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"You want it to be one way ... but it's the other way."
A few weeks ago, the writers of The Wire wrote an article in Time vowing if that if any of them were ever called to serve on a jury in a drug case, they'd engage in jury nullification, and refuse to convict.
Over at the blog of criminal defense attorney Mark Bennett, a Texas prosecutor has put up an astonishing guest post arguing that merely advocating for jury nullification is in itself a crime, and that the authors of the Time article have violated Texas law.
The writers of The Wire, in advocating the actions that they have, are essentially promoting the commission of a crime. Had they made the statements contained in the Time magazine article in Texas, then they would almost certainly be guilty of aggravated perjury. Outrageous, no? How dare I suggest that the exercise of their First Amendment rights could possibly constitute a crime? Pretty easily, actually. Just look at the law.
This is not only absurd, it's reckless. It's a direct attack on free expression by a government agent. He's arguing that anyone in Texas who advocates for jury nullification is committing a crime—and by definition then risks prosecution. And this argument is coming from a man who has the power and the position to carry out just such a prosecution.
If this guy can look at a magazine article advocating a jury power that dates back to the founding of the country and see a crime, one could be forgiven for looking at his blog post and seeing a man who lacks the proper temperament, good judgment, and respect for civil liberties to continue to serve as a prosecutor.
Someone might also want to notify noted nullification expert and advocate Clay Conrad, who who happens to live Houston, Texas. I'm sure the SWAT team's on its way.
Headline reference here.
Elemenope|3.27.08 @ 10:51PM|#
Wow. Just, wow. Where did that guy go to law school? Shut that fucker down, before it infects the rest of the profession with a critical mass of stupid.
scott66|3.27.08 @ 11:05PM|#
Pretty typical of the arrogance of those in the legal
system.
As the only industry that is allowed to purely regulate themselves
they have truly come to think of themselves as Orwell's pigs.
javier|3.27.08 @ 11:07PM|#
In 1789 Thomas Jefferson favored jury nullication
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 power... It is
in the power, therefore of the juries... to judge the law as well
as the fact.
LOCK EM UP
|3.27.08 @ 11:21PM|#
How dare I suggest that the exercise of their First
Amendment rights could possibly constitute a crime? Pretty easily,
actually. Just look at the law.
But wouldn't a law that prohibits free exercise of First Amendment
rights be, prima facie, unconstitutional? Or is this
country that utterly screwed?
Scooby|3.27.08 @ 11:29PM|#
If I'm called for the jury for David Simon's trial for suborning perjury, I'm voting to acquit.
Franklin Harris|3.27.08 @ 11:35PM|#
I advocate jury nullification of of the supposed Texas law making advocating jury nullification a crime.
|3.27.08 @ 11:36PM|#
On the plus side, every commenter there so far has said "you must be smoking the good stuff today, pal", or words to that effect.
This forum usually goes to 11|3.27.08 @ 11:54PM|#
The comments Bennett's guest post were Godwinned in five.
Radley Balko|3.27.08 @ 11:56PM|#
Note -- Bennett's a defense attorney, and merely hosts the
blog.
If a prosecutor had sent me that post, I'd have published it, too.
It's awfully revealing.
|3.27.08 @ 11:58PM|#
It's a direct attack on free expression by a government
agent.
In other news, dog bites man.
Kaganspawn|3.27.08 @ 11:58PM|#
Nice, Javier.
The post is worth reading in its entirety ("astonishing"). As you
would guess, it argues that a juror who knows she will nullify must
purposely violate the juror's oath, in Texas something like 'to
render a true verdict according to the law and facts,' and thereby
perjures herself.
In a bit of sloppy hyperbole the poster argues that nullifying
jurors ignore the facts. Rather, the juror makes a decision about
the facts but also decides that the law should not be applied to
those facts, for whatever reason the juror sees fit -- including in
some cases that the juror deems the law an unjust law.
I share the disapproval of the post, but doubt that prosecutions of
this kind are likely because generally a juror cannot be examined
as to why she voted one way or another. Testimony by another juror
of what she said in the jury room would be inadmissible.
Investigations of jury verdicts are very rare absent strong
evidence that the course of justice has been perverted (e.g. by
bribery or intimidation).
Kolohe|3.28.08 @ 12:02AM|#
my favorite excerpt (actually taken from one of his follow on
comments)
Believe it or not, the State is entitled to a fair trial, too, and I guess if wanting to start on an even playing field makes me a fascist, then so be it.
My response:
Um, no. IANAL (but am scared that you are one) but because of the
asymmetric power relationship between the individual and the the
State, criminal trials are specifically biased *against* the state
and *towards* the accused, right?
|3.28.08 @ 12:09AM|#
Apparently the right to jury nullification can be nullified by
fine print. This sort of letter-of-the-law, "obey or the Nile will
dry up" type thinking puzzles me. He seems to view jury
nullification as a loophole, rather than a principle; as something
that a well-worded statute or oath can change from a legitimate
recourse against a bad law into a terrible crime against the
foundation of order. Were jurors of the past not very consciously
acting against the will of the government? Would it have been wrong
from the beginning if only corrupt judges had been cagey enough in
wording their oaths?
Aside from the bit above about the silly ol' first amendment, this
later parenthesis is pretty telling:
("save for a prosecution in which acts of violence or intended
violence are alleged" of course, according to the sanctimonious and
high-minded drivel put out in the article)
He just doesn't get the idea that a non-violent drug
offense is in any way different from a violent - it's still
breaking the law! I'd wager he thinks it's only
coincidence when druggies (or maybe 'perps') are caught
doing something non-violent.
|3.28.08 @ 12:10AM|#
Shut that fucker down, before it infects the rest of the
profession with a critical mass of stupid.
Oops…too
late…
|3.28.08 @ 12:17AM|#
Mr. Bennet should look up the statute which makes it a crime to
"conspire to deprive of a constitutional right under color of
authority". As I recall, you can pull a ten-year stretch in
Leavenworth for that one.
