willing to go through a lot rather than be made part of the machinery of legal destruction.

    But if I personally think that a result is very unjust, but this is just my opinion and not something that anyone being given a jury trial in our common law tradition gets a pass on as part of how the system works when it’s being made to work right, then I and the defendant would have a very bad day.

    From this point of view, I don’t need to know the extra information you would want juries to consider if they think nullification is OK. All I need to know is that this case is really about what it’s formally about, and that some pretty specific unwritten protections for the defendant are not being breached.

    David Blue (a216a9)

  2. And if those Northern juries could have been told about the suffering of the owners of the escapees, the crops going unharvested because the labor ran away, the neighbors afraid that their own labor force would be encouraged to abandon them, and etc. I’m sure that they’d have abandoned their nullification attempts.

    Scott (664da1)

  3. Patterico:

    I’m fine with being told all the facts about a defendant; in fact, I’ve been annoyed for years about what judges can prevent the prosecution from presenting, from prior convictions to OJ’s low-speed chase with a disguise, a passport, money, and a pistol in the car.

    But I do take exception to one kind of evidence you apparently want to be able to present to a jury; I may be misunderstanding you. You seem to want to show the jury how other drug pushers might damage a community, rather than the particular drug seller on trial.

    (Bear in mind that I would not nullify merely because I think drug use should be legalized; nor do I dispute that drug legalization would lead to more drug taking overall.)

    I had a friend “Frank” in college who sold marijuana and LSD; I call him Frank because that’s not his name.

    Well, “sold” is a bit too much; mostly I swapped him used paperback SF novels for tabs of acid. He would come over, and we’d sit around and talk for hours about conventions, movies, politics, and suchlike. Sometime during the evening, we’d conduct the transaction (don’t start reaching for the handcuffs, pally, this was a quarter century ago!)

    Frank sold only psychedelics (LSD, psilocybin, amanita) and a small amount of grass. Never cocaine, meth, or opiates. He “sold” only to college students and graduated former students who still lived in the area. He certainly made no attempt to get rich; he was mostly just financing his own student expenses.

    Now, if you want to argue to me that somebody like Frank is causing damage in the neighborhood, that’s fine; you should have every right to do so. But I would react very negatively as a juror if you argued that Frank was causing terrible damage — because some other dealer was “dealing drugs in front of [or to] schoolchildren.”

    I would certainly listen to evidence of destruction and damage caused by the particular defendant on trial; but I don’t see the relevance of evidence about other people who are committing what may be the same crime on paper, but in a completely different and more destructive way than the defendant on trial.

    Does this make sense? I’m just saying how I would react as a juror.

    Dafydd

    Dafydd ab Hugh (db2ea4)

  4. But I do take exception to one kind of evidence you apparently want to be able to present to a jury; I may be misunderstanding you. You seem to want to show the jury how other drug pushers might damage a community, rather than the particular drug seller on trial.

    How else would the jury be able to make a decision on the necessity of the law in question. That’s the argument afterall.

    Taltos (4dc0e8)

  5. Dafydd,

    This is what would be annoying about my proposed system: it’s *designed* to cater to people who aren’t really judging the case on the facts, and so it is going to be irrelevant to some or most jurors, a lot of the time.

    So yeah, evidence of destruction caused by other dealers would be less effective in all cases, but would it be relevant in an “anything goes” system? Sure. My argument would be something like this:

    This evidence is targeted towards people who think that drugs never have victims. In fact, they do. Now we can’t prove this defendant caused any harm — if we could, we’d be charging him for the harm he caused — but the evidence of societal harm we’re presenting is merely evidence to show that enforcement of drug laws in general has a good effect.

    Just like if this were a shooting case where nobody was hurt, I couldn’t argue that someone was hurt — but I could argue that attempted murder deserves to be taken seriously in all cases because *sometimes* people get hurt. Same here. Nobody was harmed, but drug dealing deserves to be taken seriously in all cases because sometimes people get hurt by it.

    Ultimately, all we want is for you to judge the case on the facts, instead of discounting the facts because you think the law is trivial and stupid.

    Now that we’re past that, let’s judge the case on the facts, which is all we really ever wanted to do anyway.

    Ultimately, it’s not going to have a lot of effect in a trial of someone like your friend, but it could cause some people who have never been exposed to the harms drug dealing causes to think twice about casually ignoring all the evidence.

    Patterico (4bda0b)

  6. “would result in more convictions, not fewer.”
    I would say it depends on the offense. For example, how many federal marijuana charges would result in convictions in California, if the jury knew their full rights? My guess is not many because the simplest argument of “the Constitution doesn’t give the Federal government this right” would kill most convictions.

    Now, for REAL offense, those where one person “harms” another without their consent, you are right, conviction rates would probably go up. But you would definitely see a decrease in convictions for victim-less crimes.

    Sean (fdf4f9)

  7. I doubt it. Most jurors aren’t radical drug war opponents. You give me leeway to show how drugs have destroyed the neighborhood in question and I can get most jurors to take these cases more seriously.

    Patterico (4bda0b)

  8. That all depends on whether the jury believes in personal responsibility or not. Is one able to make decisions regarding one’s own body? When the jury is asked how much they would like it if cigarettes, alcohol, trans fat, salt, etc were banned “for the good of society,” I hope they would be intelligent enough to see the connection. But that is wishful thinking, knowing how intent the government is of creating complacent citizens who think the government is their mommy. One doesn’t have to be a “radical” drug war opponent to understand the concept of self determination and personal responsibility.

    My issue with the drug laws, and many other laws for that matter, is that while they are intended to punish the irresponsible, they punish the responsible in much greater numbers. You want to make a law that increases the penalty for committing a real crime while high, fine do that. But don’t stop the people who don’t commit crimes from deciding what they do with their own body.

    Sean (fdf4f9)

  9. Alcohol usage, as a whole, went down during prohibition.

    Those of you in support of the 21st Amendment therefore support drunk driving.

    One of my friends from high school was killed by a drunk driver. Himself.

    And you are arguing that you are glad that he is dead when you say “I like the 21st Amendment.”

    No buzz off of cheap beer is worth the death of my friends and you folks who talk about “limited government” and “personal responsibility” are mocking the gravestone of my friend!

    Do you see what I did there?

    Anyway, please go on with your arguments that marijuana usage will go up if drugs are legalized.

    As if that argument was news to anyone who supported an end to the war on drugs.

    Jaybird (1994ca)

  10. If it is a jury of their peers, from the same community as the defendent, then the jurors will already have a pretty good idea of the effects of a particular crime on the community. Jurors aren’t mindless morons.

    Nash (657d6d)

  11. Washington, D.C., has a very high jury nullification rate, especially for drug cases. You could NOT tell the jury that the defendant was awaiting other trials for drug dealing that he had committed while on release pending *this* trial. The jurors frequently took the view that “street justice” would take care of the defendant if he was a bad person. So, rather than convict a street-level pusher, they preferred to let him become a homicide statistic later on. The same problem applied to murder cases. I finally got fed up with these people, because they have chosen the type of society that they wish to inhabit. It is, essentially, rule of the mob. This is why I quit actively prosecuting cases and transferred to a primarily administrative role. This is also why I live in Virginia, whose population is not so in love with criminals, and own guns for the protection of myself and my family.

    509th Bob (dfa1f1)

  12. “Anyway, please go on with your arguments that marijuana usage will go up if drugs are legalized.”

    Anyway, please go on with your arguments that marijuana is the only illicit drug that exists.

    Anyway, please go on with your arguments that PCP and crack never cause people to flip out and do unimaginably violent things.

    Anyway, please go on with your arguments that children should have unfettered access to PCP and crack.

    I love the smug attitude of drug war opponents who act like marijuana is the only drug out there. It’s a complex issue, but muttonheads can make it seem simple if they never confront the reality that full legalization would, for example, increase usage of crack and PCP by kids.

    But please. Do go on with YOUR arguments that I just so fairly summarized, just as you SO fairly summarized mine . . .

