No, Jazz Shaw, the Holdout Juror in the Slager Trial Should *Not* Consider the Consequences of Hanging the Jury
Michael Slager has been convicted by the media, but not yet by the jury
Jazz Shaw at Hot Air, on the possibility that the jury in the Michael Slager trial will declare itself deadlocked:
That’s why there’s a bigger risk in having this trial fail than the basic question of justice and seeing the guilty convicted. We’re talking about the trial of a cop who killed a suspect and almost every one of these instances winds up causing major public controversy.
. . . .
I don’t know what’s going through the mind of that one juror who, “cannot with good conscience consider a guilty verdict.” But they should be aware that they’re endangering a lot more than one murder case.
With all due respect to Jazz Shaw, this is dead wrong. Dangerously, appallingly wrong.
A juror in a criminal case should look at the evidence presented in the case, and the law given them by the judge . . . period. End of story. They are to find the facts, apply the law to those facts, and completely ignore public sentiment or the possible societal reaction to their verdict.
For Jazz Shaw to encourage jurors to consider the possibility of civil unrest in the wake of their verdict misunderstands the nature of our jury system. It is wrong and fundamentally contrary to the values of our country.
Ding.
Patterico (115b1f) — 12/3/2016 @ 1:30 pmDear Jazz Shaw:
Suppose it was your head the mob wanted. Would you think that fear of the mob should guide the jury if the facts and the law were on your side?
Kevin M (25bbee) — 12/3/2016 @ 1:33 pmall these ones where the cop kills the black kid have gotten so blurry to where i can’t tell one from the other anymore
happyfeet (28a91b) — 12/3/2016 @ 1:34 pmOn this we agree 100%.
shipwreckedcrew (56b591) — 12/3/2016 @ 1:50 pmIt is possible that one of the jurors lied about an existing bias during the pretrial screening. I served on a jury in which a GS13 employee of the Dept. of Labor became our foreman. In our discussions he refused to convict because he believed that every cop and every manager was a liar. He considered himself an expert on the subject. He made no reference to the evidence other than to dismiss the eye witness accounts of the cops out of hand. The eye witness evidence linked the suspect to drug paraphernalia and I suppose he might have changed his mind if there had been a video of the event. Looking back on this, perhaps I should have sent a note to the judge?
I believe this fellow acted as an arbitrator in labor management disputes.
BobStewartatHome (c24491) — 12/3/2016 @ 1:59 pmBobStewartatHome,
That sort of thing happens all the time, unfortunately. We do our best to screen out such people, and are usually successful — but not always.
Patterico (115b1f) — 12/3/2016 @ 2:03 pmi’ll screen my own damn self thank you very much
happyfeet (28a91b) — 12/3/2016 @ 2:05 pmSpeaking on behalf of lawyers everywhere, thank you
Patterico (115b1f) — 12/3/2016 @ 2:11 pmI saw you post over there.
How do you not have anot issue with Facebook over using a pseudonym?
NJRob (b14ffd) — 12/3/2016 @ 2:15 pmAn issue*
NJRob (b14ffd) — 12/3/2016 @ 2:15 pmI reserve my right to nullify. If the law itself is unjust, I will not convict.
Societal impact? Invalid reason to nullify.
Ed from SFV (3400a5) — 12/3/2016 @ 2:15 pmyes yes you’re welcome
i’d be a terrible juror i really would
happyfeet (28a91b) — 12/3/2016 @ 2:20 pmthe only time i was every called i poisoned the whole entire jury pool cause of a newbie was vetting us and she asked me an open-ended question in front of the whole room of prospective jurors about the case in question and i was all like
no i wouldn’t convict him all he did was get busted with some weed you haven’t said where he hurt anybody
i kinda think she learned a valuable lesson that day
the guy ended up getting off i know for sure cause it’s a small town and one of the people who got picked ran into me and gave me a high-five for what i said that day
happyfeet (28a91b) — 12/3/2016 @ 2:25 pmWhat Shaw fears is a version of a Heckler’s Veto. If there is a lone hold out, so be it.Try him again.
