You're Probably a Federal Criminal, Too

Last week, Reps. Bobby Scott (D-Va.) and Louie Gohmert (R-Texas) held much-needed hearings last on the ever expanding reach and scope of federal law which, given a creative prosecutor and compliant judge, can make a federal criminal out of just about anyone.

One witness who testified at the hearings is convicted federal felon Krister Evertson. The Heritage Foundation's Brian Walsh has a write-up. What happened to Evertson is so outrageous, it merits a lengthy excerpt:

Krister never had so much as a traffic ticket before he was run off the road near his mother's home in Wasilla, Alaska, by SWAT-armored federal agents in large black SUVs training automatic weapons on him.

Evertson, who had been working on clean-energy fuel cells since he was in high school, had no idea what he'd done wrong. It turned out that when he legally sold some sodium (part of his fuel-cell materials) to raise cash, he forgot to put a federally mandated safety sticker on the UPS package he sent to the lawful purchaser.

Krister's lack of a criminal record did nothing to prevent federal agents from ransacking his mother's home in their search for evidence on this oh-so-dangerous criminal.

The good news is that a federal jury in Alaska acquitted Krister of all charges. The jurors saw through the charges and realized that Krister had done nothing wrong.

The bad news, however, is that the feds apparently had it in for Krister. Federal criminal law is so broad that it gave prosecutors a convenient vehicle to use to get their man.

Two years after arresting him, the feds brought an entirely new criminal prosecution against Krister on entirely new grounds. They used the fact that before Krister moved back to Wasilla to care for his 80-year-old mother, he had safely and securely stored all of his fuel-cell materials in Salmon, Idaho.

According to the government, when Krister was in jail in Alaska due to the first unjust charges, he had "abandoned" his fuel-cell materials in Idaho. Unfortunately for Krister, federal lawmakers had included in the Resource Recovery and Conservation Act a provision making it a crime to abandon "hazardous waste." According to the trial judge, the law didn't require prosecutors to prove that Krister had intended to abandon the materials (he hadn't) or that they were waste at all — in reality, they were quite valuable and properly stored away for future use.

With such a broad law, the second jury didn't have much of a choice, and it convicted him. He spent almost two years locked up with real criminals in a federal prison. After he testifies today, he will have to return to his halfway house in Idaho and serve another week before he is released.

So he was convicted of "abandoning" the hazardous materials in Idaho because he was in an Alaska jail awaiting trial on the bogus safety sticker charge for which he was acquitted. But he wasn't allowed to use that in his defense. Nor were prosecutors required to prove that the materials he didn't really abandon were actually waste. Note too the ridiculously paramilitary confrontation and arrest for the non-crime of failing to affix a safety sticker to a UPS package.

Back in 2004, Gene Healy wrote a piece for Reason on the ever-growing federal criminal code.

Comments

[troy]

Wow. And just think how crazy these federal pigs will go when they finally take marijuana out of their hands.

And the fact that courts, the legislature, or the executive can tell you what your defense can or can't be just goes to show that all this legal masturbation is nothing more than a kangaroo court.

[robc]

the second jury didn't have much of a choice

Bullshit. And this is a major part of the problem.

[robc]

Since neither Bush nor Obama pardoned him, Im assuming they both considered this a just sentence.

[Joe M]

Jury nullification is your friend.

[roystgnr]

"Non-crime"? Really? 2 years is harsh, and being run off the road as a terrorist is ridiculous, but surely it shouldn't be legal to ensure that UPS doesn't drop your package in a puddle via booby trap.

I'd also take issue with the phrase "jury didn't have a choice". We don't need juries of our peers because untrained conscripts are better than judges at interpreting good laws, we need juries because objective third parties are better than judges at nullifying bad laws.

[Tulpa]

Don't worry, Obama will be all over this at his next media love-in press conference. He's starting with disorderly conduct but he'll work his way up to every unjust law eventually.

[The cops who beat up Rodney Ki]

Jury nullification is your friend.

Damn straight.

[Fist of Etiquette]

Just when I was ready to completely write off the entire United States Congress, these two do something as monumental as look into serial injustices with no apparent financial gain for themselves. Who knew this was even possible?

Of course, my newfound admiration for members of the House of Representatives is severely blunted by the fact that not one goddam thing will change because of these hearings, worthless lot of cocksucking assholes on Capitol Hill that they are.

[Jeffersonian]

Jury nullification is your friend.

Word.

[Franco]

It's so random and stupid that it had to be a personal problem. Did he mess with the wrong guy's sister or something?

[P Brooks]

I'm sure the Arbiter-in-Chief will be looking into this.

[IceTrey]

I have to disagree with you on this one. Not having a hazmat sticker on a package containing something as dangerous as sodium should absolutely be a crime.

[the innominate one]

I'd be more concerned with how securely and watertight the package containing sodium was.

The lack of a sticker is a stupid mistake, compounded by the feds' overreaction and abuse of RCRA, double jeopardy and the judicial system.

