Jury Nullification

Taking Jury Nullification a Step Further

Changing prosecutors' incentives

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The New Hampshire House of Representatives recently approved a bill requiring judges to tell juries they have a right not to convict a defendant if they feel that would be unjust, even if they think he's guilty. Writing in the Washington Post today, Glenn Reynolds calls for taking the idea a step further:

Stop: Hammer time!
E.P. Dutton

The New Hampshire legislation is good, but in my opinion it doesn't go far enough. Juries should be empowered to punish the prosecution when they feel the prosecution is abusive or malicious….

I think we should give prosecutors some skin in the game. Let juries be informed that they may refuse to convict if they think a conviction is unjust—and, if that happens, let the defendants' attorney fees and other costs be billed to the government. Also, let juries be informed that, if they believe the prosecution itself was malicious or unfair, they can make that finding—in which case the defendants' costs should come out of the prosecutor's budget. (If you want to get even tougher, you could provide that the prosecutors involved should be disqualified from law practice for a year or stripped of their immunity from civil suit. But I'm not sure we need to go that far.)

Read the rest here. For more from Reynolds on reining in abusive prosecutions, go here.

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  1. Libertarian moment!

      1. Law, huh! What is it good for? Absolutely nothing!

        “I, the undersigned, shall forfeit all rights, privileges, and licenses herein and herein contained,” et cetera, et cetera… “Fax mentis, incendium gloria cultum,” et cetera, et cetera… Memo bis punitor delicatum! It’s all there! Black and white, clear as crystal!”

  2. OT: Anyone else find it funny that “reason sponsored content” is the same color as the default new comment hue in fascr?

    1. I am sure I would if I knew what fascr is!

      1. A euphemism for masturbation.

        1. Oh, in that case my “content” is white not Hugh…I mean Hue!

          1. er, I mean my hue is white and obviously racist.
            #BlackHuesMatter

  3. When I retire from the active practice of law, I’m thinking my new hobby will be filing ethics complaints against prosecutors. As a licensed attorney, I actually have an affirmative obligation to file a complaint against attorneys who I believe act unethically:

    A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority, except as otherwise provided in these Rules or by law.

    1. I think you could be on to something, RC. But you know that you and your family will suddenly start getting a lot of nuisance traffic tickets, inspections, code violations, etc.

    2. Like that has stopped them before, Dean. Win/Loss or bust.

      1. Having your license suspended will be hard to wave off.

        Yeah, I know there’s a possibility of harassment. Just another complaint – the DA I filed on is now retaliating against me. Make him prove he isn’t, that its just a big ol’ coincidence. Plus, media coverage.

        I will admit: this would be a lot easier if I was single and didn’t have to worry about them getting to Mrs. Dean.

        1. I will admit: this would be a lot easier if I was single and didn’t have to worry about them getting to Mrs. Dean.

          Send Mrs. Dean packing and get to work.

        2. This is why you create a secret identity.

  4. Juries should be empowered to punish the prosecution when they feel the prosecution is abusive or malicious….

    Ha! Oh, man. How fun would applying that system check be?

  5. The prosecutors involved should be required to serve the maximum sentence for crime they were trying to unjustly prosecute someone for.

    THAT ought to make them think twice about using their office as a personal club….

    1. The median sentence would be a fine start.

  6. “they have a right not to convict a defendant if they feel that would be unjust”

    “feel”? Why not say “think” or “believe,” hippie?

  7. Can anyone quantify if this a direct effect of the FSP?

    1. I can’t remember what it was exactly, but this is the second legislative thing in a few weeks that have the hallmarks of a free state project cause. Being from/in new hampshire, I get to reap all the benefits without having to do anything! it’s great.

  8. Slightly OT, but love seeing the I, The Jury pic. That book’s great.

    One Lonely Night’s better though. Spillane did not treat Joe’s intellectual ancestors well in that one — the guy was definitely a hardcore libertarian.

  9. This is welcome news, but shoudn’t this have happened long, long ago? Now, when is this going to be the law of the land, nationwide?

    Consider this: A jury of one’s “peers” should naturally represent a meaningful cross section of the populace. For example, someone facing a “mandatory minimum” prison sentence for a victimless “crime” should demand a trial by jury and be confident that at least one sane person is a juror on the case, and will refuse to convict. This is by far the best way to get rid of bad laws, by making every single one of them subject to full public scrutiny.

    And yes, do take it the next step and give prosecutors “skin in the game.” If anyone should be held to the highest standards it should without a doubt be those with the power of life and death over the rest of us!

    1. If anyone should be held to the highest standards it should without a doubt be those with the power of life and death over the rest of us!

      ^This.