Ipso Fatso (bfe82c) — 12/3/2016 @ 3:02 pmShaw is essentially asking jurors to cower and compromise before any threat of protest, or worse, allow themselves to be influenced by intimidating forces or popular opinion. How is this an honest reflection of basing a decision on the facts as presented? And if this is the course of action he suggests, why one earth waste time even presenting the facts of the case? Save everyone time, and cut to the chase and just knuckle under to the prevailing winds.
Dana (d17a61) — 12/3/2016 @ 3:17 pmIt’s my business page.
Patterico (115b1f) — 12/3/2016 @ 3:18 pmA juror should only consider the case at hand. I’m with Patterico on this, save for the bit about getting the law only from the judge. I don’t go along with that. For example, what if the judge doesn’t wish to tell the jury the penalty range faced if convicted (a rather common occurrence)? To use an exaggerated hypothetical, I’m not going to vote guilty in, say, a simple jaywalking case if the penalty is life in prison, even if I’m certain the accused is guilty of breaking that law – because in such a case, the law itself is unjust – and thus a juror should be able to see the actual law in question, all of it, whether the judge thinks so or not. A juror’s highest duty is to justice – and sometimes, though rarely, that means jury nullification.
Arizona CJ (191c8a) — 12/3/2016 @ 3:20 pmJuror X may be the only one who remembers “12 Angry Men” and “To Kill a Mockingbird.”
crazy (d3b449) — 12/3/2016 @ 3:30 pmAs far as I’m concerned jury members have every right to vote in any way they wish for any reason.
If they think it’s a bad law and they wish to nullify, they may be right or wrong about that, and that may work for good or for evil, but it is their call.
If they think a head needs to be thrown to the mob, they may be right or wrong about that, and that may work for good or for evil, but it is their call.
I think, but among so many attorneys I hope to be informed, that defendants generally have the right to a jury trial at their option, at least for felonies. If you don’t trust the people, don’t appeal to them. Try your luck with the judge then.
This used to happen in Roman times, when one convicted in the Senate would appeal to the people (in the form of an angry mob). Sometimes they attacked the Senate to vindicate his rights, but sometimes they were so outraged at his obvious wrongdoing that they murdered the Senator on the spot.
Gabriel Hanna (9b1f4a) — 12/3/2016 @ 3:31 pm#19 Gabriel Hanna,
The jurors are supposed to consider only the evidence provided in court.
Cruz Supporter (102c9a) — 12/3/2016 @ 3:34 pm@Cruz Supporter:The jurors are supposed to consider only the evidence provided in court.
Right, but there is no way to make them do this. They are also expected to represent their community, and apply their morals and consciences. Jury nullification, like rebellion, is a remedy for tyranny which cannot, by its nature, be endorsed in the laws, but a wisely constructed government provides for their potential exercise in indirect ways (like the Second Amendment).
Gabriel Hanna (9b1f4a) — 12/3/2016 @ 3:39 pm@Cruz Supporter:The jurors are supposed to consider only the evidence provided in court.
I’m not a lawyer, but I am certain this means that they are not to consider evidence obtained outside of the trial. But they are most certainly empowered to use their life experiences, their morals, and their consciences to bear on the evidence presented to them.
Gabriel Hanna (9b1f4a) — 12/3/2016 @ 3:47 pmGabriel Hanna,
Considering what the Los Angeles Times would think or what Jesse Jackson would think or what Black Lives Matter would think about a verdict is not the same as considering the evidence in court.
Cruz Supporter (102c9a) — 12/3/2016 @ 3:58 pmIn other words, considering how people will react to a particular verdict is essentially an acquiescence to mob rule.
Gotcha. Thanks for the response. I avoid posting there because I don’t want the provocateurs to have access to my real name.
NJRob (b14ffd) — 12/3/2016 @ 4:22 pm@Cruz Supporter:In other words, considering how people will react to a particular verdict is essentially an acquiescence to mob rule.
I don’t see how that objection does not also apply to jury nullification. For me, jury nullification is a moral issue; if juries occasionally abuse this power to throw heads to the mob then that’s the price of freedom.
Gabriel Hanna (9b1f4a) — 12/3/2016 @ 4:36 pmThe real problem with jury nullification is not the possibility of the act itself, but that it is too frequently used, for anti-democratic effect and/or for too little purpose.