    Patterico (9af1e4)

  13. There is the moral aspect. If one believes there is a law that isn’t actually a crime (for instance, no actual victim, no one’s rights were violated, no property stolen, etc), then how can you be part of the process that could send that political prisoner to jail? One would have to believe we live in the best of all possible worlds, with the perfect set of laws, to think that a person guilty of breaking a law is ipso facto deserving of punishment. To be on the jury in such a case is to be morally responsible for unjust imprisonment. That weighs heavy on some people’s conscience. While it is trivially easy to get off jury duty (for instance, state you believe in the right of jury nullification), there are some people who believe when there is a potential injustice it is incumbent upon them to do what they can to correct it. Having one vote out of 12 is much more impact than having one vote out of millions, in electing politicians with the power to change laws.
    On the other hand are plenty of people who believe that following the rules are more important than judging the rules based on your personal sense of right/wrong, but I readily admit I don’t understand their reasoning.
    Some could say well what if the person on the jury is a neo-nazi, and so will nullify any law that involves a white defendant. Of course, in such an extreme case the person would vote to acquit regardless of whether you publically proclaim jury nullification to be acceptable or not. It’s like saying if alcohol is legal some people will end up ruining their lives over drinking. That’s not a reason to take away everyone’s freedom and ability to make decisions for themselves, and even if illegal some people will still drink to excess. We either trust that most of us are able and willing to do (and judge) the right thing, or we break down every social institution – because they too are run by individuals, and you don’t want such flawed entities having power over others.

    hugh go naught (38ff57)

  14. Marijuana as a “gateway” drug is utter bunk. There is only one “gateway” drug–its called ALCOHOL.

    Lord Limp of Lancaster (ec60fa)

  15. “If it is a jury of their peers, from the same community as the defendent, then the jurors will already have a pretty good idea of the effects of a particular crime on the community.”

    Go research the meaning of a jury of one’s peers and get back to me when you’re done. Meanwhile, chew on this: I prosecute cases in Compton but my pool of jurors includes folks from Palos Verdes.

    “Jurors aren’t mindless morons.”

    Indeed, but they decide casws better with evidence, no? Let’s say you’re going to decide my drug case based on your certainty that the defendant is facing 25-to-life if convicted. So you acquit a clearly guilty man. After trial I tell you his punishment was going to be a drug program. How would you have known that if I couldn’t tell you.

    So please don’t decide my case on the potential penalty when you don’t know what that is.

    Patterico (9e90a4)

  16. Marijuana use goes up and the drug is illegal now.

    What is the result if it is legalized?

    Am I missing the logic here?

    And, I’m not giving my opinion on legalization, because it is irrevelant. If I want to use it, I can, and if I don’t want to use it, I won’t. Legalization of marijuana in this country is a moot point, since it is so readily available.

    reff (bff229)

  17. How’s this for a counter-proposal (from a public defender, if that matters):

    A defendant has the right to be judged only on the facts of this case (i.e. the current system, including the current evidentiary rules). However, if the defendant wishes to argue nullifcation (in other words, to argue that the law itself is unjust, at least under his circumstances), he may do so, but then, it “opens the door” and the prosecution can answer in all the ways you mention above.

    Nullification (which has a lot of historical and common-law support that I think you are giving short shrift to) is predicated on it being a safety valve for the defense in a criminal case. The current rules of evidence have (as you do acknowledge) a long history and justification of protecting all litigants (including, but not limited to criminal defendants) from being judged on matters the law does not take into account. Insofar as there is tension between these two concepts (and there is, which is the impetus for your posts), I think this is the best way to resolve them consistent with the ideals and history of our system.

    Down to brass tacks, this would not be terribly difficult to administer–there are many other areas where the prosecution (or a party in other kinds of litigation) can only make certain arguments as a response– “opening the door” is a common concept, used in almost every jury trial (I know you know this Pat, I mention it for the benefit of non-lawyer readers). The defense could even be forced to declare prior to trial if it were going to pursue a nullification argument–I see nothing unfair about requiring the defense to give notice under these circumstances. It already works that way for insanity defenses, alibi defenses, et cetera (at least in my state).

    Instead of forcing a trade-off between two important values of our common-law tradition, which is what we have currently (as a result of a series of late 19th century Supreme Court decisions), and which your proposal embraces (by simply changing the direction of the trade), I would prefer to keep both. My proposal attempts to do so.

    Thoughts?

    (p.s. I use way to many parentheses, sorry about that)

    VR (3cb391)

  18. So you acquit a clearly guilty man. After trial I tell you his punishment was going to be a drug program. How would you have known that if I couldn’t tell you.

    .

    I wouldn’t. But criminal convictions carry more baggage than the punishment. Criminal behavior connotes a social stigma that is different from compassion. A convicted criminal also has a criminal record. If the planned “punishment” is entirely rehabilitative treatment, I’d argue that criminal charges are inappropriate in the first place.

    .

    FWIW, I’m an advocate of jury nullification in cases where the jury thinks the law is crap (see Peter Zenger), and where the jury concludes the defendant lacked mens rea. See the gun possession case (jury nullification movie) where the defendant was not a risk to society (and as a mutton-head, didn’t realize that his purchase of a gun to undertake the job of security guard was a criminal offense) but charges were pressed anyway.

    .

    No legal/justice system is ever going to be perfect, and I think juries having more power than fact-weighing is healthy for society.

    cboldt (3d73dd)

  19. Patterico,

    If you or one of your fellow Drug Warriors wants to give me a “scared straight” lecture about the evils of Teh Drugs like the kind I got in elementary school, feel free. I’ll listen. Then I’ll acquit.

    On a more serious note, I can conceive of no possible “facts” or “evidence” that would possibly dissuade me from my belief that one’s own person is sovereign. There is no amount of “facts” that will ever outweigh natural law when it comes to the ownership of one’s own body. No matter how many times I hear “DRUGS ARE BAD, mmkay?” it will never convince me that the substances another individual chooses to put into his or her own body is somehow my (or your) business.

    CTD (7054d2)

  20. cboldt, while I will respect your opinion, can you please site for me some recent cases, not 300 year old ones, or movies, in which jury nullification was needed or actually done.

    reff (bff229)

  21. CTD, then may you never have the 3:00AM visitor with the gun who is stealing your possessions while threatening your wife and child so they can get money for their privilage to put something into their body by choice…..

    Like the one I’ve had to face….

    reff (bff229)

  22. And, that won’t change if drug use is legalized, because there will still be people who won’t work to get their money for drugs…

    As there is now…

    reff (bff229)

  23. Go research the meaning of a jury of one’s peers and get back to me when you’re done

    It generally means a broad cross-section of the community from which the defendent is from. Interestingly, it comes from common law, just like jury nullification. So what is your point?

    Indeed, but they decide casws better with evidence, no? …How would you have known that if I couldn’t tell you.

    Right now you or the judge are able to spoon feed me whatever information you want (a bit of hyperbole, I know). With jury nullification, I think judges and prosecutors will come to understand that doesn’t work and will naturally allow more information to the juries, and more importanly, to allow jurors to ask questions themselves.

    So maybe your question is a chicken or the egg debate.

    Nash (657d6d)

  24. can you please site for me some recent cases, not 300 year old ones, or movies, in which jury nullification was needed or actually done.

    .

    The movie represented a real case, sorry I don’t recall the name of the movie or the case — it was shown to me as a 1L, in the context of discussing and arguing the principle of jury nullification.

    .

    I don’t have any particular cases in mind, and I suppose that the well-known examples of jury nullification, e.g., OJ Simpson, may well represent failures of justice.

    .

    But again I say, no system can be perfect, and in the balance, I think it’s better for society to leave the power of nullification in the hands of a jury. Legislatures can’t see every prospective case coming down the pike; some prosecutors and enforcers are over-zealous; some laws really are crap (see the genesis of the odious SCOTUS decision in Griswold — and ponder the difference had no conviction been obtained in the first place); etc.

    cboldt (3d73dd)

  25. Patterico, are you aware that bootleggers dealt more with whiskey, gin, and vodka than they did with small beer or wine during prohibition?

    Why do you think they did this?

    In the days following the repeal, what happened with wine or small beer consumption compared to whiskey, gin, and vodka?

    What happened with the quality of the whiskey, gin, and vodka available?

    Patterico, I know that drug usage will go up after the drug war ends.

    I know that alcohol consumption went up after repeal day.

    “This time, it’s totally different!” is one of those arguments that you’d think conservatives would have a little more contempt for.

    Jaybird (1994ca)

  26. reff,

    That’s a classic Drug Warrior mistake, blaming the consequences of a drug’s illegal status on the drug itself, and not the policy that made it illegal. People have to rob and mug to afford drugs because drugs are expensive. They are expensive because of your beloved War on (Some) Drugs. The only thing that prohibition laws can successfully accomplish is to raise prices for a particular product.

    So, how many people break into homes so they can afford cigarettes?

    CTD (7054d2)

  27. then may you never have the 3:00AM visitor with the gun who is stealing your possessions while threatening your wife and child so they can get money for their privilage to put something into their body by choice

    .

    Respectfully, prohibitions tend to distort the marketplace and increase associated criminal activity and elements. Alcohol prohibition made Al Capone and the Kennedy family wealthy. Not that alcohol can’t be abused, or that it itself is free from contributing to social harm; but a prohibition decision might increase the net harm.

    .

