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Judge Nullifies Juror Nullification:
A very interesting post today by Tim Lynch on Cato @ Liberty on a recent jury trial in a drug case:
It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where "is the constitutional grant of authority to ban mere possession of cocaine today?"

That's a fair question. It is a point that has been made in Cato's publications (go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn't going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the "problem juror." Once discovered, that juror was replaced with an alternate--over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations. So, to justify his removal of the "problem juror," a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf). I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below.
To read his analysis go to Juror Becomes Fly in the Ointment.

For those with a serious interest in jury nullification, I highly recommend Jury Nullification: The Evolution of a Doctrine (paperback) by Clay Conrad, which is the best work on the subject since Lysander Spooner's Trial by Jury (1852).

There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed. Although juries retain the power to refuse to apply an unjust law, beginning in the Nineteenth Century, judges started prohibiting lawyers from advocating this to a jury upon pain of contempt. The Fully Informed Jury Association (FIJA) is a non-profit organization aiming to inform all Americans about their rights, powers and responsibilities when serving as trial juror. Click on the link to learn more about jury nullification.
ARCraig (mail):
Why the hell do they think we have juries any way? It's not because a random group of citizens is presumed to be better able to judge the facts, it's to act as a citizen check on government power. The law can only be enforced with the agreement of the citizenry. It's part of the much broader, more comprehensive idea of "consent of the governed" that has been lost completely in this country. It means more than just having elections.

The Founders would have considered what we let pass for "trial by jury" a farce.
8.15.2008 12:54pm
jvarisco (mail) (www):
Don't jurors have to agree they can apply the (applicable) laws impartially? So wouldn't this guy have to have lied on his questionnaire?
8.15.2008 12:55pm
ChrisIowa (mail):

Don't jurors have to agree they can apply the (applicable) laws impartially? So wouldn't this guy have to have lied on his questionnaire?


Are you implying that the constitution does not apply?
8.15.2008 12:58pm
Ryan Waxx (mail):
A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed.


In this case, just how many Jurors would have to defect in order to scuttle the conviction (assuming the others voted guilty)?
8.15.2008 12:59pm
Oren:
Note to self, when serving on a jury and attempting to nullify, do not mention anything remotely related to nullification but instead come up with flimsy factual excuses. Actually, now that I write it down like that, I don't know if I'm comfortable with that level of intellectual dishonesty (even if it is towards a rightful result).
8.15.2008 1:01pm
Oren:

There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis.

There is also little question that juries in the deep south routinely acquitted whites of monstrous offenses against blacks (and that, in a sick sense of turnabout, many blacks today will refuse to convict other blacks).
8.15.2008 1:05pm
Skyler (mail) (www):
I think some of you don't understand. You see, jury nullification only is allowed when the defendant is a former football player who slaughters his ex-wife.
8.15.2008 1:06pm
Loophole1998 (mail):
The juror in question: http://dangeroustalk.com/whois.htm
8.15.2008 1:07pm
robert:
How many jurors does it take to change a light bulb?
8.15.2008 1:07pm
ARCraig (mail):

Actually, now that I write it down like that, I don't know if I'm comfortable with that level of intellectual dishonesty (even if it is towards a rightful result)


I think the issue of some one being unjustly convicted of a crime is more than enough to override any such concerns, at least in my book. And I agree, it was stupid of the nullification-minded juror to ask the judge questions like that.
8.15.2008 1:08pm
Loophole1998 (mail):
Here's his side of the story: http://www.lewrockwell.com/eddlem/eddlem24.html
8.15.2008 1:08pm
Malvolio:
There is also little question that juries in the deep south routinely acquitted whites of monstrous offenses against blacks (and that, in a sick sense of turnabout, many blacks today will refuse to convict other blacks)
A juror sleazy enough to acquit a murderer because he likes the murderer's skin-color, or dislikes the victim's, is hardly going to be dissuaded from doing so by the absence of an explicit duty to judge the law.
8.15.2008 1:12pm
Ryan Waxx (mail):

I think the issue of some one being unjustly convicted of a crime is more than enough to override any such concerns, at least in my book.


No one is debating weather the conviction was just. The debate is weather the law he broke should have been enacted in the first place... and weather some random juror has the power to decide that.
8.15.2008 1:14pm
Oren:
ChrisIowa, if the juror's oath requires him to apply the law as directed, e.g. to accept as binding the judgments of the SCOTUS as to the constitutionality of the various laws, then it can hardly be said that the Constitution is ignored. By assuming that the juror has an independent and superior right to interpret the Constitution, you are begging the question.

I think the issue of some one being unjustly convicted of a crime is more than enough to override any such concerns, at least in my book.
Two wrongs do not make a right. If, having failed at the ballot box to impose my view of the law and, likewise, having failed to establish in the Courts that the law in question violates the Constitution and, furthermore, having failed at the ballot box to require different jury instructions, it seems far-fetched to say that the juror retains some moral right to ignore the manifest judgment of his peers.

I can understand the need for JN in extreme cases (alien &sedition act comes to mind) but for all my opposition to drug laws (and Raich, for that matter), I cannot interpose my personal judgment of their unjustness, stupidity or unconstitutionality for their contrary judgment of all 3 branches of government.
8.15.2008 1:15pm
robert:
"For those with a serious interest in jury nullification, I highly recommend Jury Nullification: The Evolution of a Doctrine (paperback) by Clay Conrad, which is the best work on the subject since Lysander Spooner's Trial by Jury (1852)."

Glenn Reynolds' review at papers.ssrn.com/sol3/papers.cfm?abstract_id=1010518

They tried to kill my brother.... Had my brother's case made it to a jury, a conviction would have been likely. The prosecutor and judge, however, apparently felt that justice would not be served by sending the son of a local business leader - even one with prior offenses on his record - off to jail. Yet strangely enough, the notion that a jury might have discretion to make the same kind of judgment appears shocking, even un-American, to many. Jurors are unaccountable, after all (though prosecutors and judges are not especially accountable either, and are also shielded by absolute immunity). Historically, this trust of prosecutors and judges over jurors is a relatively recent innovation, and it may not be entirely merited. Despite all the famous cases of alleged juror nullification, it is "prosecutorial nullification" - more commonly known as "prosecutorial discretion" - that plays the greatest part in keeping malefactors out of jail.
8.15.2008 1:15pm
Oren:
*the contrary judgment*
8.15.2008 1:16pm
Ryan Waxx (mail):
Abuse of prosecutorial nullification does not justify nor discredit juror nullification.
8.15.2008 1:19pm
jgshapiro (mail):

I can understand the need for JN in extreme cases (alien &sedition act comes to mind) but for all my opposition to drug laws (and Raich, for that matter), I cannot interpose my personal judgment of their unjustness, stupidity or unconstitutionality for their contrary judgment of all 3 branches of government.

Who judges whether the case at hand is extreme? Wouldn't it be the jury hearing it?
8.15.2008 1:20pm
Johnson Johnson (mail):
I served on a jury in a criminal trial. Instead of nullify the conviction, we brokered a deal. We acquitted the defendant on two charges and convicted him of one. Since the factual predicates for the two charges overlapped with that of the one charge (the most broad), by doing this, we rendered an inconsistent, irrational verdict. In other words, the defendant likely won on appeal.
8.15.2008 1:20pm
Mark Jones:
Yes, the juror was stupid to think the judge would tolerate a mere juror thinking for himself and thereby giving the judge an opportunity to replace him. I agree--a flimsy factual rationale for voting to acquit (or stubbornly clinging to the claim "I simply don't believe the evidence/testimony/whatever!" is the only practical way to engage in jury nullification these days.

It always amazes me how we're told that cops have (and can be trusted with) discretion, prosecutors have (and can be trusted with) discretion, judges have (and can be trusted with) nearly tyrannical power in their courtrooms--but god help us if the jurors dare to behave like anything but robots.
8.15.2008 1:24pm
PLR:
At the risk of being mistaken for Sarcastro, shall we require the judge to include, at the end of the instructions to the jury, an additional instruction that any juror is free to ignore all of the preceding instructions and do whatever the hell he or she feels like?

And empirically speaking, would such insanity result in more acquittals, more convictions, or just randomness?
8.15.2008 1:32pm
Houston Lawyer:
My mother served on a jury of a sheriff's deputy charged with cruelty to animals for peppering an escaped horse in the flank with bird shot. They all agreed that he did it but acquitted him anyway because they didn't understand why he was being prosecuted.
8.15.2008 1:32pm
DiverDan (mail):
I can only hope that when and if this case goes up on appeal, the Court takes the same historical approach that Scalia did in Heller. The historical roots of a right to trial by jury date to the Magna Carta -- hence, a right to a "jury of one's peers", since the right originally only extended to the aristocracy, i.e., the "peerage". Under the Magna Carta, the right of jury nullification was the very essence of the right to trial by jury. Eliminating the right to jury nullification is an act of incredible arrogance by the Judiciary, it stabs at the very heart of the right to jury trial.
8.15.2008 1:38pm
Christopher Hagar:

...it seems far-fetched to say that the juror retains some moral right to ignore the manifest judgment of his peers.


Is it not every man's moral duty to act on his independent judgement, to judge for himself? Is a juror supposed to take a man's liberty for no wrong?

An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody sees it.

See also Galileo, slavery, Nazis.
8.15.2008 1:45pm
Brett Bellmore:

No one is debating weather the conviction was just. The debate is weather the law he broke should have been enacted in the first place... and weather some random juror has the power to decide that.


Some random juror most assuredly has the power to decide that, so long as he doesn't give the judge any basis on which to replace him.

Historically speaking, there's no question AT ALL that jury nullification is why we have juries, it's what they're there for. The judiciary's current effort to stamp it out is nothing short of an attempt to render the right to trial by jury a hollow formality.
8.15.2008 1:47pm
T.R.F.:
"[H]aving failed to establish in the Courts that the law in question violates the Constitution"?

This is the problem with your argument here, Oren. "[T]he Courts" do not solely comprise the judges. If a juror decides that the law in question violates the Constitution, then the courts have established the law in question violates the Constitution, right then and there. It's merely that the judges have not.

Anti-nullification efforts are a pretty clear case of a group of government officials using their powers to further aggrandize themselves. Judges are more powerful if they're the sole triers of the law. The correct response is to treat the usurpation as the legal nullity it is, even if the judges perform the usurpation under the color of law.
8.15.2008 1:51pm
Mark Jones:
If we're to take seriously the notion that the people are sovereign, and that the government possesses only delegated powers, how can a juror NOT have the power to decide that in this case the government--HIS AGENT--should not punish a fellow citizen for an act that he doesn't think deserves punishment? HE, not the supreme court, is the ultimate authority from which the government's powers flow and HE gets to say "Not this time."
8.15.2008 1:56pm
ejo:
while not common, it certainly isn't all that rare for jurors to be removed once deliberations have started. In Gov. Ryan's federal trial here in Illinois, two were removed. To label it extraordinary is simply nonsense. Let's also make it clear that the libertarian Cato types love nullification for dope as this is the Holy Grail for libertarians-are they equally good with it for murder, rape, etc? jurors ignore the law, facts and common sense all the time-instructing them to do is sillier than anything one could lay on the court's reasoning.
8.15.2008 2:00pm
Oren:
Is it not every man's moral duty to act on his independent judgement, to judge for himself? Is a juror supposed to take a man's liberty for no wrong?
Then we are not a country of democratically-derived law but a country where a random collection of 12 citizens can override the judgment of the legislature at will. How this is even remotely just is entirely beyond me.

This is the problem with your argument here, Oren. "[T]he Courts" do not solely comprise the judges. If a juror decides that the law in question violates the Constitution, then the courts have established the law in question violates the Constitution, right then and there. It's merely that the judges have not.
The Constitution is not applicable in this nebulous "then and there" sense where every time you ask the question you get a different answer. If it is unconstitutional for the Federal government to imprison the defendant for simple possession of cocaine in the instant case, it is unconstitutional in all applications. Otherwise, we have a different Constitution every case depending on the whims of a computerized random number generator.

Anti-nullification efforts are a pretty clear case of a group of government officials using their powers to further the agenda of the popular majority that elected them. Judges are more powerful if they're the sole triers of the law written by the legislature.

We have come to the point in this country where every policy with which a person disagrees is automatically some gigantic conspiracy. Isn't it enough to say "I disagree with the War on Drugs and I disagree with the result in Raich but I humbly accept the judgment of the democratically elected government and will work to change that result by convincing the public to change the law".
8.15.2008 2:02pm
David M. Nieporent (www):
Despite all the famous cases of alleged juror nullification, it is "prosecutorial nullification" - more commonly known as "prosecutorial discretion" - that plays the greatest part in keeping malefactors out of jail.
Indeed, I used to be involved with discussions on usenet about jury nullification, and most lawyers seemed to be opposed, but they could never quite answer this one question: why is it okay for police to use their discretion not to arrest someone who has broken the law, for prosecutors to use their discretion not to prosecute someone who has broken the law, but somehow illegitimate for jurors not to convict someone who has broken the law?
8.15.2008 2:04pm
Oren:

If we're to take seriously the notion that the people are sovereign, and that the government possesses only delegated powers, how can a juror NOT have the power to decide that in this case the government--HIS AGENT--should not punish a fellow citizen for an act that he doesn't think deserves punishment? HE, not the supreme court, is the ultimate authority from which the government's powers flow and HE gets to say "Not this time."