[juris imprudent]

This does not add up at all. I don't believe in conspiracies, but this is just so odd it makes me wonder. If not that, what the hell brought him to the attention of the feds.

[Aresen]

With sufficient laws on the books, everybody is guilty of something.

Whether this was intentional or not on the part of those who wrote the laws, it is inevitable that people in power will use that fact to attack those who oppose them.

Icetrey @ 4:05 pm:

No, it should be a tort, not a crime. Omitting a safety warning is negligence and those put at risk by such behaviour should be compensated.

An investigation to determine criminal intent would be warranted, but it should end once it is determined that no harm was intended.

[J sub D]

I'd be more concerned with how securely and watertight the package containing sodium was.

I'd be more concerned that I've inadvertantly commited a federal crime and could get locked up for years over it.

You know the routine, LEOs can't be expected to know the law, you are held responsible for knowing it.

[the innominate one]

J sub D - I meant, from the POV of not being the one who actually sent the package.

[Pendulum]

It can't be a tort, because there's no injury. Since this time the sodium didn't explode and kill somebody, no one has a case under any tort theory I know of.

We could redesign much of the legal system to make offenses such as this one into a tort-like system, with government agencies as plaintiffs instead of people. Maybe we should.

I think the punishment is completely out of wack for a negligence offense. And I'm not tied to the idea of prosecuting this stuff in the criminal system. But society should be punishing this conduct in some way - his negligence put people's life at risk.

[Aresen]

Pendulum

IANAL, but I believe there have been cases where placing somebody "at risk" has been treated as a tort, even in the absence of injury.

However, even if it does not meet the "tort" test, I would say that it does not rise to the level of a crime (other than the state choosing to treat it as such).

I would definitely call it negligence and, in a rational system, every parcel delivery service would have this guy's name on a "watch list".

[Michael Ejercito]

And people wonder why we should turn over health care to the government...

[Tulpa]

Aresen,

Do you also oppose treating drunk driving as a crime? Because the two seem related to me.

[Tulpa]

I also wonder how all the pro-nullification folks would react when a jury "nullifies" police brutality laws, or acquits police officers of murder charges because the victim "deserved it".

Nullification is a double edged sword. It disrupts the rule of law by undermining the principle that the law should apply to all citizens equally. It's better to try to get bad laws struck down by judicial review or (anathema to libertarians, I know) through the ballot box.

[James Anderson Merritt]

"But he wasn't allowed to use that in his defense."

THAT is the problem. How can a jury responsibly nullify if they don't get enough of the story to judge nullification as an appropriate response?

I see the "judge's instructions" in cases such as these as being directly parallel with "sensible gun control" laws, in that we inexplicably tolerate government telling us what measures we can use to DEFEND OURSELVES FROM GOVERNMENT. Anyone who doesn't appreciate the absurdity of this, and isn't outraged that it happens in the so-called "land of the free and home of the brave," ought to take the return boat to Europe, or some other place where the populace are seen as the herd-like property of the rulers.

[hmm]

the second jury didn't have much of a choice

Bullshit. And this is a major part of the problem.

While I agree with the sentiment. I have commented here before that, in my unlawyerly reading and understanding, it appears that a lot of juries are bullied or cornered into returning shitty verdicts. I don't think people understand the power a jury wields. This coupled with what really does look like bullying to me leads to some pretty crappy results.

I wonder if Balko has a Sphygmomanometer at his desk of if he has just become desensitized to the bullshit.
I'd have a permanent pulsating vein on my forehead and neck. And I'm a the kind of guy it takes a 2X4 across the head to piss off with most things.

[Aresen]

Tulpa

Yes, I do oppose treating drunk driving as a crime. OTOH, I think being intoxicated should be treated as an aggravating, not mitigating, circumstance where another party was injured.

Also, if I were the owner of a toll road, I would try to find a way to contractually obligate those using it not to drive intoxicated and to give me or my agents the right to make tests that would determine intoxication.

[Brian Courts]

Nullification is a double edged sword.

At the risk of contributing to the continued overuse of nearly meaningless metaphors, freedom is a double-edged sword.

I also wonder how all the pro-nullification folks would react when a jury "nullifies" police brutality laws, or acquits police officers of murder charges because the victim "deserved it".

The same way I'd respond when someone uses any of his freedom to do something wrong. I'd recognize it as an unfortunate cost of allowing people to make choices for themselves. Some people will make poor choices. But it really seems a simple choice anyway. I'd rather society occasionally lets a guilty cop go free than eliminate a potential method of preventing thousands of people from unjust convictions. It's not even a close call.

It disrupts the rule of law by undermining the principle that the law should apply to all citizens equally.

Bullshit. If a law is unjust, or is going to be applied in a way that is unjust, you have a moral duty to do what you can to prevent that injustice. Saying you were just following the law is a moral cop-out that we've had quite enough of. People need to be accountable for the moral consequences of their actions and hopefully we've learned the lesson that hiding behind the "law" or "orders" or whatever is no defense for participating in the harming of another individual.

[juris imprudent]

Nullification is a double edged sword.

You don't need to round up 12 citizens to decide the facts of the case, or to simply apply the law as written.

