This one is simple and straightforward.

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

Would you ever convict in such a situation?

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

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

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

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

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

In our recent discussions about jury nullification, some of you were pretty cavalier about perjury, and the concept of respect for the rule of law. I explained that jurors must take an oath to apply the law as set forth in the judge’s instructions — and jurors are always asked beforehand whether they would agree to do so. That means that, unless you are blindsided by the content of the judge’s instructions, you generally can’t nullify without first perjuring yourself. (And it’s rare that jurors will be blindsided, because in any case where nullification is a possibility, there will be extensive and detailed questioning in jury selection about jurors’ disagreements with, and ability to apply, the applicable law.)

Some bloggers and commenters came up with various ways to rationalize lying to (or misleading) the court — under oath — about whether you’d apply the law.

This question is directed at those of you who supported perjury to undermine the rule of law by nullifying in a court case:

What was your position on the Clinton impeachment, and why?

Just curious.

Most Republicans supported impeachment under the theory that, under the rule of law, nobody is allowed to lie under oath — even if they feel (as Clinton and his supporters did) that the questions are inappropriate, or stem from an improper political motivation.

Does opposition to perjury and support for the rule of law depend upon whether the guy on the hotseat is a libertarian martyr, as opposed to a hated President?

P.S. My guess is that there are not a lot of people who supported both the Clinton impeachment and jury nullification. But there are probably a few of you. That’s who I want to hear from. If you are consistent on this issue — and I’m guessing plenty of you are — I can’t stop you from boasting about it at length in the comments. But you’re not really the people I want to hear from.

P.P.S. A lot of people are trying to leap ahead to see where I’m going with this. Humor me and don’t pretend you already know my point. Just answer the questions: if you would lie to get onto a jury to nullify, where did you stand on the impeachment — and why?

P.P.P.S. Nobody is stepping up to the plate. You people are pathetic. I mean that in the nicest possible way.

There are few absolutes in this world. That doesn’t invalidate general principles.

For example, I believe soldiers should follow orders.

But if a superior orders the soldier to murder a young child out of revenge for another soldier’s death, the soldier should disregard the order.

Am I a liar for having claimed that I believe soldiers should follow orders?

No. The fact that you can posit a very rare scenario to the contrary does not invalidate my basic principle: soldiers should follow orders. It simply means that there are few absolutes in this world.

Similarly, let’s assume you are against torturing people by poking out their eyes. If I could paint you a scenario where you could save millions only by torturing an evil man by poking out his eyes, you’d do it.

That doesn’t mean you’re for it. And it doesn’t render your statement of opposition meaningless.

I am against jury nullification. Some have advanced extreme examples that either would never occur in the real world, or where the moral choice is so clear that it would be obvious, except to those blinding themselves to their own humanity for the sake of consistency.

I would vote to acquit someone charged with the “crimes” of being Jewish, or saving slaves.

That doesn’t mean I support jury nullification.

The jury is an important bulwark against the state.

But if a drug dealer is the scourge of a Compton neighborhood, creating a heightened risk of drive-by shootings from rival drug dealers, as well as a generally lower quality of life, the people of that neighborhood should not be subjected to that drug dealer because some wine-sipping libertarian from the Westside decides that, in his opinion, drug dealing is a victimless crime and he won’t convict even if the evidence is overwhelming.

Let the wine-sipper lobby his Assemblyman, or start an initiative. The jury room is not the place to change the law. Juries are not freestanding Legislatures of 12, and to allow them to act as such is to undermine the Rule of Law.

This is my point.

I think we all agree that police should not lie under oath, even as to matters of probable cause, even when the defendant is clearly guilty. Their oath is more important than any private desire to see what they believe is “justice” served in any one particular case — if “justice” means twisting the law and violating their oath. Any officer who decides for himself what the law ought to be, in violation of his oath to tell the truth on the stand, is a “rogue cop” and a criminal.

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

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?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

To supporters of jury nullification: would you violate your oath to follow the law, given under penalty of perjury, in order to bend the law to your own personal conception of “justice” in a particular case?

