Jury Nullification

Rebellious Jurors Make the World a Better Place

Jury nullification has officials losing cases, changing policies, and fretting over the power of the people they often abuse.

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After criticism by some local officials of a new program that refers people caught with four ounces or less of marijuana for fines and community service, El Paso, Texas, Police Chief Greg Allen turned out to be a surprise defender of bypassing the usual criminal justice rigmarole of booking, mug shots, and jails. While careful to emphasize that he's no fan of drug legalization, Allen says it's a waste of his officers' time to put hours into an "an arrest that has no end result of a conviction because of jury nullification."

This is only the latest evidence that rebellious jurors are putting limits on how badly government officials can treat the rest of us.

Relative to some of its neighbors, Texas continues to enforce relatively draconian marijuana restrictions. The state is only slowly implementing a medical marijuana law signed by the governor in 2015. It's a measure at least partially inspired by the refusal of jurors, as in a high-profile 2008 case involving an HIV patient, to convict people for using the drug as medicine. But the law has been criticized for requiring the use of low-THC products, and burdensome regulations, "leaving some to worry if the Texas program will work at all," according to the Houston Press. And the state has yet to easy any rules regarding recreational use.

That leaves plenty of room for jurors to act—and they appear to be doing so with enthusiasm.

"Jury nullification, though still rare, appears to be on the rise in drug cases that reach the trial stage," wrote Rice University's Prof. William Martin in the course of a discussion on the impact of jury nullification on the state's drug policy sponsored by Rice University's Baker Institute and the Houston Chronicle. "But even if the numbers remain small, their impact can ripple outward." He cited the case of a judge who experimentally offered jurors a chance to recommend penalties they believed appropriate in cases involving large quantities of drugs. "In the first case, they found the defendant guilty and gave him probation…We did another one just to see. Same result—huge amount of marijuana, probation. The prosecutors couldn't believe it."

But jurors aren't usually allowed to choose lenient treatment of defendants—unless they go for outright acquittal. And they're doing just that often enough that the El Paso Police Chief sees no point to making arrests that have "no end result of a conviction because of jury nullification."

If restrictive laws create conflicts with jurors unwilling to enforce them, it's no surprise that our next bit of news comes from Georgia, which "has some of the most punitive marijuana laws in the country," according to the Marijuana Policy Project.

In Laurens County, Antonio Willis faced up to five years in prison for selling the equivalent of a few joints to an undercover cop. The cop, "who switched into an exaggerated Hispanic accent straight out of Cheech and Chong when dealing with suspects," according to Bill Torpy of the Atlanta Journal-Constitution, kept pestering Willis for drugs while promising to hook the unemployed man up with a construction job.

Willis was represented by Catherine Bernard, a defense attorney affiliated with both Peachtree NORML and the Fully Informed Jury Association. That may have made a difference, since the jury acquitted after just 18 minutes of deliberations.

"A jury in Middle Georgia returned a Not Guilty verdict in a marijuana sale case despite the evidence," retired sheriff's deputy Tom McCain, now executive director of Peachtree NORML, approvingly commented after the trial. "The verdict can be nothing other than Jury Nullification."

Unsurprisingly, the power of the jury is widely touted by legalization advocates as a key to knee-capping the war on drugs. But it's also widely seen as an important tool for protecting other rights, too. "Using the jury box to limit government excesses will be a strong tool in our kit," noted an article published by pro-self-defense TheTruthAboutGuns.com after a jury hung when one member refused to vote "guilty" in a 2013 firearm case.

"The degree of difficulty that the government has experienced in obtaining felon-in-possession convictions in my district may well be the product of jury nullification due to the public's confusion about our gun laws—such as they are, or are not—and the public's strongly held feelings toward guns," wrote United States District Court Judge Frederic Block in "Reflections on Guns and Jury Nullification—and Judicial Nullification," published in The Champion, a publication of the National Association of Criminal Defense Lawyers (full text here). That experience of that judge, who also reflected on a juror's expressed refusal to convict solely for gun possession, offers pretty strong evidence that gun owners and their sympathizers are as busily at work in the jury box as pot smokers.