So then you must ask yourself, why was the right to a jury trial written into the Constitution?

[EscapedWestOfThebigMuddy]

I wonder if Balko has a Sphygmomanometer at his desk

Them's some mad spelling skills, hmm. There is a reason I pronounce that instrument "blood pressure cuff".

[hmm]

I just love that word. Major fail on not changing the capital after removing the period.

[Tulpa]

Brian Courts,

I think the Jim Crow South would like to hire you to do their PR. You don't see the problems that could arise (and indeed have arisen) when jury nullification leads to unequal protection under the law?

juris imprudent,

There are plenty of reasons besides nullification. For one, it's less likely that 12 people will vote to convict if the prosecution's case isn't airtight than it is that one judge will decide to convict. It also offers a defense against corrupt govt officials (including judges) having the individual power to convict defendants who hadn't broken the law.

But I'll raise you another question: if the only reason for a jury is so they can nullify laws, why is there a right to a jury trial in civil matters involving more than $20? There's no possibility for nullification in those cases.

[Tulpa]

Yes, I do oppose treating drunk driving as a crime.

OK. How about standing in the middle of a park and spinning around firing a machine gun randomly? Assuming no one actually gets injured and the bullets just hit trees or something (ie, no property damage). No crime there, either?

Also, if I were the owner of a toll road, I would try to find a way to contractually obligate those using it not to drive intoxicated and to give me or my agents the right to make tests that would determine intoxication.

And as the "owner" of the entire road system for the foreseeable future, the government needs to put such reasonable restrictions on those who use it.

[Tulpa]

Brian Courts,

Let me put it this way. If the legal system refuses to enforce laws against certain people (or in defense of certain people), then the society is not free in any meaningful sense of the word. If Person A will never be convicted of a crime against Person B, but Person B will be convicted of any crime against Person A, then Person A is free to initiate force against Person B, and Person B has no legal recourse against this force. The fact that Person A is a private party (rather than a govt actor) is irrelevant.

[Elemenope]

So then you must ask yourself, why was the right to a jury trial written into the Constitution?

I imagine it is a combination of two factors. It is a check on judges who, through the political appointment/election process or power-drunkenness (or both) occasionally become corrupt. It is also a nudge to make sure that laws as they are applied to not fall far outside the community's standards and expectations.

Nullification is really only a minor part of this whole deal. One obvious structural check is that lawyers, when preparing arguments, must modulate them so that twelve average citizens would not be likely to laugh at them (the laugh is on the inside). The further the law is from the expectations of the community, the harder that is to do.

[Fist of Etiquette]

Better a guilty man go free than an innocent man imprisoned. Just my opinion.

[Elemenope]

Better a guilty man go free than an innocent man imprisoned. Just my opinion.

You, me, Increase Mather, and William Blackstone.

[Tulpa]

Better a guilty man go free than an innocent man imprisoned. Just my opinion.

No innocent people are freed by jury nullification. By definition it involves a case where the accused has indeed broken the law.

[Tulpa]

Also, while I appreciate the sentiments behind the quote above, our freedom does depend on the guilty being punished as well as the innocent not being punished. Perhaps we should err on the side of the latter goal, but we should not completely forget about the first.

[skr]

I'm sure I'm a federal criminal.

[Fist of Etiquette]

You, me, Increase Mather, and William Blackstone.

I have many followers.

No innocent people are freed by jury nullification.

Ummm...

Perhaps we should err on the side of the latter goal, but we should not completely forget about the first.

Perhaps? I would imagine your opinion on this would firm up if your freedom was taken from you by overzealous or careless law enforcement officials.

[Brian Courts]

I think the Jim Crow South would like to hire you to do their PR.

Nice try at a cheap shot, but of course you've got it entirely backwards and your example actually helps my case.

Let's say you were on a jury in the Jim Crow south and and at trial someone was charged with sitting at the wrong lunch counter, riding in the front of the bus, or trying to live in the wrong part of town. Let's further say that the facts were incontrovertible that the defendant had in fact violated the letter of the (unjust) law. Now are you telling me you'd vote to convict that person?

Or let's take it another step. You're a juror on a 19th century fugitive slave act case. Again, the facts are clear, someone did refuse to return a runaway slave to his "owner." Are you going to vote to convict?

I should hope that the only civilized answer is "no."

Going back to your "laws should apply to everyone equally" comment. I agree, and unjust laws (whether unjust on its face as above, or in its application) should apply to everyone equally as well -- that is to say, not at all. Jury nullification is one small, imperfect, step in attempting to achieve that outcome.

Really, I think you have to ask yourself what kind of a world is better to live in: one where everyone goes around blindly following every law and rule regardless of how wrong it is, or one where people are responsible for acting in a just and moral way even when doing so runs counter to the law? I'd say the answer to that is obvious.

I'll state the specific case more simply: you cannot vote to convict someone when doing so leads to an immoral or unjust outcome. Period. Doing so is directly participating in the unjustified harming of another person and hiding behind the law is absolutely no excuse.