Properly viewed, it’s a nuclear weapon used to overthrow a locally hated and immoral law imposed from outside. Such as the Fugitive Slave Act.
But what it is mostly used for is rebelling against laws that have been democratically enacted by the locals themselves, such as the death penalty for murder, or to let a heroin dealer get off because a juror thinks marijuana should be legal.
Kevin M (25bbee) — 12/3/2016 @ 5:27 pmKevin –
But who exactly do you mean when you say “the locals”?
The laws of which you speak are generally enacted by state legislatures, but the trials for their alleged violation are held at the local level. Why (on your view) can’t a jury in a given county or district decide that a particular locally hated law is being imposed on them by those “outsiders” in the legislature?
gwjd (032bef) — 12/3/2016 @ 5:44 pmThe “locally hated law being imposed by outsiders” in this case seems to be the one against “shooting n***ers” for this particular juror. North Carolina — it was to be expected.
Not that Jazz Shaw is not full of it, but what else is new in that instance too?
nk (dbc370) — 12/3/2016 @ 5:52 pmNullification can be used for bad reasons as well as good. Abusus non tollit usum.
Gabriel Hanna (9b1f4a) — 12/3/2016 @ 5:56 pmOf course the facts have to insinuate themselves, how the victim want an innocent bystander.
narciso (d1f714) — 12/3/2016 @ 5:57 pmSays the man who couldn’t vote for his favorite demagogue for President simply because he’s afraid he MIGHT be asked to do a civic duty and serve on a jury.
Bill H (971e5f) — 12/3/2016 @ 6:06 pmWord. “12 Angry Men” was my first thought when I saw the headline for this post.
Bill H (971e5f) — 12/3/2016 @ 6:11 pmBTW, under the Constitution according to SCOTUS, both the government and the defendant have the right to a jury trial but the government can legislate its right away in its code of criminal procedure. In the federal system, the government can get a jury over the defendant’s waiver. In Illinois, the Code of Criminal Procedure grants it only to defendants. I don’t know what the law is in North Carolina.
nk (dbc370) — 12/3/2016 @ 6:15 pmPikachu is like one of the hosts on westworld, perhaps James marsde , he’s not selfaware.
narciso (d1f714) — 12/3/2016 @ 6:19 pmWho does the hiring over at HotAir?
ThOR (c9324e) — 12/3/2016 @ 7:38 pmMr. Hannah, jurors take an oath to do other than as you describe — indeed, an oath to do exactly, and only, as our host recommends.
You’re arguing in favor of oath-breaking. You’re wrong, but if you’re ever on a panel of prospective jurors, I very, very strongly urge you to be truthful about your views, since it will ensure that you don’t make it onto a jury, and indeed you likely won’t have to cost either side a peremptory challenge since you’ll be excused for cause (judges not taking kindly to prospective jurors who won’t commit to obeying their oaths).
Nullification is another issue altogether, and anyone who thinks it’s about generalized lawlessness — jurors operating untethered from the law to promote their own values — is trivializing and badly misunderstanding that topic.
Mr. Shaw is at his very worst more reliably when he writes on legal topics. I wish he wouldn’t.
Beldar (fa637a) — 12/3/2016 @ 9:37 pmSome temp agency?
Bill H (971e5f) — 12/3/2016 @ 9:37 pmMore re #36 above and the oaths taken by jurors: In every jury trial, the law comes to the jury from the judge on the bench, and the evidence comes to the jury from the witness stand, and the jurors are forsworn from considering anything else.
I think that the oath prescribed by Texas Code of Criminal Procedure article 35.32 is pretty typical:
The civil-case counterpart in Texas, with which I more frequently work, is in Rule 236 of the Texas Rule of Civil Procedure, and it’s to the same effect:
Any trial lawyer, civil or criminal, has reminded jurors of this oath in many a closing argument. Indeed, I almost always remind jurors of the terms of their oaths both during jury selection — when I’m asking them, essentially, both “Can and will you keep that oath?” — and then again in closing argument.