-jcr
Again, although it may make pe|3.28.08 @ 12:19AM|#
Jean Valjean: You never temper justice with mercy?
Inspector Javert: No, we might as well understand each other,
Monsieur Madeliene. I administer the law - good, bad, or
indifferent - it's no business of mine, but the law to the
letter!
Kolohe|3.28.08 @ 12:20AM|#
jcr-
as stated above, it isn't Bennett, it's a correspondent of his
who's a DA
|3.28.08 @ 12:21AM|#
Also note this guy can't seem to say 'America' without following it with 'God bless her'. Bad writing or weirdness; either's entertaining.
Rhywun|3.28.08 @ 12:23AM|#
if any of them were ever called to serve on a jury in a drug
case, they'd engage in jury nullification, and refuse to
convict
But... does this ever really happen? Aren't such people weeded out
right off the bat? I mean, unless they lie, how would they ever get
through voir dire?
javier|3.28.08 @ 12:50AM|#
what happens if they ask you, " Do you swear to to render a true verdict, based on the law and the facts presented?" or whatever the oath is and you simply say 'no'? DO you just get to go home??
Kaganspawn|3.28.08 @ 1:10AM|#
Right, Kolohe. The "level playing field" comment suggests the
man sees criminal trials as a contest where his only object is to
win, as opposed to using the awesome power the state has entrusted
to him humbly. But trials are agonistic and the prosecutor does
have a duty to zealously represent his client (the state).
to be ruled by old white men
who compare the world to football
and are programmed to defend
Dynamist Dan|3.28.08 @ 1:54AM|#
I resent scott66's remarks. As a law student, I've found lawyers
and law students to be more concerned about freedom of speech and
civil rights than the vast majority of Americans.
I think what's perhaps most disturbing about the DA's remarks is
his fundamental misunderstanding of the First Amendment. As
eloquently noted by PJ in the comments in the post, the article
written by the writers is nowhere near meeting the clear and
present danger test, regardless of the legal merits of jury
nullification.
Such threatened baseless prosecution has a significant chilling
effect on speech and as such, borders on an ethical violation. At
the very least, the DA's remarks are an embarrassment to himself,
his office, and the entire legal profession.
Kaganspawn|3.28.08 @ 2:17AM|#
Yeah, or as Marlow would say, that bitch need to get got. Wait, is that statement a crime, inciting violence against a public official? Land sakes, good thing I have this crafty internet handle to hide behind.
Self-Awareness Police|3.28.08 @ 2:35AM|#
I resent scott66's remarks.
[...]
the article written by the writers is nowhere near meeting the
clear and present danger test
If that's how you thought about it, that's more than enough to
prove him right.
The law is not the world. It's a stain on it.
Taktix®|3.28.08 @ 6:39AM|#
I'd have to say I hate this asshole by about 90%. All jury
nullification aside, he did say the following:
"We'll even leave out the admittedly dubious merits of the WoD for
the moment."
A Texas prosecutor saying that deserves at least a little credit.
But maybe I'm trying too hard to be optimistic.
Still fire the fucker, but don't cut his pension.
Casey Serin|3.28.08 @ 7:00AM|#
Mark Bennett is an arrogant, ignorant gay man... not that there's anything wrong with that!!
|3.28.08 @ 8:42AM|#
Radley, you might want to put a big orange neon sign on the top
of your post that says something like "BENNETT DIDN'T WRITE THE
ARTICLE NOOBS!"
Oh, wait.
|3.28.08 @ 8:47AM|#
Wow, someone claiming to be David Simon has replied to the post on Bennet's blog. Good discussion over there (although unfortunately Godwined rather quickly).
|3.28.08 @ 9:09AM|#
'to render a true verdict according to the law and facts'
So I'm a juror, and I realize the fact that the law is unjust, and
I vote to acquit. How have I violated my oath?
Taktix®|3.28.08 @ 9:15AM|#
Warty,
This screws up his "according to the law and facts" theory, as the
laws and facts contradict each other in this case.
Law: Drugs are bad O.K.
Fact: Legal Damage will trump Actual Damage 100x over...
Any questions?
|3.28.08 @ 9:18AM|#
First the guy is right that jury nullification is a crime. You
take an oath as a juror to apply the law as it is written. The
proper thing to do in the situation is honestly tell the court that
you morally object to the drug laws and would never vote to convict
someone for them. To lie to the court and pretend you would is
strictly speaking, a crime.
Where this guy goes off the rails is when he interprets this
language, "acting with intent to promote or assist the commission
of the offense, he solicits, encourages, directs, aids, or attempts
to aid the other person to commit the offense" to mean that anytime
your encourage the general public to commit a crime you are guilty
of that crime. That is not what the language says. It says
"...attempts to aid the other person". It does not say "attempts to
aid another person." The distinction is important. By using the
term "the other person", the statute is limiting itself to cases
where one person aids or solitices another person to actually
commit a crime. Thus, it uses the specific article "the". The
statues is talking about specific conspiracies among specific
people to commit a crime. It is not talking about general
statements to the public encouraging or endorsing the committing a
specific crime. If this guy's interpretation were true, it would be
conspiracy to commit bank robbery if somone said "I think banks are
crooks and it is okay for people to rob them." That is clearly not
what the aiding and abetting or conspiracy statutes mean to
prohibit. This guy is a clown.
Bernd|3.28.08 @ 9:21AM|#
me:
Yeah, that's pretty weird, isn't it?
The thing it reminds me of most ist the "Mohammed (PBUH)" thing -
thought control reflexes are a funny thing.
|3.28.08 @ 9:36AM|#
Now don't they say "uphold the law" in your oath. Now isn't the Constitution the premiere law of the land. Now in your intrepretation of the Constitution the law they are using to get this person is unconstituitional, why would acquitting him be wrong. You are trying to uphold the Constitution, which is supposed to be the basis of all our laws. Not doing so would be in my mind a crime.
|3.28.08 @ 9:44AM|#
TerryP,
But no court has ever held the drug laws to be unconstitutional.