And so are advocates of political protest. In a case I wrote about at the time, New York jurors earlier this year acquitted four defendants of obstructing governmental administration, disorderly conduct, and trespass. The charges related to a 2015 protest at the Hancock Field National Guard Base. The defendants opposed the piloting of Reaper drones from the base, particularly for overseas bombing missions that have frequently resulted in civilian deaths.

"Following the rendering of the verdict," the Upstate Coalition to Ground the Drones and End the Wars announced, "a juror approached [acquitted defendant] Brian Hynes and said 'I really support what you are doing. Keep doing it.'"

One of the jurors openly told Kirsten Tynan, executive director of the Fully Informed Jury Association, that the verdict "was, indeed, a case of conscientious acquittal."

If you need any further evidence of the mainstreaming of jury nullification as a check on state power, look no further than the Denver district attorney, Beth McCann. A long-time prosecutor elected to office just last year, she also has some experience on the defense side. Specifically, she represented a woman prosecuted for failing to report extra income while she was on welfare. "That left McCann with a shaky defense," noted a profile in 5280. "She'd argue jury nullification, an infrequently used legal concept in which a jury can acquit a person because it believes a law is unfair or burdensome… She won."

Under the circumstances, the Denver DA's office is probably going to have a hard time leaning on defendants, attorneys, and jurors who themselves support the power of the jury to rein in government.

And that's good not just for Denver residents, but for anybody who is willing to take advantage of the often-annoying demands of jury duty to throw a little sand in the machinery of our intrusive government.

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106 responses to “Rebellious Jurors Make the World a Better Place

  1. “The charges related to a 2015 protest at the Hancock Field National Guard Base. The defendants opposed the piloting of Reaper drones from the base, particularly for overseas bombing missions that have frequently resulted in civilian deaths.”

    Luddites. They’re everywhere.

    1. He’s only upset because deep in his heart, he knows that piloting drones isn’t as cool as killing with your bare hands. He knows the other soldiers laugh at them behind their back.

      1. Another reminder that bullying runs down hill- those bare-hands killer soldiers laughing at the drone pilots are just taking out their jealousy of the elite Scrotal Offense/Testicular Combat Command (SCROTCOM) on them.

        1. All of them too petty to realize that what really matters, is killing brown people in far away places.

          1. See, it’s because of lingering racialist attitudes like this that Canada is still unconquered.

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    4. Telcontar, your comment makes no sense. How did you arrive at a concatenation of Luddites with people protesting remote control war crimes?

      1. I’m starting to notice a statistical correlation between “corpse-fuckers” and “people who do not understand sarcasm”.

        1. You are confusing mohammedan necrophiliac prize virgins with Arizona jurors.

          1. I’m ALSO starting to notice a correlation between “inexplicable non-sequiturs”, “completely uncalled-for attacks on major religions” and “Phillips, H.”.

            1. Attacks on major religions are never uncalled for – especially Islam.

              1. Unless someone brings it up first, it is always uncalled for.

                “Mahering” is never helpful or just.

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  2. Get a room, you two.

    1. It’s not our fault Shikha left you, don’t lash out. I’ve told you to get counseling. It’s time to move on, man.

      1. I move on when Reason dumps her white male hating ass.

        1. Ugh. Get fucked. Shikhah argued consistently for libertarian positions like abolishing the exim bank & liberalising the monstrous immigration policies the US uses to kidnap construction & lawn care workers & their families. She had never published anything here to suggest she “hates white males”. Ive been a Reason reader for 15 years & ive watched the comments here degrade from a frequently insightful enhancement of articles paired w witty reparte to the wallnof a bathroom stall at a neonazi bar. I am truly baffled by exactly how the Reason comment board has been overwhelmed by knuckle dragging, racialist authoritarians. What do you get out of being here? everything about libertarianism stands against the sort of racialist nanny state you & those like you so desperately want that you elected a walking cartoon cariacture of corruption to the highest office in the land. The biggest heavy weights of the libertarian movement were *jewish* *immigrants* who consistently argued in opposition to every position of todays rnc. When a writer here voices those 1st principles, u internet schmucks shout them down w fevered accusations of anything from soliciting favor from the “liberal media” to smearing the author as a race traitor as youve done here. So yes, its time for u & yournpals to “move on” – pack up your boots & braces and piss off back to Der Stuhrmer.