Do people break oaths? Sure, they always have and always will, some people, some time. But if there is any place in modern America where oaths are still at least somewhat more likely to be taken seriously by all concerned, it’s in the courtroom.
Beldar (fa637a) — 12/3/2016 @ 10:04 pmNullification is another issue altogether, and anyone who thinks it’s about generalized lawlessness
It would have to be a pretty horrid law, such as the Fugitive Slave Act, before falsely taking an oath might seam justified. On the other hand, it is possible that a juror might, after hearing all the evidence, decide that the charges are so trumped up, or otherwise such a gross miscarriage of justice, that they cannot return a verdict like a robot. The Waco survivors, for example, seemed to benefit from that.
Kevin M (25bbee) — 12/4/2016 @ 12:31 amKevin M. WRT Waco. Not as much as you think. The jurors thought they’d been promised a considerably less severe punishment after conviction and some said they’d have voted otherwise if they’d known the judge and the prosecution were lying.
Richard Aubrey (472a6f) — 12/4/2016 @ 5:00 amAs I’ve said before, that the prosecution is lying is the way to bet, considering the “better one criminal go free than (your choice of number) innocent men be convicted”.
According to the oath referenced above, the jurors must consider the evidence. Is there an implication they have to believe the evidence presented? After all, somebody’s lying.
Beldar,
If a juror honestly believes a law is unconstitutional, would that juror be breaking the oath by ignoring or overturning it with his or her vote?
In my opinion not, but interested in your position.
Dan S (e312ac) — 12/4/2016 @ 6:18 amI agree that the juror is free to vote however he wants. It could be a “12 Angry men” scenario or, as I have seen over the years, very neurotic individuals just needing to be the contrarian, or in the OJ case, racial animus.
I wonder what prosecutors think about the idea of unanimous verdicts. Maybe it should take two votes to upset a verdict rather than one. What do you think?
Patricia (5fc097) — 12/4/2016 @ 9:05 amThis kind of thinking is why the police were indicted in Maryland–a rush to judgment based on what the public wanted, not based on the law. We are a country of laws, not mob rule, and it bothers me that anyone would encourage jurors to consider anything other than the law and evidence before them.
Rochf (877dba) — 12/4/2016 @ 10:06 am@Beldar: If asked about jury nullification I would answer honestly. If not asked, and I made it on to a jury, you better believe I will exercise that if my conscience tells me it is appropriate.
As a lawyer you can’t say other than what you do.
Rebelling against a tyrannical government isn’t legal either, but the Second Amendment exists to protect that possibility. It’s not to be done for trivial reasons or immoral reasons. Same with what you call “oath-breaking” for jurors.
But in reality every element of the judicial system is composed of human actors who are interpreting the laws and evidence in their own way, as best they can, for their own reasons. If this were not the case, judges would never disagree on what the law means or to interpret it, and “unjust law” would be a contradiction in terms. Jurors simply have the same power whether they use it correctly or not.
I’m not saying it is right in every case for a juror to ignore law and evidence. I am saying that they have the POWER to do so, and that any attempt to remove that power is a cure worse than the disease. Just like disarming the population to curb crime and lawlessness would be a cure worse than the disease.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 10:15 amAccording to the oath referenced above, the jurors must consider the evidence. Is there an implication they have to believe the evidence presented?
No, jurors do not have to believe the evidence. They are the final, unquestionable judges of credibility. Moreover, they are the final, unquestionable weighers of the evidence. They do not need to believe that anyone is lying to decide whether the evidence is strong enough or whether the counter-evidence is stronger. But they take an oath to make those judgments in good faith.
nk (dbc370) — 12/4/2016 @ 10:48 am@Patricia:It could be a “12 Angry men” scenario
That’s always an interesting reference. The twelfth juror, in the story, acted illegally by doing his own investigation. Furthermore, he ended up persuading the other 11 to vote his way, not hanging the jury by refusing to vote “guilty”.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 1:39 pmWho the hell is Jazz Shaw?
ocean (38f70a) — 12/4/2016 @ 2:23 pmSo Jazz Shaw feels the juries in the South that refused to convict white men who’s victims were black were in fact correct? Interesting view.
