Patterico's Pontifications


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

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

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

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

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

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

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

I’ve said before that I most certainly would.

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

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

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

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

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

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

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

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

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

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

That is the law.

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

There is a difference.

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

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

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

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

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

Gore-Obama ’08 — the GOP Nightmare Scenario

Filed under: 2008 Election,Politics — WLS @ 8:11 pm

[Posted by WLS]

This is the nightmare scenario that wakes me up at night. And its so easy to see it develop.

Hillary wins big in Penn and PR, while Obama continues to sweep up some smaller states. Neither is close to the majority number, but Hillary refuses to give in.

More and more polling begins to suggest — as Pew does today — that Obama will lose a significant number of blue collar “Archie Bunker” democrats that are currently supporting Hillary, but will vote for McCain before Obama. This will give McCain states like Ohio, Michigan, and Penn.

Superdelegate/party leaders will know that they cannot alienate African-American voters by stealing the nomination away from Obama that he seems to have won, so voting for Hillary when she is behind in vote total and elected delegates is not an option.

Above and beyond that, they really just don’t want a rerun of the Billary Show in the WH.

Obama cannot put together an electoral map in November that produces a winning number.

Solution — go to Obama and ask him to take the No. 2 slot with Al Gore as the nominee. Obama then releases his delegates to vote for Gore after the Superdelegates place his name in nomination.

Gore then wins the nomination on the first ballot, and the Billary vampire is slain.

The African-American voter is satisfied because Obama is satisfied to be No. 2 behind Gore while he waits his turn.

Gore holds on to the “Archie Bunker” democrats that are backing Hillary right now.

Gore rolls to a 52-48 win over McCain with 350 electoral votes, winning states like Virginia, Ohio, Missouri, NewHampshire, and maybe even Florida, while holding on to everything he and Kerry won before.

— Posted by WLS

Intermission at Obama vs Clinton

Filed under: 2008 Election — DRJ @ 8:05 pm

[Guest post by DRJ]

Jonathan Chait at The National Review The New Republic thinks Hillary Clinton’s “path to the nomination is pretty repulsive” and that she won’t be “in a position to defeat Hitler’s dog in November, let alone a popular war hero.” Then it gets ugly.

Eleanor Clift writing at Newsweek focuses on the Democratic superdelegates who, in a “dastardly deed behind closed doors,” may boost Hillary Clinton to the nomination “even if she lags behind Barack Obama in the pledged delegate count.” Clift posits Al Gore as a compromise candidate who is the “only contender who could head off a complete meltdown in the party.”

Both Chait and Clift worry that Hillary will so bloody Obama that he will be unelectable in November.

Meanwhile, the debate over the Democratic delegations from Michigan and Florida continues. Hillary Clinton and her representatives prefer a winner-take-all scenario, probably because she was the only contestant and thus the undisputed winner, but they seem open to a do-over. State officials in Florida and Michigan aren’t receptive to new elections at state expense but don’t mind if the DNC or others pay. The DNC’s Howard Dean is not pleased.

Obama’s campaign manager “floated the idea of allocating the delegates from the two states 50-50, which would erase Mrs. Clinton’s hypothetical advantage and essentially make the two states meaningless in the competitive delegate count.” He’s had no takers so far.’s John Dickerson suggests that the campaigns are struggling to find the “right level of nasty” and compares the Democratic candidates’ campaign tactics to his children’s sibling rivalry:

“The Clinton team is setting the same trap for Obama my 4-year-old sets for her older brother. She hits him, knowing that he’ll get in trouble for hitting back. Right on cue, Clinton’s senior aide Ann Lewis set it up. “I didn’t realize their version of new politics was to recycle old Republican tactics,” she said. If voters put both campaigns in the corner for a timeout, it may hurt Obama more, because his claim to be a new kind of above-the-fray candidate means he’s held to a higher standard. If Obama pays no penalty for the fracas, the Clinton folks still take him for a roll in the dirt where he can’t offer his appealing message of hope, change, inspiration, and hope. Clinton, by contrast, reinforces her fighter image.

This is not a new dilemma for Obama. We’ve been talking about it for a year. What’s new is that he is under more pressure than ever to punch back. It’s not just that he can’t let Clinton’s attacks hang in the air. He has to show Democrats that he’s a fighter, too.”

