Jury nullification again
Balko says he would deceive to be on a jury to nullify a law. Patterico says:
I have said I would support jury nullification in extremely rare and desperate situations, where the fabric of our society was falling apart and our laws were inconsistent with basic humanity. For example, I would not convict someone of helping a slave escape his master. If we somehow passed a law making it illegal to be Arab, or Jewish, or black, or Mexican, I would not convict someone for that “crime.”
and:
Lying your way onto a jury isn’t the right way to fight these battles.
Well, in the event you see one of these extremely rare and desperate situations, how would one get on the jury without deceiving? After all, they’d be asked about it?
Would you, being the good sort of civic minded person you are, lie to get on a jury to challenge an unjust law? Even if the case was not extremely rare and desperate?
That’s a sticky situation. Sacrifice one set of principles for another?
September 1st, 2006 at 9:40 am
Absolutely. Jury nullifications are a an attack on the rule of law. They are never appropriate from a legal perspective. From a moral perspective, they are appropriate only under the rare situations where the law itself is so bad that the rule of law is no longer worth protecting. In those situations, perjury is no big deal, either.
September 1st, 2006 at 10:42 am
Supporting an immoral law is, by definition, never the “moral” thing to do — and deceiving (e.g., by perjury) those who are prosecuting someone for a violation of such a law is perfectly justified.
It appears there are (at least) two uses of jury nullification: to nullify a particular law as applied against anyone and to nullify a law as applied to a particular individual for a particular act. The former is probably always “proper” even if not everybody likes the result. The later is quite probably _wrong_ even if _most_ people like the result. The former, unlike the later, is not an attack on the rule of law in general, but a statement that the law in question is wrong — not the actions of the accused.
And, unfortunately, immoral laws are _not_ “a rare situation.”
September 1st, 2006 at 11:06 am
Xlrq,
We live in a country where you can get killed in broad daylight by the police by accident. The police will not be prosecuted. You can have your money confiscated on the theory that large sums of cash are inherently suspicious. Your constitutional rights have been steadily whittled away in the wars on drugs and terror. It is impossible for the average citizen to know at any moment whether or not they are breaking some law. We have the largest prison population in the civilized world.
All this, and you think jury nullification is a problem because it doesn’t respect the rule of law? Refresh my memory. I was under the impression that we had the law as a means to pursue justice, not as end unto itself. When the “rule of law” is clearly broken in many respects and is promoting injustice, why am I obliged to care anymore?
September 1st, 2006 at 12:02 pm
Bob and T, if you really think our system of laws is that bad, try anarchy. T, your point about asset forfeitures is not taken. Jury nullifications are useless in civil trials.
September 1st, 2006 at 4:18 pm
[…] […]
September 1st, 2006 at 4:22 pm
My comment ended up being a blog post. In it I gave a link to a web page about a talk I had with a prosecuting attorney about jury nullication. I also wrote about other non-violent alternatives to jury nullification in our pursuit of a justice system via our legal system.
September 1st, 2006 at 6:14 pm
Let’s get this straight: The court wishes to use me as a legal prop and attempts to bind me with my own morality to consilidate it’s own power?
And I would let it?
OK. Want to buy some magic beans?
September 1st, 2006 at 6:50 pm
The state constitution is the supreme law of that state. Forty-four states (if I remember correctly) have jury nulification of some sort in their constitutions.
Even though most of the referenced constitutions talk about libel cases, many say “…as in other cases.”
Kentucky for example: “…in all indictments for libel the jury shall have the right to determine the law and the facts…as in other cases.”
Or to rearrange it a bit: “…in all indictments for libel, as in other cases, the jury shall have the right to determine the law and the facts.”
Also, my understanding of the phrase “under the direction of the court”, where it appears, means the judge is to explain what the law says, not that the jury must do only what the judge says. The judge cannot direct a verdict
I posted the below on Patterico’s site when Balko and Patterico went at it about jury nullification last year.
http://patterico.com/2005/07/28/3387/radley-balko-on-jury-nullification/
I’m late to the party here too… and as others have said “I’m not a lawyer”.