I was called earlier this year, shortly after my heart attack. I argued with the defense attorney that he was advocating vigilantly action. I was not selected.
Machinist (4332ef) — 12/4/2016 @ 3:45 pmBeldar,
I have always been dismissed because I have relatives and friends in law enforcement and others who are convicted criminals so I never faced that oach. This last time I never reached that point. I would not be able to take either of those oaths, criminal or civil. Would I likely face criminal charges for refusing?
I could not swear to convict if I believed a miscarriage of justice or a violation of the Constitution was involved. Would that be considered contempt?
Machinist (4332ef) — 12/4/2016 @ 4:06 pm…never faced that oath.
Machinist (4332ef) — 12/4/2016 @ 4:06 pmMACHINIIST!!!!!
Wonderful to see you commenting!
Patterico (115b1f) — 12/4/2016 @ 4:13 pmThank you, Sir. I still look in.
Had a heart attack and found out I was diabetic on Easter Weekend so I am trying to behave myself a bit, but this was too interesting to resist.
Machinist (4332ef) — 12/4/2016 @ 4:21 pmGabriel Hanna, we’re a nation of laws. We prosecute people based on what the statute is — not based on what our heart tells us the statute should be.
A judge asks jurors to consider the evidence based on the current law — not the way each of them wishes the law were.
If we don’t like a particular law or laws, then we can petition our state legislators to change them.
By the same token, you wouldn’t want law enforcement to conduct their investigations or arrests based on what they personally believe the law should be, right?
Cruz Supporter (102c9a) — 12/4/2016 @ 4:28 pmI know that, Gabriel. Someone else mentioned it in defense of a holdout.
Patricia (5fc097) — 12/4/2016 @ 4:34 pm@Cruz Supporter:Gabriel Hanna, we’re a nation of laws. We prosecute people based on what the statute is — not based on what our heart tells us the statute should be.
Do we? Because a few months ago the Director of the FBI declined to prosecute Hillary CLinton based on… well I never did figure it out, but “what our heart tells us the statute should be” isn’t too far off.
Prosecutors have discretion, they can abuse it or use it properly. Judges have discretion, they can abuse it or use it properly. Don’t see why in a free republic juries don’t have that right. If they ought not to have it, if they ought to rubber-stamp the judge, why even have them?
you wouldn’t want law enforcement to conduct their investigations or arrests based on what they personally believe the law should be, right?
They do this all the time.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 4:48 pmLet’s all strive for the lowest common denominator. People do it all the time.
nk (dbc370) — 12/4/2016 @ 4:54 pmExcept for maximizing profits. Always maximize profits.
nk (dbc370) — 12/4/2016 @ 4:55 pmWould you like to add a dollar to your purchase to help buy Gabriel a clue?
nk (dbc370) — 12/4/2016 @ 4:56 pm@Cruz Supporter: The law is incapable of resolving every situation on its own, it has to be intelligently applied by human agents.
Extra-legal methods like nullification are there for when the law has not been intelligently and correctly applied.
If we don’t like a particular law or laws, then we can petition our state legislators to change them.
What if it’s not statute law? Or even worse, what about when a judge actually throws out a constitutional amendment because it conflicts with the unamended constitution? This actually has happened. What if all the legal measures have been exhausted, or what if the government is behaving systematically unlawfully?
It’s not always enough to trust the system because the system may have been subverted or corrupted.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 4:57 pm@nk:Would you like to add a dollar to your purchase to help buy Gabriel a clue?
It’s unquestioned that jurors have this power. I am only saying that I think trying to deprive of them of this power would be worse than tolerating the occasional abuse of it.
But I would be delighted to hear your reasoned counter-argument.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 4:59 pmGabriel Hanna,
Just because some people fail to properly facilitate their sworn duty to uphold the law doesn’t mean that everyone else should follow suit.
So you’re ‘okay’ with James Comey and Loretta Lynch applying the federal statute to their hearts’ delight, rather than based on what the federal statute actually says?
See, I’m not ‘okay’ with that.
And I’m not okay with cops/investigators who ignore the law, nor am I okay with jurors who make up their own statutes in their heads in the jury room.
Instead of throwing in with the “if it feels good, do it!” crowd, we need to restore civic regard for law and order.