You may beleive they are and that is your right. But if you beleive
so you ought to tell the Court that is the case because the Court
is going to assume that by taking the oath you beleive the drug
laws are constitutional.
Ultimately, jury nullification is a chicken shit thing to do. If
you really morally object to the drug laws, tell the court so. If
enough people did, they would have a hard time filling juries to
try drug cases. The problem with lying is that if you think it is
okay to lie about this, how then can you claim that it is not okay
for other people to lie about other cases? Is anyone here going to
think it is so great when some racist juror lies to the court and
then won't convict because he doesn't like the race of the victim?
Is it going to be okay when a jury refuses to convict a cop because
they think the criminal had what was coming to them? Once you start
down the road of saying it is okay to lie to the court because you
don't like this or that law it is pretty difficult to stop.
|3.28.08 @ 9:47AM|#
First, my apologies to Mr. Bennett.
We've had quite a few comments and no one has mentioned the number
one talking point. Isn't the high water mark of jury nullification,
abolitionists who refused to convict people of aiding fugitive
slaves and the like? Didn't this forever cement jury nullification
as a principal of American jurist prudence?
Mr. X|3.28.08 @ 9:48AM|#
Jury nullification lives in a legal no man's land, since jurors
have the power to nullify, but not the right. As such, lawyers
cannot argue for nullification in court, nor are judges required to
inform the jurors of their power in the jury instructions.
However, the argument that writing a Time editorial advocating jury
nullification is suborning perjury is, legally speaking, fucking
crazy.
bubba|3.28.08 @ 9:49AM|#
Reading the quoted text, is it not possible that he's simply
highlighting the absurdity of Texas law? He even uses the words
"Outrageous" and "First Amendment."
Why don't you Yankees think Texans can be subtle?
|3.28.08 @ 9:51AM|#
You take an oath as a juror to apply the law as it is
written.
That would include all the law, including the state and federal
Constitutions.
I have a genuine belief that all federal drug laws are
unconstitutional (they are ultra vires, beyond the scope
of enumerated powers). Ergo, my engaging in jury nullification in a
federal case is consistent with my oath.
I also have a genuine belief that any state law requiring me to
refrain from jury nullification is a violation of the defendant's
right to due process. Ergo, any interpretation of the oath that
would require me to do so is null and void. When I take the oath, I
take an oath that does not prohibit jury nullification, and so I do
not violate it.
There, that wasn't so hard, was it.
|3.28.08 @ 9:55AM|#
RC Dean,
Then tell the court that is how you view the law. You can spin it
all you like by not saying anything you are committing a fraud. The
court assumes that you interpret the law as it does. Further, if
you are an actual juror you are going to be Vior Dired and asked if
you would convict of these charges. At that point, you have an
obligation to say no and explain why. To do other wise is
committing perjury.
Again, you think that drug laws are unconstitutional. Some people
think that the exlusionary rule is unconstitutional. The 4th
Amendment doesn't say a damn thing about it. If it is okay for you
to lie about your views, why not them?
Look, grow a pair of balls and tell the court what you think. Is
that so hard?
|3.28.08 @ 9:56AM|#
Ultimately, jury nullification is a chicken shit thing to
do. If you really morally object to the drug laws, tell the court
so. If enough people did, they would have a hard time filling
juries to try drug cases.
What a crock of shit. It's flat out bullshit to argue that as long
as the gubmnt can still find enough patsies to do what they're told
we should all just accept it. THE WHOLE FUCKING POINT of having a
jury is to put a check on establishment power. The establishment
using voir dire to keep anybody unwilling to submit to authority is
simply not a reason for those of us who object to the
unconstitutional reign of terror they've erected, to play
allong.
|3.28.08 @ 9:56AM|#
what happens if they ask you, " Do you swear to to render a
true verdict, based on the law and the facts presented?" or
whatever the oath is and you simply say 'no'? DO you just get to go
home??
That's pretty much what happened to me. They handed out a
questionnaire which included that "apply the law" question, which
read, to me, very much as, "Do you faithfully vow [check yes or no]
to convict whatever poor dumbass the prosecutor drags into the
coutroom?" I left the answer blank.
When the prosecutor called me on it, told him him that, without
some preliminary knowledge of the charge and the circumstances, I
couldn't answer honestly. When he pressed me, I said, "Because
there are a lot of really dumb laws on the books." I used drug laws
as my example. The room became quite still, and his ears reddened
visibly.
Shortly thereafter, I was on my way home. In Texas, I suppose, they
would have charged me with jury tampering.
|3.28.08 @ 10:02AM|#
"What a crock of shit. It's flat out bullshit to argue that as
long as the gubmnt can still find enough patsies to do what they're
told we should all just accept it. THE WHOLE FUCKING POINT of
having a jury is to put a check on establishment power. The
establishment using voir dire to keep anybody unwilling to submit
to authority is simply not a reason for those of us who object to
the unconstitutional reign of terror they've erected, to play
allong."
Fine then Warren, then I don't want to hear you bitching when
someone lies to get on a jury and refuses to convict a cop in a
SWAT raid because they think the cop is being framed. Basiclly you
are argueing the piss away the jury system and the legal system
because you don't like the drug laws. "Submit to authority" my ass.
Wait until you are a vicitm of a crime or charged with a crime you
will be submitting to authority damn quick and hoping that the
perpetraitor or you get a fair trial. The only way that can happen
is for people to be honest and apply the law. The sanctity of the
court is a hell of a lot more important to our freedom than getting
rid of the drug laws. You fucking dumb asses would throw that
system away because you don't like the drug laws. Once you start
saying it is okay to lie to the court and do what you want as a
juror there is no stopping it.