Because sovereignty rests with the people collectively, not with every individual.

Next time you get stopped for speeding, why don't you insist the the police officer -- YOUR AGENT -- should not punish you for an act that you don't think deserves punishment. In fact, why doesn't every criminal just insist that Mark Jones has given them personal sovereignty to ignore all laws they don't think are just.
8.15.2008 2:06pm
jvarisco (mail) (www):
My point was that whatever the juror might feel, he takes an oath to:

understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?"

That means you obey the instructions of the court, even if you might think they are unconstitutional. The SC is the only branch of government that gets to interpret the constitution, not any Joe on the street.
8.15.2008 2:06pm
Jon Rowe (mail) (www):
I see majoritarian legislatures as such serious enemies of liberty that the more venues for "nullification" of their potential tyranny, the better.
8.15.2008 2:06pm
ARCraig (mail):

Then we are not a country of democratically-derived law but a country where a random collection of 12 citizens can override the judgment of the legislature at will. How this is even remotely just is entirely beyond me


As David points out, the police and prosecutor already have, and frequently exercise, the power to not enforce the law as they see fit. How is this not a Crime Against Democracy, then?
8.15.2008 2:08pm
Oren:
why is it okay for police to use their discretion not to arrest someone who has broken the law, for prosecutors to use their discretion not to prosecute someone who has broken the law, but somehow illegitimate for jurors not to convict someone who has broken the law?
Because The People can remove the police and prosecutors and replace them if they feel displeased with their jobs. They hold their office by popular mandate, not by dint of a random number generator.
8.15.2008 2:08pm
drewsil (mail):
I'm quite impressed by the judges actions in this case. He was remarkably forthright about what was going on in the case, and what is currently expected to do, going so far as to require an oath that the jurors defer to the judge in all matters of the law.

Hopefully this will force the appellate courts and possibly even the supreme court to face the issue of jury nullification head on.
8.15.2008 2:10pm
Lior:
No one is debating weather the conviction was just. The debate is weather the law he broke should have been enacted in the first place... and weather some random juror has the power to decide that.


Are you sure everyone agrees this was an unjust conviction? There are many who support the current "drug war".

As to the question of whether "some random juror" has powers, historically these specific powers were the main motivation for having the jury there: to safeguard the common people against tyranny by law. Today, the constitution of Oregon specifies (in Article I, Section 16):

... 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 ...
8.15.2008 2:11pm
ARCraig (mail):
That's such a bizzare answer I honestly don't know what to say. Juries are the people.
8.15.2008 2:11pm
LTEC (mail) (www):
Would those people who support jury nullification as a part of the system please give an example of what they would suggest in the way of instructions from judge to jury?
8.15.2008 2:12pm
Oren:
I see majoritarian legislatures as such serious enemies of liberty that the more venues for "nullification" of their potential tyranny, the better.
This is a manifestly unfair way to nullify a crooked act of the legislature (and, by the way, I'm very sympathetic to your philosophical position the legislatures are most often the enemies of liberty).

The question is not about the wrong but about the remedy. Jury nullification is just plain unfair, it creates a situation where different people in the substantially same situation are judged differently based on the composition of a panel chosen at random.
8.15.2008 2:13pm
ARCraig (mail):
Jury nullification is just plain unfair, it creates a situation where different people in the substantially same situation are judged differently based on the composition of a panel chosen at random.



That's what juries are.
8.15.2008 2:14pm
Ace:
Jurors may have been the judges of law and fact at the Founding, but does instructing them that they are judges of the law (and thus other instructions are advisory only) violate due process.

See Stevenson v State, 289 Md 167, 423 A2d 558 (1980).
8.15.2008 2:16pm
David M. Nieporent (www):
Then we are not a country of democratically-derived law but a country where a random collection of 12 citizens can override the judgment of the legislature at will. How this is even remotely just is entirely beyond me.
We are not a country of democratically-derived law. We are a country where we recognize that government exists to secure the rights of life, liberty, and the pursuit of happiness, and that government that is not doing so is illegitimate, whether popular or not.

One of the most celebrated cases in our history, studied in every social studies class, is the Zenger case, in which the colonial government tried to prosecute a printer for seditious libel. Although "the law" at the time was that truth was no defense, the jury acquitted him.
8.15.2008 2:19pm
FWB (mail):
The point still exists that the SC being created by the Constitution must remain subordinate to its creator. Interpreting the Constitution is an act of superiority and is not legitimate. Hamilton discussed this as part of fundamental law theory.

The point is Who's the boss? In the relationship between the SC and the Constitution, it is the Constitution that is the boss. The claims by the SC that they are the interpreters are bogus attempts at expansion of authority, authority that, while possibly existing historically, was not engrossed in the Constitution for the United States of America. Those who claim the commerce clause is expansice enough to cover drug prohibition must 1) explain why it was not expansive enough at the time of the 18th amendment and 2) explain the fact that an expansive interpretation of the commerce clause makes 80% of the other delegations of powers wholly unnecessary, which is an invalid and improper interpretation. When one reads one clause as eliminating the necessity of other clause, one is convicting the Framers of ignorance of the law, language, and purpose. The power to regulate commerce among (grammatically proper term for more than 2 participants) the states was to keep the state from screwing with each other by way of state level regulation of commerce, no more. It is readily apparent to free thinking and independent students of the constitution and constitutional law that the majority of SC decisions have not legitimacy.

The education system is and has been under the control of the government for several generations. That control has allowed the government, with it agenda, to determine what those who pass through its schools think and believe. One must throw off the shackles and remove the blinders of the educational system in order to understand.
8.15.2008 2:19pm
Bored Lawyer:
The "jury nullification" in this case is quite unusual. The juror was not claiming that the law in question is inherently unjust or that its application to this defendant in this circumstance is unjust.

What he is claiming is that it is beyond the power of Congress under the Constitution to enact.

That type of questions strikes me as beyond the ordinary competence of jurors.
8.15.2008 2:19pm
PLR:
ARCraig:
As David points out, the police and prosecutor already have, and frequently exercise, the power to not enforce the law as they see fit. How is this not a Crime Against Democracy, then?
There is no "Law of Democracy."
That's what juries are [panels chosen at random].
They are not chosen randomly. I have never been seated on a jury, and my exclusion has not been by random chance.
8.15.2008 2:20pm
MarkField (mail):

At the risk of being mistaken for Sarcastro, shall we require the judge to include, at the end of the instructions to the jury, an additional instruction that any juror is free to ignore all of the preceding instructions and do whatever the hell he or she feels like?


I once had a judge ask, at the end of haggling over a lengthy set of jury instructions, if both sides would agree to have him just tell the jury "go in there and do what you think is right". I was willing to agree, but the other side wouldn't. It would've been an interesting experiment.
8.15.2008 2:20pm
Lior:
Oren: Note that the jury originates from a time when both the prosecutor and the judge were agents of the crown and could neither be removed by the public nor trusted to be impartial (in the modern sense). Much of the law was also promulgated by the crown and not by elected representatives. At that time, the jury was the main check against prosecutorial abuse and unjust laws.

Today you can certainly argue that there are other checks on bad laws, bad prosecutors and bad judges making the jury unnecessary. I certainly think today the jury system is a bad idea. Nevertheless, to claim that juries have lost their traditional power to judge the law, we have to explain what legal provision says that they have lost it. Certainly the jury mentioned in the Sixth Amendment could judge the law. Why isn't today's jury the same?
8.15.2008 2:21pm
jgshapiro (mail):

They hold their office by popular mandate, not by dint of a random number generator.

Jurors also hold their office by dint of not being struck for cause or by a preemptory challenge. So the prosecution (and the judge) has agreed to use these jurors before the jury decides on nullification.
8.15.2008 2:23pm
MarkField (mail):
Just to throw a hand grenade into this discussion...

If we permitted juries as much discretion as some here want, wouldn't the differing results violate the equal protection analysis of Bush v. Gore?
8.15.2008 2:23pm
Oren:

That's such a bizzare answer I honestly don't know what to say. Juries are the people.
No, juries are a subset of The People. As you well know from elementary statistics, a randomly chosen subset of a larger group can often have properties that are quite different from the group at large. This is especially true when the subset is quite small, e.g. 12.

Let's do some statistical analysis here. Let's say that 66% (a large enough super-majority, IMO) of the population (should be enough to get a Const. Amendment passed, depending on the geographic distribution) supports law X. For the sake of emotional investment, let's suppose that you personally are very much in favor of this law X.

What is the probability that a randomly chosen jury of 12 will have a 6-6 or greater majority against X. That's

Sum_{n=6}^{n=12} Binomial(12,n) * ((1-p)^n) * (p^(12-n))
where p is the popular support for the law X. For p = 0.66, that probability is a whopping 20%. That means that, if juries are given unlimited power to nullify by majority vote, 1 in 5 people can expect to be acquitted even if 2/3rds of the population supports the law in question.

It gets much worse than that if we allow a minority of the jury to nullify convictions by forcing mistrials. In we allow just 3/12 jurors to block a conviction by nullification, than even for a measure with 85%! popular support, 25% of those tried for the law will be acquitted.
8.15.2008 2:24pm
Mark Jones:

Next time you get stopped for speeding, why don't you insist the the police officer -- YOUR AGENT -- should not punish you for an act that you don't think deserves punishment. In fact, why doesn't every criminal just insist that Mark Jones has given them personal sovereignty to ignore all laws they don't think are just.


Because that's straw man bearing no resemblance to my actual point?

As a citizen going about my daily business, I have to obey the law. Nobody's suggested otherwise. When I sit on a jury, I am there to act as a check on the government, not a rubber stamp. They must prove their case to MY satisfaction or I'm entirely within my historical and moral (if not, according to them, legal) rights to acquit the defendant.

If, in my opinion, the circumstances surrounding the defendant's actions justify his behavior, I have every right to refuse to convict him. (How is this not functionally identical to the discretion a cop can show by choosing not to arrest him in the first place, or a prosecutor can show by deciding not to prosecute him? Other that the fact that they don't like letting mere citizens have that kind of say?)
8.15.2008 2:24pm
David M. Nieporent (www):
Because The People can remove the police and prosecutors and replace them if they feel displeased with their jobs. They hold their office by popular mandate, not by dint of a random number generator.
Setting aside that police are never elected and prosecutors often aren't, I fail to see how that resolves the situation. We don't say, "It's okay for government employees to use their discretion to spend tax dollars however they feel like it regardless of the budget passed by the legislature, because if we're displeased we can replace them." We don't say, "It's okay for government employees to collect 40% taxes even though the tax code says 30% taxes; if we don't like it we can just replace them."

There's no other situation where we say that public employees can ignore the law as passed by the legislature merely because we can fire them after the fact. So if the law as passed by the people is so sacred, then surely we shouldn't think it okay for police and prosecutors to ignore it merely because we can fire them later.
8.15.2008 2:26pm
Oren:

They are not chosen randomly. I have never been seated on a jury, and my exclusion has not been by random chance.

In my county, the jury pool is chosen by random number generator. Yes, there are preemptive and for-cause strikes, but that doesn't not negate the fact that the jury pool is a subset of the populace and that simple statistic will tell you that randomly chosen small subsets often have properties wildly divergent from the population at large.
8.15.2008 2:28pm
Oren:
If, in my opinion, the circumstances surrounding the defendant's actions justify his behavior, I have every right to refuse to convict him
Because doing so places your opinion superior to the expressed judgment of the legislature, executive and judicial branches of the government. To arrogate such immense power to yourself is nothing more than to assert that every man is the law unto himself.
8.15.2008 2:30pm
Thomas_Holsinger:
Note that defense counsel in medical marijuana cases involving defendants with major medical problems (impending blindness due to glaucoma, vomiting or lack of appetite plus dangerous weight due to cancer treatment) are forbidden to ask questions about such conditions.
8.15.2008 2:30pm
Lior:
Bored Lawyer: If judging the law is beyond the competence of jurors, they what does their power to judge the law mean?

Certainly this particular juror showed he was competent to judge the constitutionality of the statue. That most others currently do not find his argument dispositive doesn't mean the juror was incompetent to judge the law -- only that he is in the minority with respect to this legal question.

By the way, a criminal conviction based on a law which the legislature had no power to make, and which the executive and judiciary has failed to rein in, is an epitome of injustice.

Oren: judges are also drawn at random, and have different opinions on matters of law.
8.15.2008 2:31pm
Dave D. (mail):
...I have met folks, lots of them, who think that murder is justified if the murderer was disrespected by the murder victim. Or by the murder victims friends. And disrespect can take the form of a look from across the room. Or it can be laughter when the murderer feels that it is inappropriate. Disrespect is assuredly the covering up of gang graffiti. If jury nullification is what the founders meant by jury trials, does anyone here think that freeing murderers who were disrespected is reasonable ?
...I've read the most egregious errors in referrence to the constitution here, where many folks actually read the constitution and have one at hand. Do you really want every 21 year old college junior to apply the constitution he remembers from 5th grade ? Do you want the gang members creed to prevail in jury verdicts, as it surely will if nullification goes mainstream.
..We have an example where law is decided by everyman based on his interpretation, and not by dilligent elites after intense study : Islam. Do we really want to empower everyone with a copy of the constitution in his hand to be their own SCOTUS ? If so, why bother with a court system. Because if Mark Jones is right in what he claims above, then as a cop I can cut-out-the-middleman and just do justice on the street. I've got a copy of the constitution right here. It can say whatever I say it means, just like the Libertarians say it does. Suspect nullification. Save the State the trouble.
8.15.2008 2:33pm
David M. Nieporent (www):
The question is not about the wrong but about the remedy. Jury nullification is just plain unfair, it creates a situation where different people in the substantially same situation are judged differently based on the composition of a panel chosen at random.
It surely doesn't make it fairer to unjustly convict everyone than to acquit some and unjustly convict some.
8.15.2008 2:34pm
Mark Jones:


If, in my opinion, the circumstances surrounding the defendant's actions justify his behavior, I have every right to refuse to convict him



Because doing so places your opinion superior to the expressed judgment of the legislature, executive and judicial branches of the government.