If so, what makes you different from a rogue cop who lies about probable cause in order to convict a guilty criminal?

P.S. It’s a dodge to say that the Constitution provides for (or the Founding Fathers believed in) jury nullification. The oath is a promise to follow the court’s instructions, not some abstract view of “the law” as you believe the Founding Fathers intended you to apply it.

Would you take the oath, or not? Would you faithfully apply it, or not?

Let the rationalizing begin!

(Remember to mention Nazis!)

Radley Balko says of jury nullification: “Not only is this your right as a juror, some would say it’s your obligation.”

And some would say it’s jury misconduct.

In a competent judge’s courtroom, all jurors are asked if they are willing to follow the law, regardless of whether they agree with it. They must answer this question in the affirmative or they cannot sit as jurors. And they must answer this question under oath.

How would you answer that question, Radley Balko? Would you lie under oath to protect what you believe to be your “right” and “obligation” to disregard the law?

UPDATE: I’ll have much more on this in coming days. I see a parallel between nullification and judicial activism. Both are “doing what’s right” at the expense of the law — and as such, both pose a similar peril to the rule of law.

UPDATE x2: In my promised post I will address, among other things, Balko’s statement:

In fact, the Supreme Court has since repeatedly upheld the doctrine of nullification. In 1952, for example, the Court found that “juries are not bound by what seems inescapable logic to judges.” And in 1972, that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”

“In fact,” that latter quote is not from a Supreme Court case, but from a case decided by the District of Columbia Circuit Court of Appeals. (U.S. v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).) That case contained plenty of warnings concerning the dangers of nullification, and held that juries need not be instructed that they have a power to nullify. The other case, Morissette v. United States, 342 U.S. 246 (1952), does not read to me as an affirmation of juries’ authority to nullify, just a recognition that they have the power to do so (which I don’t dispute). More in my upcoming post, perhaps over the weekend.

UPDATE x3: For those who still don’t get it, let me quote some 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.

Got it?

UPDATE x4: I’ve written Radley to tell him that the 1972 quote is not from a Supreme Court case. Hopefully he will do the right thing and get a correction appended.

[Guest post by DRJ]

Following up on Patterico’s nullification posts, I read this non-precedential Fifth Circuit opinion and wondered: Do judges nullify?

“At defendant Jason Dejuan Leatch’s post-Booker resentencing, Leatch sought a downward sentencing departure based on the purported unfairness of the Sentencing Guidelines (“Guidelines”) because 100 times more powder cocaine than crack cocaine was required to trigger inclusion in a given sentencing range. See United States v. Leatch, 482 F.3d 790, 790 (5th Cir. 2007), abrogated by Kimbrough v. United States, 128 S.Ct. 558. After a lengthy discussion with defense counsel how the United States Sentencing Commission’s proposed 20:1 ratio would affect Leatch’s sentence, the district court elected to make a downward departure and impose a below-Guidelines sentence based on its disagreement with the Guidelines’ disparity between crack cocaine and powder cocaine offenses. The court stated:

I’m varying in this case because I think the 100-to-1 disparity between powder cocaine and crack cocaine is inappropriate. I’ve followed with great interest the thoughtful district court decisions that address that. I am not going to attempt to restate on my own the various reasons for that. But for the reasons reflected in those decisions and also reflected in the Sentencing Commission’s determination that the 100-to-1 ratio was inappropriate. . . . [a]ccordingly, I’m going to follow what I understand to be the Sentencing Commission’s recommendation and use a 20-to-1 ratio.”

By using the 20-to-1 ratio, the district court imposed a sentence of 62 months less than the 100-to-1 ratio would yield. In the sentencing appeal, the Fifth Circuit vacated the sentence on the ground that “a sentencing court may not deviate from the 100:1 crack-powder ratio based solely upon its belief that the policies underpinning that sentencing regime are misguided or unfair.”