Jury nullification Reason number 1 million why libertarians are not
serious people.
Taktix®|3.28.08 @ 10:06AM|#
John said:
Ultimately, jury nullification is a chicken shit thing to
do.
Absolutely right. The jury's foreman should have jumped up on the
prosecution's desk, grabbed the DA and slam-dunked him Stone Cold
Steve Austin-style, right?
Mr. X|3.28.08 @ 10:07AM|#
John,
Jury nullification in runaway slave cases. Good or bad?
What about in states where jury nullification is constitutionally
protected, e.g. Maryland (" In the trial of all criminal cases, the
Jury shall be the Judges of Law, as well as of fact, except that
the Court may pass upon the sufficiency of the evidence to sustain
a conviction." Art. 23, Declaration of Rights, Maryland
Constitution)?
|3.28.08 @ 10:10AM|#
The sanctity of the court? Are you serious? You must be a lawyer, to type such an incredibly pompous phrase. And if you believe it...well then, that's just precious.
|3.28.08 @ 10:12AM|#
Mr. X,
That is a good question. Perhaps slavery might be the one case
where the law is so bad that you should enage in it. The Nuremburg
Laws would be another example. But, as bad as the drug laws are,
they are not slavery and they are not the Nuremburg laws. Once we
say it is okay to nulify over drug laws, I don't see any reason why
it is not okay to nullify over virtually any other law with which
someone has a problem with.
Understand, we are not talking about taking a pricnipled stand and
telling the government "I won't enforce your laws". We are talking
about lying to the court and actively trying to subvert those laws.
Sometimes that is necessary. But the situations are pretty damn
rare and the drug laws don't meet it. If we are going to say it is
okay to nullify in those cases, we better be prepared to support
everyone else when they nullify for their causes. At that point, we
have pretty much thrown out the jury system in this country and
that would be a much worse tragedy than the drug laws.
kinnath|3.28.08 @ 10:15AM|#
From John; Jury nullification Reason number 1 million why
libertarians are not serious people.
Jury nullification is the next to the last resort that the people
have to fight an oppresive government (where the last resort is
armed revolution).
Obviously, jury nullification can be horribly abused. It is only in
hindsight that one can really say for sure that refusing to convict
an individual for helping a runaway slave is good, but refusing to
convict the killers of civil rights workers is bad.
One could argue that the best way to reduce the abuse of jury
nullification would be to bring it out of the shadows and have the
community at large start to agree on what constitutes "good" versus
"bad" application of the concept.
Or you can stick to the idea that nullification is a crime -- enjoy
your totalitarian state dude.
the innominate one|3.28.08 @ 10:16AM|#
of course, John's a lawyer. a lawyer who can't spell voir dire,
but still...
John, you're comparing apples and oranges. if you were serving on a
jury and thought the defendant was being framed, you'd have
reasonable doubt, not jury nullification.
|3.28.08 @ 10:24AM|#
"John, you're comparing apples and oranges. if you were serving
on a jury and thought the defendant was being framed, you'd have
reasonable doubt, not jury nullification."
It can go either way. Look at Kinneth's example of letting people
get away with murder. There are two sides to every trial, the
victim and the accused. Letting the accused go is not always doing
justice. The only way to have any hope of accomplishing that is for
everyone to be honest. If you were the victim of a crime, you would
like to think that the jury is going to give the facts a fair
hearing. Once we endorse lying and jury nullification, you don't
know that or have any reason to believe you will. Maybe the people
on the jury have an axe to grind about this crime or your race and
have no intention of convicting the person. Here in Washington,
people are routinely acquitted of violent crimes because black
juries do not want to send another black man to prison. They engage
in jury nullification. How do you think the victims feel about
that? But according to you and Warren that is just a ok. That is
where this kind of thing leads.
Mr. X|3.28.08 @ 10:28AM|#
That is a good question. Perhaps slavery might be the one
case where the law is so bad that you should engage in it. The
Nuremberg Laws would be another example. But, as bad as the drug
laws are, they are not slavery and they are not the Nuremberg laws.
Once we say it is okay to nullify over drug laws, I don't see any
reason why it is not okay to nullify over virtually any other law
with which someone has a problem with. [spelling
corrected]
Well, once we acknowledge that there are unjust laws, then it's a
matter of conscience which ones you find unjust and what
application of them makes it so. Most nullification advocates are
convinced of the deep injustice of the the particular laws they
advocate nullification for, on a level close to slavery.
Since we're posing questions, jury nullification in alcohol cases
during Prohibition. Good or bad?
Understand, we are not talking about taking a principled stand
and telling the government "I won't enforce your laws". We are
talking about lying to the court and actively trying to subvert
those laws. Sometimes that is necessary. But the situations are
pretty damn rare and the drug laws don't meet it. If we are going
to say it is okay to nullify in those cases, we better be prepared
to support everyone else when they nullify for their causes. At
that point, we have pretty much thrown out the jury system in this
country and that would be a much worse tragedy than the drug
laws.
Only in the ridiculous hypothetical the guest blogger made where
someone walks into voir dire with a 100% intent to violate his oath
as a juror and to lie to the court about it. The language of the
oath allows interpretation. Some jurors may be willing to convict
under extreme circumstances or leave the door cracked to being
persuaded. Arguing that a juror should not check his/her conscience
at the door is not suborning perjury, no matter how much faith you
place in the legal system.
Of course we can't argue that in the courtroom, but people can and
should argue it outside.
Mr. X|3.28.08 @ 10:30AM|#
If you were the victim of a crime, you would like to think
that the jury is going to give the facts a fair hearing.
Who's the victim in a simple possession case? Nullification only
tends to work on a large scale for victimless crimes (drugs,
alcohol), or when the value of the victim's loss is held in low
regard (civil rights murders, slavery).
|3.28.08 @ 10:31AM|#
One could argue that the best way to reduce the abuse of
jury nullification would be to bring it out of the shadows and have
the community at large start to agree on what constitutes "good"
versus "bad" application of the concept.