Cruz Supporter (102c9a) — 12/4/2016 @ 5:03 pmI don’t know about “power”. I would say “motive, means and opportunity” like any other criminal, and realize that they would be hard to catch and convict. Don’t give me “it’s moral because I can get away it” — tell it to Harry Reid.
nk (dbc370) — 12/4/2016 @ 5:05 pm@BobStewart:Just because some people fail to properly facilitate their sworn duty to uphold the law doesn’t mean that everyone else should follow suit.
Who are you addressing? I never said anything like “everyone else should follow suit”. In fact I explicitly said the opposite any number of times.
So you’re ‘okay’ with James Comey and Loretta Lynch applying the federal statute to their hearts’ delight
I’m not going to respond to someone who invents statements for me out of whole cloth. Just write your own posts, put my name on them, and triumphantly refute me.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 5:08 pm@nk:Don’t give me “it’s moral because I can get away it”
So how do you feel about the Founding Fathers? They did something completely illegal, did they not, and got away with it. Immoral?
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 5:10 pmNo, they’re probably in Dante’s Ninth Circle of Hell freezing for all eternity alongside Satan and other traitors, for rebelling against their liege lord whom God appointed King over them. Any other stupid questions?
nk (dbc370) — 12/4/2016 @ 5:15 pm@nk:Any other stupid questions?
At least you are consistent.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 5:15 pmGabriel Hanna,
Just because there are rogue cops, rogue prosecutors, and rogue judges, doesn’t mean there should be rogue jurors.
As a juror, you may not like a law, but your job isn’t to deny the law’s constitutionality — that’s the role of the appellate court to determine.
As long as human beings are involved in an institution, it will be inherently flawed. And that’s because human beings are inherently flawed.
But we have to abide by the law in order to see that justice is rendered in as high a percentage of cases as possible. That doesn’t mean there won’t be errors or injustices.
Think of the way that Barack has utilitzed “executive orders” and “executive privileges.” His sycophants are all for that process, but only as long as he’s sitting in the Oval Office. When Trump’s President, those same cheerleaders will be screaming at the top of their lungs that Trump’s judgment vis a vis this or that exectutive order is no good.
Cruz Supporter (102c9a) — 12/4/2016 @ 5:19 pmBy the same token, we don’t want a juror who happens to be a proponent of Black Lives Matter or La Raza using “juror discretion” to subvert a law when they’re a juror, right?
Therefore, we really need to be promoting adherence to the law when it comes to jury duty.
Thomas Jefferson on juries:
“In the form of juries therefore they determine all matters of fact, leaving to the permanent judges to decide the law resulting from those facts. But we all know, that permanent judges acquire an Esprit de corps, that being known they are liable to be tempted by bribery, that they are misled by favor, by relationship, by a spirit of party, by a devotion to the Executive or Legislative; that it is better to leave a cause to the decision of cross & pile, than to that of a judge biased to one side; and that the opinion of 12. honest jurymen gives still a better hope of right, than cross & pile does. It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take on themselves to judge the laws as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty.”
He at least understood juries to have this power, and that this power was an effective of defense of liberties when needed.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 5:21 pmIf you think the Declaration of Independence and the Revolutionary War can in any way be equated with a juror swearing to do one thing and then sneakingly doing another from within the safety of the very laws which are designed to protect jury integrity ….
nk (dbc370) — 12/4/2016 @ 5:22 pm@Cruz Supporter:By the same token, we don’t want a juror who happens to be a proponent of Black Lives Matter or La Raza using “juror discretion” to subvert a law when they’re a juror, right?
You don’t want to killed by a criminal with a gun, do you? So why should anyone but cops have guns?
It’s exactly the same issue.
By allowing juries this power, some will abuse it. That doesn’t mean the power should be taken away.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 5:23 pm@nkIf you think the Declaration of Independence and the Revolutionary War can in any way be equated with a juror swearing to do one thing and then sneakingly doing another from within the safety of the very laws which are designed to protect jury integrity ….
Do complete the thought. Kindly outline the differences.