          1. “abolishing the exim bank & liberalising the monstrous immigration policies the US uses to kidnap construction & lawn care workers & their families.”

            The Ex-Im Bank helps white man American companies like Boeing with corporate welfare.
            White men want illegal immigrants out.

            Hence, you have Shikha hating white men.

            When was arresting criminal illegal aliens in the USA considered “kidnapping” by anyone but you?

          2. “Shikhah argued consistently for libertarian positions ”

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            no.

          3. This really needs to be reposted on every article. Bravo.

          4. Shikha Dalmia is racist trash who wouldn’t know libertarianism if Lysander Spooner clubbed her over the head with it.

          5. Fuck illegals.

        2. {silently goes to get FY,S(N) some ice cream}

  3. Jury nullification: That judges, prosecutors and cops hate it, is all you need to know.

    If you think you might partake in in nullification, during voir dire, keep your mouth shut. Make them think you’re completely ignorant on nullification. Then, in the deliberation room, do what YOU want to do, not what some “judge” told you to do.

    And if you nullify and are successful, again, keep your mouth shut. There is no shortage of judges and prosecutors that would try and jack you up in some fashion.

    1. Yup. Remember, the average American commits three felonies a day. If the government wants to go after you, they will find something.

      1. Shit, I’m way behind again.

        1. Well, only as far as you know.

    2. That judges, prosecutors and cops hate it, is all you need to know.

      I’m sure they hate pneumonia, muscular dystrophy, shower curtain mildew, & flat tires too.

      1. Why would you compare something that is not just good, but vital to reigning in the growing police state, with things that are bad?

        What is YOUR opinion of jury nullification?

      2. Especially flat tires; a good excuse to ‘stop and help’ as cover for a search.
        “You sure the lug wrench isn’t under the back seat? How about wired up under the frame?
        Let me take the spare off the rim for you – – – – – –

    3. Also,, I know that in federal cases, they know if you have ever served on a federal jury before, and of course if you acquitted or convicted. That’s how they got Jim Lewis.

  4. Ultima Ratio Populi

  5. “… the compromise by the founding fathers, reflected by the Tenth Amendment, permitting each state to determine the nature and scope of criminal conduct within its borders …”

    And there you have the perspective of a federal judge – it’s not the States that created a federal government of limited and enumerated powers, it’s the omnipotent, eternal, federal government that, through its magnanimity, allows the States to exist.

    1. I don’t mean to put words in his mouth, but I can imagine his perspective on the relationship between people and their government government and its people.

  6. Jury nullification is a great tool to check prosecutorial power and abuse.

    Remember: Don’t tell anyone that is what you are doing, just stick to an acquittal vote and if asked say that there is clear reasonable doubt for you to vote not guilty.

    1. I have been asking people here – SOME OF WHOM I KNOW FOR A FACT ARE ATTORNEY SCUM – whether a juror can be punished for exercising his right of nullification. No one has given me a definitive answer. NO ONE.

      1. There was a juror named Laura Kriho who “nullified,” then was prosecuted for not being fully responsive on her jury questionnaire.

        1. (She apparently had some arrest or conviction she didn’t mention, IIRC)

          1. And I’m sure they’d have prosecuted her for that even if she’d voted guilty. /sarc

      2. It can depend on state law. In Georgia, our constitution protects jury nullification.
        Georgia Constitution, Article I, Section I,
        Paragraph XI. Right to trial by jury; number of jurors; selection and compensation of jurors. (a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.

        1. Being the judge of the law doesn’t mean you can ignore it.
          To rule against the law is a betrayal of being in a nation of laws.
          Want to make up your own? Try moving to Somalia, or some other such hell-hole.
          Sure doesn’t sound like you do love the Constitution. It say laws are to be made by legislatures, not individuals, who decide they know better than everyone else.

          1. How about this: let’s start with your paymasters (the political class) fulfilling their obligations to the Constitution, rather than just being a bunch of corrupt parasitic power-mad douchenozzles doing shit that makes the world look for chances to kick the US in the taint.

            Once they start setting a half-decent example, maybe us serfs will start doing likewise.

            And ‘being judge of the law’ includes being entitled to evaluate whether the law is just, and refusing to validate it if it’s not. Otherwise it’s not ‘judgment’.