I looked at state Constitutions other than Kommiefornia and found (I think) some intresting phrasing re juries.
It seems that at least half the States reconize nullification in some circumstances.
Maryland’s Constitution: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact…”
Indiana’s Constitution: “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”
Oregon’s Constitution: “…In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law…”
Georgia’s Constitution: “…the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be judges of the law and the facts.”
South Carolina: “…and the jury shall be the judges of the law and facts.”
Alabama: “…and that in all indictments for libel, the jury shall have the right to determine the law and the facts under the direction of the court.”
Colorado: “…and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.”
Connecticut: “In all prosecutions or indictments for libels, the truth may be given in evidence, and the jury shall have the right to determine the law and the facts, under the direction of the court.”
Delaware: “…and in all indictments for libels the jury may determine the facts and the law, as in other cases.”
Kentucky: “…and in all indictments for libel the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.”
Maine: “Freedom of speech and publication; libel; truth given in evidence; jury determines law and fact.”
Mississippi: “…and in all prosecutions for libel the truth may be given in evidence, and the jury shall determine the law and the facts under the direction of the court…”
Missouri: “…and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.”
And so on, with similar language, through Montana, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Wisconsin, Wyoming.
Comment by Magus — 8/1/2005 @ 5:01 am
September 2nd, 2006 at 1:24 pm
T says:
Really?! Can someone please point me to the decision that allows that?
I am familiar only with cases that allow confiscation when several other factors are present.
See, X? Your oversimplification gets oversimplified further, and we get a mythology about forfeiture. And now some guy uses that mythology to attack the very rule of law.
All you folks who are so cavalier about the rule of law and perjury — how did you feel about Clinton’s impeachment?
September 2nd, 2006 at 1:39 pm
Search the archives. There are plenty. Courts don’t necessarily allow it but it happens. often.
Here’s one from today. Here’s another today.
Cases should only allow confiscation under due process of law.
September 2nd, 2006 at 2:04 pm
I must be having problems communicating. I asked for the decision that allows confiscation of money solely on the theory that large sums of money are inherently suspicious. You say there are “plenty” but then say the courts don’t necessarily allow it.
I was talking about court decisions.
Your links don’t provide any.
If you’re trying to get me to say that government never does anything outrageous, well, you’re wrong. Here’s another one for you: guy steals your car — *you* gotta pay the impound fees. And they add up every day. I may draft legislation to ensure that such fees are either not charged to crime victims, or come out of the state victim restitution fund.
But I think T was playing off Xrlq’s oversimplification of a recent forfeiture case. That was my beef.
September 2nd, 2006 at 2:11 pm
Irrelevant to the fact it happens. Also irrelevant to T pointing it out. Show me the court decisions where they say ‘hey, knock that off.’
Courts have upheld confiscation enough to be alarming. There was a court decision recently (the 8th, iirc) that even you commented on.
September 2nd, 2006 at 2:25 pm
Great. T says:
Well, I say this:
Happened to me recently. Of course, it’s not legal. But it happened.
More relevant to commentary about our society is what is legal and allowed. And T certainly implied (and probably believed) that the goivernment can legally confiscate money because large sums of money re suspicious. And he believes this b/c folks like XRLQ oversimplified that 8th Circuit decision.
September 2nd, 2006 at 2:31 pm
IIRC, the money from your wallet was stolen. It might be comparable if an agent of the .gov did it under the guise of his office.
As a practical matter, what T said is exactly what happened in many cases. The fact the courts don’t stop it, while not an endorsement of the actions, is disheartening. It takes, in many cases, more money than you lost to get your money back with fees and such.
The system is broken.
September 2nd, 2006 at 4:15 pm
Patterico:
“I asked for the decision that allows confiscation of money solely on the theory that large sums of money are inherently suspicious.”
Try U.S. vs. $124,700 in U.S. Currency decided by the U.S. 8th Circuit Court of Appeals with which you’re completely familiar already.