The Founders refused to follow the laws that existed at the time. So did the juries tasked with enforcing those laws. And the Founders, at least some of them, approved of juries having the power to do it.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 5:24 pmThe issue in the case sees to be how do you distinguish fear for your life from a crime of passion. There will be some new instructions about that.
I don’t think that policeman was afraid of anything except catching up with the man running away from him.
Sammy Finkelman (eb0eea) — 12/4/2016 @ 5:27 pmGabriel Hanna,
Why are there appellate courts?
Cruz Supporter (102c9a) — 12/4/2016 @ 5:30 pmCruz SupporterWhy are there appellate courts?
They are legal method of redress. And sometimes they themselves produce the wrong that needs redressing.
Checks and balances. Lawyers and judges cannot settle everything.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 5:39 pmDo complete the thought. Kindly outline the differences.
Nope. You read the Declaration of Independence and point out the similarities between it and some guy who did not honestly answer the questions posed to him at voir dire.
nk (dbc370) — 12/4/2016 @ 5:49 pm@nk:Some guy who did not honestly answer the questions posed to him at voir dire.
Which guy is that? I have no idea who you think you are talking about now. Thomas Jefferson seemed to think I have it right.
Jurors do not swear an oath to be rubber stamps.
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 5:55 pmThe Commonwealth of Virginia may have had that rule at the time, derived (mostly) from Scottish common law. The defendant would stipulate to the facts and argue to the jury that nonetheless what he did was not illegal. And he had to stipulate to the facts — no weaseling allowed. I would be fine with that if we had that rule now. But we don’t. Jefferson’s argument today would be like advising me not to hit my Nissan too hard with the buggy whip.
nk (dbc370) — 12/4/2016 @ 6:06 pm@Nk: Actually, that was not Jefferson I quoted, but John Jay, Georgia v Brailsford in 1794.
You can find much more modern ones if you wish.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 6:08 pmThat’s how the common law came about in the first place, Gabriel. Juries sorting out whether a member of the community did something wrong or not. But we’re way past the time of King Canute.
nk (dbc370) — 12/4/2016 @ 6:09 pmI give up.
nk (dbc370) — 12/4/2016 @ 6:10 pm#74 Gabriel Hanna,
As long as the judicial system is facilitated by flawed human beings, it will produce results that are imperfect.
But there’s essentially a division of labor in order to make the judicial system work the best we can. And jurors have their individual role to play. They’re not the legislator, they’re not law enforcement, they’re not the prosecutor, they’re not the judge — they’re the juror.
And if there’s an issue with the constitutionality of a law or the application of a law or a procedural by a judge, then the appellate court will play its role in reviewing the case.
Again, we’re a nation of laws. And we’re a nation of imperfect people. But imperfect people rendering imperfect justice is not a license for a juror to decide to go all renegade.
Cruz Supporter (102c9a) — 12/4/2016 @ 6:36 pm@Cruz Supporter: But imperfect people rendering imperfect justice is not a license for a juror to decide to go all renegade.
But it’s not going “renegade”. It’s doing what jurors have historically done, explicitly approved by the generation that founded our republic.
I mean John Jay was one the authors of “The Federalist” and a Supreme Court justice, for cryin’ out loud. Georgia v Brailsford was one the first cases to go to the Supreme Court.
Prosecutors are supposed to exercise discretion, they can do so rightly or wrongly.
Judges are supposed to exercise discretion, they can do so rightly or wrongly.
Why do you seek to strip the people of one of the few powers they can exercise against the government? Sure, the people can do so rightly or wrongly, but jury nullification is far, far more rare than prosecutors and judges doing wrong.
Janet Reno just died, right? The guy she put in prison for Satanic day care abuse that never happened? He’s still there. Appellate courts did no good. The facts have already been decided, the law correctly applied, the jury followed their instructions as you wished they would. And yet this guy is still serving his 165 year sentence in prison for things that could not possibly have happened. The people need all the protections they can get.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 7:11 pm@Cruz Supporter: Since John Jay wrote over a hundred years ago, in the era of buggy whips, and we might wonder if it still applies, let’s use a more modern case, from 1972.