In my fantasy universe, the community at large would agree (with
me) on what constitutes "good" versus "bad" laws. And the laws
which attempt to restrict and punish behavior in which there is no
"victim" would magically vanish.
kinnath|3.28.08 @ 10:34AM|#
Here in Washington, people are routinely acquitted of
violent crimes because black juries do not want to send another
black man to prison. They engage in jury nullification. How do you
think the victims feel about that?
We won't know for a few generations whether these juries are during
the right thing or not. Personally, I disagree with what they are
doing, but I understand their concerns that the entire legal system
is biased against their community. (so let's drag this whole
discussion back to the WoD and how it is destroying the people it
is intended to save)
How do you think the victims feel about that?
That's not particularly relevant. We have a system in place that is
biased towards letting the guilty go free to prevent the innocent
from being locked up. Victims suffer when judges throw out evidence
that was improperly obtained and then the accused is declared "not
guilty".
Bad outcomes do not negate the principle of jury nullification, it
indicts the application of that principle where it is not
appropriate.
|3.28.08 @ 10:37AM|#
"Who's the victim in a simple possession case? Nullification
only tends to work on a large scale for victimless crimes (drugs,
alcohol), or when the value of the victim's loss is held in low
regard (civil rights murders, slavery)."
There isn't, but that is not the point. The point is that you feel
strongly about drug cases. Good for you. A lot of other feel
strongly about the number of young black men in prison. They feel
so strongly that they do not feel as a matter of conscience vote to
send another young black man to prison for anything but the most
hanous crime. If you can do it for drug cases, why can't they do it
for an assault or a robbery case? Yes there is a victim in their
case, but their view is that the defendent is a victim of our
society and that is it not just to send him to jail. If you have
the power to act on your conscience why can't they?
"Some jurors may be willing to convict under extreme circumstances
or leave the door cracked to being persuaded. Arguing that a juror
should not check his/her conscience at the door is not suborning
perjury, no matter how much faith you place in the legal
system."
I am not saying they should. I am saying do not lie. Don't say you
will convict when you know damn well you won't. If your view is
that you would only convict under the most extreme circumstances,
then be honest and say so. Someone is going to ask you about your
opinion of the drug laws during the process. When they do, you
should be honest and say what you think. If they still put you on
the jury, then act on your conscience. But that is not what we are
talking about here. We are talking about lying under oath and
leaving the false impression that you will convict when in fact you
won't. That is the problem.
|3.28.08 @ 10:39AM|#
We are talking about lying to the court and actively trying
to subvert those laws. Sometimes that is necessary. But the
situations are pretty damn rare and the drug laws don't meet
it.
That's just one man's not-so humble opinion (yours). What you're
suggesting is that you're willing to start down the slippery slope
you describe and are so afraid of, but only while wearing
crampons?
|3.28.08 @ 10:41AM|#
John,
How can you argue that placing the drug laws in the "ok to nullify"
basket leads to chaos, pandemonium, dogs and cats sleeping
together, but if we draw the line at runaway slaves and Nuremburg
everything's peachy? By your own argument, allowing ANY
nullification opens the door to the end of our legal system.
For my part, I would not lie in the jury box. If the prosecutor
asked me, point-blank, "would you be willing to convict a person of
a non-violent drug crime," I would answer "no." However, if I were
asked a generic "could you apply the law and facts" formulation, I
have no problem saying "yes." It is the truth. I have no problem
applying the laws of the land and facts of the case to any
situation.
kinnath|3.28.08 @ 10:42AM|#
I am saying do not lie. Don't say you will convict when you
know damn well you won't.
The fundamental philosophical question here is: If you think that a
law is so bad that you would not convict under any circumstances,
then do you have a moral obligation to lie to get on the jury to
prevent as least one person of being convicted under an unjust
law?
|3.28.08 @ 10:42AM|#
"We won't know for a few generations whether these juries are
during the right thing or not. Personally, I disagree with what
they are doing, but I understand their concerns that the entire
legal system is biased against their community. (so let's drag this
whole discussion back to the WoD and how it is destroying the
people it is intended to save)"
Then basically we don't have a jury system anymore. If anyone can
act their conscience and let anyone go for whatever reason, then
juries are no longer applying the law. At that point why even have
laws? We could just decide cases based on likeability or connection
to historic wrongs rather than facts.
"Bad outcomes do not negate the principle of jury nullification, it
indicts the application of that principle where it is not
appropriate."
When is it appropriate? When you don't like it? What gives you the
right to act by your conscience but no one else? You can't have a
system like that. Everyone needs to be honest and follow the law or
opt out and not serve. The consequences of not doing that is that
nullification is inevitably used in bad cases.
|3.28.08 @ 10:47AM|#
"That's just one man's not-so humble opinion (yours). What
you're suggesting is that you're willing to start down the slippery
slope you describe and are so afraid of, but only while wearing
crampons?"
If the Nazis take over the country or they reinstitute slavery,
then maybe I am willing to talk about the validity of jury
nullification. At that point, the laws have become so unjust that
it is now my moral duty not just to refuse to enforce them but to
actively subvert and over throw the government. Basically that is
what I am doing in a small way when I lie to get on a jury in hopes
of getting an acquittal for someone guilty of violating a law I
object to. When I do that, I am undermining the entire justice
system and the principle of a jury trial. That is a pretty grave
step. In the case of a government that is enforcing slavery or the
Nuremburg laws, that is a grave step that is justified.
As much as I object to the drug laws, I don't object to them to
such a degree that I think that it is anyone's moral duty to
actively subvert the justice system and government in response to
them. I think that is too high of a price to pay. Instead, I think
the proper course is to tell the truth and actively and overtly
refuse to enforce the laws.
|3.28.08 @ 10:48AM|#
Then basically we don't have a jury system
anymore.