Well...yes. When acting as a juror, I AM the final authority. That's why we have jurors in the first place.
8.15.2008 2:35pm
Oren:

We are not a country of democratically-derived law. We are a country where we recognize that government exists to secure the rights of life, liberty, and the pursuit of happiness, and that government that is not doing so is illegitimate, whether popular or not.

The question is not the aims of the government, which are uncontroversial, but rather the authority to judge whether a provision is inside or outside that mandate. I personally judge that prohibition of possession of drugs is outside the mandate of the government. I think the war on drugs is the epitome of stupidity and I think Raich was wrongly decided. Nevertheless, I'm not a sore loser and I accept those laws and judgments. I am currently working towards a ballot initiative in my state that will express those view and I have consistently voted for candidates that agree with my position.

Those that want to start nullifying drug convictions left and right are simply unable to admit to themselves that they have lost the battle for public opinion but instead of attempting to convince others by reason, they want to impose their judgment on whatever defendant has the luck of the draw to fall into their judgment.
8.15.2008 2:36pm
Oren:

Setting aside that police are never elected and prosecutors often aren't, I fail to see how that resolves the situation.
The police are supervised by the elected executives, as are prosecutors. If you don't like the structure of your local government, you are free to attempt to amend it to me more to your liking.
8.15.2008 2:39pm
Oren:

Well...yes. When acting as a juror, I AM the final authority. That's why we have jurors in the first place.
Assuming that the courts adopt this cockamamie scheme of justice, I bet you will be sorely disappointed when randomly chosen juries start nullifying popular laws that you support.
8.15.2008 2:40pm
David M. Nieporent (www):
Those that want to start nullifying drug convictions left and right are simply unable to admit to themselves that they have lost the battle for public opinion but instead of attempting to convince others by reason, they want to impose their judgment on whatever defendant has the luck of the draw to fall into their judgment.
I don't know what on earth gives you the idea that such people are "unable to admit to themselves that they have lost the battle for public opinion."

They're unwilling to admit that the battle for public opinion is all that matters. Democracy is a means to an end, not an end in itself. If unjust laws (*) are passed, the fact that they were done via democratic means doesn't make them less unjust.


(*) Note that I said "unjust," not merely "would have written the law differently if it were me."
8.15.2008 2:40pm
Oren:

If, in my opinion, the circumstances surrounding the defendant's actions justify his behavior, I have every right to refuse to convict him.
And, if in MY OPINION, the defendant acted unjustly but did not violate the law, I will vote to convict him anyway so that he won't escape justice on a technicality. Does that sound fair?
8.15.2008 2:41pm
Mark Jones:

Assuming that the courts adopt this cockamamie scheme of justice, I bet you will be sorely disappointed when randomly chosen juries start nullifying popular laws that you support.


Possibly. But since I think jurors do have that authority, and that the courts are illegitimately interfering with it, I'll worry about it then.
8.15.2008 2:41pm
Oren:

Note that I said "unjust," not merely "would have written the law differently if it were me."
Could you explain the difference?
8.15.2008 2:42pm
David M. Nieporent (www):
Assuming that the courts adopt this cockamamie scheme of justice, I bet you will be sorely disappointed when randomly chosen juries start nullifying popular laws that you support.
I'm a libertarian. The ratio of "popular laws that I support" to total laws is so tiny as make the chances of this happening reasonably close to nonexistent.
8.15.2008 2:44pm
Oren:
Mark, I think you should revisit my post about the numerical probabilities of various scenarios and tell me if you think those results are acceptable. Specifically, tell me how many jurors on the panel ought to be necessary to nullify a conviction (or hang the jury, requiring multiple mistrials).
8.15.2008 2:44pm
Christopher Hagar:
If the problem with jury judgement is randomness, the panel is already randomly judging the facts. The fact is, the jurors do not want truly felonious people running around free, so their decisions are not random. If there is an errant juror who wants to let a heinous murderer go free, he is more likely to pretend doubt at the facts of the case than to declare his nullification of the law.

Furthermore, the legislature is not a perfect channel for democratic will and is not far from a random group of a few hundred people for issues on which a candidate did not campaign. Even supposing a statute perfectly channeled democratic will, the legislature or the people do not have a perfect vision into the circumstances of every supposed "crime" that might unintentionally be forbidden by the statute (these are probably not the facts of the instant case).

The whole system is set up to make it difficult for the government to pass laws, and then difficult for the government to take people's rights, such as the liberty of the accused. This is a winnowing process, and does not put the accused at risk of any randomness to convict or imprison beyond what the law already allows.

If this is unfair, sending one man to prison and setting another free, by reason of the technicalities of a statute or court procedures, when they committed similar crimes of the same moral valence, is no less unfair.
8.15.2008 2:44pm
Oren:

I'm a libertarian. The ratio of "popular laws that I support" to total laws is so tiny as make the chances of this happening reasonably close to nonexistent.

They could start nullifying limits on government power too, you know.
8.15.2008 2:45pm
EconGrad:
Much of this debate strikes me as debate for debate's sake. If a juror disagrees with the law, and is smart about it, all they have to say to the jury foreman is "I'm not convinced he's guilty -- I have nothing further to share on the topic". I'd love to see a judge try to remove a juror just because he/she thinks the defendant is not guilty and won't discuss their reasoning.

Bottom line is this -- whether or not a single juror has the *right* to judge the law is irrelevant because they do have the *power*.
8.15.2008 2:45pm
Lior:
@Oren:
We have come to the point in this country where every policy with which a person disagrees is automatically some gigantic conspiracy. Isn't it enough to say "I disagree with the War on Drugs and I disagree with the result in Raich but I humbly accept the judgment of the democratically elected government and will work to change that result by convincing the public to change the law".


You lump here two independent issues -- your analogy is false. Much of the Federal "war on drugs" is Constitutional (targeting interstate criminal enterprises; drug smuggling into the country; conducting anti-drug projects in foreign countries). Disagreement with such policies is, as you say, grounds for changing the the legislature, the executive and the law.

However, some of the "war on drugs" is un-Constitutional. A juror who convicts someone based on an unconstitutional law has failed to serve his function as a juror. He might as well not have been there.

Do I believe in jury nullification in murder cases? Of course. Jurors who find the death penalty un-Constitutional should not vote for it. A hung jury is not the same as an acquittal, as far as I understand the US system.

Personally, I think trial by jury is not a good idea. But this is beside the point: as long as the Constitution guarantees a right to trial by jury in federal criminal cases, that right ought to be respected.

Can a lawyer here explain where the judge derived his power to remove this juror?
8.15.2008 2:45pm
Oren:

The fact is, the jurors do not want truly felonious people running around free, so their decisions are not random.

Except when those jurors start deciding that felonies like possession of cocaine (a felony i would certainly vote to repeal!) are not really felonies. Then it gets really hairy.
8.15.2008 2:46pm
Oren:

Can a lawyer here explain where the judge derived his power to remove this juror?

Juror are required to debate their conclusion in good-faith. If a juror is refusing to even explain himself to his fellow jurors, he can hardly be said to be acting in good faith.
8.15.2008 2:47pm
Oren:
However, some of the "war on drugs" is un-Constitutional. A juror who convicts someone based on an unconstitutional law has failed to serve his function as a juror. He might as well not have been there.
And if I think that DUI laws are unconstitutional (implied consent violates the 4A, for instance), I will vote to acquit every DUI defendant that comes before me.


Bottom line is this -- whether or not a single juror has the *right* to judge the law is irrelevant because they do have the *power*.

Absolutely, I would never deny that. I just happen to think of it more as a reserve power, to be used in cases of genuine emergency than to act as a way for disgruntled citizens to strike down mundane laws.

Having a power usually counsels for judicious use of that power, that's all I'm getting at here.
8.15.2008 2:50pm
Oren:

If this is unfair, sending one man to prison and setting another free, by reason of the technicalities of a statute or court procedures, when they committed similar crimes of the same moral valence, is no less unfair.
And so, because the system is unfortunately somewhat random, we should inject more randomness?
8.15.2008 2:51pm
David M. Nieporent (www):
They could start nullifying limits on government power too, you know.
They could if there were any such limits.

But when do juries decide "limits on government power"?
8.15.2008 2:53pm
FantasiaWHT:

Because doing so places your opinion superior to the expressed judgment of the legislature, executive and judicial branches of the government. To arrogate such immense power to yourself is nothing more than to assert that every man is the law unto himself.


Except that the branches of government have GIVEN us that power. The legislature you believe I am supplanting is understood not to possess the skills to legislate on a case-by-case basis - they set up the general rules and leave it up to the juries, among others, to decide how to properly apply them.

As to the question of what judges should instruct juries, I say nothing. To me, jury nullification is only really called for when the situation is so abhorrent to the jury's sense of justice and fair play that they feel compelled to ignore the letter of the law, without even being told they can.
8.15.2008 2:55pm
Oren:
Hypothetical Situation: Suppose the Congress passes and the States ratify an amendment that states "The States shall have the power to criminalize desecration of the US flag".

Suppose further that your State does pass such a law.

Suppose even further that you are serving on a jury that is debating whether to convict a flag-burner (the facts are indisputable).

You can't argue that the statue is unconstitutional. You can't argue that the guy didn't do it. Can you still nullify just based on your gut judgment (that I share!) that this amendment is contrary to the promises of liberty promised to us by the Constitution?
8.15.2008 2:55pm
Christopher Hagar:

they want to impose their judgment on whatever defendant has the luck of the draw to fall into their judgment.


They are preventing an unjust judgment from being imposed on the defendent. They contradict the majority, potentially endangering it.


And, if in MY OPINION, the defendant acted unjustly but did not violate the law, I will vote to convict him anyway so that he won't escape justice on a technicality. Does that sound fair?


You are one among twelve who need unanimity, and the judges will set the defendant free on the technicality. If the legislature passed the law, and the district and appellate judges do not vacate, and the eleven other people on the jury do not also convict, you are not condemning the defendant merely by your own personal opinion.
8.15.2008 2:56pm
Lior:
@Oren:
They could start nullifying limits on government power too, you know.


Well, this could only happen in the criminal trial of a government official for exceeding his authority. These are so rare (being subject to what has been termed "prosecutorial nullification" above) that jury nullification there is the least of our concerns.
8.15.2008 2:56pm
DiverDan (mail):
Oren stated:


Jury nullification is just plain unfair, it creates a situation where different people in the substantially same situation are judged differently based on the composition of a panel chosen at random.


And yet this is precisely what happens on a very regular basis in civil cases tried to a jury. If Oren is so certain that jury nullification no longer has a place in our judicial system (I respectfully disagree), then he ought to be willing to replace the jury not only in the criminal context, but also in the civil context - as purely finders of fact, juries are incredibly inefficient and unreliable; lets just replace them in ALL court proceedings. How about supporting "professional juries", composed of people who are educated and trained in such matters as logic, the pitfalls of certain kinds of evidence (eye witness accounts are notoriously unreliable, for example), body language clues as to when a witness might be lying (look where the witness's eyes look - if he/she is looking up and to the right, it's a good clue that his/her brain is engaged not in recollection but fabrication), how to avoid being influenced by emotion, "detective" types who enjoy and are very good at piecing together all of the clues and solving the puzzle, people who truly understood why the prosecutor bears the burden of proof "beyond a reasonable doubt" and who understood just what that meant. There is no question that if jury panels were composed of professional jurors rather than "12 people who were too dumb to get out of jury duty", the results would be much more reliable. On the other hand, if jury nullification is simply an outdated concept with no place in a representative democracy (again, I don't agree), then lets throw out both the Sixth and Sevent Amendments (at least as to trial by jury), and find a much better mechanism to simply find "just the facts".
8.15.2008 2:56pm
Spitzer:

I can understand the need for JN in extreme cases (alien &sedition act comes to mind) but for all my opposition to drug laws (and Raich, for that matter), I cannot interpose my personal judgment of their unjustness, stupidity or unconstitutionality for their contrary judgment of all 3 branches of government.


Pren: Why not? Judges do it all the time.

Joking aside, I think JN is an important check on the excesses of the elite who run the political and legal system. JN was quite common historically - heck, when the only penalty for felony was death, there was quite a bit of incentive for jurors to find that lesser-included offenses (that didn't include death). Relatedly, there is a lot of evidence coronor's juries in the 18th century regularly "found" that suicides were "accidents" (which happened to avoid the ghastly penalty of escheat on the decedent's estate).