    The modern WOD is a huge business. It won’t go away without a fight, and probably won’t go away. The enforcement community (including the trial apparatus) wants to keep it, and most of the organized criminal elements ALSO favor keeping recreational drug use in the “illegal” bin. Otherwise, they lose some fraction of their profit center.

    .

    Looking at history of drug prohibition in the US, I’m not sure prohibition is an appropriate response. My sense is that it creates more problems and issues than it resolves; even though the proponents have absolutely the best of intentions (same true of alcohol prohibition).

    cboldt (3d73dd)

  28. I don’t have any particular cases in mind, and I suppose that the well-known examples of jury nullification, e.g., OJ Simpson, may well represent failures of justice.

    General question: how is the OJ case an example of jury nullification? As I understand it, nullification is when the jury decides the law itself is bad. I don’t think you’ll find any of the 12 jurors in OJ’s case telling you that the law against murder is a bad one.

    Steverino (e00589)

  29. CTD, more than you think…

    But, if it will not stop when legalization comes, why is it happening now? It didn’t stop when cigarettes came, and now we have reports of drive-off’s from gas stations going up, and gas is legal, and laws prohibiting that act, and driver’s licenses suspened when you are caught driving off without paying…

    But, gas and cigarettes are legal…

    People walk out of restaurants daily without paying, and eating out is legal…

    So, your logic escapes me…

    However, if the only thing they stole in my home that night was my money, and my TV, that’s be fine…but they stole my wife’s birth control, and my daughter’s too….they actually swept the cabinet clean…and the DEA actually came to interview me, and said that it was as possible that they were looking for drugs to sell as much as to take…so, they were trying to make money too….and birth control is legal…

    No, it is the libertarians argument that if you legalize it, it will place it more “under control” than it is now, and make it safer…

    And, the illegal trade will continue…

    P.S. Methadone hasn’t eliminated or reduced the problem it set out to solve either, has it???

    reff (bff229)

  30. Oh, and the reason methadone hasn’t solved either part of the problem is that those who think they “want” to put it into their body don’t care what the result is, or whether or not it is legal or illegal…

    So, until we have a cure for a weak mind, we’ll have a drug problem, and legalizing it will simply make it easier for someone to have a weak mind.

    I used to have one of those, so the experience is personal….and I probably could still….it is a battle every day….

    reff (bff229)

  31. cboldt, that is exactly my point about nullification…the problem is not that is can or can’t be done, but that the act itself can be done by anyone, for any reason….

    My question in other places:

    What do we do if a person whose personal beliefs are so completely against the existing laws, norms, morals, and ethics of society, and they get on a jury and decide to nullify?

    That is the reason that the idea of nullification is very, VERY, scary…

    reff (bff229)

  32. General question: how is the OJ case an example of jury nullification? As I understand it, nullification is when the jury decides the law itself is bad.

    .

    You and I are using different definitions of “jury nullification,” that’s all. Sometimes a jury finds the law in general to be okay, but that criminal prosecution of THIS defendant is not justice. I consider that to be jury nullification, but such an event is outside of your definition of jury nullification.

    .

    In the gun possession case I noted, there was no question that the defendant purchased and possessed the gun. He admitted it. The purchase and possession were illegal, the law was clear. However, the man really was intellectually challenged, was not a risk to society, and the jury’s judgment as to whether or not it was appropriate to attach criminal stigma to THIS defendant differed from the prosecutor’s judgment in that regard. They weren’t of a mind to toss the law in EVERY case, but did toss it as applied in the case in front of them.

    .

    I see the OJ Simpson case as a travesty and injustice; an error in judgment and miscarriage of justice on the part of the jury.

    cboldt (3d73dd)

  33. Worth a read:

    Milton Friedman on the drug war. Worth a read in the light of this discussion.

    Person of Choler (84520f)

  34. The jury nullification crowd is attached to a narrative, it is not justice they seek, it’s absolution.

    Depending upon the narrative in nully-bully world, the defendant is absolved from blame, because the very prosecution of the crime does not fit the political landscape architecture in their pre-fab world of justice.

    If I don’t like a particular prosecution, I simply lie, cheat, steal, whatever it takes to get on the jury and then proceed to ignore the facts and evidence to obtain the narrative I’ve chosen.

    I don’t like people of a certain race, creed, color, national origin, gender, to be prosecuted, I ignore the facts and evidence and nullify the prosectution. Of course, the converse MUST be true as well. If a person is of a group I disapprove of generally is put on trial, then as a nully-bully I vote to convict without regard to the facts or evidence. My narrative is the sole element of importance to my verdict.

    I hold more sway with a vote to acquit, since one vote in that instance carries more weight, but I obey only the narrative.

    I don’t like people of a certain occupation to be prosecuted, I do the same.

    In this manner, I create my little fiefdom and the whims of my personal narratives, pro and con…are all that I need to follow.

    My one and only concern is, of course, if I find myself in the defendant’s chair one day, that the crapshoot courthouse I helped to create…selects only narratives that tilt in my favor. I can’t trust the law, facts, evidence, system of justice I helped to rape. I will be blamed or absolved solely on the narratives and whims of people just like me.

    cfbleachers (4040c7)

  35. So, until we have a cure for a weak mind, we’ll have a drug problem, and legalizing it will simply make it easier for someone to have a weak mind.

    I had to laugh at the internal contradictions in this statement, and at the same time retch at its underlying assumptions.

    First, a “cure for a weak mind” would no doubt come in pill form, and people would scramble to get their hands on it because of how much better it would make them feel. Sorta like, uh, pretty much all psychoactive drugs?

    Second, don’t people with weak minds have it hard enough already, without us trying to elminate stuff that makes it “easier” for them?

    On to the assumptions. Who in God’s name put you in charge of deciding what constitutes a “weak mind” in anyone else?

    I’m perfectly happy with my mind, despite the fact that I like to read pulp novels, watch network sitcoms, snarf cheezy puffs, and toss down a couple drinks in the evening to relax.

    But my grandma thinks I have a “weak mind” for doing so, and should instead read the bible, watch only CBN, eat my vegetables and drink orange juice straight (blech!).

    I sure am glad that my grandma isn’t in charge of writing the “no weak minds” laws you seem to think the government is responsible for handling.

    Phil (6d9f2f)

  36. Dafydd:

    But I do take exception to one kind of evidence you apparently want to be able to present to a jury; I may be misunderstanding you. You seem to want to show the jury how other drug pushers might damage a community, rather than the particular drug seller on trial.

    As well he should, if the law itself is on trial as the nullies advocate. If the defense is allowed to challenge a drug dealing charge on the grounds that drug dealing is a victimless crime, basic fairness dictates that the prosecution should be able to rebut that claim by introducing evidence that it is not.

    Xrlq (b71926)

  37. that the crapshoot courthouse I helped to create

    .

    Sometimes that “crapshoot courthouse” is the result of a single person INSIDE the apparatus. More particularly, a judge or a prosecutor.

    .

    It doesn’t matter which side of the jury nullification fence one is sitting on, the system will work some errors and injustices. That’s a simple artifact of the human condition.

    .

    On the matter of jury nullification working to undermine crap laws, I see the effect as a closing of the loop relating to legislation. Citizens elect representatives, they don’t get to vote directly on the laws as crafted — but they do get to vote on laws as applied. If society is responsible, this is a healthy accommodation.

    .

    If society is not responsible with that power, take it away — amend the constitution and do away with randomly selected juries. There is no shortage of legal professionals who advocate for professional juries who won’t judge the application of the law.

    cboldt (3d73dd)

  38. At bottom, an argument over jury nullification resembles a question of whether or not the public is entitled, able, or competent to set public policy.

    .

    In a self-governing society, the answer to that is clear. Of course the public occupies that position of trust and power.

    .

    But as society becomes divided between policy makers and policy followers (moving away from self government, and toward top down government), the answer gets muddy. Especially so when the governing and the governed don’t see eye-to-eye on the policy.

    cboldt (3d73dd)

  39. cboldt, if the “governed” and the “governing” don’t see eye to eye, then the governed better learn to elect the candidates that do instead of pretending that random jury nullification is a solution.

    SPQR (26be8b)

  40. Phil, please tell me in my post where I say, or imply, that the government will/could/should be handling the cure/fix/medication of those with weak minds?

    Now, I’ll respond….the decision to start to put something in you by choice that can only hurt you if used correctly is a choice of a weak mind.

    The decision to continue to do it is the result of the first decision.

    If your retching at the underlying assumptions in that is real, continue please to vomit at will, ad nauseam….