On appeal from the Fifth Circuit, the Supreme Court remanded in light of Kimbrough and Gall that held sentencing guidelines are not mandatory. In this opinion, the Fifth Circuit remanded the case for resentencing and cautioned the district court judge:

“On resentencing, the district court must take care — especially if it decides to deviate from the Guidelines — to articulate how its sentence satisfies the statutory criteria.”

There was also a slice of humor in this case. Note the defendant’s name from the caption:

“UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JASON DEJUAN LEATCH,
ALSO KNOWN AS CRIPTONITE
Defendant-Appellee.”

Defendant Leatch and his attorney convinced a federal district judge to sentence him to substantially less time than the sentencing guidelines required.

Maybe he does have super powers.

— DRJ

Jack Dunphy in Pajamas Media, writing about The Wire, jury nullification, and the drug war:

Some addicts can and do clean up, but will legalization make honest citizens out of drug dealers willing to kill over control of a street corner?

The argument for drug legalization is a rational one, but it is not one that I, after more than twenty years as a cop in Los Angeles, can endorse. Watching Bubbles [an addict on the series The Wire] struggle with his demons over these last five years, I was often reminded of a heroin addict I arrested years ago. As I was about to close the cell door on him, I asked him if he thought heroin should be legalized.

“No way,” he said.

I asked him why not.

“If you legalize it,” he said, “pretty soon everybody will be like me.”

The piece gives away the ending of The Wire, a show I haven’t seen, so I admit I let my eyes run over the piece, trying to overlook any passage that looked like it might give anything away. Be warned.

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.

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.

Radley Balko answers my question from the other day and says he would lie, under oath, to get in a position to be on a jury and nullify:

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

I’ve said before that I most certainly would. Moreover, I think we need a test case to invalidate the perjury trap judges and prosecutors in some jurisdictions set when they ask potential jurors if they’ll judge only the facts and not the law. It creates a situation where potential nullifiers are either dismissed or must put themselves in legal jeopardy to get selected for the jury. Given nullification’s rich history in American criminal jurisprudence, and the fact that the founders intended it to be an extra layer of protection from unjust laws and laws applied unjustly, these attempts by courts and prosecutors to take nullification off the table need to be challenged.

. . . .

I’ll happily preach the gospel of nullification — even to the point of advocating misleading the court to get into a position to nullify –as one small way to stem the tide.

I have said I would support jury nullification in extremely rare and desperate situations, where the fabric of our society was falling apart and our laws were inconsistent with basic humanity. For example, I would not convict someone of helping a slave escape his master. If we somehow passed a law making it illegal to be Arab, or Jewish, or black, or Mexican, I would not convict someone for that “crime.”

But Balko says he would lie under oath, not just in a desperate humanitarian situation, but also to advance a host of items on his libertarian agenda:

I’d have nullified in the Richard Paey case. I’d also have nullified in the Dane Yirkovsky case. I’d nullify in any medical marijuana case where the feds are prosecuting drug crimes that the state where the crime took place has explic[i]tly made legal. I’d nullify in any case where mandatory minimums would mean a conviction would result in a punishment wholly disproportionate to the crime (see Weldon Angelos). I’d nullify anyone in Washington, D.C. charged with defending his home with a firearm (yes, it’s illegal — not just to own a gun, but to actually defend your home with one). I’d nullify in any case where it was clear to me that the prosecutor was motivated more by pol[i]tics than by justice. Which means I’d nullify in cases where it was clear the prosecutor was “making an example” of someone. I’d nullify in white collar crimes where heavy-handed regulation has made it impossible for business owners and business executives to follow one law without breaking another (see Jim DeLong’s book for a lit[]any of examples). I’d nullify in cases where regulatory laws now, absurdly, bring criminal sanctions for honest mistakes, misreadings of the massive regulatory code, or unforeseeable mistakes by subordinates. I’d have null[i]fied in the ridiculous lobster tail case.

Balko takes care to point out: “That’s not a comprehensive list, of course.”

That’s fine. He’s entitled to his disagreement. And guess what? Many, including me and many of my readers, agree with some or all of Balko’s libertarian principles.