Looked at another way, laws are generally supposed to conform to a society's preferences, not the other way around. If people want to do an act that the politicians forbid, criminality results. I am willing to concede that there are certain acts that all or almost all people will consider criminal (e.g. murder in certain circumstances, cannibalism in certain circumstances), and yet some of those crimes will always occur due to the presence of hotheads and misanthropes in any society. However, there are likely other acts that all or almost all people think should be legal always (like, say, breathing), and there is a broad middle gound where shades of grey predominate. Societal preferences are malleable of course, and, like some quantum theory they seem to alter in reaction to observation and study, but the fact remains that every society has a series of price points capping its aggregate preferences as to one activity or another. Democracy is supposed to make the price-point discovery more efficient, but constitutions, as well as the practice of politics, makes that generally impossible. But JN can help us guide toward more efficient targeting of laws - if a particular law is located at point X on a preference scale, and social preferences are at point Y (or exist in a range between points Y and Z), then the greater the difference between X and Y (or Y to Z), the greater the likelihood that ordinary people would view the law as unjust. This would translate into a greater likelihood of "criminal" behavior (when ordinary people think the behavior is perfectly acceptable), and a sense of alienation would grow between ordinary people and the law-givers. In that sense, there is likely a point in any society where ordinary people are allowed to pass on criminal laws in some (even if limited) manner (i.e. this leaves out most non-common law countries) where JN becomes a greater possibility. If the acceptable distance between X and Y is defined as A, then 2A, or 10A, or 100A, might be the point at which jurors begin to nullify unpopular laws. If we attack JN (or disallow juries), that doesn't eliminate it - it merely suppresses it, causing it to morph into a different form (i.e., as Oren suggested, falsely finding innocence, or, in many societies, witnesses refuse to cooperate with investigations). This may mean that if 10A is the point at which JN is triggered in a given society, then maybe it would be 20A in a society where jurors/JN are actively suppressed. Thus, JN is ever-present, even if its incidence may be measured (of course, I'm leaving out the Type I and II errors).
8.15.2008 2:57pm
Spitzer:
"Pren" - sorry. I meant "Oren"
8.15.2008 3:00pm
Kenvee:
My main problem with jury nullification is the uneven application of it, to the point that you might as well have no law at all. "The Law" says I can't do X. I know Joe did X and got convicted. But I know Bob did X and got acquitted. Should I do X? One point of having a written system of laws is to put everyone on notice of exactly what they should and shouldn't do, not leave it open to "whatever the government doesn't like today".

A distinction between jury nullification and police/prosecutorial/judicial discretion is that we are absolutely forbidden from finding out why it was exercised. (Okay, the juror can decide to tell us out of the goodness of their hearts, but they often don't.) So you have no idea of knowing whether they truly believe that the crime didn't occur, that the wrong person was arrested, that there was a problem with other evidence, or they just didn't like the law. At least prosecutors etc will usually explain why they chose to exercise discretion, and if you don't like the answer you can vote them out.

That said, every prosecutor knows that "I think he did it, I just don't think you proved it beyond a reasonable doubt" is code for "I just didn't want to convict him" anyway. ;)
8.15.2008 3:00pm
Lior:
Oren: yes, when the jury "judges the law", they do not merely determine whether the law is Constitutional. Rather, the jury must literally judge the law by also determining whether it is just. One does not exclude the other.

Judges must also pass on the constitutionality of laws, and that is the limit of their power. But jury is not limited this way.
8.15.2008 3:01pm
Oren:

But when do juries decide "limits on government power"?

Many juries refuse to convict peace officers of obvious offenses. For instance, in the case where police officers forced open the eyes of protesters and doused them with capsicum (which amounts to torture IMO), there were jurors that stated that they will never convict police officers of anything they do to "hippie protesters".

In S1983 cases, jurors often rule in favor of plaintiffs and award $1 for bona-fide constitutional violations.

Jurors in LA refused to convict Rodney King's assailants of what was, by all accounts, battery with a deadly weapon.
8.15.2008 3:03pm
Dave D. (mail):
..David M., juries decide limits on Government power every time they convict a crooked politician, cop or judge.
8.15.2008 3:04pm
alkali (mail):
I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin.

Really? A 40 page memo of law from a district court is "remarkably thin"?

It would be nice if think-tank types and legal academics would stop attributing sloth to courts that issue opinions they disagree with, particularly when the opinions in question are actually reasonably lengthy. This means you, Ann Althouse (re: Judge Taylor/FISA), EV (re: courts issuing less-than-book-length opinions on Heller issues), etc.
8.15.2008 3:04pm
Oren:
DiverDan, see the very erudite postings about fixing the "expert witness" system in the US that were recently posted on VC. I have very grave doubts about juries in civil cases but I believe that can be fixed by attentive judges that apply Daubert strictly and give the jury sufficient guidance. You have identified a real problem though.
8.15.2008 3:05pm
Oren:

Oren: yes, when the jury "judges the law", they do not merely determine whether the law is Constitutional. Rather, the jury must literally judge the law by also determining whether it is just. One does not exclude the other.

So if I think DUI laws are unjust (implied consent violates the 4A, IMO) I can vote against conviction in bog-standard DUI cases?

If I think laws against murder are unjust (eye for an eye), I can vote against conviction in bog-standard murder cases?
8.15.2008 3:06pm
PatHMV (mail) (www):
So what do all you jury nullifiers want to do when some juror decides that a law like murder is unconstitutional, in their sole judgment? Maybe he thinks that the 9th and 10th Amendments prohibit the government from criminalizing murdering one's spouse, or one's children, that being (in their mind) a "natural right." Perhaps they feel that the laws prohibiting female ritual circumcision violate the First Amendment's Freedom of Religion, and thus refuse to convict under that.

If each individual juror has the legal right (not just the practical right, but the legal right) to decide for himself what the law fundamentally is, then there is not, in fact, a system of laws in this country, and we are a government of men, not laws.

If you want to support jury nullification on the grounds that each individual juror gets to decide what the Constitution says, then you must support that same principle to allow a juror to acquit a child molester on the grounds that he believes there is a Constitutional right to have sex with 12 year olds.
8.15.2008 3:08pm
Oren:

But JN can help us guide toward more efficient targeting of laws - if a particular law is located at point X on a preference scale, and social preferences are at point Y (or exist in a range between points Y and Z), then the greater the difference between X and Y (or Y to Z), the greater the likelihood that ordinary people would view the law as unjust.

See my earlier post about the probabilities (depending on the number of juror requires to nullify). JN does not appreciably increase the efficient targeting of laws towards the public's true conception until the jury size because > 50 (thus making the jury actually representative).
8.15.2008 3:09pm
jgshapiro (mail):
Oren:


If we allow just 3/12 jurors to block a conviction by nullification, than even for a measure with 85%! popular support, 25% of those tried for the law will be acquitted.

Not if you voir dire correctly. Recall that anyone on a jury has already passed any challenges by the prosecutor. Also the judge, with respect to for-cause challenges.

Also, 3/12 jurors cannot acquit. 3/12 jurors can hang the jury, which allows the prosecution to try again. If successive prosecutions result in successive hung juries, the prosecution usually gives up. The people have spoken and they disagree with the prosecutor's exercise of his discretion. But that is usually when you have a situation where the public disagrees on the application of a law to a specific set of facts.

The original Kevorkian cases come to mind -- not the last one, where he actually killed his patient, but the earlier ones where he set up contraptions allowing patients in pain to kill themselves to relieve their suffering, videotaped the events for evidentiary purposes, and then was prosecuted for assisting a suicide. Several juries refused to convict him, and ultimately the prosecutor was thrown out of office at the next election for continuing to pursue a conviction. [Notably, the new prosecutor ran on exactly the same platform as the old prosecutor, except for one thing: he promised not to prosecute Kevorkian again unless the circumstances of Kevorkian's actions changed dramatically.]
8.15.2008 3:09pm
Dave D. (mail):
..Aw Oren, why'd you have to bring up flag burning ? Because if you change that to cross burning, it is illegal. Just a different vehicle.
8.15.2008 3:10pm
ejo:
wrong, econgrad-there are cases where the non-deliberating jurors you propose have been removed. it would also seem that the Judge supported his position with plenty of cites to caselaw indicating that there was no "right" to nullification. aside from the cases and precedent, he supported his position with policy. again, libertarians like their dope and their gold standard, so I would expect nothing else from them.
8.15.2008 3:10pm
Oren:

This may mean that if 10A is the point at which JN is triggered in a given society, then maybe it would be 20A in a society where jurors/JN are actively suppressed. Thus, JN is ever-present, even if its incidence may be measured (of course, I'm leaving out the Type I and II errors).

Yes, and those Type I errors in which a small minority happens to be overrepresented on a jury are quite a bit more likely than most people seem to admit (nobody has written a response to my calculations, wtf, actual numbers!)

Increase the jury size to about 50 or 100, and then we might be in a regime where the 'signal' exceeds the 'noise'.
8.15.2008 3:12pm
KeithK (mail):
Several folks have raised the issue of why it is OK for police officers, prosecutors and judges to exercise discretion but not juries. This trend is consistent with general trends in our society to "professionalize" things. That it, to decide that many activities are too specialized or difficult to be performed by the populace at large. While this is a logical consequence of the increasing complexity of our society I'm not sure it's a good thing.

While I agree that judges shouldn't be instructing juries that they can choose to nullify the law in a case, I think JN is entirely appropriate when conviction sufficiently offends the jury.

Does this lead to randomness? Sure. That's inherent in the jury system though. That's a bug that must be balanced against the other features.
8.15.2008 3:12pm
jgshapiro (mail):

My main problem with jury nullification is the uneven application of it, to the point that you might as well have no law at all. "The Law" says I can't do X. I know Joe did X and got convicted. But I know Bob did X and got acquitted. Should I do X?.

That statement is an indictment of the jury system altogether, not just jury nullification.
8.15.2008 3:14pm
KeithK (mail):

If we permitted juries as much discretion as some here want, wouldn't the differing results violate the equal protection analysis of Bush v. Gore?


Don't know why I am responding to an acknowledged "hand grenade", but my answer is no. The broad guarantee of "equal-protection" is trumped by the specific right to a trial by jury.
8.15.2008 3:14pm
Bpbatista (mail):
It seems that jury nullification is another one of those pesky "checks and balances" inherent within our Constitutional/common law system. In this case, the Judge decided that he did not like this particular check since it was not leading to the desired result and removed the juror. Once again a tyrant in black robes over road the legitimate role of the people in governing themselves.
8.15.2008 3:14pm
Oren:

Not if you voir dire correctly. Recall that anyone on a jury has already passed any challenges by the prosecutor. Also the judge, with respect to for-cause challenges.

I'm assuming the JN proponents would allow a juror to lie about his propensity to JN in the face of a court hostile to this 'right'.


Also, 3/12 jurors cannot acquit. 3/12 jurors can hang the jury, which allows the prosecution to try again.
At great public expense, only to be confronted with another hung jury 25% of the time. I'd compute the average number of trials required to get a conviction but nobody seems interested in my numbers.
8.15.2008 3:14pm
Alan Gunn (mail):
It is still the case in Indiana that jurors are supposed to judge the law as well as the facts, though I have seen one jury trial in which the jury wasn't told anything about that. I'm neither a trial lawyer nor a member of the Indiana bar, so I don't have a good sense of what "judging the law" means here either in theory or in practice.

An excellent presentation of jury nullification in fiction can be found in James Gould Cozzens' book "The Just and the Unjust" (1941).
8.15.2008 3:15pm
Oren:

While I agree that judges shouldn't be instructing juries that they can choose to nullify the law in a case, I think JN is entirely appropriate when conviction sufficiently offends the jury.

Well said. JN is an extreme remedy for extreme violations.

I would certainly nullify in those extreme situations, but I feel as though I set the bar much higher than some suggest.
8.15.2008 3:16pm
Lior:
Kenvee: Your problem with jury nullification applies with greater force to jury convictions (which are far more common).

The unaccountability of the jury is the main failing of the jury system, but it is also an essential feature of it -- it wouldn't work otherwise, especially if the jury believes it must reach an unpopular result.

Turning to the merits of the jury system, an published opinion of a court of law is a check on the court: having to detail the facts, the law, and the reasoning connecting them is the only deterrent against arbitrary judges.

The unaccountable jury with its nullification power is a different check against all three branches of government. It is a check against bad laws, bad prosecution and bad judges.

Opting for the jury system is a tradeoff: in return for one check you give up another.

In my opinion, today this tradeoff is not worth it, and the jury system is better scrapped. However, giving up on both checks at the same time (which is what Oren is advocating) gives you the worst of both worlds.

(I know that for Federal criminal cases the choice was made in the 6th Amendment, and the jury provision is also partly incorporated against the states, so "scrapping the jury" requires amending the Constitution)
8.15.2008 3:18pm
jgshapiro (mail):

If we permitted juries as much discretion as some here want, wouldn't the differing results violate the equal protection analysis of Bush v. Gore?

No, that equal protection analysis was good for that case only. Didn't you read the opinion?
8.15.2008 3:18pm
hattio1:
LTEC asks;

Would those people who support jury nullification as a part of the system please give an example of what they would suggest in the way of instructions from judge to jury?