    I don’t believe the govennment is wrong to have drug laws. I do believe that working on the addiction is better than prison time, but, if the prison is good, the same result occurs in general. I don’t like people breaking into my home to steal for their drug money. As for who put me in charge? No one, but, since I’m paying for the results, I get to have an opinion. Since I vote, I get to have an opinion. Since my stolen TV, jewelry, and medications are being used in the drug trade, and that the drug trade is a direct result of a weak mind, I get to have an opinion. Since you do what you do at home, and don’t do drugs (another thing I get to have an opinion on), whether or not you have a weak mind is your opinion, not mine. Your Grandmother is probably more right than you’re willing to admit, but, that is her opinion. Since I have a weak mind, and fight it every day, I get to have an opinion.

    And, if people would stop assuming that drug abuse and the drug trade is caused/increased by laws making that use illegal, maybe we’d have a few less drug users, because they would see that the cause/increases are created by the individual user who CHOOSES TO PUT THINGS IN THEMSELVES.

    reff (bff229)

  41. then the governed better learn to elect the candidates that do instead of pretending that random jury nullification is a solution.

    .

    I’ve never advocated “random” nullification.

    .

    “Nullification” by another term is called “prosecutorial discretion.” I don’t think that is random either. If the power of discretion is to be denied to a jury, why not deny it to the prosecutor as well?

    .

    Wake me up when a majority of the candidates running for governing offices decide to cede power to the governed. The bastards don’t even make responsive answers to my inquiries, and seem bent on creating more and more government involvement (all with the best of intentions, as they are “good hearted” governors), rather than less and less.

    cboldt (3d73dd)

  42. The first thing that comes to mind when I read these comments is; The Constitution states you will be judged by a “jury of your peers”. if professional jurist are used, It would seem contrary to the intent of the constitution, which is meant to administer fair justice for all.
    In the matter of evidence being presented to a jury concerning a defendants past history,I think it is irrelevant and/or prejudicial. Some bad habits are successfully broken and some are not, however, that would constitute being tried for all of your misdeeds, whether you paid the penalty previously or not.

    Eddie L. Miles (380ba0)

  43. The Thunder Run has linked to this post in the – Web Reconnaissance for 03/11/2008 A short recon of what’s out there that might draw your attention, updated throughout the day…so check back often.

    David M (447675)

  44. … the decision to start to put something in you by choice that can only hurt you if used correctly is a choice of a weak mind.

    So a “weak mind” apparently is someone who makes choices despite the fact that those choices “can only hurt” them.

    If weak-minded people take drugs even though those drugs “can only hurt” them, why in the world would they stop taking drugs just because they might go to jail? Isn’t that just another type of “hurt”?

    If the “weak-minded” can’t reason that “taking this drug will hurt me, therefor I won’t take it” then why in the world do you think they can reason “taking this drug might land me in jail, and therefor I won’t take it”?

    I don’t like people breaking into my home to steal for their drug money.

    Breaking into your home (for any reason) will still be just as illegal, regardless of any changes in the drug laws.

    if people would stop assuming that drug abuse and the drug trade is caused/increased by laws making that use illegal, maybe we’d have a few less drug users, because they would see that the cause/increases are created by the individual user who CHOOSES TO PUT THINGS IN THEMSELVES.

    But you just said drug users are weak-minded, and can’t will themselves to stop doing what’s certain to be harmful to them.

    Apparently, despite this weak-mindedness, they might stop doing drugs if only I could realize that I’m wrong to believe that drugs should be legal?

    So, in other words, I’m causing drug abuse, by believing that drugs should be legal. Wow. You are one hell of a debater. I surrender!

    Phil (6d9f2f)

  45. “So, until we have a cure for a weak mind, we’ll have a drug problem, and legalizing it will simply make it easier for someone to have a weak mind.”
    So let me get this straight:
    A weak mind leads to the drug problem.
    Legalizing drugs increases the weak minds.
    Does that sound circular to anyone else?
    reff- When was the last time you heard of someone burglarizing a home to buy cigarettes or alcohol? Any bet that property crime didn’t increase after alcohol prohibition?

    “What do we do if a person whose personal beliefs are so completely against the existing laws, norms, morals, and ethics of society, and they get on a jury and decide to nullify?”
    What do we do if a person whose personal beliefs are so completely against the existing laws, norms, morals, and ethics of society, and they get on the bench and decide to legislate?
    Your example affects a single case, my example affects hundreds or thousands.

    “In this manner, I create my little fiefdom and the whims of my personal narratives, pro and con…are all that I need to follow.”
    Your exactly right. But your fiefdom only lasts for a single trial. You have an affect on a single case. I worry about the fiefdoms that exist today that are ruled by judges and lawyers. Their fiefdoms affect a whole lot more than a single case.

    For example, can we be sure that the Duke case was the first time that Nifong over stepped his authority? Or was it his targets brought enough public scrutiny that he couldn’t get away with it that time? Yes, this time he was stopped and “punished.” But can we be sure this was the only time?

    Sean (fdf4f9)

  46. Since the pre-sentence investigation hasn’t been done, all you could provide would be (presumably informed) guesses as to what the ranges would be.

    Or are we going to go through the costs of pre-sentence investigations on all of those charged?

    Really, this looks like an attempt to pour the blood from the previous convictions back into the scales, and I’m not sure that it would have the effect that you desire. I’ve never been impressed by the blood of the victim as an argument for the guilt of the accused (I suspect that I’m strange that way.)

    I’d be in favor of informing the jury that this would be the defendant’s first, second, … strike if convicted. The mandatory minimum sentence for each charge, if any; the minimum, “average”, and maximum for each charge; and which sentences would be concurrent or consecutive with other sentences.

    htom (412a17)

  47. Pat…
    I liked your linked post when you first wrote it, and I like it now. Juries deserve to hear everything positive and negative about the accused. When “peer” actually meant your friends and neighbors (which would never be allowed today), they judged the accused on the evidence presented balanced against what they knew of that individual personally.

    To respond to Sean #6, and to reinforce your #7:
    Deteriation of a neighborhood is something most home-owners can readily identify with. We know how gang-activity, and general lawlessness, effects the value of our property, and we don’t like it. A great many of the “victimless” crimes are not conducive to family-friendly environments.

    But, what the hell do I know? I’m just a mindless moron who’s overly concerned about his immediate environment and/or safety.

    And Scott (#6), Dred Scott is long over. You need to get over it, too. We solved that problem in the way most intractable problems get solved – we kill people and break things.

    Another Drew (f9dd2c)

  48. Always nice to win…take the asswhipping and go home..

    But, since you said “in other words” what you really meant was “this is what I think you said” when you and I both know it is not.

    Your first point, that they hurt themselves by stopping drugs, is so ridiculously stupid that I’ll answer it so you might learn: if they get off the drugs, the pain will go away. Your second point is as ridiculous as the first, so, apply the same answer, just change the result; they won’t go to jail. But, as I said before, it is the weak mind causing the problem, not the drugs. If it weren’t the drugs, then it would be something else. But, since we are discussing it as drug use, that will be the point.

    Of course, if they hadn’t started….

    But, I digress…

    As for the breaking/entering comment, I already said it will continue:

    And, that won’t change if drug use is legalized, because there will still be people who won’t work to get their money for drugs…

    As there is now…

    Comment by reff — 3/11/2008 @ 7:47 am

    So, I already covered that one for you.

    What you refuse to accept in your last comments is that the problem is created by the user, not the law. As you have probably seen, the legal alcohol in our country has more than it’s share of problems with improper use, yet the drug is legal. Cigarettes are legal, yet, deadly, and people START to use them every day. The government supplements both industries by writing laws that give tax breaks to them, then taxes them to heck and back in an effort to make money from them. But, the abuse of both items continues, new users start daily, and the cycle continues.

    As for your last (really stupid) comment: no, you are not, so again, you are wrong. However, your belief will not decrease the problems of using drugs. It will increase both by number and intensity the abuse of the drug, should it become “legal, available, and cheap.”

    P.S…you really are a shitty debater…have a great day….

    reff (bff229)

  49. “Since the pre-sentence investigation hasn’t been done, all you could provide would be (presumably informed) guesses as to what the ranges would be.
    Or are we going to go through the costs of pre-sentence investigations on all of those charged?”

    Already do.

    “Really, this looks like an attempt to pour the blood from the previous convictions back into the scales, and I’m not sure that it would have the effect that you desire.”

    Well, if the jury is deciding the case based on their perceptions of the fairness of the penalty, I want them to have all the facts.

    You don’t believe that, of course, because you are (for whatever reason) inherently suspicious of prosecutors. Fine; my proposed reform isn’t designed to convince jurors who aren’t capable of being convinced. My only hope with jurors like that is to identify them and get rid of them.

    The proposal is designed to address the fear of rational jurors who *are* capable of being convinced that something pertinent is being hidden from them. That fear hurts prosecutions.