[Brian Courts]

No innocent people are freed by jury nullification. By definition it involves a case where the accused has indeed broken the law.

You have a rather narrow, statist, and in my view warped, take on the concept of innocence if the only question you need to ask is whether someone violated the letter of the law.

[Elemenope]

No innocent people are freed by jury nullification. By definition it involves a case where the accused has indeed broken the law.

Here I think you're making a mistake of equating "breaking the law" with "guilt". One may break the law and not be guilty (self-defense/mental defect/youth/many other justification defenses), even in the narrow categories recognized by7 the law itself. Guilt implies an assigned responsibility; if a jury nullifies an otherwise likely conviction, they are saying you shouldn't be held responsible; hence, are not *guilty*.

[Elemenope]

Going back to your "laws should apply to everyone equally" comment. I agree, and unjust laws (whether unjust on its face as above, or in its application) should apply to everyone equally as well -- that is to say, not at all. Jury nullification is one small, imperfect, step in attempting to achieve that outcome.

Thinking about it less like a integrated part of the justice system and more like a social tripwire might help. The purpose of nullification is not to destroy the law itself, but rather to bring attention to laws that may have slipped away from the general public's approbation.

[Brian Courts]

Thinking about it less like a integrated part of the justice system and more like a social tripwire might help.

I certainly don't look at it as an integrated part of the justice system by any means. I look at it mostly as an individualist - one individual simply cannot participate in the unjustified harming of another individual. Whatever the larger social implications that follow are less important than that premise.

[Elemenope]

...one individual simply cannot participate in the unjustified harming of another individual. Whatever the larger social implications that follow are less important than that premise.

I tend to agree.

[Shawn]

This story makes me very angry. I'm with "hmm" -- how can you read this stuff all day and stay sane?

[The Libertarian Guy]

Now THIS is bullshit. This guy doesn't deserve any of this.

[deja moo]

The thread seems to have lost track of the fact that he was acquitted of shipping the package without a warning sticker, which act he did commit; and convicted of abandoning hazardous waste, which he did not do.

Jury nullification? I'd be more in favor of charging the prosecutor with malfeasance in office.

[alan]

No innocent people are freed by jury nullification. By definition it involves a case where the accused has indeed broken the law.

Let me guess, if you were asked what your two favorite colors (in the broader, connotative definition of the word*) are, one would be white the other black.

*There is a certain reaction to this usage of the word that would set off such a degree of world weariness from me that I would set off the vacuum decay that would consume us all in response.

[bob mologna]

They went after him because metallic sodium is commonly used in methamphetamine manufacture (see "Nazi method"). Buying or selling sodium sets off massive red flags with law enforcement.

[Elemenope]

*There is a certain reaction to this usage of the word that would set off such a degree of world weariness from me that I would set off the vacuum decay that would consume us all in response.

Whoa.

[max hats]

They went after him because metallic sodium is commonly used in methamphetamine manufacture (see "Nazi method"). Buying or selling sodium sets off massive red flags with law enforcement.

Good call, especially with Wasilla being a bit of a meth capital from what I've read. Someone probably got it into their head that this guy just has to be a drug manufacturer and played the whole "what can we bust him on game."

This entire article is a fantastic argument for limiting the latitude of prosecutors as well as more clearly defining and narrowing a lot of federal statutes. Although I'd be surprised if the Heritage Foundation would agree, unless the party line has recently changed.

to Tulpa:

No innocent people are freed by jury nullification. By definition it involves a case where the accused has indeed broken the law.

False. A person not convicted is by definition "innocent" under our system of laws.

[alan]

Whoa.

Unfortunately, it is my only super power, and a pretty useless one at that.

[Tulpa]

Let's say you were on a jury in the Jim Crow south and and at trial someone was charged with sitting at the wrong lunch counter, riding in the front of the bus, or trying to live in the wrong part of town. Let's further say that the facts were incontrovertible that the defendant had in fact violated the letter of the (unjust) law. Now are you telling me you'd vote to convict that person?

If we're talking about privately mandated segregation (which most of that in the Old South was) I don't think a libertarian could support violating property rights.

If we're talking about public segregation laws, those laws can be, and were challenged through the judicial process. And frankly, if I'm a black person in the Old South, I'd rather deal with segregation laws than lynch mobs immune from punishment due to jury nullification.

You're a juror on a 19th century fugitive slave act case. Again, the facts are clear, someone did refuse to return a runaway slave to his "owner." Are you going to vote to convict?

A slavery opponent almost certainly would not make it onto such a jury, but yes I would vote to convict. It's the way our justice system has to work.

Seriously, jury nullification is one of the issues where libertarians seem to mimic the "if we only get the right people in charge" attitude of liberals. Hey, I'm sure if we had every jury in the land composed entirely of fine upstanding libertarians, there would be no problems arising from nullification. But the system has to be designed to dispense equal justice under the law no matter what sort of people you get on the jury.

You have a rather narrow, statist, and in my view warped, take on the concept of innocence if the only question you need to ask is whether someone violated the letter of the law.