      3. Under current law, a juror cannot be prosecuted for nullification. Period. There you have it.

        1. Sure, but they can definitely be prosecuted for contempt of court.

        2. But they can be tried for perjuring themselves when they answer the inevitable question: “Can you put your personal opinions aside and rule based on the law”
          AND THEY SHOULD!

          1. They should go after jurors committing perjury after they put all the lying government employees in jail. Any government employee who lies to a citizen for any reason should die in prison.

      4. Legally, no.
        Actually, yes. Define punishment;
        a ‘random’ traffic stop every time you leave your driveway?
        A never ending parade of government inspectors?
        Accidental freezes of your bank accounts (just a clerical error, your honor)?
        Etc.

    2. So much for the RULE OF LAW. We’ll just let unelected randos decide willy-nilly which laws should be enforced.

      1. Why even have trials? They wouldn’t have been arrested if they didn’t do something wrong.

      2. You tell ’em U.M.J.G.! We want to be ruled! We want those rulers to be magically anointed by the sacred election process because everybody knows that makes them superior to us rabble. Because they are elected they never act out of personal gain or make bad laws or betray their oath to support the Constitution. They always put us poor “unelected randos” first. They always represent us, even when they vote against each other on bills. How is that possible? Don’t ask. Our “honorable ones” work in mysterious ways.

        Our part in the political process is to obey and pay, pay, pay, until it hurts.

    3. So, lie your ass off?
      What a responsible amd honorable way to run a society.
      I guess you give that advice to your children, too.
      “Don’t tell the truth, little ones, just lie all the way through. It makes you such a good person”.

      1. I’ll start telling “little ones” never to lie to the government as soon as it’s illegal for agents of the government to lie to us.

  7. “In the first case, they found the defendant guilty and gave him probation?We did another one just to see. Same result?huge amount of marijuana, probation. The prosecutors couldn’t believe it.”

    Seems like legislators, and the people who vote them into office, aren’t believing it either.

  8. It’s a measure at least partially inspired by the refusal of jurors, as in a high-profile 2008 case involving an HIV patient, to convict people for using the drug as medicine.

    I guess those courts didn’t get the message. You don’t allow medical marijuana defendants to tell jurors the medical part.

  9. The establishment likes to conflate a couple concepts:

    -Nullification, where the jury acquits in spite of the evidence

    and

    -Juries interpreting the law differently than the judge does.

    So long as both concepts are lumped together, it contributes to a certain degree of confusion.

    1. So long as judges are giving jurors bad legal advice, pretending that they have to follow the judge’s own interpretation of the law rather than the law itself, I won’t be very moved by “rule of law” appeals.

  10. My personal observation is that prosecutors get really, Really, REALLY defensive when the subject of jury nullification comes up.

    It’s almost as if they don’t like the idea of jurors thinking for themselves.

    1. Or maybe they don’t like some self-important asshole deciding for everyone else, what society has directed to be determined by democratically elected legislative bodies.
      You know, like the Constitution sets out?

    2. So when the guy busts into your house and robs the place you won’t be mad if a think for them self jury performs nullification? I mean some liberal juries might think that the poor robber was some underprivileged group and you the privileged could afford to part with some valuables right? Jury nullification is dangerous. I don’t agree with drug laws so I want them changed. I don’t want twelve people in a Jury box randomly applying law.

      1. I don’t want 435 sociopaths randomly creating law. Does that mean we have something in common? Jury nullification can be dangerous but it is not and never has been as dangerous as the legislative process.

  11. Huh. Maybe jurors aren’t the mouth breathing, boot licking, authority fluffers I’ve always assumed they are, and maybe the world isn’t as doomed as I thought.

    Of course, I’m sure Reason is just winding up for a big, crushing hay-maker to the testicles later today.

  12. This article makes it sound like that defense attorneys have informed juries of their right to nullify during trial. Am I correct in that assessment? Because from what I have read previously prosecutors and judges have been known to take significant action to shut down any such means of defense.

    1. Depends on the state. I know that Georgia and Indiana have enshrined in their constitutions that the jury has the right to judge both law and facts. I think New Hampshire now at least allows maybe requires juries to be informed of this. Other states …. I dunno.