    2. They can only push for charges, Prosecutors don’t convict. 12 People you’ve never met before convict you. You have a beef with death penalties, Prosecutors are merely the mailmen. Go after the Post Office.

    3. Now, when is this going to be the law of the land, nationwide?

      There’s a good argument that jury nullification is, and always has been, the law of the land.

      The trick is forcing judges to include it in their jury instructions.

      1. I was going to answer with “as long as John Jay remains on the Supreme Court.”

    4. “And yes, do take it the next step and give prosecutors “skin in the game.” If anyone should be held to the highest standards it should without a doubt be those with the power of life and death over the rest of us!”

      I have often said the same about judges who sign “no knock” warrants, and the search turns up nothing because of wrong information, officer “suspicion”, bad informant, etc. A judge is supposed to require actual, verifiable evidence before signing a warrant. Nowadays, judges just grant anything an officer requests, and as a result, we get babies marred and disfigured by flash grenades.

  10. If you want to get even tougher, you could provide that the prosecutors involved should be disqualified from law practice for a year or stripped of their immunity from civil suit. But I’m not sure we need to go that far.

    Oh, yes we do!

  11. Read the comments there, and saw one interesting suggestion: requiring that the jury convict on all charges or none. It would help prevent prosecutors from throwing a million charges at the wall to see what sticks, which would in turn prevent abuse of plea bargaining, since tossing weak charges into the mix would make it much more likely the defendant would walk entirely.

    1. Then you’d see a lot of convictions on all charges after shitbag prosecutors scare them into “not letting this monster walk free.”

    2. The only solutions to this are jury empowerment and prosecutor accountability. Also, better jurors. Juries are heavily weighted with retirees and recipients of various types of welfare, ie those that have nothing better to do during the day and for whom the paltry $25/day salary is a significant figure.

      1. Also, having been gangbanged by law enforcement disqualifies you from serving on a criminal jury. So much for a representative jury of your peers.

  12. or stripped of their immunity from civil suit.

    They should be stripped of that regardless.

  13. But I’m not sure we need to go that far

    I am….

  14. Also, let juries be informed that, if they believe the prosecution itself was malicious or unfair, they can make that finding?in which case the defendants’ costs should come out of the prosecutor’s budget. (If you want to get even tougher, you could provide that the prosecutors involved should be disqualified from law practice for a year or stripped of their immunity from civil suit. But I’m not sure we need to go that far.)

    I love how everyone here assumes this would be used to reign in corruption instead of expanding it even further. Now in an Eric Garner case, not only will the cop get off scott free, but the jury can also punish the prosecutor for even daring to indict. Suing a university for violating due process in a sexual misconduct cases? Now a jury of SJW’s can punish the plaintiff for the lawsuit. Popular politician caught breaking the law? Now the people on their TEAM can make you wish you’d looked the other way.

    1. Now a jury of SJW’s can punish the plaintiff for the lawsuit

      They already can. Plaintiff’s don’t automatically receive qualified immunity unlike prosecutors, which is what is being discussed here.

      Now in an Eric Garner case, not only will the cop get off scott free

      As opposed to present circumstances where cops are being prosecuted left and right for every tiny little murder they commit.

      but the jury can also punish the prosecutor for even daring to indict.

      If there’s evidence of malicious prosecution.

      Popular politician caught breaking the law? Now the people on their TEAM can make you wish you’d looked the other way.

      Not sure what that’s supposed to mean.

  15. NOOOOOOOOOO!

    sin,
    Preet Bahraharaharaha

  16. It looks like Jesse wants that top spot in the alt text leaderboard.

  17. Wasn’t New Hampshire’s last attempt to get a jury nullification law on the books sunk by its supreme court?

  18. I like all of these proposals except that the restitution is paid for by taxpayers. How about some personal liability for taxpayer-funded miscreants?

    1. This was my first thought. Assuming it doesn’t actually reach the point where the prosecutors themselves face some sort of deterrent – barring them for X amount of time, as suggested, or fining them – it seems as likely to work as a deterrent as cities paying out large settlements from the general fund for police misconduct; i.e., not likely at all.

      If you were to force the prosecution to cover the defendant’s legal costs, and then strip the prosecutor of immunity from a civil suit, that seems like the optimal solution to me. The prosecutor then gets an opportunity to present a case on why the chargers weren’t mendacious, and as a bonus it means that even if their eventually cleared of wrongdoing they have to go through the same arduous process they put others through to get to that point, which is another layer of deterrence.

  19. Sounds like a serious plan dude.
    http://www.Anon-VPN.com

  20. Ive only been called to be a juror once and I remember during the selection process they asked something along the lines of “do you mistrust police officers?”

    Is that common everywhere or just my jurisdiction (Suffolk county mass.)

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