What definition of innocence do you want the jury bound to follow? "I know it when I see it" might be a swell standard for porn or jazz but it's piss poor as a basis for the legal system of a free society.

[Some Guy]

We need to create some sort of federal internal affairs office that can get people fired and/or arrested for doing stupid shit like this.

[Tulpa]

Here I think you're making a mistake of equating "breaking the law" with "guilt". One may break the law and not be guilty (self-defense/mental defect/youth/many other justification defenses), even in the narrow categories recognized by7 the law itself.

Your second sentence undermines the first -- those defenses are written into the law, so a person to whom they apply has not really broken the law when considered in its entirety. Also there are the traditional defenses (such as insanity) which are present in the common law even if they are not written into the statutes themselves. Again, what standard of guilt do you think juries should apply, if not that a person has broken the law without any valid defense being applicable?

[Seward]

On the issue of jury nullification, one could turn to Aquinas; see Article II: http://www.newadvent.org/summa/2095.htm

[Tulpa]

I should add that in this particular case I think it's BS that the defense was barred from presenting certain defenses. It's even more BS that the prosecution was relieved of the burden of proof that Krister had abandoned the materials intentionally, and that the materials were actually hazardous waste.

There's your problem, and hopefully this will be thrown out on appeal.

[Tulpa]

A person not convicted is by definition "innocent" under our system of laws.

So OJ Simpson was innocent of murder?

No. An acquitted person is "not guilty" in the context of the legal system, meaning they cannot be punished by the state. (Of course, thanks to those wonderful followers of jury nullification in white-on-black murder trials in the Old South, we have the principle of dual sovereignty to allow the feds to re-try the acquitted.) They may actually be guilty in the usual sense of the word.

[Seward]

Tulpa,

If we're talking about privately mandated segregation (which most of that in the Old South was) I don't think a libertarian could support violating property rights.

Non-sense. Segregation in the South was directly related to various legal codes which enforced such. They arose as a result of the increasing willingness of Southern whites and blacks to deal with one another as equals. Indeed, the legal system was really a way to beat back the commercial, etc. integration in the South.

Oh, and the "Old South" is the pre-Civil War South; the "New South" refers to the South that came into being after the Civil War. If you are going to prattle on about a whole sub-field of history you might as well understand the terminology.

A slavery opponent almost certainly would not make it onto such a jury...

Actually, they did. Resistance by juries and by crowds was so common in fact that Northern states eventually passed various liberty laws which undermined the fugitive slave laws. The law responded to the popular will as seen through the efforts of jurors.

But the system has to be designed to dispense equal justice under the law no matter what sort of people you get on the jury.

The system is designed to benefit some people, and ignore or screw others. This is the essence of politics; concentrated benefits and dispersed costs.

Anyway, quite clearly there is a difference between law and legislation.

[deja moo]

tulpa

hopefully this will be thrown out on appeal.

Too late, he's already served his time.

[John Markley]

Tulpa,

"I also wonder how all the pro-nullification folks would react when a jury 'nullifies' police brutality laws, or acquits police officers of murder charges because the victim 'deserved it'."

You want to know how we'd react if the world were exactly the way it already is? I'd be a bit peeved, I suppose.

[rm2muv]

Not labeling sodium being shipped UPS? BAD

Serving 2 years for this mistake? WORSE

By the way, what was the original sentence? Didn't the judge have any discretion on the sentence?

Getting rid of SWAT teams? PRICELESS

[Brian Courts]

If we're talking about privately mandated segregation (which most of that in the Old South was) I don't think a libertarian could support violating property rights.

We're not! Jesus, your own post said "Jim Crow" which refers to Jim Crow laws - those were state and local laws. Don't try to weasel out of a direct question with misstatements like that. Come on.

If we're talking about public segregation laws, those laws can be, and were challenged through the judicial process. And frankly, if I'm a black person in the Old South, I'd rather deal with segregation laws than lynch mobs immune from punishment due to jury nullification.

Unless you're about to go to jail because not one of the jurors has the moral courage to do the right thing. Nice dodge of the question by the way. First you try to weasel about private vs. public (which was has nothing to do with the issue) then you just dodge. Also, who cares if you'd rather see the judiciary step in? Great, so would I, but until that happens, when you're a juror asked to enforce an unjust law, what do you do?

So the question remains - would you on a jury charged with enforcing a Jim Crow law vote to convict? Yes or no?

A slavery opponent almost certainly would not make it onto such a jury, but yes I would vote to convict. It's the way our justice system has to work.

Well, finally you answer a question and now I see I'm wasting my time. Anyone that could convict someone in that situation isn't someone to be suffered in even polite company. It's just beyond immoral. Boot-licking, statist, follow-the-law at all times, just following orders types are scary and the cause of far more evil and injustice in the world than those who use their intelligence to weigh the moral consequences of their actions instead of simplemindedly deferring to authority.

Seriously, jury nullification is one of the issues where libertarians seem to mimic the "if we only get the right people in charge" attitude of liberals.