    Patterico (b3c4de)

  50. “Deteriation of a neighborhood is something most home-owners can readily identify with. We know how gang-activity, and general lawlessness, effects the value of our property, and we don’t like it. A great many of the “victimless” crimes are not conducive to family-friendly environments.”
    Your absolutely right. However, most gang-activity and lawlessness you refer to is caused by the war on drugs. The gangs and lawlessness did not exist to the extent it does now before drugs were made illegal. Prohibition will lead to black markets which lead to violence. The last time I heard of a couple gangs shooting it out over alcohol was 1933.

    Sean (fdf4f9)

  51. Sean, you created your own circular logic, and not only missed the point, you got the logic wrong as well.

    The weak minds are already there. They are not created by anything but nature and God. Mine was there before I ever knew what a legal or illegal drug could possibly be. Legalizing drugs will not increase the number of weak minds. However, it will make it cheaper, easier, and more “legal” for them to fall into drug use.

    Next, not all robberies are for drug money, so, if a robber is not abusing illegal drugs, but then buys alcohol/cigarettes with their “profits” then I guess they robbed the home for that purpose.

    You missed that one too, I see.

    My example is exactly on point, and in the discussions on Balko and the Defense Attorneys that is my question. Balko argues that one single person should be able to nullify and lie to do so if they believe the law to be immoral or unethical. My example is exactly that, but, the opposite of society and the law. In my example, a juror can choose to believe anything they want, and vote on the jury accordingly, without considering guilt or innocence, and base that on personal belief. So, it is exactly on point. As for the judge in your example: we have that happening every day, and there is things that can be done. We’ve had several judges in Louisiana taken off the bench by the State Supreme Court for improper actions. We have a defense for poor judges.

    As for your last two points, I’m in general agreement with you. (I’m not sure where your quote came from, but, it does match the fear I have with my question). However, one difference: I don’t see alot of problems in the rules today. And, I know that people like you and I will look for them, and fight them when we can. I am afraid of the idea that one person can nullify and society becomes the loser because of the whims of that one person.

    reff (bff229)

  52. It’s not so much prosecutors I’m suspicious of, as anyone who seems to be trying to sell me something, I learned long ago that there is a difference between the sizzle and the steak; prosecutors are just a particular case. I am also suspicious of both authority figures and state officials (having been misused and betrayed by them in the past) and so you (general prosecutor you) get tagged with those fears as well. Having said that, I’m not sure why I ever became interested in either reading or commenting here. I suppose it started with some flavor of “know your enemy”, and has progressed to something else, as I don’t consider you (specific you, or the other prosecutors here) to be such.

    Part of the problem is that you cannot give the jury all of the facts (or if so, it’s only for a very limited version of “all” (and the same is true of the defense); I know, nesting parenthesis are bad in English, and “all” as such a universal betrays my math-engineering English.) One of the consequences of my life in Murderapolis was that I knew many people who had intimate dealings with “the system”. There is a vicious cycle of in and out that breaks people, and some of their behavior I think is more consequence of previous legal trouble than something they should be absolutely considered to be responsible for.

    I’m surprized that there are pre-sentence investigations done before the trial. Oh, d’oh. A factor in plea bargining, of course!

    Gotta go, I’ll be back with hopefully a better response to your opening post.

    htom (412a17)

  53. Anyone here in favor of allowing jurors to question witnesses in open court?

    ThomasD (ef53ff)

  54. “If you or one of your fellow Drug Warriors wants to give me a “scared straight” lecture about the evils of Teh Drugs like the kind I got in elementary school, feel free. I’ll listen. Then I’ll acquit”

    My proposal isn’t for you. You illustrate the proposition that some people are just unreasonable and don’t care about the evidence. You, I’d have to identify and kick off.

    I bet I could though. When you’re smug and self-righteous, people can usually tell. You probably think you’re good at hiding it, but that’s part of being smug and self-righteous you think you’re more clever than you actually are.

    Patterico (03549a)

  55. VR,

    The opening the door concept is intriguing in theory, but y’all already try to argue nullification without doing so explicitly. How am I supposed to handle that? When the door isn’t opened, what are juries to be told.

    Tell the commenters: if my plan of full disclosure were implemented in *alll* cases, it would mean more convictions, right? Things hidden from the jury are *usually* hidden for the benefit of the defendant, right?

    Patterico (ba5b20)

  56. Anyone here in favor of allowing jurors to question witnesses in open court?

    .

    Judge Walton permitted a variety of that in the Scooter Libby trial. Juror questions were submitted in writing and filtered through the judge/counselor dohicky.

    .

    I think it’s a good practice, for for nothing else it keeps the jury more engaged with the presentation of testimony.

    cboldt (3d73dd)

  57. Patterico,

    I think you have a good point here. Nevertheless, I have some quibbles.

    You say:

    either 1) you have to be confident in your ability to make decisions on these questions without evidence presented by both sides — in which case you are arrogant and overconfident of your own superior knowledge

    I don’t think one has to have perfect knowledge to decide on innocence or guilt. You set us up like so:

    If you are going to vote based on your view that drug peddling is a victimless crime, shouldn’t the prosecution have the chance to show the way the defendant’s drug dealing has victimized the neighborhood? Shouldn’t you hear from the neighbor who constantly begs the cops to get these dealers (including this defendant) off the street because they are dealing drugs in front of schoolchildren? Shouldn’t you hear from the family of the addict whose life, and the lives around him, have been ruined by the poison the defendant has peddled? Shouldn’t you hear from the experts who have studied the likely effects of legalization and concluded that it will result in more narcotic usage in society as a whole, including more drug usage by children?

    But this is not how all drug cases work out. Many convictions are for simple possession. I think it is often possible to determine that a conviction for a particular crime is outrageous regardless of additional evidence.

    Also, your last sentence in that quote is overstated. The reference to increased drug use is based on all manner of nebulous variables that the authors pretty much pulled out of their asses. I basically agree with their analysis (cheaper drugs, more drug use), but it is not so certain as you imply. More importantly, they are talking about blanket legalization (or commercialization) with regards to those dreadful scenarios–most drug policy reformers do not advocate such a policy. The book you cited in fact recommends a “depenalization” of drugs along the lines demonstrated by Switzerland and Holland.

    Russell (5ecf4a)

  58. PS: As regards to nullification in general, I regard it somewhat like the filibuster in the Senate: a weird and antiquated rule with a long and somewhat honorable tradition that is starting to be fatally overused.

    Russell (5ecf4a)

  59. The criminal codes should be a line drawn in the sand that separates good guys from bad guys. It is critical that the line be drawn so that only extreme behavior is categorized as criminal. When the line is drawn in this way, we can all be reassured that criminals are, in fact, bad guys and that our laws serve a common purpose. The recent proliferation of nanny-state laws, much like Prohibition, has moved the line to include those whose behavior is by no means extreme. Good guys are being swept up with the bad guys. The result of overzealous law making is predictable: a general contempt for the law. In such a world, criminality loses its stigma and law abiding citizens who serve in the jury pool look beyond jury instructions in an attempt to mete out justice. What else would you expect?

    Your harangue is misdirected. Juror nullification is not the cause of a societal problem, it is the result.

    neobuzz (5f9e31)

  60. (responding to Pat at #54)
    Pat–
    Well, the judge should be policing that sort of thing, by allowing only relevant evidence and argument. But I’m not sure what you mean by “y’all already try to argue nullification”–could you elaborate please? What evidence gets presented by defense attorneys in your experience, or what argument gets made, that is an implicit argument for nullification? Because from the examples you give, it sounds like juries sometimes do it on their own without prompting, which is not the defense attorney’s fault.

    But to reiterate, it is up to the judge to police both attorneys, to keep them to relevant evidence and argument. If the judge ain’t doing that, well, everybody’s already screwed–one of the less good features of our system is the large amount of discretion trial judges have, and the amount of power they can exert. Problem is, I don’t know a way around it–any alternative I can think of to the judge having the power to police the attorneys would be worse than the current system.

    Aside from the judge policing the attorneys, and instructing the jury to decide the case only according to the evidence they are given and the legal instructions from the judge (which should happen, and does happen, in every trial), you can harp on the judge’s instructions about not using sympathy, about the judge deciding the law while the jury decides the facts, etc . . . (hey, I harp on reasonable doubt, you should be harping on that stuff). I have found that most jurors are so intimidated by judges that they follow what the judge says as best as they can, and the better attorneys I have seen (I hope I am one) use that to their advantage. In your opening and closing, harp on what the judge has already said to them, and what you know he will say (in my state, most jury instructions are standardized, and I think that’s true everywhere, but I’m not in Calif.) and use that in your argument, reminding the jury that they swore an oath to follow the judge’s instructions.