  13. Is declaring one’s knowledge of jury nullification an effective way of getting out of jury duty?

    1. Indeed it is. And if you declare it out loud and explain their rights to them, they’ll dismiss the entire pool for being contaminated with that knowledge. I’m mixed on whether that’s more or less effective.

      1. If prosecutors remade the movie “Outbreak” they would replace Ebola with knowledge of jury nullification.

  14. This is how jury nullification works. It’s not some thing that gets the laws struck off the books. It’s not a legal legerdemain. It won’t cure cancer. It’s just a jury not voting to convict. Eventually, if they’re lucky, some cops may stop arresting folk for these minor crimes.

    And just to piss of the FIJA folk some more, this isn’t because of FIJA, it’s because pot is now politically correct. I guarantee you these same juries would have voted to convict if it were cocaine or heroin.

  15. I’ve always been of the opinion that I would try my level best to not even get called for jury duty, and when it does happen, try every trick in the book to get out of it before I even have to show up. I’m thinking now that I might actually want to get called, and make sure I play the part of meek, law-abiding, upstanding citizen so I get picked, just so I can practice some FYTW. It would be especially delightful if I were able to hang a jury that was otherwise bent on convicting some poor schlub who rolled through a stop sign and then had the temerity to fight the ticket instead of bending over.

    1. If you avoid jury duty, you leave the fate of potentially innocent people to sheeple to vote the way the government wants.

    2. Same here. I never seem to get called for jury duty, though. I got called up once in my hometown while i was away at college and my dad said he’d “take care of it,” and i’m starting to suspect he did so by having me declared dead.

      1. I went to my county court office that does jury pools and asked if I was on the jury pool for 2017. I had not been selected for years. Magically, I was selected within 5 months.

        Give it a try. It might work.

    3. I did that in a federal drug case.

  16. It’s funny how people lionize voting in elections, even though their vote is entirely meaningless, when they have access to a far more meaningful vote in the form of jury service.

    1. But jury duty takes sooo long and you don’t even get a sticker!

      1. I refuse that stupid voting sticker because I vote because I want to and I feel its important…not because of some stupid sticker.

        I wonder how many Libertarians on here also refuse those “I voted” stickers.

        1. I take one because it makes the little old ladies who hold down the folding tables happy. I just don’t let them see me chuck it in the trash. I always forget until its too late to shop online for those stickers that look the same but say “I farted” instead.

          1. I take one because i want people who know my political opinions to see me with it and panic.

            1. You win the internets today, Citizen!

          2. I take the sticker, toss it in my car, then several months later when I finally get around to cleaning the trash out of the car, throw it away.

          3. I take the stickers because it makes the little old ladies happy. Then I give them to my kids, which makes them happy.

    2. Another looter sockpuppet dissing spoiler votes? Communist spoiler votes, 9% in 1892 brought an income tax and financial collapse by 1894. The Sixteenth Amendment followed its overturning, back when communist and christian Altrurians for Engels, Bryan and Bellamy used their 1.4% vote count to also install the 18th Amendment (and renewed collapse). One LP electoral vote out of over 500 got Roe v Wade to overturn Dixie-Klan coathanger abortion laws. Rule of thumb is one LP spoiler vote packs six to 21x the law-changing clout of a wasted kleptocracy vote. Jurors also vote!

    3. “…entirely meaningless…”?? Not at all. It means you support the institutionalized system of initiated force/fraud. It means you want to keep doing it and hoping for a different result, because “this time it’s different”, or “this guy is not as bad as the other guy”.

  17. Was watching this Lisa Ling shows the other night. HS kids and sex. One of them, the potential punishment was was ridiculous for typical teen behavior. Not only was the jury not allowed to hear the potential punishment, afterwards when asked one of the jurors said that they didn’t like the law but felt like they could not go against the law.

  18. Was watching this Lisa Ling shows the other night. HS kids and sex. One of them, the potential punishment was was ridiculous for typical teen behavior. Not only was the jury not allowed to hear the potential punishment, afterwards when asked one of the jurors said that they didn’t like the law but felt like they could not go against the law.

  19. The old saying is “soap box, ballot box, jury box, ammo box: use in that order”.

    If we’re already to the jury box then I fear the ammo box isn’t far behind.