Once again you have it entirely backwards. My approach is a libertarian individualist approach which requires each individual to be responsible for his moral choices. Your approach is a statist, authoritarian, follow the-law-because-the-state-says-so, which in the long run will work out all right if we just follow the process and can get the right people in there, or on the courts, or whatever. For fuck's sake, you couldn't be more ass-backward if you tried.

But anyway, I am done arguing with you because there is just no reasoning with someone who would blindly follow a law and convict someone who had tried to help a slave escape, nor someone who would enforce a law aimed at returning slaves to captivity. Honestly, that's obscene.

[Seward]

John Markley,

You win the thread.

[Joseph]

I know the gov't deals crack cocaine, but this is an even bigger outrage!!!

[Malto Dextrin]

Note too the ridiculously paramilitary confrontation and arrest for the non-crime of failing to affix a safety sticker to a UPS package.

And I went and tore off that damned mattress tag.

[Tulpa]

Anyone that could convict someone in that situation isn't someone to be suffered in even polite company. It's just beyond immoral. Boot-licking, statist, follow-the-law at all times, just following orders types are scary and the cause of far more evil and injustice in the world than those who use their intelligence to weigh the moral consequences of their actions instead of simplemindedly deferring to authority.

This coming from the guy who said lynch mobs being immune to punishment are the price of freedom. Get off your goddam high horse and come down to the real world, where jurors aren't as pure as the driven snow as you seem to think. Since you're so fond of answering uncomfortable questions, here's one for you. If you're a judge in a murder trial stemming from a lynching in Mississippi in 1910, are you going to instruct the jury that they should find the defendants not guilty if they don't think the law should be applied in this case?

My approach is a libertarian individualist approach which requires each individual to be responsible for his moral choices.

Unless that individual happens to get a sympathetic jury after committing a crime. I wouldn't exactly say that engineering a system so that cops and lynch mobs get away with murder constitutes "requiring each individual to be responsible."

Your approach is a statist, authoritarian, follow the-law-because-the-state-says-so, which in the long run will work out all right if we just follow the process and can get the right people in there, or on the courts, or whatever.

If that's your attitude then any minarchist is damned, as any system of government requires some trust that the government is not going to totally ignore its constitution and the law (if only because the people in govt fear the people at the ballot box or in extreme cases fear violent rebellion). If the people are so pissed off about the application of the law that they would vote to nullify in a jury trial, why the hell aren't they pressuring their representatives to get the law changed?

[Tulpa]

You want to know how we'd react if the world were exactly the way it already is? I'd be a bit peeved, I suppose.

Thank you for agreeing with me that jury nullification has a dark side that's reared its ugly head time and again in our history. The cure is worse than the disease.

[Tulpa]

Oops, forgot about this gem from Mr Courts:

Unless you're about to go to jail because not one of the jurors has the moral courage to do the right thing.

Really? A black guy in Mississippi in 1910 would prefer to be subject to arbitrary lynching rather than not be able to sit in the front of a bus?

I know neither of those options is a pleasant situation and both represent terrible injustice. However, death is a bit more severe a danger than walking to the back of the bus.

[Tulpa]

I also find it ironic that the people who (rightly) squeal like stuck pigs when people's freedom from unreasonable searches is compromised because of the drug war (which is approved of by the vast majority of Americans), think that a person's right to life can be nullified by 12 people in a jury box who think they needed killin'.

[Tulpa]

Actually not even 12. If even one person on the jury thinks the law against murder shouldn't apply to someone who killed you, they'll probably get off. Nice "individual responsibility" you got there.

[TSowell Fan]

Gosh, I hope that, in addition to the philosophical arguments and role playing, everybody posting here has taken the practical, responsible step of contacting their federal elected representatives and local media to protest the injustice perpetrated in this case.

And to press for one or more of: legislative changes, compenensation for this man, disciplining/punishment of the over-zealous investigators and prosecutors and, possibly, creation of a federal justice ombudsman to whom gross injustices like this one can be raised and financial help obtained to appeal.

Jury nullification is citizens taking the law into their own hands -- vigilanteism, pure and simple.

[Xeones]

Every once in a while, Bobby Scott does something that makes me glad he's my rep. Every once in a while.

[Mad Max]

'If you're a judge in a murder trial stemming from a lynching in Mississippi in 1910, are you going to instruct the jury that they should find the defendants not guilty if they don't think the law should be applied in this case?'

Do you have any examples of white people who went on trial during that era in Mississippi for the crime of lynching a black person? If not, then jury nullification isn't the problem; it's cop nullification (and maybe *grand* jury nullification in refusing to indict).

[Mad Max]

I would like to float this idea and see who salutes:

If someone is put on trial for allegedly violating a federal criminal statute, then the judge's instructions to the jury should consist only of (a) the text of the statute which was allegedly violated, (b) basic procedural rules (like presumption of innocence and the need of the prosecution to prove the elements of the crime beyond a reasonable doubt, and (c) instructions strictly required to enforce the defendant's constitutional rights (like, 'you can't infer guilty from someone's failure to testify').