    Anyway, that’s my answer for ya. so you’re intrigued by my proposal? considering I just pulled it out of my ass this morning, I’ll take that as a compliment :-)

    VR (3cb391)

  61. (responding to the second part of Pat’s comment at #54)

    sorry, I got going on the other response and did not answer your question.

    To answer your question, I think it would cut both ways a lot, but slightly more in favor of the prosecution. The fact that many defendants are unsympathetic (which is true) would be largely balanced by the fact that the victims are very often no better (since the jerks tend to know, and therefore victimize, other jerks, to put it bluntly).

    On your side, all the motion-to-suppress evidence would be in, and the defendant’s background, which would help you. (In my state, if the def’s background is good, the defense can present character evidence as substantive evidence of innocence, but I don’t think that’s true most places). Also neighborhood gang history, as you mentioned, and social stuff like that.

    Balancing that out to help the defense, goodbye rape shield laws. Complaining witnesses are often unsavory, as I’ve mentioned. Every bad thing the cops involved ever did would come in, and in places where there is a history of police problems, that would harm the prosecution. Ditto the individual prosecutors themselves–not all of y’all are as honest as you yourself certainly seem to be.

    On balance, you (prosecutors) would gain more than you lost under your proposal, but you’d both gain and lose plenty, in my humble opinion.

    VR (3cb391)

  62. Patterico, I would say you’re attacking a straw concept (that being the mental equivalent of a straw man).

    Jury nullification is not supposed to be each jury deciding for itself whether the law in question is good or bad. The legislature made that decision. That’s what legislatures are supposed to do, not juries. But only if the subject of the law is one that it is appropriate for the legislature to pass a law about. Jury nullification is the jury deciding that whether the legislature had the right to make that decision–and if it did not, the jury has the right to acquit.

    And notice I say the jury. Not just one juror deciding the law is wrong and forcing a mistrial, but all members of the jury together deciding “the legislature had no right to make this law”.

    The other sort of jury nullification–in which the jury decides that, whether or not the law is a good law, the particular defendant didn’t really deserve to be charged–doesn’t need changes; as we have it now, the jury already has enough facts to make that decision, if it so pleases.

    kishnevi (4394f3)

  63. For folks on this thread discussing the War on Drugs, you really should read the article that Patterico first linked to. It’s very interesting and gives a clear picture of what a complex issue drugs are, with all proposed solutions involving difficult value judgments and tradeoffs. They also spend quite a bit of time talking how the arguments in the US are polarized between the War on Drugs and Flat Out Legalization, pointing out that these are not the only alternatives, and that alternatives are being tried in other countries.

    Patterico correctly quotes the researchers finding that “that any form of legal commercial sales would significantly increase the amount of drug use in society.” But they also said that legalizing certain drugs would significantly reduce drug-related violent crimes in low-income urban areas, but would increase the number of middle-class drug users. That’s a significant tradeoff. More suburbanites snorting coke, but fewer children shot in drive-bys.

    JayHub (0a6237)

  64. Also, gangs exist just to sell drugs? I doubt it. If they could not sell drugs they would find other sourses of income — burglary, robbery, extortion, protection racket, prostitution, ilegal worker smuggling, gambling, murder for hire. Just like their Italian predecessors counterparts. Legalizing drugs would only make drugs legal. Nothing more.

    If the police cared about street crime due to drugs and not the drugs themselves, they could simply reallocate their resources. Put their narco detectives in “saturation” cars to roust gang members whenever they find them instead of kicking down the doors of 92-year old women.

    nk (5ce644)

  65. Picking up some points…
    Sean @ #49: Drugs have generally been illegal for what, 90 years or so? I don’t go back far enough to know the difference; but, I will grant you that the WOD has made the situation worse, by encouraging the criminal element to territorialize their operations and the increase in inter-gang warfare that results.

    It is interesting that the archtypical Conservative, William F. Buckley, long ago decried the criminalization of drug usage, and encouraged legalization, control, and taxation of same.

    Neobuzz @ #58: As to the WOD and it’s attendant aftermath and the general lack of respect for the (Nanny-State) law – I blame Nixon, who gave us the WOD, and the most destructive act towards general respect for the law, the Double-Nickle!

    Another Drew (f9dd2c)

  66. Movie anecdote (since some are into citing same) on the War On Drugs…
    Red Heat (Arnold as Russki cop, James Belushi as Chi-town cop): How to stop drug use!
    Arnold cites Red China…They killed all of the users.
    Belushi responds that the lawyers would never allow it.
    Arnold’s response: Kill them first!

    Another Drew (f9dd2c)

  67. Patterico: At #446 in the other thread I attempted to rephrase my 1st and 5th questions a little more clearly. You helped me quite a bit with your answers to 2-4. Thanks.

    I am very intrigued with your idea to open up the evidence presented, especially as modified by VR’s suggestion. I don’t think a lot of this information should come in automatically (i.e., judges as gatekeepers do much good), but it seems only fair that if a defendant argues nullification of a law facially or as applied that the prosecution should get a chance to rebut.

    I also like the idea of jurors being allowed to ask questions, again with the judge acting as a kind of gatekeeper. In the old, old days, jurors often conducted their own investigations. Just to show you I am not a zealot on the subject, I’ll state that I don’t think this is a good idea anymore. And, as it was not a jury practice at the time of the founding, I’ll even grant that I don’t see any constitutional claim on that point. See how reasonable I am?

    Another idea may be to allow juries to make (non-binding) sentence recommendations. Also, I’d like to see how the states that specifically allow for nullification handle evidence and if they experience significantly different outcomes. I gather that case law in those states (e.g., Illinois, Georgia and Maryland) have strongly curtailed the right, so there may not be much to report.

    The situation as I see it thus far is:

    1. There is pretty substantial evidence that review of the law by a jury was a recognized right in the 18th century.

    2. The Sixth Amendment created a right of the defendant to a jury thus empowered. (again, my opinion)

    3. There has been an erosion of this right/power at least since Sparf, but really as far back as Battiste. It is open for debate as to whether the courts could rightfully do so absent an amendment to the Constitution. The Fourteenth Amendment may have enabled the courts to restrict this power, but the relevant cases don’t, as far as I can see, use this as justification. There seems to have been a certain amount of arm-waving in the case law when it came to these questions.

    4. Jury nullification has been the source of much good in American history. However, it has been problematic as well. I can’t exclude the history of letting whites walk on racially motivated murders in the South from any determination of the net good/bad of nullification. Sure, some of those cases probably had a wink, wink, nod, nod aspect to them when prosecutors cooperated in the outcome, but a review of the Medgar Evers case, in particular, suggests that nullification has a lot to answer for, as well.
    Also, just looking at some of the multi-bazillion dollar outcomes in civil cases where there is a sympathetic plaintiff, an unsympathetic defendant, and not a whole hell of a lot of legal justification, does give me pause.

    5. There is both more and less nullification going on than most of us think, once we delve into what is actually occuring in the jury room. Beldar made some very good points in that regard, as have you.

    Part of the problem does seem to be a general erosion of trust, in our institutions by the people, and of the people by our institutions. This partly manifests as a sidelining of the jury. However, I believe that most people take jury duty seriously. In fact, I know several immigrants who are more jazzed by this than any of the other rights they acquire upon attaining citizenship. A less adversarial relationship between the jury and the officers of the court (that is, less hostile) would be good on balance. (I don’t refer to you as being hostile to juries. It’s more of a general point.)

    Right now, most nullification that occurs is going on sub rosa. This is bad from an informational/feedback perspective and bad for the health of the judicial system. Jurors are forced to use some pretty tenuous reasoning to do what they want to do. You illustrate this when you talk about the evidentiary expectations they can create out of whole cloth.

    Official recognition of this right/power, along with some of your proposed changes in the way cases are conducted may be healthier for the rule of law than the current system. I think a lot of jurors would take a judge seriously if he were to say, “Yes, you can do this, but you need to think long and hard about it before you do. There are ramifications you may not have considered.” To paraphrase Dafydd, nullification needs to be reserved for cases that “shock the conscience.” If jurors are made aware of the standard and yet all twelve agree to nullify, the odds are that they have a pretty good reason, and we would do well to listen to what they are trying to tell us.

    The jury may be a bulwark against the state, but it is also an equal partner in the quest for justice. Official recognition, if not embrace of nullification might actually make its occurrence decrease, if the jury sees itself this way. I’m sure there would be a lot of dynamic calculations to perform, maybe too many to get a meaningful result, but I don’t think the outcome is going to be any worse than what we have now.

