Neo means not*
Long and short, a neo-libertarian blogger had jury duty and convicted a drug dealer. Jury nullification discussion ensues.
Via BB.
* applicable to neo-conservatives too.
Remember, I do this to entertain me, not you.
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January 18th, 2008 at 10:51 am
A) I totally disagree with Franks’ decision to convict. My POV is simple – I will only find someone guilty if there was a readily identifiable victim. Otherwise, it’s not a crime at all. The libertarian in me would win in this instance.
B) That being said, Dale Franks is spot on with his reasons why Big-L libertarianism is never going to be implemented. It can make for a great movement, and libertarianism is a good framework from which to base decisions on, but like Communism it requires that everyone buy into the system 100% for it to work.
I find it odd and troubling that Dale has such a firm grasp on reality and libertarian principles and yet voted Guilty. But his logic on the flaws of Libertarianism and the responses of the Big-L’s themselves prove his point over and over and over. So, quantum in his correctness – both right and wrong at the same time.
January 18th, 2008 at 11:20 am
I agree with point A, but point B is like saying: “I don’t agree that the second amendment because it can never be fully implemented because it’s too idealistic so let’s stop even trying to affirm our rights.”
January 18th, 2008 at 11:32 am
If I understand his position correctly, he seems to be arguing that in order for one to live (and derive certain benefits from) society one consents that certain rights *at the margin* can be revoked if the society so chooses.
Per his example: the right to drive 90mph past a school.
It appears to be his contention that the right to posess and/or sell drugs is one of those *marginal* rights. While he, personally, wouldn’t support such a law, he does not believe that this particular law is ‘out of bounds’ either.
As the old saying goes, having the right to do a thing is not at all the same as being right in doing it.
While he may disagree with drug laws being wise, that doesn’t mean that they are improper. Hence, the conviction.
Of course, I may be off base in understanding his argument.
January 18th, 2008 at 11:56 am
I suppose that he could have opted out by telling the court that he was very opposed to the drug laws and this would make it hard for him to hear the government’s case with an open mind. Once he chose to stay, though, and took the oath of a juror, he was obligated to fulfill his oath and his duty. As for all those guys who think he should have voted their consciences instead of his ….
January 18th, 2008 at 12:39 pm
HardCorps, that’s not what I’m saying. I personally believe that we’ll never get rid of all the gun laws. Impossible. People who are not gunnies simply don’t see it the same way we will. So, I have to do my best to educate them and hope that education helps them make better decisions in the future.
But I reach about 300 people a day.
Doesn’t mean I don’t try, it means that I don’t take an instinctive, hard line stance against all gun laws because 100% of the time that will get you nowhere.
January 18th, 2008 at 12:45 pm
“took the oath of a juror, he was obligated to fulfill his oath and his duty”
That doesn’t mean you cannot judge the law as well as the facts of the case. The court can (and will) lie to you and tell you that you “must” decide based solely on the facts of the case, but that doesn’t make it so.
January 18th, 2008 at 2:07 pm
No. I am a lawyer and I know. The judge tells the jury that they must decide according to the law as the court instructs them. They swear to do so. Once you give your word, you have to keep it. Otherwise you’re just some kind of an animal.
January 18th, 2008 at 3:26 pm
Jury nullification would be one thing if a guy got caught with one joint and the penalty was beheading.
This guy got caught smuggling hundreds of pounds of weed, indicating that he chose to take the risk in order to realize a profit. I can’t see jury nullification in that instance. If he wants the rewards of smuggling (which is highly profitable precisely because the weed is illegal) then he has to be a big boy and accept the risks.
January 18th, 2008 at 3:49 pm
Urk, I’m a lawyer and I know different. Not that a judge won’t bite your head off if you try to argue this squarely to a jury, but this provision of the Tennessee Constitution, Article I, Section 19, is still in place:
“[I]n all indictments for libel, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.”
No judge can direct a verdict of guilty in a criminal case; and a jury verdict of not guilty is inviolate, under the double jeopardy principle in Section 10 and in the U.S. Constitution as well.
January 18th, 2008 at 5:38 pm
nk, you must not be a very good lawyer or you would know that a petit jury has the duty to judge not only the facts of a case in search of the truth, but also the duty to examine the law and determine if it is constitutional. No judge is allowed, though many do, to issue instructions to the contrary. A juror is not bound by prohibited instructions of a judge, nor by a law the jury finds to be unconstitutional.