Portraying Democrats as 4-year-olds who need a time-out should not be a formula for success for the next President, but who knows what resonates with Democratic voters?

At this point, Patterico is right. Pop some popcorn, sit back, and enjoy the show.


Supporting the Troops in LA (Updated)

Filed under: Law — DRJ @ 3:31 pm

[Guest post by DRJ]

The Los Angeles Daily News reports that an LA Children’s Court Commissioner has been criticized for denying a foster teen the opportunity to enlist in the Marines under a Delayed Entry Program:

“Shawn Sage long dreamed of joining the military, and watching “Full Metal Jacket” last year really sold him on becoming a Marine.

But last fall, a Los Angeles Superior Court commissioner dashed the foster teen’s hopes of early enlistment for Marine sniper duty, plus a potential $10,000 signing bonus.

In denying the Royal High School student delayed entry into the Marine Corps, Children’s Court Commissioner Marilyn Mackel reportedly told Sage and a recruiter that she didn’t approve of the Iraq war, didn’t trust recruiters and didn’t support the military.”

The judge reportedly told Shawn that she didn’t want him to fight in the war and that military recruiters “all tap dance and tell me what I want to hear.” Her court bailiff agreed, noting that his son had been a DEP enlistee in the Army and stated that “They don’t care about you. They’re just there for the numbers.”

It might surprise some but I don’t have a problem with a judge who is unwilling to let a 17-year-old make a lifetime decision like this. It’s difficult to deny Shawn’s request since he’s a foster child and (I assume) he will be aged out of the system when he’s 18. If so, he needs to plan for his future because he will be responsible for himself soon and that’s hard to do. Nevertheless, although he may not receive as generous terms or benefits, Shawn can enlist when he’s 18 and it’s fair to make him wait a year. He can still enlist at 18 but kids change quickly at that age, so he may not.

However, I think it’s wrong if the judge let her personal bias against the war influence her decision. Based on what the judge reportedly said in her ruling (and no transcript has been released, so this version is one-sided), it seems bias was the basis for her decision. If so, that seriously undermines the validity of her decision.

One side effect of this case is that a local congressman plans legislation to allow foster teens to enlist a year early with approval from their foster parents or social worker, eliminating the need for judicial approval. I hate to see decisions like this eliminate oversight from a neutral source. The problem seems to be that the judge isn’t neutral, not that the system needs changing, so this may be a case of bad facts making bad law.

In any event, there’s more to this story at the link. Let me know what you think.

UPDATE: Based on Daleyrock’s comment about the Delayed Entry Program (DEP) requirements, Stashiu3 located links that indicate 17-year-olds are not bound by a DEP enlistment. That changes things for me. If DEP is not binding, this judge’s decision seems unjust. She caused Shawn to lose valuable financial and career incentives for no apparent reason other than bias.


McCain: “Everybody Knows it in America”

Filed under: 2008 Election — DRJ @ 1:09 pm

[Guest post by DRJ]

“Everybody knows” John Kerry and John McCain had a conversation about running together in 2004:

“Republican Sen. John McCain, showing a flash of the temper he is known for, repeatedly cut off a reporter Friday when asked whether he had spoken to Democratic Sen. John Kerry about being his vice president in 2004.

“Everybody knows that I had a private conversation. Everybody knows that, that I had a conversation,” McCain told the reporter. “And you know it, too. No. You know it, too. No. You do know. You do know.”

The reporter, Elisabeth Bumiller of The New York Times, was following up on a question McCain had answered at a campaign event Friday morning in Atlanta. Asked if he might consider Kerry as a running mate, since Kerry asked him in 2004, McCain said no.

Afterward, on a campaign flight, Bumiller said she looked in the Times’ archives and that McCain had denied talking with Kerry in a May 2004 story.

McCain interrupted, saying that everyone knew he had a private conversation, and he kept interrupting as she tried to follow up. McCain clearly was irate.

“I don’t know what you read or heard of, and I don’t know the circumstances,” McCain said. “Maybe in May of ’04 I hadn’t had a conversation.”

Did he recall the conversation? “I don’t know, but it’s well-known that I had the conversation. It’s absolutely well-known by everyone. So do you have a question on another issue?”

Asked again about the conversation, McCain said, “No. No. Because the issue is closed, as far as I’m concerned. Everybody knows it. Everybody knows it in America”

McCain’s handling of these questions means he will undoubtedly hear them many times in the future. I hope he comes up with some better answers – not to mention a calmer demeanor – before the next time.