    As to the people who want to lie their way onto a jury to effect policy change irrespective of the merits of a particular case, I don’t know what to say. It’s indefensible. Right now you can kick them for bias, if you can catch them. That won’t change under a new regime. Ultimately, though, many jurors are going to vote their conscience regardless of their oath, even if they fully intended to honor it when they signed. Unless we are going to abolish the jury system, we need to adapt it so that this becomes a feature rather than a bug.

    fat tony (1c9df3)

  68. Besides, who among you wouldn’t nullify in this case?:

    http://www.foxnews.com/story/0,2933,336817,00.html

    I mean, Mary Ann? She is responsible for too many, ah, formative memories, for me to ever convict. Yes, Patterico, I’m saying I’d go all Balko on my oath in this case. So would you. So would every damn one of you.

    fat tony (1c9df3)

  69. Sorry fat tony,

    I saw it already and admitted she lost. Besides, I always picked Ginger. 😉

    Stashiu3 (460dc1)

  70. Is the big legal problem in the US too many innocent going to jail, or too many guilty running free? How about people guilty of technicalities that offend the state getting hard time that the juries never would have agreed to?

    Full disclosure to the juries, period. Juries have the right to decide if laws are both constitutional and applied fairly.

    Example:
    You walk down the street with your wife, some punk starts talking about how “baby’s got back” etc. You clobber him.

    According to our rules, the guy who defended his honor goes to jail, and gets sued by the guy with the big mouth. A jury should be able to nullify his assault charge. That would be justice. There are plenty of other available examples.

    martin (86a2e8)

  71. fat tony, the Sixth Amendment says nothing about a jury reviewing the law, only that the jury shall be “an impartial jury of the State and district wherein the crime shall have been committed”.

    SPQR (26be8b)

  72. That’s a bizarre example, martin. If all jury nullification requires is someone defending his “honor” to be an unjust law, then you’ve degraded the whole concept pretty well.

    SPQR (26be8b)

  73. NK, maybe they were your formative years. but those of us who are not senior citizens* are not impressed.

    *definition of a senior citizen–anyone older than me

    kishnevi (4394f3)

  74. C’mon SPQR,

    If I think martin insulted my intelligence, shouldn’t I be able to pop him one in the chops? I mean, he “dissed” me… I should be able to defend myself, right?

    /sarc off

    Stashiu3 (460dc1)

  75. *definition of a senior citizen–anyone older than me

    Says the fellow “Tron” fan. Nice try, kishnevi 😉

    Stashiu3 (460dc1)

  76. the Sixth Amendment says nothing about a jury reviewing the law, only that the jury shall be “an impartial jury of the State and district wherein the crime shall have been committed”.

    .

    Here’s the complete text. It says “trial … by an impartial jury,” whatever that was supposed to mean. No mention of a judge applying the law, or some other expressed limitation on jury power, for what it’s worth. “Trial by a jury” vs. “Fact finding by a jury.”

    .

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

    cboldt (3d73dd)

  77. cboldt, it also does not say that juries can’t use a ouija board, or dice.

    SPQR (26be8b)

  78. kishnevi #72,

    I think you meant fat tony but it’s ok. Mary Ann was my “marooned on a desert island with” favorite too.

    nk (5ce644)

  79. SPQR: what cboldt said.

    I thought I’ve read that courts have held “jury” in a Sixth Amendment context to mean the whole shebang as to the extant common law perception of jury role/power. I’ll dig around to see if I can back that up with anything more than bald assertion. Agreed that it is not explicit in the text.

    Stashiu and others: Mary Ann, Bailey Quarters–hell, I even preferred Rebecca in Ivanhoe. Just can’t help myself

    fat tony (6673c2)

  80. fat tony, I would not nullify, I would much more want to prosecute…

    She was DUI, and a danger to others. She was not sitting on her couch, with a bag of chips and a diet coke…

    reff (59b2ad)

  81. NK:

    Also, gangs exist just to sell drugs? I doubt it. If they could not sell drugs they would find other sourses of income — burglary, robbery, extortion, protection racket, prostitution, ilegal worker smuggling, gambling, murder for hire.

    They already do, but those markets are pretty well tapped out. Do you have evidence that legalizing drugs would create new demand for burglary, robbery, extortion and the rest, despite having removed one of the most common motives people have to burglarize, rob or extort money in the first place?

    Just like their Italian predecessors counterparts.

    Prohibition spawned the mob era. Ending prohibition effectively ended it. If ending drug prohibition had the same effect on one illicit market as the end to alcohol prohibition did on another, that would be a huge benefit to society. Of course we’d have to deal with a few more junkies, too; there are no perfect solutions.

    Xrlq (62cad4)

  82. Xrlq, I don’t think legalization will create new demand for robbery, etc., but, it will not lessen it either. Those who are hooked will still need money for their drugs, and will do what they have to do to get it. Cheaper doesn’t reduce the need at all, and cheaper could-I repeat-could actually increase the number of people using, which can mean more problems for society.

    Legalization will not lessen the problems of drug use/abuse.

    reff (59b2ad)

  83. I have an idea: Let’s talk about guns! The Supreme Court hears oral arguments in the D.C. gun case on Tuesday (see all the briefs HERE).

    So, let’s say last year some gramma shot a scum-bag with a “380” after he broke in her door and came at her with a knife. The city of D.C. would prosecute her for violation of their gun laws–can’t have a pistol in your home (nor a working rifle or working shotgun, either). A case where jury nullification might be OK? I think so.

    If there is other evidence that the jury isn’t allowed to have (she’s a drug dealer who just cheated him), that’s the judge’s fault. Given JUST the fact an old woman kept a pistol in her home, accquital is appropriate–your generic grand ma has a right to defend herself in her home, absent any disqualifying factor, like a felony conviction.

    Read the briefs (especially The One That Shoots Down The Lies The City and Their Amici Told)

    Why yes, I am a trouble-maker. Why do you ask?

    Ranten N. Raven (240170)

  84. Blackstone on Juries in CIVIL cases (great stuff … I enjoy dipping into Blackstone)

    .

    Blackstone on Criminal prosecution

    .

    In the very few SCOTUS cases I’ve looked at, I find persistent reference that issues of fact are to be decided by juries. See e.g., Thompson v. State of Utah, 170 U.S. 343 (1898) and Patton v. United States, 281 U.S. 276 (1930)

    .

    The US State Department has an interesting summary of trial by jury at http://usinfo.state.gov/products/pubs/rightsof/jury.htm that has this bit of law-nullification trivia:

    Prior to the American Revolution, local juries refused to convict their neighbors accused of smuggling, believing the English trade and navigation acts to be unjust.

    cboldt (3d73dd)

  85. Raven, even I, who is very much opposed to nullification, would have trouble with this if there is any chance the grandma involved was Marine trained as a marksperson….but, if she wasn’t, she’s got a chance….

    reff (59b2ad)

  86. And, ‘marksperson’ was a salute to Mike Adams…

    reff (59b2ad)

  87. Xrlq #81,

    Are you serious? The Syndicate got stronger after 1932, not weaker. Nor any less vicious. Murder Incorporated existed past WWII. You could buy a hit for $200.00. Bugsy Siegel and Las Vegas? Sam Giancanna and Havana? Tony Accardo and the looting of the Teamsters Fund to build “Casino”? Allen Dorfman, the Teamster Treasurer, was killed by Tony Spillotro half a mile away from my law office. The Syndicated found new ways to make money but they definitely did not give up their old ways.

    [NK – I found this in the spam filter — the link must have triggered something. You might want to repost it since it took almost a day before I noticed it and unblocked it, and it’s likely that XRLQ and other commenters missed it. — DRJ]

    nk (5ce644)

  88. reff reff reff. You poor soul. How do I explain this to you so you understand? Oh, I know:

    Mary Ann! MARY EFFIN ANN!!

    Unless she took a flamethrower to a busload of orphans, she walks if I’m on the jury. And even then, those orphans better have a damn good excuse for getting in her way.

    When it comes to Mary Ann, I will lie my way onto the jury, subordinate every principle to my agenda, sell my immortal soul to see her walk. Patterico will use my name for an epithet the way he now spits out “Balko”.

    For Mary Ann I am the OG Guy Fawkes. I am Andrew Hamilton defending Zenger. I am the old bull of the mountain, the alpha and omega of nullifiers.

    Mary Ann walks. reff: do I make myself clear?

    Now, this Dawn Wells character on the other hand….

    fat tony (6673c2)

  89. Patterico,

    Thanks for linking back to your original post/proposal. I’ve always thought this was your finest post ever, and worthy of an essay or even a book. I’ve never heard this topic discussed (IANAL), and it really got me thinking. I hope to hear more on it.