I don’t know where you got your law degree, but get your money back.
January 18th, 2008 at 8:57 pm
… a petit jury has the duty to judge not only the facts of a case in search of the truth, but also the duty to examine the law and determine if it is constitutional.
Would you like to link some authority for that, from any American jurisdiction? Any statute, constitutional provision or case law?
January 18th, 2008 at 10:32 pm
Still waiting. I don’t mind Randroids too much except when they cite the fantasies of a neurotic, drunken, drug-addicted adultress as law.
January 19th, 2008 at 2:09 am
No, I won’t waste my time doing for you what 7 years of higher education could not accomplish. You either should have paid attention or gone to a better school.
Do your own damn work. You’re supposedly in the business. It won’t be hard. Trust me it is very easy to find.
January 19th, 2008 at 2:49 am
I got to thinking how haphazard you’re education in the law is and how dangerous it could be the nation and decided to relent a little. I will give you a start.
The excerpt below is fromSparf v.U.S., in which the right of a jury to judge the law is affirmed but responsibility of judges to inform the jury of such is not required. I give you this one, go forth and find the many other references. Bear in mind, there was no need for the court to advise a judge was not bound to fully inform a jury of its right to judge the law if the right did not previously exist.
In State v. Brailsford, 3 Dall. 1, 4, a case in f the court, to decide. But it must be amicable issue, Chief Justice Jay is reported to have said: ‘It may not be amiss here, gentlemen, to remind you of the good old rule that on questions of fact it is the province of the jury, on questions of law it is the province of the court, to decide. But it must be observed that, by the same law which recognizes this reasonable distribution of jurisdiction, you have, nevertheless, a right to take [156 U.S. 51, 65] upon yourselves to judge of both, and to determine the law as well as the fact in controversy.
January 19th, 2008 at 9:46 am
I take it, then, that you have prevailed with this legal theory in a multitude of cases and there are several hundred defendants who owe their freedom to you?
January 19th, 2008 at 9:56 am
BTW: Sparf holds exactly the opposite of what you say it does. It holds clearly that the jury has a duty to decide the facts according to the law as given to them by the court and that it does not have the power to nullify a statute. I recommend that you go back to the people who purportedly taught you how to read and ask for a refund.
January 19th, 2008 at 2:59 pm
Straightarrow, you’re an idiot. NK has forgotten more about the law than you’ll ever know, and so have I for that matter. If you’re too “libertarian” to uphold a law you don’t like, the only lawful way out of that dilemma is to be open and honest with the court about that fact upfront, thereby reducing the chances from slim to none that you’ll end up on the jury. Of course, that will do phuck-all for the defendant, as he’ll get 12 jurors willing and able to do their jobs, rather than 11 such jurors plus one self-righteous hothead who has convinced himself he already “knows” what his proper role is as a juror, ignorant lawyers and judges be damned.
January 19th, 2008 at 3:05 pm
The best part of Dale’s account has nothing to do with the merits of our nation’s drug laws, and everything to do with the invention of the expression “beshit oneself.”
January 19th, 2008 at 5:59 pm
NO, I haven’t and obviously you can’t read, or you didn’t read it all the way through.
Obviously you are not going to do any of your own work.
As to whether or not it is a viable tactic. No it is not, because the power of the jury has been suborned and any attorney trying to inform them of rights the judge does not want them to know of will be punished.
Regardless of what you think of my intelligence, the right of a jury to judge the law does exist in law, if not in court or in practice. Your position seems to be that if coercion or other nefarious means of suppression are successful we should just learn to live with it.
I told you, I would only give you a start, there are many references to study and many instances where juries have successfully released defendants because of their judgment of the law, despite the facts of the case.
Just because somebody didn’t tell you about it in law school doesn’t mean you couldn’t discover it for yourself. And ignorance of a fact does not negate existence of that fact.
xrlq, you may be correct in how much law he has forgotten. Too bad that!
January 19th, 2008 at 6:09 pm
As for upholding laws I don’t like, Hell I even obey them. I do not however feel obligated to be overly concerned with laws that are unconstitutional.
If faced with a law I didn’t agree with, as a juror but could find no way that law was unconstitutional I would be duty bound to adhere to it and make my decisions on the facts of the case.