No, this is the point of the jury system. To make sure the
community, not the government, decides who should be
punished.
When is it appropriate? When you don't like it?
Obviously, one person applying this principle will not make a damn
bit of difference. But if a sizable portion of the community feels
this way, yes, then it is appropriate.
Sure, under Jim Crow this principle was applied to keep some
heinous racist individuals out of prison. And that was wrong. But
you can't argue that because some people who acted on their
conscience were wrong that nobody should ever act according to
their conscience.
You have to make a JUDGEMENT. That's what jurors do.
Mr. X|3.28.08 @ 10:50AM|#
Then basically we don't have a jury system anymore. If
anyone can act their conscience and let anyone go for whatever
reason, then juries are no longer applying the law. At that point
why even have laws? We could just decide cases based on likeability
or connection to historic wrongs rather than facts.
Bullshit. We still have a jury system, it's just closer to the 19th
century version than the current interpretation of what the role of
the juror is.
|3.28.08 @ 10:51AM|#
As much as I object to the drug laws, I don't object to them
to such a degree that I think that it is anyone's moral duty to
actively subvert the justice system and government in response to
them. I think that is too high of a price to pay. Instead, I think
the proper course is to tell the truth and actively and overtly
refuse to enforce the laws.
This isn't a subversion of our justice system. It IS our justice
system. It gives members of the community the right to decide on
who should be punished and who should not.
kinnath|3.28.08 @ 10:53AM|#
Then basically we don't have a jury system
anymore.
You don't have much faith in people do you John?
Libertarian philosophy is fundamentally optimistic in that in
believes that the average person on the street can be trusted to
make sound decisions.
Whereas, "law-and-order" conservatism assumes that the whole of
society is just a few laws away from coming apart at the
seams.
Jury nullification in DC is a symptom of an illness in society that
needs to be addressed sooner rather than later. And the current
legal system is a major component of that illness.
A collection of laws that grows larger and larger every year,
making unwise or immoral behavior "criminal" undermines the basis
for using laws to prevent truly criminal behavior.
|3.28.08 @ 10:53AM|#
Brian24,
I am not saying don't act according to your conscience. I am saying
don't lie. All you are saying is that you think the drug laws are
wrong and therefore it is okay for me to do it. Great. I know like
50 people who think drugs are poison and would give any drug dealer
the max regardless of the facts. Their conscience tells them that
drug dealers are evil and they have duty to get them off the
streets regardless of what some do gooder judge tells them. Why
can't they follow their conscience? Other than the fact that you
think you are right and they are wrong, I don't see a reason.
|3.28.08 @ 10:55AM|#
One other thing Brian. There are more people out there who would give the max than there are who object to the drug laws. Do you really want to have a system where it is okay to lie and get on a jury and act on your conscience? I sure as hell don't because I relize my side is in the minority and the only thing protecting us from the majority is some assemblence of law and integrity.
Mr. X|3.28.08 @ 10:58AM|#
One other thing Brian. There are more people out there who
would give the max than there are who object to the drug laws. Do
you really want to have a system where it is okay to lie and get on
a jury and act on your conscience? I sure as hell don't because I
relize my side is in the minority and the only thing protecting us
from the majority is some assemblence of law and
integrity.
You have data for that claim? Most of the surveys I've seen are
majority against the drug laws, at least for marijuana.
Also, you never answered whether Prohibition-era jury nullification
was good or bad. Also, what about the Ed Rosenthal
case?
|3.28.08 @ 11:01AM|#
RC Dean,
Then tell the court that is how you view the law.
If the prosecutor or judge asks, I will answer truthfully.
You can spin it all you like by not saying anything you are
committing a fraud.
Are you saying that it I am committing perjury by refraining from
answering questions that are not asked?
The court assumes that you interpret the law as it
does.
I have no way of knowing that unless the judge tells me. The
judge's unstated assumptions are the his business, not mine.
Look, grow a pair of balls and tell the court what you think.
Is that so hard?
If I am being questioned in voir dire, I am under oath. I
don't know how you advise your clients, but I tell mine that when
they are under oath, they should answer the question asked, they
should do it truthfully, and then they should stop talking. That's
not being ball-less, that's playing the game by the rules.
If the prosecutor and/or judge isn't smart enough to ask me the
right questions, its not my job to educate them.
|3.28.08 @ 11:05AM|#
"You have data for that claim? Most of the surveys I've seen are
majority against the drug laws, at least for marijuana."
So it is okay to screw the system as long as you are in the
majority and nothing will happen to you? You miss the point. Even
if it is only one person, if it is okay for you to ignore the law
and do what you want, it is okay for other people to do the same.
Imagine a case where some jury gave a guy 10 years for pot even
though the prosecutor argued for probation and then the jury said
afterwards that they were not even considering the law or the facts
the guy was a druggie and was getting the max. That is jury
nullification and Balko and everyone else at Reason who think it is
so fabulous when it goes their way, would be on here whining up a
storm. But why? Shouldn't jurors be able to act on their
conscience? The Reason position on jury nullification seems to be
that it is okay as long as only we do it for our pet causes. That
is a pretty weak position to have because a lot of people have pet
causes and some of those causes you are not going to like so
well.
|3.28.08 @ 11:08AM|#
"If I am being questioned in voir dire, I am under oath. I don't
know how you advise your clients, but I tell mine that when they
are under oath, they should answer the question asked, they should
do it truthfully, and then they should stop talking. That's not
being ball-less, that's playing the game by the rules"
. Not telling the complete truth is lying. If someone asks you the
question "will you follow the law as instructed" and you say "Yes"
knowing full well that your view of the law as instructed
essentially reads the crime in question out of existence, you are
lying. You can lie by omission. If you think perjury is okay, fine,
then say so. In some cases, such as slavery and the Nuremburg laws
it may be. But don't sit here and try to claim just answering yes
or no and shutting up is lying.
the innominate one|3.28.08 @ 11:11AM|#
I think John's arguing against a straw man. Again. John, much of what you describe isn't covered by the concept of jury nullification. How many people think that the laws against murder or other violent crimes are unjust? It just amazes me that you are a lawyer. Do you practice? Do you try cases?
kinnath|3.28.08 @ 11:11AM|#
There are more people out there who would give the max than
there are who object to the drug laws. Do you really want to have a
system where it is okay to lie and get on a jury and act on your
conscience?