Sure, give all the instructions you do now, then give an instruction that say the jury is the judge of the justness of the law. If you feel the law is unjust, or that it is being unjustly applied to a unique set of facts, you have the power, authority and duty to acquit.
8.15.2008 3:20pm
Mark Jones:

Having a power usually counsels for judicious use of that power, that's all I'm getting at here.


That's not what I got from what you've been writing, but I guess I misunderstood your point. So here's a question--how can a juror use that power, judiciously or otherwise, if he's explicitly forbidden from doing so by the jury instructions? If he can be removed from a jury if he dares to mention it in deliberations and someone reports it to the judge?

While I support nullification, I don't want it used willy-nilly either. And I'd rather not jurors resorting to subertuge to exercise this (perfectly legitimate, imho) power--but as things stand, what choose do they have? I'd be willing to support instructions that acknowledge the power but counsel very strongly against it. But I don't like the courts pretending that the power doesn't exist and doing everything they can to prevent jurors from even knowing it exists, much less acting on it.
8.15.2008 3:21pm
jgshapiro (mail):

I'd compute the average number of trials required to get a conviction but nobody seems interested in my numbers

The average number would be just over 2.

That is because, after two hung juries, most prosecutors would give up and assume that they would not be able to get 12 people to agree on a conviction under these facts.

If they didn't give up, they would eventually be replaced for wasting public funds, as Kevorkian's prosecutor was. That is why I say slightly more than 2 trials: even accounting for the renegade prosecutor who vows to keep pursuing conviction, I think most prosecutors would stop after two trials, so you will have a sharp drop-off in the curve after two.
8.15.2008 3:22pm
Spitzer:
It is supposed to be difficult to convict people, and it should be even more difficult to convict people of laws that ordinary people in a community think are unjust. This will drive smart prosecutors nuts, but smart prosecutors know which crimes (and, to be honest, which defendants) they can safely bring before a jury (and most defense lawyers know the same). It is not pretty, and it's not always rational, but it is our common law inheritance. One can make arguments in favor of a civil system inhabited by professional jurists, and I do not think those systems are inherently flawed (but neither do I think them flawless). Happens to be, I like our heritage on this point - jurors act as a brake on runaway prosecutorial/state power.

As an aside, there is an interesting example of the practical differences between civil and common law systems. In the early modern era, the most powerful determinant of the scale of trials and executions of suspected witches was the system of legal system in place in a given community. Common law places experienced very few witchcraft trials by comparison, and it was extremely rare for a "witch-hunt" to get out of control (Salem is actually the biggest exception, with one or two other important happenings in England). In civil law places, however, prosecutions and executions for witchcraft were more common generally, and out-of-control witch hunts were unfortunately not uncommon - there were villages in Germany (where imperial law had been adopted) where effectively the entire village (or at least its womenfolk) were prosecuted and executed in the span of a few years - imagine Salem in a truly grand scale. Even in Great Britain the differences were notable - the proportion of people indicted and executed for witchcraft in Scotland (or the Channel Isles) was far higher than in England, and it wasn't because the English weren't superstitious. Now, this particular difference has relatively little to do with juries - historians think that the difference lay in the form of indictment, for inquisitors in civil law realms could pick people up sua sponte, whereas prosecutors in England typically had to wait for a concrete criminal complaint. Nevertheless, the civil law systems had little check on such judicial misdealings once started, and tens of thousands were killed needlessly in those places, whereas it was much more difficult in common law jurisdictions to allow such a cycle to spin out of control.

I will say this in favor of civil systems: juries, appropriately used, are best in situations involving local laws, local customs, and local crimes. That is, juries are intensely local in nature, and different communities will have different sets of preferences (compare, e.g., north Georgia with San Francisco). Where juries become really problematic is where (a) the laws they are told to enforce are not local at all, increasing the chance that the laws will conflict with their own preferences (and this means that a place like the USA becomes a patchwork quilt of law enforcement for federal laws) and (b) where local notables are on trial (as they can use their local power to help themselves). Civil systems are less susceptible to the more obvious forms of this, but they are not immune to the abuse of power (the problem of the runaway prosecutor is well-known in Europe even today).
8.15.2008 3:22pm
guy in the veal calf office (mail) (www):
The juror in question called the judge a repeat liar on said juror's blog:
8.15.2008 3:23pm
jack brennen (mail):
Robert Bork opposes jury nullification, which I think lends a lot of credence to the pro-jury nullification side of the debate.
8.15.2008 3:23pm
great unknown (mail):
Alkali:
Did you read the 40-page memo? A major part of Judge Young's argument is that: a) A local Judge's power to declare a law unconstitutional is critically important (why, he doesn't say); b) This derives from the fact that the issue came to jury trial; c) If juries cannot be "trusted" by the legal establishment to toe the line, cases would be adjudicated in a non-jury environment; and therefore d) Judges would lose their critically important power of declaring a statute unconstitutional.

Stripped down to its bare essentials, the argument is: juries can't be allowed to nullify in order that Judges may continue to nullify.

This comprises over half of the "forty-page memo."

Question for legal historians: when did the great right of "a trial by a jury of one's peers" granted in the Magna Carta and incorporated in the Constitution become "a right to a jury deciding who put on a better show, the prosecution or the defense"? With the codicil that the jury is many times deprived of basic information that they need to make the decision.
8.15.2008 3:27pm
Dave D. (mail):
...But it doesn't take 3 1/2 jurors to hang a criminal trial, just one can do it. And where does the constitution say a juror has to deliberate or discuss with other jurors, or tell the judge his thinking ? Or explain himself or his thinking to anyone ? My copy doesn't. That's the kind of stuff you're going to get from Libertarian nullificationists.
...Libertarians are anarchists in a tuxedo. When they burn down the law in order to smoke and shootup what they want, where then are we to find redress except in the tribalism that lawless places always devolve too ?
..And why would we let them do that via nullification ?
8.15.2008 3:27pm
jgshapiro (mail):
What makes you think I am wearing a tuxedo?
8.15.2008 3:33pm
tbaugh (mail):
In my state, jurors take an oath---which I would think should be taken as seriously as a witness's oath---to render a verdict in accordance with the facts and the law of the State. An acquittal, for whatever reason, is unreviewable, but should parties be allowed to argue to the jurors to violate their oath (e.g. "he did it, but it's a bad law," or "he did it, but he's really a good person" so acquit anyway). Seems odd to allow the urging of the violation of an oath.
8.15.2008 3:34pm
ejo:
brilliant analysis, justice brennen. I am sure the actual judge in this case would be shamed that all he was able to cite to was precedent and policy when he could have boiled it down as succinctly as you. no one doubts, as a practical matter, that juries ignore facts and evidence in civil and criminal cases every day of the week. happens all the time. the issue is whether they get to be instructed to ignore the facts and law (only in dope cases of course, not those nasty civil rights acquittals where the crackers were killing blacks and northerners). for every "good" nullification, one could point to as many or more "bad" nullifications. the Judge did so in his memo.
8.15.2008 3:35pm
Steph (mail):
Oren

"Because The People can remove the police and prosecutors and replace them if they feel displeased with their jobs. They hold their office by popular mandate, not by dint of a random number generator."

The people can amend the constitution to end trial by jury and JN when they want to, but to substitute your or a judge's opinion of what the law ought be for the constitution as it was ratified and amended is the hight of judicial userpation.

JN is the Law under BOTH original intent and original understanding AND under the case law of SCOTUS. Please read 3 US 1 (1794). The court instructed the jury it was the judge of law and facts, but recomended that they take the court's advice as to the law. This was not dicta, there was no question of fact to put to the jury ONLY an uncompounded question of law.
8.15.2008 3:36pm
Spitzer:
Oren: my numeracy skills are not up to par to comment intelligently on your calculations, but I would have thought the representativeness of any group of people would be in direct proportion to the size of the group being represented. If the group in question is of 12 people, then a jury of those same 12 people would reflect that group's preferences perfectly. If the group is, say, 6 billion or so, I would be surprised if a mere 50 people would bring down the "noise".

By this rule-of-thumb way of thinking, couldn't JN coexist more peacefully with a system where relatively small communities are empowered to enact criminal laws? Something closer in size, say, to DC or Wyoming than California or Texas. Maybe smaller. Before the complaint is raised that nobody pays attention to local politics, ergo the laws wouldn't be any more efficient, I would think that empowering small communities with real criminal legal authority would raise the interest level in local politics pretty substantially - if the condo association can send me to jail, I'm going to pay a heck of a lot of attention to the tinpot napoleons who want to run those associations, and participate a heck of a lot more in condo association meetings. Wouldn't that, overall, be a good thing? It would be horrible for career federal prosecutors, to be sure, but I'm not such a big fan of federal criminal laws anyway.
8.15.2008 3:37pm
jgshapiro (mail):

Where does the constitution say a juror has to deliberate or discuss with other jurors, or tell the judge his thinking ? Or explain himself or his thinking to anyone ? My copy doesn't.

I love this response.

Does your copy have a guarantee of jury trials, or is the sixth amendment missing? If you want I can send you my copy, but you may not like it. (It was printed by the Cato institute, and I hear that they do wear tuxedos.)

Here it is in soft copy:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

What is it that you think a jury trial means?
8.15.2008 3:39pm
Diana Hsieh (mail) (www):
I've been called for jury duty on Tuesday, and I've been wondering what I would do if asked to sit on a drug case. Here's my post on it. Responses from lawyer-types would be of great interest!
8.15.2008 3:51pm
Steph (mail):
"In my state, jurors take an oath---which I would think should be taken as seriously as a witness's oath---to render a verdict in accordance with the facts and the law of the State."

But that oath is wrong for two reasons. First contrary to the contitution it does not oblige the jurror to defend the constitution and laws of the United states as all state officials are required by law to do in their oath of office. Second since JN is the law the oath is null.
8.15.2008 3:55pm
roy (mail) (www):
It seems to me that many of the complaints against jury nullification apply equally to non-controversial powers of jurors. If random individuals should not have the power to judge the justness of a law, why should they judge whether witnesses are credible, arguments are logical, evidence is persuasive, and doubt is reasonable?
8.15.2008 3:56pm
Lior:
The juror's blog post is very interesting. Apparently the jury swears an other to judge
“according to the facts and the law as the judge presents.”


The juror understood this to mean that he is charged to judge the law. The judge understood "the law as the judge presents" to mean that the jury has no authority to judge the law, and thus required this particular juror to swear a second oath:

“Would you be able to set aside your own reading of the Constitution, the judge’s past instructions and judge the facts based solely upon the judge’s explanation of the law?”


It seems that the juror and the judge have a very basic disagreement about what it means for a statute to be "constitutional". The judge's main justification was: "the Supreme Court said so". The juror rightly points out that his is an "argument from authority" and not a substantive argument, something the judge refused to give. Just because determinations of the Supreme Court are binding on judges doesn't mean that "the supreme court said so" is an argument about constitution interpretation. Of course, it's clear that actually reciting the opinion in Raich would not have convinced this guy anyway.

I think that, in this case, the judge is right: the jury's oath was to judge the facts and leave the law to the judge. This is bad policy, but seems to be the law in Massachusetts (as the judge explains in his memorandum). The reason that the memorandum is weak on the constitutional question of the legality of the drug laws is that this is a secondary question here. If the judge determines the law, then he is bound by the USSC interpretation. If the jury judge the law, then they judge it as they see fit.

This juror also has a different idea of what "nullification" means that we do. See his post here. In his terms, since the constitution is part of the "law", finding a law unconstitutional is simply part of the jury's duty to judge the law. He reserves the term "nullification" for the jury ignoring a valid law when they think it is unjust. He is wrong there as well.
8.15.2008 4:01pm
Brett:
That means that, if juries are given unlimited power to nullify by majority vote, 1 in 5 people can expect to be acquitted even if 2/3rds of the population supports the law in question.


The antimajoritarian nature of jury nullification is a feature, not a bug.
8.15.2008 4:05pm
Oren:

my numeracy skills are not up to par to comment intelligently on your calculations, but I would have thought the representativeness of any group of people would be in direct proportion to the size of the group being represented.

You'd be wrong (no offense). The extent to which a subset of size n deviates from the larger group is proportional to 1/sqrt(n) -- you have to quadruple the size of the group to half the "deviance".


But that oath is wrong for two reasons. First contrary to the contitution it does not oblige the jurror to defend the constitution and laws of the United states as all state officials are required by law to do in their oath of office. Second since JN is the law the oath is null.

(1) Jurors are not state officials and the Atate is not obligated to make them swear to uphold the Constitution.
(2) JN is most emphatically *not* the law, in the descriptive sense.
(3) Oaths cannot be declared null because your believe the oath should have been different.
8.15.2008 4:06pm
Steph (mail):
Lior the whole oath thing is just not worth the words to state it. The ath does not mention the constitution which it should.
8.15.2008 4:09pm
Richard Aubrey (mail):
So far, the discussion is of a juror who disagrees with the philosophy behind the law. It's a bad law, etc.

I have a different question regarding possible JN. Let's suppose we have a murder trial and the thing hangs on what an M16 can or cannot do or be modified to do. I, in the juror pool, did not know, nor, possibly, did the attorneys for one or both sides, that the question would be about technical M16 issues. So when questioned prior to being seated, the fact that I was a grunt for three years and an armorer for three more years and know more about the M16 than anybody in the trial did not arise.