How would that work? The judge wouldn't be telling jurors to nullify, but she *would* be leaving the interpretation of the criminal statutes to the jury's good sense, with the beyond-a-reasonably-doubt standard helping make sure that in case of uncertainty, the defendant wins.

Judges wouldn't be able to give an extended commentary on the meaning of criminal statutes in order to nudge jurors toward conviction. While the lawyers could argue over the application of the statute, if jurors asked the judge for clarification, the judge would say, 'you have the text of the statute; that should be enough.'

After all, in order to be constitutional, a criminal statute needs to be clear to a layperson of reasonable intelligence - a person can't be punished for violating a law that's too vague for a normal person to understand. If the law is clear enough for its meaning to be apparent to a would-be criminal, then its meaning should be apparent to a juror - without having his hand held by the judge.

[polio robot]

Maybe some enterprising comedian can start a meme with, "You might be a federal criminal if...". I'd buy that for a dollar.

[EscapedWestOfTheBigMuddy]

I would like to float this idea and see who salutes:

If someone is put on trial for allegedly violating a federal criminal statute, then the judge's instructions to the jury should consist only of (a) the text of the statute which was allegedly violated, (b) basic procedural rules (like presumption of innocence and the need of the prosecution to prove the elements of the crime beyond a reasonable doubt, and (c) instructions strictly required to enforce the defendant's constitutional rights (like, 'you can't infer guilty from someone's failure to testify').

This is not a bad idea on the face of it, but it will meet enormous resistance because most of federal law simply isn't meant to be comprehensible to the layman.

'Ya see, congress gets their collective jollies by empowering faceless (and soulless?) federal functionaries to write regulations which will have the power of law. Many of these are about obscure corners in technical fields like accounting, waste water processing, fresh water characterization, nuclear waste handling, or (as far as I know) size limitation on porn actor's male appendages.

I would not be at all surprised to learn that such regulatory "laws" outnumber the statutory type.

Damn near no cases could be won on the basis of these "laws" under your naughty little proposal. This is probably a good thing from a libertarian-theological point of view, but might be a mixed bag from a consequenciallist POV. At least in the short term.

[Fluffy]

Tulpa,

As usual, you are approaching the jury nullification question from entirely the wrong perspective.

It's not a "maxim of my action" sort of question. In other words, I should not ask myself, "Would I like it if people who subscribe to different moral codes than me also chose to nullify?" I can't control what those other people do, and for all I know that's exactly what they're already doing.

It's a "moral entanglement" sort of question. Jury service is one of those areas where the state enlists private citizens to assist it in its endeavours, in this case the application of criminal and civil justice. If I'm drafted as a juror and asked to assist in the application of unjust laws, if I do so I become morally entangled in those laws. To use an example given above, if I serve on a jury to try someone charged with assisting slaves to escape, I become morally entangled in the slavery system if I vote to convict. You can declare "That's not how our legal system works", but you can't make it so. Prosecutors and defense attorneys can avoid moral entanglement in their cases precisely because the ultimate judgment belongs to the jury; but this means that the jury can't avoid it.

Naturally, one way to avoid moral entanglement of this kind is to refuse to serve, or simply to make your objection to the law in question known during voir dire, so that you can't be made complicit in enforcing an unjust law. The problem with this, however, is that one very clever way for a state to insure that its unjust laws continue to be enforced is to use the voir dire process to eliminate anyone who doesn't support those laws from the jury pool. So in a sense by avoiding jury service you're again shirking a moral responsibility, because by your action you're creating a situation where only supporters of the injustice in question are available to judge the accused. To use the slavery example again, if all the abolitionists exclude themselves from the jury pool, we're guaranteed slavers' justice.

[TSowell Fan]

What ACTUALLY happened? Did jurors eventually abolish slavery by refusing to adhere to pro-slavery laws? Or was slavery abolished by some other means?

[Paul]

Jackbooted thugs, anyone?

[Disappointed that her daughter]

Major fail on not changing the capital after removing the period.

[hmm]

Oolong says wah?

[Mad Max]

'What ACTUALLY happened? Did jurors eventually abolish slavery by refusing to adhere to pro-slavery laws? Or was slavery abolished by some other means?'

Jurors did not *abolish* slavery - contrary to your namesake (Thomas Sowell), you seem to go in for solutions rather than tradeoffs. Suffice to say that jurors often *upheld the law* by *rejecting* the pro-slavery legal interpretations urged upon them by proslavery federal judges.

[Disappointed again]

Pun.

[roger o.]

Oh man what BS. And to think i keep hearing all the conservatives rail about having to obey the "rule of law".

so this is the rule of law? Seems to me to be unjust rule of law?

And i think back to the unjust rules of laws in Germany in the 1930,s- 1940,s.

Is this where the US is headed?

[The Libertarian Guy]

"Is this where the US is headed?"

Yes. We were headed there under Bush, Clinton, Bush Version 1.0, Reagan... go back decades from there.

And Obama is just continuing the downward spiral. His supporters won't believe it, because he could throw a flaming kitten into a wood chipper and Obamites would nod and say "well, obviously Kitty was a Republican, he had it coming, praise Obama, amen".