However, if someone came before a jury I was on and he was charged with not being Catholic, and there was a statute that required all citizens of that particular jurisdiction be Catholic, I would most definitely argue to my fellow jurors that the law was itself illegal and though it is proven that the defendant was a practicing Jew and therefore obviously in guilty of breaking the law, he could not be convicted of a crime and we should acquit.
If you can’t grasp that concept, I pity you.
Perhaps some study would do you some good. You don’t need to wait on nk, you could do it on your own.
If you are too dim to understand this before you start calling names, I would say you are the hothead.
January 19th, 2008 at 6:15 pm
BTW;nk’s comment holds exactly the opposite of what he says it does. The words don’t mean what they say.
Now I have done what you did.
January 19th, 2008 at 6:23 pm
Sparf’s opinion that judges were not required to fully inform a jury of its duty and rights has been used as a springboard subsequently to justify the suppression of anyone imparting this information to a jury. That is true.
It is not consistent with the decision in Sparf. This willful misinterpretation of Sparf is criminal in and of itself, but who can arrest a judge in his courtroom? Especially when the people charged with enforcing the law benefit from this misinterpretation.
If you will not do your own work, do not argue. I know you haven’t researched but, rather have accepted the conventional wisdom, which a self serving legal fiction of the judiciary. A legal fiction is just a way to say lie, but one that officials can use without consequence.
January 19th, 2008 at 6:30 pm
And one more thing. I posted an excerpt from the decision that affirms the jury’s right to judge the law as well as the facts of the case. Where is your presentation of parts of the opinion that prohibit that jury’s right?
You will not find it. You will find where jurists are relieved of any responsiblity of so informing a jury of its right to do so. Not the same thing as a prohibition of the jury’s right.
As you said before, I’m waiting.
January 19th, 2008 at 7:25 pm
Hardly. What it does do is recognize the ability of criminal juries to do what they have no legal right to do. If juries had the right to judge the law, as opposed to merely the ability to do so, no jury verdict could ever be reversed on appeal. Do you really need for NK or me to come up with cases to prove that they do?
Nor do I. If you think standard jury instructions are unconstitutional, kindly cite chapter and verse of the parts of the Constitution that you think forbid them.
January 19th, 2008 at 10:53 pm
Sigh. Answer not a fool according to his folly. Straightarrow, prove to me that you built the sidewalk you walk on, the road you drive on, the hospital you go to, the medical school your doctor trained in, that you dug the ore your gun is made of out of the earth yourself and you smelted it and built a gun according to a design you invented, and then I’ll take you seriously. Until then, to me you sound like a child resenting his mother for telling him to stand up straight at the dinner table while he’s eating the dinner she worked hard to earn for him.
January 20th, 2008 at 1:57 am
And of course neither of you cited any references that support your position.
I think that says enough.
You were left with nothing but attacks on my character, integrity or intellect. Would it not have been better if you had, instead, cited a reference for position?
Hey, just asking. After all, you’re the ones who surrendered the point and strove for diversion from the topic.
January 20th, 2008 at 2:03 am
I feel sorry for you guys, so let me help.
Next time you lose a debate you can always stick out your tongue and then say “So’s your old man.” or “Your mother wear combat boots.” or the ever reliabe “Oh yeah?”.
Saves you having to know a damn thing and lets you get the last word when others walk away in disgust.
January 20th, 2008 at 8:58 am
That’s because both of us know better than to engage in a battle of wits with an unarmed person. What better analogy to apply to someone who hasn’t made it through a year of law school, yet convinces himself he knows more about the law than two seasoned attorneys? Or someone who bashes us for not citing a single specific case to support our position (note that I did offer to cite a case or two in which a jury verdict was reversed on appeal – you just didn’t take me up on it), but who himself cites only cases he was too stupid or ignorant to understand. Here’s what Sparf has to say about “fully” informed rogue juries:
Even the portions of Sparf that talk favorably of juries “judging the law” make clear they don’t advocate the judicial chaos that “fully” informed jury advocates contemplate:
This from the case that is supposed to support your position that Dale Franks was under a duty to lie, get on the jury, and force a mistrial because good libertarians don’t like drug laws?
January 20th, 2008 at 2:56 pm
Can you not read? They affirmed it even where they stated they could not advocate for it. That is not a prohibition. The strongest censure of the practice was based on a nullification that could occur even when a law was constitutional. I agree with that. If the law is constitutional a juror must uphold it, even if he does not agree with it.