They go into the history of jury nullification in some detail, and the general tenor of their remarks is that they are against it–which is perfectly proper for judges. But they also say this (tl, dr version: Jury nullification is a real thing, and has been recognized as such, and sometimes can do good, but it makes no sense to require that juries be instructed that they have the power to do it):
What makes for health as an occasional medicine would be disastrous as a daily diet. The fact that there is widespread existence of the jury’s prerogative, and approval of its existence as a “necessary counter to casehardened judges and arbitrary prosecutors,” does not establish as an imperative that the jury must be informed by the judge of that power. On the contrary, it is pragmatically useful to structure instructions in such wise that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, and must independently initiate and undertake an act in contravention of the established instructions. This requirement of independent jury conception confines the happening of the lawless jury to the occasional instance that does not violate, and viewed as an exception may even enhance, the over-all normative effect of the rule of law. An explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal structure requisite for true freedom, for an ordered liberty that protects against anarchy as well as tyranny.
And I think this is exactly the right balance to strike. Like “Second Amendment remedies”, there is simply no way to write jury nullification into the law or into the normal legal proceedings, but the fact that it can be used in extraordinary cases actually enhances the rule of law, provided that it not be done too often, or for trivial reasons. The same is true of Second Amendment remedies, naturally, which for some reason goes down easier with the Right than letting lawbreakers go free.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 7:36 pmFrom Bazelon’s dissent in that case:
My own view rests on the premise that nullification can and should serve an important function in the criminal process. I do not see it as a doctrine that exists only because we lack the power to punish jurors who refuse to enforce the law or to re-prosecute a defendant whose acquittal cannot be justified in the strict terms of law. The doctrine permits the jury to bring to bear on the criminal process a sense of fairness and particularized justice. The drafters of legal rules cannot anticipate and take account of every case where a defendant’s conduct is “unlawful” but not blameworthy, any more than they can draw a bold line to mark the boundary between an accident and negligence. It is the jury-as spokesman for the community’s sense of values-that must explore that subtle and elusive boundary…
..the very essence of the jury’s function is its role as spokesman for the community conscience in determining whether or not blame can be imposed.
I do not see any reason to assume that jurors will make rampantly abusive use of their power. Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must re-examine a great deal more than just the nullification doctrine. Nevertheless, some abuse can be anticipated. If a jury refuses to apply strictly the controlling principles of law, it may-in conflict with values shared by the larger community -convict a defendant because of prejudice against him, or acquit a defendant because of sympathy for him and prejudice against his victim. Our fear of unjust conviction is plainly understandable. But it is hard for me to see how a nullification instruction could enhance the likelihood of that result. The instruction would speak in terms of acquittal, not conviction, and it would provide no comfort to a juror determined to convict a defendant in defiance of the law or the facts of the case. Indeed, unless the jurors ignored the nullification instruction they could not convict on the grounds of prejudice alone. Does the judge’s recitation of the instruction increase the likelihood that the jury will ignore the limitation that lies at its heart? I hardly think so.
As for the problem of unjust acquittal, it is important to recognize the strong internal check that constrains the jury’s willingness to acquit. Where defendants seem dangerous, juries are unlikely to exercise their nullification power, whether or not an explicit instruction is offered. Of course, that check will not prevent the acquittal of a defendant who may be blameworthy and dangerous except in the jaundiced eyes of a jury motivated by a perverse and sectarian sense of values. But whether a nullification instruction would make such acquittals more common is problematical, if not entirely inconceivable. In any case, the real problem in this situation is not the nullification doctrine, but the values and prejudice that prompt the acquittal.9 And the solution is not to condemn the nullification power, but to spotlight the prejudice and parochial values that underlie the verdict in the hope that public outcry will force a re-examination of those values, and deter their implementation in subsequent cases. Surely nothing is gained by the pretense that the jurors lack the power to nullify, since that pretense deprives them of the opportunity to hear the very instruction that might compel them to confront their responsibility.
Gabriel Hanna (9b1f4a) — 12/4/2016 @ 7:40 pmIt’s now officially a mistrial. Dylan Roof needs to be tried first by the same prosecutor, and it may half a year till Michael Slager is retried.
Sammy Finkelman (eb0eea) — 12/5/2016 @ 4:03 pm