[SIV]

Jury nullification is citizens taking the law into their own hands -- vigilanteism, pure and simple.

You say that like it is a bad thing.

[Robert]

Your sure it was the meth angle rather than the political incorrectness of alternative energy, i.e. the influence of Big Oil?

[hmm]

It was the fucking aliens and black helicopters.

[deja moo]

rm2muv

Not labeling sodium being shipped UPS? BAD

Serving 2 years for this mistake? WORSE

Again, he was ACQUITTED of that charge. He was CONVICTED of the charge of "abandoning" hazardous "waste" which was neither abandoned nor waste. Hazardous, yes.

Is anybody paying attention?

[Art-P.O.G.]

I like the idea Mad Max floated, even with Muddy's very cogent caveats.

[Space Fiend]

1) I'm sure all of us have been guilty of dozens, probably hundreds of federal crimes. Hell, I make probably 50 "terroristic threats" in my average online gaming session.

2) You aren't fit to call yourself "human" if you vote to convict on a charge like this. It's sick. If I was on a jury, I would absolutely hang it over this.

[Waszilla]

"It's so random and stupid that it had to be a personal problem. Did he mess with the wrong guy's sister or something?"

That was my first thought. This guy must have been f*cking Bristol, or he took Todd's money in a poker game, or something.

[R C Dean]

It disrupts the rule of law by undermining the principle that the law should apply to all citizens equally.

Not if the law recognizes the discretion of jurors to decline to convict.

While there would certainly be injustices of jury nullification were broadly recognized, on the whole, given the enormous number of petty and arbitrary laws that we labor under, I think we would be better off. If we lived in a proper minarchy/night watchman state, it might be a different argument.

[Zeb]

"I'd rather deal with segregation laws than lynch mobs immune from punishment due to jury nullification."

I would be inclined call that "dishonest jurors" rather than jury nullification.

[Angus]

Reading about Krister Evertson shows some problems in using him as a poster child.

1. He used a phony name and fake address in getting his Alaska post office address. He shipped hazardous mats used in meth manufacture in unmarked packages using the fake name and address.
2. The search of his real Alaska address uncovered multiple chemicals used in meth manufacture, including the sodium metal.
3. The initial search warrant only specified the sodium metal and so authorities could not use the other materials in Alaska as the basis of criminal charges.

To me, this looks like a case of catching a guilty guy on other charges. Kind of like catching Al Capone on income tax evasion.

[Zeb]

Most troubling to me in this case is that the defense inthe second trial was not allowed to mention that the "abandonment" of the hazardous materials was because he was in jail on the first charges (of which he was acquitted). It seems to me that you ought to be able to say anything that is true in court and have the jury hear it.

[No Name Guy]

Well, I couldn't wade through all the comments, but some observations:

1) UPS tends to fly a lot of their stuff.
2) Sodium is highly reactave (duh).
3) Labeling and shipping limitation requirements are in place so that shippers know what safety precautions need to be taken with a given package.
4) Should the package be ruptured or the sodium came in contact with moisture while in flight (not unheard of) the results would be catastrophic. See Valu Jet in Flordia for an example of what happens when unsafely packaged freight gets onto an aircraft where it shouldnt' be.

5) Was there any proof of means rea in this case? No?

6) Then (given lack of the guilty mind), at worst, it would be an adminstrative infraction (e.g. the equivelant of a speeding ticket or parking ticket) not a criminal offense.

The dip shit should have been fined - not sent to jail.

[Robert]

Reading about Krister Evertson shows some problems in using him as a poster child.

Yet neither Congressmen nor Heritage had a problem doing so.

[Angus]

I'm betting the Congress critters had never heard of him before a couple days ago, and just read whatever briefing Heritage gave them.

[Wilson]

>With sufficient laws on the books, everybody is >guilty of something.

I thought that even with *current* laws on the books, everyone is technically a felon? I mean it makes sense that even with traffic violations alone, almost anyone who drives a car has broken enough laws over the years that it would add up to multiple lifetime sentences? Just wondering out loud...

[Kevin Carson]

The jury ALWAYS "has a choice"; it can simply ignore the law and say "Fuck you" to the prosecutor.

[Crotalus]

Of course the jury had a choice: jury nullification. Of course, nowadays judges just overturn the jury's verdict if it doesn't go their way.

And if I were the defendant, I'd bring up whatever I thought was appropriate for my defense. Screw what the judge said. I'd get it before the jury whether or not I was told not to.

[Henry Bowman]

To me, this looks like a case of catching a guilty guy on other charges. Kind of like catching Al Capone on income tax evasion.

You say that like it's a good thing.

[Jeorme]

Actually, the jury did have a choice in the second "offense". People have to realize they don't have to convict someone under a dumb law or a dumb appliation of a law. Juries have the right to not be a rubber stamp for nutjob/overzealous prosecutors. We have a long history of juries having the ability to deny convictions even if someone technically fit the criteria of breaking a law, though a dumb interpetion of breaking it.

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