If one side is wrong in its assertions and the other side is not competent enough to dig into that, and if I know the assertion is false, impossible, what do I do? I can keep my mouth shut and vote as if I don't know this stuff. I can keep my mouth shut and vote as if I do and the assertion on which the verdict hangs is false. I can explain it to the rest of the jury. I can send the judge a note explaining I know more than anybody in the county about this and what am I supposed to do. If he tells me I'm supposed to vote a bogus verdict, ignoring what I know, do I JN? If I am afraid that an alternate with no more knowledge than anybody else would be seated and a false verdict will be voted, do I have a duty to keep my mouth shut and vote as if I do know better?
8.15.2008 4:11pm
great unknown (mail):
I every state I know of, judges, prosecutors, and LEOs take an oath to uphold the law. Why is this oath subject to discretion (i.e., to allow selective nullification of the law) and the jurors' oath not?

Is prosecutorial or police discretion enshrined in the law anywhere?
8.15.2008 4:11pm
Lior:
It's difficult to believe, but this is from page 21 of the "memorandum":
Juries are essential to judicial independence. Without juries, courts would have little occasion or authority to interpret the Constitution. Without juries, judges become glorified hearing officers whose contributions to society could not possibly justify grand courthouses, courtrooms, or judicial staff.


Beyond the self-aggrandizement, how is this relevant to the question who whether juries judge the law or not? On that matter the judge says on page 28:

Over the course of thirty years on the bench, this is the first time that the Court has encountered a juror who has attempted to arrogate to himself the power that our Constitution places in the elected branches of government.


How does this comport with the judge's own statement that it is the judiciary that has the power to decide the constitutionality of statutes?
8.15.2008 4:13pm
Oren:

It seems that the juror and the judge have a very basic disagreement about what it means for a statute to be "constitutional". The judge's main justification was: "the Supreme Court said so". The juror rightly points out that his is an "argument from authority" and not a substantive argument, something the judge refused to give.

Argument from authority is not invalid in the cases where the authority is the final arbiter of the truth in question. For instance, if you tell your children that their bedtime is 9PM "because I said so", you will be correctly arguing from authority. Nobody would assert that you have to give substantive reasons why bedtime is 9PM. Your children could rightly complain that 9PM is a stupid time to chose or it's unfair or you are a meanie but that doesn't change much.

Similarly, the Supreme Court is the final arbiter of the interpretation of the Constitution since Marbury v. Madison. Now, we are all quite free to disagree with their conclusions (I certainly disagree with Raich quite vehemently), but I acknowledge the legitimacy of the decision. The fact of the matter is that, for the time being, the Constitution allows the Federal government to prohibit the simple possession of cannabis, like it or lump it (and I'll take the latter).

There is an enormous is/ought confusion here -- what the law is and what it ought to be are not the same question.
8.15.2008 4:16pm
Lior:
As to the civility of judges, you may learned a lesson from the following (page 31 of the memorandum):

The notion that nullification will change the law is drivel.


On this very thread we have seen a discussion of the effect of nullification on libel laws.
8.15.2008 4:16pm
Oren:
The oath does not mention the constitution which it should.
And oaths are not invalid because the *should* be different any more than my mortgage is invalid because the rate *should* be lower. Is/ought again.
8.15.2008 4:17pm
Soronel Haetir (mail):
Orin,

regard to your ratio question; I believe conviction should require a unanimous verdict in all cases and that failure to convict should result in aquital, not a chance at a new trial.

If tampering by the defense can be shown then the range of punishment for that tampering should include all punishments that would have been possible under the first charge if the defendant were convicted. I have massive problems with requiring unanimity for aquital.
8.15.2008 4:18pm
Oren:

How does this comport with the judge's own statement that it is the judiciary that has the power to decide the constitutionality of statutes?
Read Marbury again perhaps?
8.15.2008 4:18pm
wolfefan (mail):
Hi -

I have not yet read all 150 some odd posts (and since I'm at work it will take me several hours to do so) so please excuse me if someone else has asked/answered my question.

I'm wondering if this is not a case of jury nullification, but of _juror_ nullification. I am willing to consider that the jury as a whole has the right, and perhaps the duty, to ignore a law that they as a whole find unjust or unjustly applied. I am much less sure that such power should devolve onto one solitary member of the jury. In the case at hand, the _jury_ did not wish to nullify anything - just the one guy.

Again, my apologies if this has already been addressed.
8.15.2008 4:19pm
Brett:
Similarly, the Supreme Court is the final arbiter of the interpretation of the Constitution since Marbury v. Madison.

Your willingness to subordinate your sense of basic justice to the pronouncements of five black-robed political appointees is disgusting.
8.15.2008 4:21pm
Oren:

Is prosecutorial or police discretion enshrined in the law anywhere?
You are free to amend your State Constitution to require that DAs bring charges in all cases where the evidence objectively indicates guilt BARD. If your State drafters envisioned a different role, take it up with them.

Then again, why would you complain about your elected executive's decisions instead of voting them out?
8.15.2008 4:21pm
Steph (mail):
Oren re the oath question, that depends on whether jurrors are judicial officers of the state. "and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." Art. VI Para. 3. "This Constitution.. shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Art. VI Para. 2

How can you say the JN is not the Law show me the supreme court case that says that. As long as we hold to general verdicts, JN is the law.
8.15.2008 4:24pm
jgshapiro (mail):

If one side is wrong in its assertions and the other side is not competent enough to dig into that, and if I know the assertion is false, impossible, what do I do? I can keep my mouth shut and vote as if I don't know this stuff. I can keep my mouth shut and vote as if I do and the assertion on which the verdict hangs is false. I can explain it to the rest of the jury. I can send the judge a note explaining I know more than anybody in the county about this and what am I supposed to do. If he tells me I'm supposed to vote a bogus verdict, ignoring what I know, do I JN? If I am afraid that an alternate with no more knowledge than anybody else would be seated and a false verdict will be voted, do I have a duty to keep my mouth shut and vote as if I do know better?

You are supposed to bring your life experiences to bear on the deliberations. You are not allowed to independently investigate the facts, but you are not supposed to pretend you know nothing. Life experiences include whatever you know, including any specialties, not just general wisdom.

So if the prosecution argues for some reason that an ordinary person runs a 4.5 second 40-yard dash, and you happen to know that that is a very fast time from your track experience and unlikely to have been run by a regular Joe, you don't have to keep your mouth shut in the jury room. But you can't go out and conduct your own 40-yard dash to test out his theory.

In your example, you would explain to the jury what you know about M-16s, but you can't bring one in to show them, or bring in a video showing them being made, used, etc. If the prosecution doesn't want someone with M16 knowledge on the jury, he should have thought of that during voir dire.
8.15.2008 4:27pm
Lior:
Oren: Unless judges are included under the "elected brancher", what the juror has arrogated to himself here is not a power of the legislature (to amend the law), but rather a power of the judiciary (to declare a law unconstitutional).

Certainly the juror was part of a court which has this power (the very judge writing the memorandum, for example, has the power to declare a law unconstitutional). The entire question is then about the subdivision of the power among the different members of that court (the judge and the jury). It is quite possible that Federal law says that the proper subdivision is as the judge declares (how that would be compatible with the 6th Amdt I'm not sure). But in any case the judge is clearly personalyl offended by the juror arrogating a power that the judge things belongs to himself alone.
8.15.2008 4:31pm
Tomwarren:
Having random juries judge the Constitutionality of a law is absurd, since they don't even have the document in front of them. On the other hand, every jury I have ever seen struggles with the fairness of thier verdict encompassing everything from facts, to law, to sociology, to morals. If you want to do away with that you have to do away with juries.

No, juries should not be instructed that they can ignore the law (they are not the makers of the law) but they nonethelss decide what weight to give it, regardless.
8.15.2008 4:35pm
PLR:
The antimajoritarian nature of jury nullification is a feature, not a bug.

The power held by the elites in the criminal and civil justice systems is also a feature rather than a bug.
8.15.2008 4:36pm
frankcross (mail):
I wonder the association of positions on nullification with beliefs on judicial activism. If a randomly selected jury could nullify a law due its beliefs and without any demand for explanation, surely the formally appointed Supreme Court, writing a justificatory opinion, should have full authority to do so.
8.15.2008 4:36pm
Prosecutorial Indiscretion:
They could start nullifying limits on government power too, you know.

The conventional wisdom around here is that the cases most likely to be nullified are civil rights-type cases against law enforcement officers. All these pro-nullification civil libertarians, who cluck and moan that something more ought to be done about government actors exceeding their bounds, are at the same time supporting an ideology that will go a long way toward ensuring that most of the people they condemn will never spend a day in jail.

The racist history of nullification in the post-Civil War era should also give supporters pause. A pro-nullification society means a given person can victimize someone belonging to an unpopular group with little fear of serious legal repercussion.

The Zenger case was a long time ago (as I recall, it was brought on behalf of the Crown - we haven't had cases like that in the U.S. in quite awhile), and the injustices that led to nullification in that case have long since been precluded by Bill of Rights. Since then, nullification has largely been a boon to racists, abusive cops, and crooked politicians. Nullification is an interesting idea in theory, but in practice it leads to far more injustice than it prevents.
8.15.2008 4:36pm
Malvolio:
Those that want to start nullifying drug convictions left and right are simply unable to admit to themselves that they have lost the battle for public opinion
I would like to start nullifying drug convictions left and right and I freely admit to myself and others that I have lost the battle for public opinion -- which I regards as a far harsher criticism of the public than of me.
instead of attempting to convince others by reason,
So if the majority believes any random bit of stupidity and I can't talk them out of it, that makes it right?
they want to impose their judgment on whatever defendant has the luck of the draw to fall into their judgment.
I'm sure any defendant who happens to have nullification "imposed" upon him will somehow manage to soldier bravely on.
8.15.2008 4:38pm
Oren:
Steph, Jurors just aren't judicial officers, according to everything I know. If you can cite any authority to the contrary, I'd love to see it.

As far as the courts are concerned, jury nullification is a de facto power of the jury, but the Court can refuse to allow lawyers to mention it and can remove jurors for not negotiating in good faith:

U.S. v. Thomas No. 95-1337 (2nd Cir. 5-20-97)
Sparf v. United States, 156 U.S. 51 (1895)
United States v. Dougherty 473 F.2d 1113

IMO, this is the proper result. Jurors should be free to nullify but should not be goaded into doing so by defense attorneys. The conduct must be so offensive that the jury decides to nullify sua-sponte, as it were.

Brett, I have no problem with JN in cases that offend the notions of basic justice. What we have instead is JN in the case of discredited theories of constitutional interpretation -- a different matter entirely.


the very judge writing the memorandum, for example, has the power to declare a law unconstitutional
The Judge writing the memorandum is required to follow the precedent set by the higher courts. In the absence of such a precedent, he may indeed make a ruling but in the case in question he has no authority to ignore Raich.
8.15.2008 4:38pm
Steph (mail):
Orin you wrote,

"Similarly, the Supreme Court is the final arbiter of the interpretation of the Constitution since Marbury v. Madison."

I have to point out to you that this is a circular arguement. The Supreme Court is the sole arbitor of the constitution, because the supreme court said so.

As to the oath question you say I am suffering from an is-ought problem. I say that the law is whatever it is, and the fact that courts have lost sight of it does not mean that it is not law, just as men may lose sight of justice, but it continues to exist. Exempli gratia, a state may unjustly abolish private property, but the facts of human individual and social nature will punish that society. Likewise a court system may ignore the laws they supposed to inforce, but that does not mean that they are administering a system of law, they engaged usepation. This will result in their judgements being held in less esteam by those who know the law.
8.15.2008 4:41pm
David M. Nieporent (www):
No, that equal protection analysis was good for that case only. Didn't you read the opinion?
Yes. It didn't say that anywhere, no matter how many liberal bloggers insist on misrepresenting it.
8.15.2008 4:41pm
Skyler (mail) (www):
If a judge can interpret a law as he sees fit, and there's lot of history and current events that demonstrate that they do, why can't a jury?

You can't stop this ability of a jury to interpret a law as they see fit without eliminating the jury system, so the entire point is moot except that judges feel obliged to limit interpretation of law to themselves. The answer is to not tell the judge why a jury is voting as it votes.

Jury nullification is the entire reason for having a jury. It is the idea that jurors can judge as well as any judge can and be more unbiased.

For those calling for the remedy of removing prosecutors and judges from office if they make bad decisions: This is a good remedy for everyone except the poor schmuck on trial. That's why we have juries -- for the poor schmuck.

In the end, juries tend to be sober and serious about their duties. I don't see that changing any time soon.
8.15.2008 4:43pm
MarkField (mail):

Don't know why I am responding to an acknowledged "hand grenade", but my answer is no. The broad guarantee of "equal-protection" is trumped by the specific right to a trial by jury.


The right to vote didn't trump the EP claim, so it's not clear to me why, under the logic of BvG, jury trial should. Especially since it's not at all clear that JN is a component of a jury trial. I suppose the practical answer is this one:

"that equal protection analysis was good for that case only. Didn't you read the opinion?"
8.15.2008 4:44pm
great unknown (mail):
Oren @3:21
Then show me where the Constitution prohibits JN. If this or any other judge dislikes JN, then they should lobby to have the Federal/state constitutions amended appropriately.

Except that judges don't have to do that: they legislate and amend from the bench.