Dude, one of the founding principles is that the minority must be
protected from the tyranny of the majority.
The whole point of jury nullification applied to drug laws is that
some of us believe the majority has lost its mind and that the
legislators and jurists are not protecting use from that
majority.
You can disagree that the WoD drugs has reached a point where
nullification is justified, but don't claim that someone that
believes it is time to consider nullification is responsible for
destroying the American way of life.
|3.28.08 @ 11:12AM|#
"I think John's arguing against a straw man. Again. John, much
of what you describe isn't covered by the concept of jury
nullification. How many people think that the laws against murder
or other violent crimes are unjust? It just amazes me that you are
a lawyer. Do you practice? Do you try cases?"
Translation; as long as we do it it is okay and I will throw in a
couple of personal insults because I have nothing more intelligent
to say. Troll.
|3.28.08 @ 11:16AM|#
"The whole point of jury nullification applied to drug laws is
that some of us believe the majority has lost its mind and that the
legislators and jurists are not protecting use from that
majority."
That is great. But why can't everyone do it? Once you take that
step and say, it is okay for me to lie to get on a jury
specifically to nullify the drug laws, then I don't see how you can
object to other people doing the same thing over laws they object
to or acts they object to. At that point you have to argue that the
drug laws are so vile that they have reached the point of slavery
or the like where there is no longer a moral justification for them
and you have a moral duty not just to refuse to enforce them but to
actively subvert the justice system. The reasoning can't just be,
"I object to the drug laws". It has to be higher than that.
Otherwise, you open the door to nullification in any number of
other cases. As dumb as the drug laws are, they are in the end bad
and unjust policy. They get anywhere near the level needed to
justify jury nullification.
kinnath|3.28.08 @ 11:17AM|#
The fundamental philosophical question here is: If you think
that a law is so bad that you would not convict under any
circumstances, then do you have a moral obligation to lie to get on
the jury to prevent as least one person of being convicted under an
unjust law?
You haven't addressed this question. I am actually interested in
your opinion John.
the innominate one|3.28.08 @ 11:19AM|#
John, translated: I don't know what jury nullification really
is, so I'll commit a logical fallacy by conflating it with a bunch
of irrelevant issues.
Further, those are real questions, not insults, although you may
find my incredulity at your attempts at logic insulting. I haven't
called you names, I call into question your ability at logic and
your competence as a lawyer. Do you actually try cases? You've used
the fact that you are a lawyer to try to pump up your
credibility.
the innominate one|3.28.08 @ 11:21AM|#
Further translations of John:
"I agree with jury nullification on some issues (slavery) but not
other issues."
|3.28.08 @ 11:22AM|#
"The fundamental philosophical question here is: If you think
that a law is so bad that you would not convict under any
circumstances, then do you have a moral obligation to lie to get on
the jury to prevent as least one person of being convicted under an
unjust law?"
I think that in some cases you do. It has to be a case where the
government has become so unjust that you have a moral duty to try
to subvert and destroy it. The two best examples would be the
Nuremburg Laws and Slavery. In those cases, you cannot morally sit
idly by while people are enslaved or sent to their deaths. You have
to do something actively to stop it. In that case it is more than
just jury nullification. This is joining the resistance kind of
stuff. Beneath that there is the level where I think the drug laws
fit. That is a law that is stupid and immoral but not so immoral as
to render the government illegitimate. In that case, you are not
trying to destroy the government, only the law. You therefore
should respect the system and tell the truth, but also respect your
conscience and say that you would refuse to convict for what you
consider an unjust law.
|3.28.08 @ 11:22AM|#
John,
A basic question on which we may be missing each other: I am in NY
state, where I don't think your point about juries "giving the max"
because they are so against drug use makes any sense, as the jury
only decides guilt or innocence, and the judge actually sentences.
Is it different in other states?
|3.28.08 @ 11:23AM|#
"Further translations of John:
"I agree with jury nullification on some issues (slavery) but not
other issues."
Read the next post and then go back to your hole.
|3.28.08 @ 11:26AM|#
"A basic question on which we may be missing each other: I am in
NY state, where I don't think your point about juries "giving the
max" because they are so against drug use makes any sense, as the
jury only decides guilt or innocence, and the judge actually
sentences. Is it different in other states?"
In some states juries do and in federal court they can. It is up to
the defendent whether he wants to be sentenced by the jury or the
judge.
kinnath|3.28.08 @ 11:26AM|#
At that point you have to argue that the drug laws are so
vile that they have reached the point of slavery or the like where
there is no longer a moral justification for them and you have a
moral duty not just to refuse to enforce them but to actively
subvert the justice system.
I can't speak for others, but yes, I do believe that the WoD is
vile and is corrupting the entire legal system. Five years ago, I
would have said that it is acceptble to simply say I won't vote to
convict and get myself booted from the jury pool. However, given
the increasingly aggressive enforcement of the WoD resulting in the
deaths of innocents combined with the near total silence from the
MSM and the general population on these deaths, then I do think it
is time to start thinking about actively subverting the system.
|3.28.08 @ 11:30AM|#
"I can't speak for others, but yes, I do believe that the WoD is
vile and is corrupting the entire legal system. Five years ago, I
would have said that it is acceptble to simply say I won't vote to
convict and get myself booted from the jury pool. However, given
the increasingly aggressive enforcement of the WoD resulting in the
deaths of innocents combined with the near total silence from the
MSM and the general population on these deaths, then I do think it
is time to start thinking about actively subverting the
system."