In the meantime, Senator Hothead strikes again.

UPDATE: See the comments for a video link of McCain’s remarks with the reporter and a different opinion regarding McCain’s demeanor. It seems the New York Times may not be as objective as I assumed … and you know what they say about people who assume things.


Hitler Was Evil, or, Man Threatened with Discipline by University for Reading Historical Book About KKK

Filed under: Civil Liberties,General,Morons,Race — Patterico @ 12:48 am

Did the title of this post offend you? I did say “Hitler” . . .

If you answered “yes,” you would make a fine Affirmative Action Officer at Indiana University-Purdue University Indianapolis. That’s the university where a janitor pursuing a communications degree received a threatening letter from the Affirmative Action office for the thoughtcrime of reading a historical book about the KKK during his breaks from work:

The book is about how for two days in May 1924, a group of Notre Dame students got into a street fight with members of the Ku Klux Klan. The Klan was meeting in South Bend for the express purpose of sticking a collective thumb in the eye of the country’s most famous Catholic university. Notre Dame vs. the Klan was a Notre Dame Magazine “Pick of the Week” and garnered an average customer review of 4.5 stars on In its review, The Indiana Magazine of History noted that Tucker “succeeds in placing the event in a broad framework that includes the origins and development of both the Klan and Notre Dame.”

[Janitor and Thought Criminal Keith John] Sampson recalls that his AFSCME shop steward told him that reading a book about the Klan was like bringing pornography to work. The shop steward wasn’t interested in hearing what the book was actually about. Another time, a coworker who was sitting across the table from Sampson in the break room commented that she found the Klan offensive. Sampson says he tried to tell her about the book, but she wasn’t interested in talking about it.

A few weeks passed. Then Sampson got a message ordering him to report to Marguerite Watkins at the IUPUI Affirmative Action Office. He was told a coworker had filed a racial harassment complaint against him for reading Notre Dame vs. the Klan in the break room. Sampson says he tried to explain to Watkins what the book was about. He says he tried to show her the book, but that Watkins showed no interest in seeing it.

This is, keep in mind, an alleged university, where books are supposedly held in high regard. Keep that in mind as you keep reading, and your jaw falls further and further open in amazement:

Then Sampson received a letter, dated Nov. 25, 2007, from Lillian Charleston, also of IUPUI’s Affirmative Action Office. The letter begins by saying that the AAO has completed its investigation of a coworker’s allegation that Sampson “racially harassed her by repeatedly reading the book Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan by Todd Tucker in the presence of Black employees.” It goes on to say, “You demonstrated disdain and insensitivity to your coworkers who repeatedly requested that you refrain from reading the book which has such an inflammatory and offensive topic in their presence … you used extremely poor judgment by insisting on openly reading the book related to a historically and racially abhorrent subject in the presence of your Black coworkers.” Charleston went on to say that according to “the legal ‘reasonable person standard,’ a majority of adults are aware of and understand how repugnant the KKK is to African-Americans …”

Next thing you know, some professor will be trying to teach students about slavery, right there in a room with black people.

Must be something in the water in Indianapolis. I seem to recall writing a post in 2003 about a local high school banning To Kill a Mockingbird from the school stage. Because that’s a famously racist book, you know. Uses the “N” word and everything. It’s right up there with Huckleberry Finn!

Thanks to Simon.

UPDATE: Weaselly non-retraction letter here.

Sweet, Sweet Turmoil: It’s Just Over the Next Hill

Filed under: 2008 Election,General — Patterico @ 12:08 am


I would not accept a caucus. I think that would be a great disservice to the 2 million people who turned out and voted. I think that they want their votes counted. And you know a lot of people would be disenfranchised because of the timing and whatever the particular rules were. This is really going to be a serious challenge for the Democratic Party because the voters in Michigan and Florida are the ones being hurt, and certainly with respect to Florida the Democrats were dragged into doing what they did by a Republican governor and a Republican Legislature. They didn’t have any choice whatsoever. And I don’t think that there should be any do-over or any kind of a second run in Florida. I think Florida should be seated.

Awesome. She totally agreed to the opposite in writing before the vote, but now she won. So to hell with the agreement.

I love it. Love. It.

Pop some popcorn, sit back, and enjoy the show.

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