Criminal Justice

"You want it to be one way … but it's the other way."

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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

NEXT: He's a Jolly Good Felon

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  1. 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.

  2. 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.

  3. 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

  4. 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?

  5. That would make for an interesting trial.

  6. If I’m called for the jury for David Simon’s trial for suborning perjury, I’m voting to acquit.

  7. I advocate jury nullification of of the supposed Texas law making advocating jury nullification a crime.

  8. 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.

  9. That jackass needs a kick in the balls.

  10. The comments Bennett’s guest post were Godwinned in five.

  11. I’m voting for Mark Bennett nullification.

  12. 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.

  13. It’s a direct attack on free expression by a government agent.

    In other news, dog bites man.

  14. 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).

  15. 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?

  16. 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.

  17. Shut that fucker down, before it infects the rest of the profession with a critical mass of stupid.

    Oops?too late?

  18. 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

  19. 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!

  20. jcr-
    as stated above, it isn’t Bennett, it’s a correspondent of his who’s a DA

  21. Also note this guy can’t seem to say ‘America’ without following it with ‘God bless her’. Bad writing or weirdness; either’s entertaining.

  22. 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?

  23. 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??

  24. Yup, home you go with a dirty look from the prosecutor.

  25. 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

  26. 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.

  27. 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.

  28. 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.

  29. 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.

  30. Mark Bennett is an arrogant, ignorant gay man… not that there’s anything wrong with that!!

  31. Hey Casey,

    You don’t read very well, do you?

  32. 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.

  33. 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).

  34. ‘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?

  35. 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?

  36. Lawyers. Dave W. would be proud of this guy.

  37. 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.

  38. 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.

  39. 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.

  40. 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.

  41. 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?

  42. 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.

  43. 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?

  44. Why don’t you Yankees think Texans can’t be subtle?

    Sheesh.

  45. Damn it. I suck.

  46. 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.

  47. 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?

  48. 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.

  49. 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.

  50. “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.

  51. 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?

  52. 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)?

  53. 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.

  54. “Reason number 1 million why libertarians… ”

    Isn’t that a call to DRINK!

    CB

  55. 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.

  56. 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.

  57. 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.

  58. “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.

  59. 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.

  60. 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).

  61. 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.

  62. 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.

  63. “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.

  64. 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?

  65. 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.

  66. 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?

  67. “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.

  68. “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.

  69. 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.

  70. 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.

  71. 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.

  72. 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.

  73. 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.

  74. 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.

  75. 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?

  76. 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.

  77. “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.

  78. “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.

  79. 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?

  80. 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.

  81. “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.

  82. “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.

  83. 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.

  84. 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.

  85. Further translations of John:

    “I agree with jury nullification on some issues (slavery) but not other issues.”

  86. “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.

  87. 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?

  88. “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.

  89. “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.

  90. 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.

  91. “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.

  92. 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

  93. 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.

  94. 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.

  95. 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.

  96. 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.

  97. 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 . . .

  98. 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.

  99. 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.

  100. 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!

  101. 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.

  102. 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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