This assymetry is embraced by Judge Young and the legal profession. You might be surprised to learn that the average person (juror) might not worship Judicial fiat to that extent.
8.15.2008 4:45pm
Tomwarren:
"Since then, nullification has largely been a boon to racists, abusive cops, and crooked politicians."

I don't doubt that it has operated this way but perhaps you have not been in a criminal courtroom where jury nullification benefits criminals, all the time.
8.15.2008 4:46pm
Steph (mail):
In my last post I meant to say "they are engaged in usepation"

Orin, granted that the Sparf court was appaled by 3 US 1 and held that the lawyer could not argue law to the jury, it agreed that the power to nullify was inherent in the return of general verdicts, what does that mean, but that it is a lawfully held power of the jury? Sparf did not over turn 3 US 1 because the question was not before the court. (Unless I missremeber the facts of sparf)
8.15.2008 4:51pm
Malvolio:
The racist history of nullification in the post-Civil War era should also give supporters pause.
No, it shouldn't. Uh, unless you can find a quote from a Klan member to the effect that laws forbidding whites from killing blacks violate the Bill of Rights. And probably not even that.
A pro-nullification society means a given person can victimize someone belonging to an unpopular group with little fear of serious legal repercussion.
No, it doesn't mean that or anything like that. Racist juries might fail to convict a guilty man but telling them to take the Constitution seriously isn't going to make the problem worse.
The Zenger case was a long time ago
1735.
the injustices that led to nullification in that case have long since been precluded by Bill of Rights.
Is it your impression that the Bill of Rights is so powerful, it can prevent injustices even when it's ignored?

When Jackson defied a Supreme Court ruling saying, "John Marshall has made his decision; let him enforce it now if he can" should Marshall have replied, "There's no need to enforce it. The fact of the ruling prevents injustice."

Unless you believe such nonsense, you have to admit the Bill of Rights needs enforcement mechanisms. Nullification proponents argue that the jury has been and should again become one of those mechanisms.
Nullification is an interesting idea in theory, but in practice it leads to far more injustice than it prevents.
As we say on Wikipedia, [citation needed]

And no, a parade of horribles about rednecks acquitting murderous friends does not count as a citation.
8.15.2008 4:53pm
great unknown (mail):
"Since then, nullification has largely been a boon to racists, abusive cops, and crooked politicians."

Other than the "racists" part, so has police and prosecutorial discretion. Maybe even more so.

If you include the behavior of the legal system towards drug-abusing celebrities and politicians, v its behavior towards minority drug users you can include "racists" in the lineup, although perhaps "elitists" would be more accurate.
8.15.2008 5:01pm
Dave D. (mail):
...Golly JG, perhaps your cumberbund is a little too tight ! My 6th 'A' reads just like yours, but you glossed over the "impartial jury" part because a nullificationist/anarchist/Libertarianist is far from impartial going in. This juror who, swore to weigh the facts he had yet to hear, wasn't interested in the facts at all, he'd already tried the law and made up his mind.
...But if we are going to endorse nullification, then by all means bring it out in the open. Let the Prosecutor and the Defense tussle over constitutional meaning, legislative intent, sovereign authority, jury impartiallity and every other non factual matter to convince the jury that the facts don't count. Let the opposing councils bring in the many copies of the constitution, with differences in punctuation and spelling, printing flaws and typo's.
...But when this is all over and the law has lost it's meaning and authority, when the social compact is rent and you all are looking for a system to replace it, don't look to Libertarians to supply anything but deceit, distrust, cynicism, narcissism and arrogance. It is a deceit of Libertarianism to think they can control nullification which is uncontrollable and pernicious to the law. Only the conceit of Libertarianism hides that from you.
8.15.2008 5:05pm
Anderson (mail):
Sure, the jury should decide what the law is. Just set 'em in a room with the U.S. Reports, the U.S. Code, and the Federal Reporter, &let 'em have at it.

I look forward to seeing this approach in all sorts of cases -- securities litigation, for one.

For that matter, since any juror is qualified to say what the law is, let's abolish the restraint of trade that requires judges and lawyers to have law degrees.

This *is* supposed to be a democracy, right?
8.15.2008 5:11pm
Robin Levett (mail):
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

(Robert Bolt - A Man for all Seasons)

Couldn't have put it better myself...

And this idea that jury nullification was the point of the Magna Carta entitlement to the judgment of a jury of one's peers? Where did that one come from?
8.15.2008 5:17pm
Gil Milbauer (mail) (www):
Anderson snarked: "Let's abolish the restraint of trade that requires judges and lawyers to have law degrees."

Good idea!
8.15.2008 5:20pm
Oren:
Steph, you have admirably described the difference between natural law and human law. The former "is what it is", as you put it, but the latter is defined, whole cloth, by the human institutions that create it. They are so different that it's a shame they share the same word in the English language.

Now, you can argue that where human law fails to respect natural law, it is bound to fail (and perhaps we are always bound to respect the latter above the fomer) but the fact remains that human law is what the institution says it is, no more, no less.

In my view, the democratically ratified law gets the benefit of the doubt and unless the jury is so outraged that they nullify of their own accord, that law should stand.
8.15.2008 5:25pm
Mark F. (mail):
To those against jury nullification --

It is 1859. An individual is on trial for violating the law by helping a slave escape. There is no reasonable doubt the person violated the law. As a juror, do you vote to convict?
8.15.2008 5:28pm
ejo:
it's funny. the libertarian contingent thinks that JN is enshrined in the Constitution and is sacrosant. all that stands in their way is caselaw and practice in practically every court in the United States, both state and federal. Since it is such a bedrock part of our law, why not try convincing a legislature or appellate bench? surely, when subjected to the arguments offered here, the Court would have no choice but to enshrine instructing a jury of their constitutional right to nullify.
8.15.2008 5:30pm
Brett:
The power held by the elites in the criminal and civil justice systems is also a feature rather than a bug.


Sorry, wrong. Thanks for playing. We have some lovely consolation prizes for you.
8.15.2008 5:31pm
Bob from Ohio (mail):
Every jurisdiction has strict anti-drug laws. Even at the margins, how many states have either 1. decriminalized the possession of small amounts of pot or 2. medical pot laws? Not many.

In Ohio, there is zero chance of any drug liberalization. We don't even allow casinos.

The people, acting through their elected representatives, have decided that drug use should be illegal. Some libertarians want to substitute their strictly personal judgment for the will of the people. So, they say that the laws are "unjust".

Unjust in their opinion, not unjust in fact. Unjust because they want to use drugs without legal consequences. Strictly selfish personal desire that they wrap up in the Magna Carta and the Zenger case.

We have no king that makes laws without our consent. The people desire strict drug laws. It is their decision.

I though we had a government of laws and not of men. Officially sanctioned jury nullification makes a mockery of that phrase.
8.15.2008 5:32pm
unhyphenatedconservative (mail):
"I wonder the association of positions on nullification with beliefs on judicial activism. If a randomly selected jury could nullify a law due its beliefs and without any demand for explanation, surely the formally appointed Supreme Court, writing a justificatory opinion, should have full authority to do so."

The difference would be the facts that 1) juries represent the people, who are the sovereigns in America, as opposed to the judiciary which is unelected and unaccountable and 2) the jury's action effects only that case whereas judicial activism changes the law for everyone under that tribunal's jurisdiction.
8.15.2008 5:33pm
ejo:
Mark F-it's 1964. You don't much like uppity black folks or northern agitators. Your cousin is on trial for shooting a bunch of them As a juror, having been instructed on JN, do you vote to convict?
8.15.2008 5:34pm
jgshapiro (mail):

Don't look to Libertarians to supply anything but deceit, distrust, cynicism, narcissism and arrogance.

Distrust, certainly. Wasn't it distrust of the power of the state that led to the jury trial guaranty? Many democracies don't have jury trials. Why do you think we do?

Cynicism, perhaps, but more of a constructive sort, of the type addressed by the checks and balances in the constitution and the bill of rights, of which a jury trial is an essential part.

I'm not sure where you get the rest -- narcissism, arrogance and deceit -- I was going to accuse you of the same. It is you that arrogantly believes that a jury should be treated like children, when their judgment is the whole point of the trial itself. It is you who would deceive defendants by assuring them of an empty right to a jury trial in the first place.
8.15.2008 5:34pm
unhyphenatedconservative (mail):
Anderson,

I have often wondered why the lawyers who run this "libertarian" blog we don't hear much call for abolishing the legal prohibitions against non-attorney practice of law. I guess the degree of libertarianism is proportionate to the degree one's job security is imperiled.
8.15.2008 5:38pm
Oren:

Every jurisdiction has strict anti-drug laws. Even at the margins, how many states have either 1. decriminalized the possession of small amounts of pot or 2. medical pot laws? Not many.

AK, OR, CA, NV, CO, MN, MS, NE, OH, ME, NY, NC (12 states) have decriminalized possession of small amounts. In addition to those states, WA, VT, HI, MD, RI, NM, MT (7) have medical pot laws.

Whatever you are smoking, pass some over this way. . .
8.15.2008 5:39pm
Brett:
surely, when subjected to the arguments offered here, the Court would have no choice but to enshrine instructing a jury of their constitutional right to nullify.


Yes, because as we well know, the legislative and judicial branches of government are ever so willing to, just like that, cede power. It's not as if they'd do something like, I dunno, flat-out ignore one of the amendments of the Bill of Rights, without which the Constitution never would have been ratified, or something.
8.15.2008 5:39pm
Oren:

The difference would be the facts that 1) juries represent the people, who are the sovereigns in America

Except that I've established quite thoroughly that 12 jurors are frequently quite unrepresentative. If the jury were composed of 50-100 citizens, that would be representative.
8.15.2008 5:41pm
Oren:

In Ohio, there is zero chance of any drug liberalization

BZZZZT!

BTW, 100g is enough to last a very heavy smoker at least a month (3g/day is *insane*).
8.15.2008 5:44pm
R.E.L.:
50-100 citzens? How very ancient Athens.
8.15.2008 5:44pm
Toby:
I am amazed at the false balance created repeated on this thread by Oren and others, presumably out of whole cloth. There is no balance, can be no balance between creating new laws to get someone and nullifying laws to let others go free.

Much of the Constitution is set up to protect people from government action. The Bill of Rights is there to protect people from government action. The founders knew that government, by its nature, like any other organic creature seeks always to arrogate rights to itself. Clearly, as exemplified by the replies above, so does each profession.

Against the leviathan state, all of us are always inconsequential. No right is more essential to our concepts of liberty than that the citizen has the right to say to the state, or to the state’s employees, finally. “Have you no shame? Have you not done enough?”

I deny the false balance alleged.

Even if some evil racist southern sheriff boogieman was gooten off by JN (more likely he got off with professional discression, by one of the other parties mentioned above), such an assertion merely reminds that hard cases make bad law. And eliminating JN ia bad law.

And to those who, in-love with the corporate-statist “bright line”, who claim that any discrepancy is unjust, I remind you of the old, old observation, all men should fear perfect justice.
8.15.2008 5:48pm
jgshapiro (mail):
ejo:

it's 1964. You don't much like uppity black folks or northern agitators. Your cousin is on trial for shooting a bunch of them

It's 1692. Your cousin (Bridget) is on trial for witchcraft.

You, however, believe that these witchcraft laws are designed to punish uppity women, especially those who fall out of favor with the local preacher. Also, you doubt the efficacy of spectral evidence.

The judge has assured you that the practice of witchcraft is real, is very harmful to society and that the anti-witchcraft laws are constitutional. He has also told you that spectral evidence is sufficient proof to convict.

As a juror, having been instructed on JN, do you vote to convict?
8.15.2008 5:50pm
R.E.L.:
Not crediting the spectral evidence, no conviction, even without JN.
8.15.2008 5:55pm
OTOH (mail):
I love "sticking it to the man" just as much as the next true American, but on the other hand, I'd sure be pissed if an all white jury acquitted a white guy for killing my wife (who is black).
8.15.2008 5:58pm
Anderson (mail):
I have often wondered why the lawyers who run this "libertarian" blog we don't hear much call for abolishing the legal prohibitions against non-attorney practice of law. I guess the degree of libertarianism is proportionate to the degree one's job security is imperiled.

Remember the conniption on display when it was incorrectly reported that Obama was offered tenure without having published a law review article?

Pretty funny, I thought.
8.15.2008 6:03pm
Golda:
"It is 1859. An individual is on trial for violating the law by helping a slave escape. There is no reasonable doubt the person violated the law. As a juror, do you vote to convict?"

Hmm. No Judge has instructed me that there is 'no reasonable doubt', so I think I will find some reasonable doubt, and vote not to convict, regadless of what others say.
8.15.2008 6:03pm
john w. (mail):
There is also little question that juries in the deep south routinely acquitted whites of monstrous offenses against blacks...

Correct me if I'm wrong, but wasn't that mostly due to prosecutorial malfeasance at the State &local level? Once the Feds came in and started prosecuting civil rights violations, weren't they able to get convictions USING THE SAME POOL OF JURORS?
8.15.2008 6:04pm
Dave D. (mail):
...Yes JG, a juries judgement of the relavant FACTS is the whole point of the trial. It is not the point of a trial to judge the law, and the jury is untrained and ignorant of it. What jury knows case law? What jury knows statute law?..Common law...? Constitutional law ?, or has the means to learn the law while sitting as a jury ? None that I've seen. That's not what our courts were set up to do. They were set up to present evidence and the juries are to weigh that. That you would describe the jury trial as an empty right underlines your arrogance and condescension.
8.15.2008 6:05pm
Golda:
Not for State crimnal acts like murder.
8.15.2008 6:06pm
jgshapiro (mail):
R.E.L.:

The hypo tells you to credit the spectral evidence. You are fighting the facts of the hypo and not answering the main issue.