That it had not occurred to him that a petit jury would or could make decisions of the constitutionality of a law does not rise to the level of a prohibition.
I have uniformly delivered the opinion ‘that the petit jury have a right to decide the law as well as the fact in criminal cases’; but it never entered into my mind that they, therefore, had a right to determine the constitutionality of any statute of the United States.’ Whart. St. Tr. 713, 714, 718.
Still the point is not made that the jury’s right to do so is prohibited. In view of all the affirmations in this decision of the right of the jury to nullify, even immediately previous to above excerpt, nowhere is it claimed the right does not exist. What lower standard does he advocate for judging the law? None.
Would you advocate for juries to use a lower standard than the constitution for judging a law? Could a jury decide the law doesn’t apply because the defendant is a redhead, or the prosecutor has acne? Or would it be more responsible of them to make the judgment of the law based on whether it was legal based on the constitution?
Nowhere in the citation you provided has the right been said not to exist, nor has it been said the action is prohibited. It was stated that the jury would pass judgment on a law based on its constitutionality had not been contemplated. Which again begs the question, what lower standard did imagine they were affirming in numerous places in the opinion?
You are reading into it, what it does not say.
January 20th, 2008 at 3:11 pm
One more thing, if a jury nullifies because they believe the law in the case is unconstitutional, the law itself is not affected in any but that one case. That decision by that jury carries no weight in any other case. Whereas a court ruling to that effect carries weight in all similar cases under its jurisdiction and may possibly be adhered to by others until decided by an even higher court.
A rather neat balance of power that. Providing for plenty of time to reflect, debate, and make corrections if deemed proper.
Would you really expect a jury to convict in the wildly improbable hypothetical I proposed above because a defendant was not a Catholic?
Do you not see how a law such as that would be unenforceable and toothless if juries would not convict under it? On the other hand rogue juries are kept in check by the limit of power to only the case before them.
You assume I am hostile to the courts, I am not. I am hostile to judges who “fix” trials. Fortunately there aren’t many of them, but they do exist in numbers greater than is tolerable. I suspect your overt hostility as regards me is based more on your feelings of superiority over us rabble. How dare we think we are somebody enough to question the club, and certainly not qualified to disagree ?
January 20th, 2008 at 3:19 pm
But when it comes right down to it, your disagreement isn’t with me. It is with the court. I have only embraced what they said with one caveat, and that is that I believe all juries should be fully informed by the judge of their rights and powers. However, I don’t argue the law says that, because this opinion says the opposite, while affirming the right of the jury does exist.
January 20th, 2008 at 10:21 pm
Neat. The constitutionality of the law in Dale’s case was never in doubt, so what exactly is your beef with him?
January 21st, 2008 at 12:36 am
I have never in any comment here defended or even addressed Dale and/or his action or the actions of anyone involved. Every comment I have made was directed at the false statement that a jury does not have the right to judge the law.
I could give a damn less about Dale, but barely. I do take exception to the spreading of falsehoods, even when done through ignorance.
January 21st, 2008 at 12:48 am
If what Dale says is as presented in court, I too would have voted to convictl. Except for this comment and the immediately previous I have said nothing about this particular case.
But that is an entirely different issue than saying the jury is bound by incomplete or false instructions as regards their right to judge the law as well as the facts of a case.
That I have no sympathy for the bad guy, doesn’t excuse me or you, or anyone else for rigging the outcome.
January 21st, 2008 at 5:20 pm
One more vote for the concept that straightarrow is an idiot.
It’s one thing to be wrong. It’s another thing to be staggeringly wrong, even as you mock people who are right. That takes a special talent.
January 22nd, 2008 at 2:56 am
If as you say I am an idiot, why have none of the three of you been able to disprove my position on this issue?
Patterico, Kiss my ass. Shut the fuck up. You are a moron, and you need your ass whipped.
Feel better now? I have now engaged in the level of debate the three of you have. Not one goddamned word from any of you disproving my position or the court’s. Things were read into the decision that were not said, things were read into my comments that were not said.
When you couldn’t find in the law what you said was in it, you start calling names. And you call me an idiot? You are endearingly pathetic. If I met you I would not whip your ass, I would just pat you on the head and say “There, there, now, bwess ems widdle heart, God love ‘im.”
Get somebody to translate that for you. I am sure you have no idea how badly you have been insulted, “There, there,now, bwess ems widdle heart, God love ‘im.”
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