But there’s a way to go about seeing that your principles are enacted into law. There’s political activism. You can write or call your Congresscritter. You can write a letter to the editor or start a blog. In California, the people can make law themselves through initiatives. There are any number of other perfectly honest and perfectly legal ways to work to change laws with which you disagree. That’s how we do things in a representative democracy.

Lying your way onto a jury isn’t the right way to fight these battles.

This is especially true when people of conscience might disagree with you about some of your principles. To take just one example, one of Balko’s links has to do with the Sarbanes-Oxley Act. If you’re unfamiliar with it, it’s a law passed in the wake of the Enron and WorldCom scandals that changes rules about how companies handle accounting, and it carries criminal penalties. Now, reasonable people can disagree about the need for this law, and about the details of how such changes should be implemented, if at all. The CEO of the New York Stock Exchange has said the law is necessary. Radley Balko thinks it’s not. Congress balanced the competing interests and passed a law that it believed was the right law at the time. Maybe it is, maybe it isn’t, but it’s the result of a process that takes into account the interests and views of a broad range of interests — not just those of radical libertarians like Balko.

No matter. If you’re charged under this law, Balko will acquit, even if you’re guilty. The balance of interests and the congressional process I have described simply don’t count when Radley Balko decides to lie his way on to a jury to upset a prosecution brought under that statute. Balko, as an individual, has made up his mind, and that ends the matter. And so the legislative process that created the law, and the judicial process designed to enforce it — they can all go to hell.

I assume that Balko would not consider it right to vote multiple times for the libertarian candidate of his choice. I also assume that he would never lie on his blog to advance a libertarian agenda.

But why? If he proudly proclaims that he’ll lie under oath to a judge to advance the libertarian cause, what principle is it that restrains him from engaging in other acts of dishonesty to advance the principles to which he has devoted his life? Again, I take it for granted that Balko does not engage in such acts. But one could easily rationalize such dishonest acts with reasoning similar to that which Balko uses to justify lying to the court. After all, one could argue that the principles of libertarianism and federalism that Balko embraces are the only principles consistent with the views of the Founding Fathers. Isn’t it critical for us to get candidates into office who will carry out this uniquely American vision? And if we have to vote a few extra times to make it happen — or if we have to tell a few white lies in our public arguments in support of such candidates — well, you can’t make an omelette without breaking a few eggs. As long as the libertarian agenda is carried out, isn’t that the highest principle?

Again, I assume Balko would never make such an argument, and I take it for granted that he does not and would not engage in those other acts of dishonesty. But the reasoning he uses to justify lying to the court, it seems to me, could be used to justify these other dishonest acts as well. I don’t see what separates those acts of dishonesty, which he would not engage in, from the dishonest act of lying to the court under oath, which he has explicitly advocated.

The problem with all of these arguments is that they are patent rationalizations of rank dishonesty. Sure, Balko might consider libertarian principles to be essential to our society. But guess what? a police officer might see punishment of criminals as essential to an orderly society, too. And if he has arrested a truly bad man who is definitely guilty of a crime, he might well rationalize lying about probable cause to make sure that criminal is held accountable.

We can’t tolerate such lies, even if they are told in furtherance of a laudable goal, such as convicting the guilty, or advancing the libertarian cause. We just can’t tolerate lies that interfere with the working of the judicial system, because they undermine the integrity of the system — and the integrity of the system is very, very important. It is not something to be thrown overboard lightly, simply because someone has a political disagreement with the way society has chosen to balance competing societal interests.

P.S. Do me a favor, please, and do not misread this post as accusing Balko of lying on his blog. Not only I am not making that accusation, I say at least three times in this post that I take it for granted that Balko does not do that. I say this in advance because I have noticed that some commenters tend to distort and/or exaggerate my statements regarding his posts and columns. This is a post about Balko’s ideas and the effect they would have on the legal system. I may delete any comment that tries to foment a blog war where none exists.

UPDATE: Balko has responded, and has backed off his claim — but not much. I have the details here.