  20. In Texas anyone can throw hemp seeds into your backyard, call the police after they sprout, and you lose your home to asset forfeiture (but still have to pay the mortgage). Even if the lawn was mowed and clipping hauled, Texas law counts the roots and dirt stuck to them as Felony Avatars of Satan. Once police dogs find those roots, you can no longer vote or be impanelled for lack of an address. But Texas cannot rob you of the franchise with fabricated felony counts. As soon as anyone leaves prison or probation, they may register, vote libertarian and overturn kangaroo court repression.

  21. I wouldn’t vote, it only encourages them to keep ruling. But I would serve on a jury to give justice a chance. It tricky when you don’t know how forthcoming you can be. I would like to explain to the other jurors why I acquit but I have heard of jurors being thrown off for nullification and punished.

    I wish I had one freethinking juror on my jury in 1980 when I was convicted of “making a false statement to a federal agent”.

    1. I’ll consider voting to convict people for lying to government agents as soon as it’s illegal for government agents to lie to us.

  22. If I am ever on a jury and I suspect someone is going to be a treasonous “nullification” advocate, I will demand that the judge be told and the person be sent to prison, for committing perjury during jury selection.
    Laws are made by elected bodies, not some asshole who thinks he knows what’s best for the rest of us.

    1. Whoa! Dude! We’re trembling under the weight of your Gestapo boots.

      1. Hup, toop, three!

    2. Laws are made by elected assholes who think they know what’s best for the rest of us.

      1. And those people can be voted out and changed. Be careful what you wish for. Would you want liberals who feel property rights are tools of oppression on a jury if you were a robbed store owner? I sure as hell wouldn’t. This is another case of giving yourself power you wouldn’t trust your enemy with.

        1. There are only 3 laws that uphold the NAP: Robbery, Rape, Assault (incl. Murder).

          The odds of those crimes being selectively enforced (by a jury, anyway) are low, whereas the vast majority of other laws are NAP violations. Thus, on net, jury nullification is a gain for liberty.

          1. I would add fraud.

            1. Four, then. The point stands. There are a dozen or more “aggressive” laws for every “retaliatory” one.

    3. Lick the whip all you like, but the right of a jury member to nullify (and to refuse to disclose his/her intention to do so) is enshrined in law.

      When the pigs are free of ‘bad apples’ (**and** of ‘good’ apples who fail to report them); when pigs unions don’t have a disproportionate weight in important policy that runs counter to prevailing social norms; when various types of tax-parasite (pigs, soldiers and to a much lesser extent, fireman) stop believing that they are superior to the people whose taxes pay their wages… then maybe folks should listen to people whose livelihoods depend on the tax tit.

      Until then, maybe shut the fuck up when you don’t know what you’re talking about, and be grateful that taxpayers are footing the bill for your retirement.

      (why ‘retiredfire’? Were you too chicken to join the military?)

    4. So your suspicions are grounds for conviction?
      How long have you been a title IX bureaucrat?

    5. “Laws are made by elected bodies, not some asshole who thinks he knows what’s best for the rest of us.”

      Those elected bodies are chosen by asshole voters who think they know what’s best for the rest of us. Fortunately, we have a Constitution that says JURIES get to decide who should be punished for breaking those laws, which gives the rest of us a way to fight back against oppressive laws.

  23. One point that I have not seen in the discussion here: by the time its gets to the nullification stage, the life of the victim (the accused) is already fucked – he/she will almost certainly be financially ruined by the cost of mounting a defence (unless relying on a public defender, in which case they were already financially ruined).

    And of course, once the jury nullifies (or even if they return a not guilty verdict), the state is not obliged to compensate the victim for the costs of their defence. We’re just the tax-livestock, and if they decide to bring a hammer down on us wrongfully, that’s too bad (frankly, I would take matters into my own hands if that happened to me or mine).

    Mouth-breathers who have masturbatory fantasies about how me should all bend the knee and lick the whip because some self-anointed aristocrats wrote some rhetorical fluff 8 generations ago, should do some remedial reading – specifically centred on qualified (and absolute) immunity, prosecutorial misconduct, and the staggering costs of presenting a half-decent defence.

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