I disagree but that is an intellectually honest position. If you
feel that way then you do what you have to do.
kinnath|3.28.08 @ 11:37AM|#
I disagree but that is an intellectually honest
position.
Thanks.
By the way, I am senstive to the issue that when you give people
discretion to decide the validty of the law itself in jury
deliberations that bad actors will use the discretion to abuse the
system. I do not have any useful ideas on how to mitigate the
damage caused by those bad actors. But I don't want to loose that
discretion. Tough problem
|3.28.08 @ 11:47AM|#
Kinneth,
That is why revolutions suck. The price you pay for them is you
throw out law and order. Sometimes that is the only choice, but it
is always a tough one.
|3.28.08 @ 11:54AM|#
Having been called to jury duty almost every 18 mos since
arriving in TX 16 yrs ago (but sitting on a jury just once, a
traffic case in JP court, we acquitted) I've become fond of
questioning the judge at voire dire with some variation of; "Please
explain the right and obligation of a jury to find as to law as
well as to fact."
This usually results in a dq as to being selected, though I'll get
to sit there for a full day anyway. Maybe one or two potential
jurors in the benches will start to think.....ah, just send me my
$6.00.
the innominate one|3.28.08 @ 12:46PM|#
John:
In other words, you agree with jury nullification in some cases,
but not other. Therefore, stop arguing against jury nullification
in general, and argue against jury nullification only in the
specific case of the drug laws.
"I think that in some cases you do. It has to be a case where the
government has become so unjust that you have a moral duty to try
to subvert and destroy it."
Clearly, a lot of people think that about the drug laws.
|3.28.08 @ 12:49PM|#
In some states juries do and in federal court they can. It
is up to the defendent whether he wants to be sentenced by the jury
or the judge.
Interesting. Seems like a question with a range of answers is more
complicated to put to a jury than a simple guilty/not guilty. After
much thought, I guess I would say that if the range of penalties
for drug use is, say, 1-10 years and a juror decides to always push
for 10 because he thinks drug use is just that heinous a crime,
then I support his/her right to do that although I would argue
strenuously that he/she not do so.
John\'s Third Grade Teacher|3.28.08 @ 1:01PM|#
I'm so proud of you. Not only have you obtained a Master's
Degree in Economics and put those awful libertarians to shame with
there kooky ideas with your advanced knowledge, but you have your
Juris Doctorate in the Law as well.
Wait, you wouldn't be bull shitting these people on both accounts
would you? I mean, 'jury's giving the people the MAX' is a
fundamental error there, and not being familar with case law
concerning nullification are fundamental errors there . . .
|3.28.08 @ 1:20PM|#
john sez The only way to have any hope of accomplishing that
is for everyone to be honest.
Proving he isn't a lawyer, even though he is pompous enough to be
one.
Robert|3.28.08 @ 1:34PM|#
If you really morally object to the drug laws, tell the court so.
Why would I be so stupid as to do that? That's like someone says
they're going to give me a gun and I tell them I'm going to
shoot!
If enough people did, they would have a hard time filling juries to try drug cases.
And how many would be "enough people"? It'd have to be like 99%,
because if they needed to fill juries from the remaining 1%, that's
what they'd do. They get paid for their time picking jurors
too.
The problem with lying is that if you think it is okay to lie about this, how then can you claim that it is not okay for other people to lie about other cases? Is anyone here going to think it is so great when some racist juror lies to the court and then won't convict because he doesn't like the race of the victim? Is it going to be okay when a jury refuses to convict a cop because they think the criminal had what was coming to them?
Who says they're not doing that already? Just to counter them, we
need good people to know they don't have to eschew "the heroism of
the lie" as Stirner put it. The righteous need to drop their
superstition against lying, just to have anything like an equal
chance against the unrighteous, who have no such compunction.
I hung a jury in a federal narcotics trial. I just kept my mouth
shut when we were asked whether any of us thought the sale of
narcotics should be legal. I have jury duty coming in a week. Know
what I'm going to say if I'm asked (personally, directly) in voir
dire that sort of question? I'm going to say, "I never thought
about that subject. Should I?" Gives me plausible deniability and I
want to see how they react when I play dumb.
|3.28.08 @ 1:50PM|#
John (9:44am) says, "... If you really morally object to the
drug laws, tell the court so. If enough people did, they would have
a hard time filling juries to try drug cases."
What's "enough people"? Sure, if 95% started doing that... but that
big a majority would have long past elected smarter legislators.
We're talking about a minority of citizens -- somewhat more than
one-twelfth -- taking down a bad law.
John again, "Once you start down the road of saying it is okay to
lie to the court because you don't like this or that law it is
pretty difficult to stop." I'll stop when they stop. There is no
honest "trial by jury" in the U.S. anymore. This "oath", the absurd
weaning process of voir dire, and judges' detailed
"instructions" have destroyed a basic protection recognized by the
Constitution. Until it's restored, I don't owe the courts
anything.
In the U.S. prisons today, there is NO ONE who has been properly
convicted of a crime. Everybody go home!
Robert|3.28.08 @ 1:57PM|#
I'll stop when they stop.
Or as they said in The President's Analyst, "Know when
we'll disarm? When those radical right wingers disarm."
And if anyone's searching here after the trial, the other post
wasn't me, it was Dondero spoofing me.
|3.28.08 @ 6:19PM|#
If someone asks you the question "will you follow the law as
instructed" and you say "Yes" knowing full well that your view of
the law as instructed essentially reads the crime in question out
of existence, you are lying.
True. That's why I wouldn't answer that question with an
unqualified "Yes."
I might ask a question in return, such as "What should I do if I
have questions or a problem with the jury instructions?"
Or I might say "I will apply my best understanding of the
law."
But, frankly, the odds of any lawyer letting me onto a jury
approach zero anyway.
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