    Josh

    Josh (210c81)

  90. Reff:

    Xrlq, I don’t think legalization will create new demand for robbery, etc., but, it will not lessen it either. Those who are hooked will still need money for their drugs, and will do what they have to do to get it.

    Right, but it doesn’t take a rocket scientist to know that someone who needs $300 for a hit is more likely to steal it than someone who only needs $3 to feed the same habit. At a minimum, he’d steal a hell of a lot less on fewer occasions.

    Cheaper doesn’t reduce the need at all, and cheaper could-I repeat-could actually increase the number of people using, which can mean more problems for society.

    No one – at least, no one who isn’t retarded – disputes that cheaper will increase the number of users. The question is by how much. My bet is that the benefits of a sharp decrease in drug-related crimes would dwarf the social costs of any resulting increase. I base this theory partly on empirical evidence (Amsterdam may be teeming with druggie tourists, but all the Dutch aren’t potheads) and partly on intuition (I have a hard time envisioning a person stupid enough to smoke legal crack yet smart enough to stay away from the illegal variety).

    Legalization will not lessen the problems of drug use/abuse.

    It would in some regards. It’s not uncommon for junkies to O.D. on drugs of unknown concentrations, or to kill themselves by using a tainted batch. Both problems are virtually unheard of when mass produced, licit drugs are at involved.

    Xrlq (62cad4)

  91. In re: Josh #88

    I agree that this is a very valuable discussion – although it will probably not achieve anything substantive. (Does anything in the comments section?) However, I would like to humbly suggest that Pat revisit the concept in a more narrowly defined way – something that would help keep the comment stream from wandering as far afield.

    If the issue can be discussed in segments, perhaps people can come to some greater degree of consensus.

    Oh, and I’m way sold on MaryAnn too. Ginger was too skanky.

    Don (ba2997)

  92. Coming a little late to this discussion, and I think Patterico’s example is unfortunate because it raises many issues that have nothing to do with the central question of whether jury nullification as currently practiced is justifiable or not.

    In fact, the issue that catches my eye isn’t the question of nullification, but the ignorance displayed about drug use (or rather, drug abuse). Now, I may have missed it in perusing this thread, but I haven’t seen anyone else mention that addiction is a neurobiological disorder of the limbic system, that is, a chronic, progressive, and ultimately fatal disease of the brain. This is a disease with marked physiological changes to the brain, including demyelinization (as happens in Alzheimer’s and Parkinson’s,) and a host of other changes~but most importantly in addiction, dopamine/dopamine2 dysfunction and disregulation of a host of neurotransmitters (like serotonin and glutamate, for example).

    Not everyone who “tries” or experiments with a drug becomes an addict. Nicotine is currently the most addictive drug available, with an addiction rate of about 40% in a normal population, with marijuana following up in the high teens, alcohol at around 15%, opiates at just over 10%, and most others hovering just under that. Further, addicts are usually very specific about their “drug of choice,” ie, alcoholics prefer alcohol to opiates, opiate addicts prefer things like heroin to cocaine, and so on. Even so, an addict that uses a drug other than their “drug of choice” suffers progression of their disease…because at the heart of every case of addiction is the dopamine/dopamine2 dysfunction, and all addictive drugs (and behaviors) affect that dystopia.

    The reason that I think this is important in light of the discussion above is that some commenters like Dafydd and Sean advance the view that drug trafficking can be a “victimless” crime, or that some dealers do less societal damage than others. Drug dealing is never victimless, and murder, whether once, or several is still murder; and I think it important that people realize just how serious a crime trafficking is.

    As for “Lord Limp of Lancaster,” who says:

    Marijuana as a “gateway” drug is utter bunk. There is only one “gateway” drug–its called ALCOHOL.

    Sorry, but all psycoactive drugs have the potential to be “gateway” drugs, although some are certainly more effective than others. As I noted earlier, marijuana and alcohol tend to addict a similar percentage of the population, and are both quite effective as gateway drugs to further or cross-addictions.

    Most drug related crime is perpetrated by addicts: and it’s important to understand that addicts cannot control their behavior! Addicts don’t wake up in the morning and think “I’ll rob a bank today to get money to buy crack!” Their addiction works at a level below conscious thought, where their brain stem believes that their drug of choice is as important to their health as food or oxygen. Further, the success rate at treating addiction is very low because the disease attacks the brain at such a primitive level that rational thought is precluded. It’s not that addicts are “weak minded,” indeed, they typically are of a much stronger mind than average…and the stronger minded they are, the more difficult to treat effectively.

    Finally, addicts, even though they are demonstrably not responsible for their behavior in addiction, they have to be held accountable for it. I know many alcohol addicts, for example, who are now recovering that are grateful to the judicial system for forcing them into recovery~something that they would not have been able to accomplish on their own.

    As to jury nullification, my personal preference would be to empanel juries of addicts in recovery to try charges of dealing. Conviction rates would skyrocket, and the question of nullification would be moot.

    EW1(SG) (84e813)

  93. EW1(SG), that’s scary. I am for a fact addicted to cigarettes (two packs a day) and I drink daily and sometimes heavily but the worst social consequences of my addictions have been littering (cigarette butt in the gutter) and a nap after a pizza and beer. Does that equate with opiate, alkaloid, barbiturate and methamphetamine addictions?

    nk (8a8387)

  94. As to jury nullification, my personal preference would be to empanel juries of addicts in recovery to try charges of dealing. Conviction rates would skyrocket, and the question of nullification would be moot.

    How about some recovering alcoholics on a DUI/vehicular Manslaughter (with teh driver being drunk) jury?

    Deliberations would take all an hour and 2 minutes. And hour for a meeting, and 2 minutes to declare guilt.

    Scott Jacobs (fa5e57)

  95. nk asks at #93:

    Does that equate with opiate, alkaloid, barbiturate and methamphetamine addictions?

    And the answer is…

    It depends. One working definition of addiction (or alcoholism) is “repeated negative consequences” associated with ingesting a psychoactive drug (or indulging in an activity that results in a similar pyshoactive perturbation of the neurotransmitters involved in addiction) not resulting in a change of behavior. For example, for a person who doesn’t suffer alchoholism, it’s possible to be charged with a DUI (along with its attendant consequences) because of a lapse of judgement. But a non-alcoholic will ensure that it doesn’t happen again, while an alcoholic will be unable to prevent it!

    Oddly, nicotine, while one of the most addictive of psychoactive drugs, is one of the least “active,” and is usually only a problem in acute addiction because of its cross-addictive effect. (There are, for example, people who only smoke when drinking; but for drinkers, smoking also stimulates alcohol addiction.) Chocolate is another psychoactive substance that can cause addictive behavior, but isn’t usually associated with negative social consequences; and is commonly used during acute withdrawal syndrome (AWS) and post-acute withdrawal syndrome (PAWS) to alleviate some of the drive for the drug of choice.

    Another important indicator is family history: children and grandchildren of addicts are much more disposed to developing the disease. It’s also possible to live an entire lifetime without ever developing addiction in spite of repeated exposure to a drug, or, as in one case I know of, to develop addiction rather late in life (in this case, delayed onset alcoholism that occurred after more than 40 years of exposure.)

    What you have described is nicotine addiction, but not anything else. Yet. And unfortunately, addiction is a disease of “yet.” As in, I haven’t got a DUI, yet. Or, I haven’t ever tried heroin laced with Fentanyl, yet.

    On a slightly lighter note, do remember that addiction occurs is a relatively small percentage of the population. Unfortunately, if you (or a loved one) are part of that small percentage, its devastating.

    EW1(SG) (84e813)

  96. At #94, Scott Jacobs:

    …an hour and 2 minutes.

    That would be about it.

    EW1(SG) (84e813)

  97. I’m not sure why I ever became interested in either reading or commenting here. I suppose it started with some flavor of “know your enemy”, and has progressed to something else, as I don’t consider you (specific you, or the other prosecutors here) to be such.

    htom,

    Isn’t it interesting that the prosecutors you’ve gotten to know here, you don’t consider your enemy — but the mass of prosecutors generally out there . . . you do?

    Does this suggest to you that if you got to know more prosecutors on a personal level, that maybe — just maybe — you would conclude that many or most are good people trying to do the right thing?

    Patterico (4bda0b)

  98. Sorry I missed this. There are, I’m sure, good prosecutors and good cops, and most, if not all, of those here are among them. I no longer (even after my time here) give all of them the automatic trust and belief in their goodness that I did a decade ago. I’ve become a much more skeptical person about almost everything and everyone, a reaction to experiences where such people … did not behave at their best, let us say, and then denied what they had done, causing further damage. Forgiving is easier than forgetting, and I don’t ever want to do the latter. ‘Tisn’t safe.

    htom (412a17)


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