If you prefer, you have 7 adult, competent eyewitnesses, all who claim they saw your cousin performing witchcraft. One of them is a preacher, for God sakes! A man of the cloth! Given that it is 1692 and there is no DNA or video evidence available, that is the best that you can do.

If evidence is not an issue, do you convict?
8.15.2008 6:08pm
SgtDad (mail):
As I recall, the great protection against prosecutorial abuse was, according to the Framers, the grand jury. As we all know, case law has ground that bulwark of liberty in to dust. That leaves the petit jury.

I see no reason why one of the standard jury instructions shouldn't something along the lines of:


The role of the criminal justice system is to to justice. Prosecution and conviction of crimes is only one means to achieve justice. If the jury unanimously agrees defendant is guilty under the law, the jury must then consider whether justice will be served by conviction, given all the circumstances. If justice is not served by conviction, then defendant is not guilty. If, and only if, the jury unanimously agrees that defendant is guilty under the law AND that justice will be served by conviction should the jury then convict defendant.
8.15.2008 6:08pm
Prosecutorial Indiscretion:
Unless you believe such nonsense, you have to admit the Bill of Rights needs enforcement mechanisms. Nullification proponents argue that the jury has been and should again become one of those mechanisms.

And nullification opponents argue that jury nullification does more to undermine the Bill of Rights than to protect it, by allowing for arbitrary outcomes based on idiosyncratic theories of the law or based on considerations that the Bill of Rights prohibits from being taken into account. The more you encourage nullification, the more you are going to see juries stray from the considerations of the Bill of Rights; the courts that instruct juries on the law will likely issues instructions more accord with the Constitution than the independent reasoning of the jurors would be. If your goal is, as you state, to promote enforcement of the Bill of Rights, one would think you'd want juries to be explicitly charged to follow the law. The alternative being discussed - to tell juries that they need not follow the law - seems like a counterproductive method of ensuring that juries adhere to the Bill of Rights.

There's limited data available on nullification. Human Rights Watch took a look at the Civil Rights Division back in the late 90s and noted that while the Division had a conviction rate of almost 100% in most of its categories of cases, its record in official misconduct cases was much lower (despite the fact that the Division declined to prosecute the overwhelming majority of official misconduct cases it investigated). The conviction rate on official misconduct cases dropped as low as 64% in 1996. While there's no way of knowing the extent to which nullification played a role in this disparity, the data at least correlates to the conventional wisdom that nullification is an issue in official misconduct cases. There is also quite a bit of anecdotal evidence that racial considerations lead to nullification. Again, there is a lot of uncertainty surrounding this evidence, but when you're talking about the longstanding policy on jury nullification in a way that would promote it, you rely on what evidence you have rather than on a priori rationalizations.

Any sort of pro-nullification push - via propagandizing or a policy change that allows for nullification arguments or instructions - will increase the incidence of arbitrary and lawless outcomes. There's experimental evidence that decisionmakers becomes less concerned with the law and more concerned with their own emotional response when a nullification instruction is given.

You argue that the Bill of Rights needs enforcement mechanisms and that the jury should be promoted as one of those mechanisms. But you fail to explain how freeing the jury to ignore the court's instructions on law will promote enforcement of the Bill of Rights. There's a better argument that the effect of high-profile jury nullifications in recent years have been detrimental to enforcement of the Bill of Rights. Rather than change the law, the O.J. Simpson and state Koon &co. cases undermined public confidence in the justice system.

If your goal is to protect people prosecuted under what you view as unjust laws, there's a better solution than undermining the legitimacy of the criminal justice system: change the laws. There is a strong social interest in locking up dangerous people and deterring others from engaging in behavior that harms others. Increasing the arbitrariness of the system will undermine that goal.
8.15.2008 6:08pm
Guest101:

I have often wondered why the lawyers who run this "libertarian" blog we don't hear much call for abolishing the legal prohibitions against non-attorney practice of law.

In fairness to the Conspirators, I'm pretty sure that Ilya, the most vocally libertarian of the bunch, has been critical of the bar exam requirement on occasion. I'm not sure if he's ever said anything about requiring a law degree to practice, though.
8.15.2008 6:09pm
Golda:
SgtDad: The jury instrcutions re defenses, already do that. Moreover, we all got togther (ahead of time) and decided what defenses make the accused acts just.
8.15.2008 6:12pm
Steph (mail):
Ejo

"it's funny. the libertarian contingent thinks that JN is enshrined in the Constitution and is sacrosant. all that stands in their way is caselaw and practice in practically every court in the United States, both state and federal."

Every court since Sparf you mean and not even that. Just because the legal profession has systematicly supressed the true principals of the common law does not mean there is no case law. It is just the older case law from the time of the founding, which if you are an original public meaning originalist ought to bind you. The second and third president of the republic, and the first chief justice are all on the record for JN. I have cited case law and will now cite some more.

State v. Croteau, 23 Vt. 14(Vt. 1849)
State v. Wilkinson, 2 Vt. 480 (Vt. 1829)
State v. Snow, 18 Me. 346 (Me. 1841)
Commonwealth v. Knapp, 27 Mass. 477(Mass. 1830)
State v. Buckley, 40 Conn. 246 (Conn. 1873)
PEOPLE v. CROSWELL, 3 Johns. Cas. 337 (N.Y. 1804)

Have you heard of the word userpation? Look it up!
8.15.2008 6:13pm
R.E.L.:
"If evidence is not an issue, do you convict?"

I'm a juror for God sake. Evidence is ALWAYS, an issue.
8.15.2008 6:14pm
jgshapiro (mail):
Dave:

That you would describe the jury trial as an empty right underlines your arrogance and condescension.

Work on your reading comprehension. What I said is that it is an empty right if you treat the jury like children and tell them they don't have the right to acquit if they think that that the law is unjust as applied.

Ultimately, that is what JN is: a power to ignore the law and acquit where the jury thinks that a conviction is unjust, even where the evidence proves that the defendant committed the crime at issue.

The jury does not need to know constitutional or case law to make that judgment. Their judgment applies only to one case, and it is based on the right of the people to check the state when it oversteps its bounds in any given case.
8.15.2008 6:17pm
unhyphenatedconservative (mail):
Oren,
I did not say that the jurors are a scientific sample of the people. It is much the same that the House of Representatives is the "People's House" and this is not a statement by anyone that Congresscritters are a cross section of the population. However, that body, like juries, is supposed to represent the people.
8.15.2008 6:25pm
jgshapiro (mail):
R.E.L.:

I'm a juror for God sake. Evidence is ALWAYS, an issue.

Don't be dense. The hypo takes evidence off the table as an issue.

If the evidence of violation is overwhelming, but you believe the underlying law is ridiculous, or you believe that the application of the law in the circumstances before you is ridiculous (even though it clearly applies by its terms, and the court has so held), would you convict as a juror? That is the debate.

Why do you keep avoiding the issue? Is the answer that you would convict, but you are uncomfortable in saying so?
8.15.2008 6:30pm
Lior:
Dave D. &Anderson: for precisely the reasons you outline, the evolution of the law means that having the jury judge the law has become impractical. Nevertheless, that is an essential function of the jury -- if not for that function, there is little point in having the jury there.

I hope the following summarizes our opinions. First, the legal question (the "is" side): either,

1. The jury guaranteed to federal criminal defendants by the 6th Amendment should judge both the facts but not the law. This allows for nullification; or

2. That guaranteed jury may judge the facts but not the law. In that case one needs to explain which features of "trial by jury" not expressly listed are guaranteed by that amendment [for example: can the government abolish secret jury deliberations?]

Second, there is the policy ("ought") question: either

1. It is best to have a jury judging both the law and the facts; or,

2. It is best of have a jury judging the facts only, and a judge deciding matters of law. The judge also decides on the subdivision of matters to "facts" and "law"; or

3. It is best to have no jury at all [probably no-one but me here supports this].
8.15.2008 6:31pm
Dave D. (mail):
..JG, how can you justify the power of a jury to nullify a law they don't understand, and why would you want a jury to NOT hear the law argued if they are to decide it's legality. ( Now that really is treating the jury as children )And why do you keep refering to " the jury " when it is only one person, 1/12th of the jury, that holds your nullification view ?

..If we're going to allow nullification legally, we've got to argue the law. Every case gets a new legislature via the jury. Anarchy on the half shell.
8.15.2008 6:35pm
Dave D. (mail):
..Lior, on the policy question, I pick door number two.
8.15.2008 6:39pm
jgshapiro (mail):
Here is another hypo for the anti-JN crowd:

You are a juror in Alabama after Plessy but before Brown and the Montgomery Bus Boycott. There is incontrovertible evidence that the defendant, a black man, was sitting in the front of the bus with white folks, rather than in the back where he is supposed to be.

In fact, the defendant admits the charge and says the law is unjust because it is unconstitutional. The courts have not held that yet, and still abide by Plessy and say that he can't sit there and that the Jim Crow laws are constitutional. You don't know the law, since you are just a juror, but obviously this law is offensive to you (at least I hope it is) and profoundly unjust.

Just to make this easier in case you really hate JN, the judge told you that if he is convicted, he will go to prison for at least 2 years and the judge is not willing to stay the sentence pending appeal. After all, segregation is well established as constitutional, and has been since 1897. The defendant has three kids under 6 years of age and he is the only breadwinner. His wife died in childbirth and he has no other family.

Do you convict? The only way out is JN.
8.15.2008 6:40pm
ReaderY:
If one buys the general doctrine that legal instructions are to be interpreted, not according to any original intent or meaning but based on what is perceived to be needed to reach a just result in contemporary circumstances in light of fundamental values as the interpreter perceives them...

It is hard to understand why this doctrine should have any less applicability to the judiciary's instructions to us than it does to our instructions to the judiciary. The courts do not call it "judicial nullification", they call it "constitutional interpretation." Why not call it "jury instruction interpretation" and reach similar creativity to reach similar results.

If "gold and silver coin" refers to paper money, if "interstate commerce" refers to personal possession in the home of plants which people might or might not have decide to purchase in interstate commerce if they hadn't grown it themselves, if the right to "due process of law" refers to abortion and anal sex, how can judges possibly complain if jury instruction language starts being repeatedly subjected to fundamentally similar interpretive methods?

Why should we people take judges' instructions to us an inch more literally than judges take our instructions to them? Why shouldn't we take judicial construction of the constitution as the basis for how judicial pronouncements should be construed? Not an inch more literally, not an inch less. If you want your words to be treated with some sort of respect, treat ours the same way.
8.15.2008 6:44pm
Steph (mail):
Re JN and jury instruction I think the first chief justice did a fine job.

“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 upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay the respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.”
8.15.2008 6:44pm
Dave D. (mail):
..JG only endorses the old rules he agrees with. Libertarians acknowledge no higher authority than themselves.
8.15.2008 6:53pm
NickM (mail) (www):
Next time you want to tell someone to look up a word, spell it correctly.
Most states NEVER recognized jury nullification, and those that did, got rid of it around the time the jury was opened up to all those eligible to vote.
Oh, and the drug laws that juror was complaining about have already been determined constitutional by all 3 branches of government - the executive and legislative, by passing them, and the judiciary, by upholding them as against constitutional challenge. It's rather scary to know that one person's idiosyncratic opinion, no matter how ill-informed, would be given veto power over all of their decisions in your ideal America.

Nick
8.15.2008 6:56pm
jgshapiro (mail):

..If we're going to allow nullification legally, we've got to argue the law. Every case gets a new legislature via the jury. Anarchy on the half shell.

In theory perhaps, but in practice this is only going to come up with certain laws.

Anyway, I'm not sure there is any real harm with your doomsday scenario. If you can't persuade a jury (that you helped select!) that the law is reasonable both in general and as applied to this case, you have a bigger problem than JN. Maybe you should have exercised your prosecutorial discretion differently?
8.15.2008 6:57pm
CDR D (mail):
I'm a "JN" fan. But I won't lie on the questionnaire. Nor will I swear an oath to follow the judge's instructions.

The questionnaires make me laugh. They want to know all of the associations you belong to, the kinds of magazines you read, and if you have ever read any material that relates to "JN".

They want to know if you have ever been in the military, and if so, have you ever served on a court-martial. (I have).

I've never made it to oral questioning during voir dire. I guess my questionnaire is put on the bottom of the pile.

Consequently, I'm never seated as a juror. And that suits me just fine. I refuse to be a rubber stamp.
8.15.2008 6:59pm
R.E.L.:
"The only way out is JN."

Never, ever, is this the only way out. Not for real jurors.
8.15.2008 7:00pm
jgshapiro (mail):

..JG only endorses the old rules he agrees with. Libertarians acknowledge no higher authority than themselves.

I'm not the jury. I'm just commenting on a post. But I do acknowledge the higher authority of the jury, created by the Constitution, over the whims of a prosecutor. Yes, the prosecutor can be replaced at the next election. But that's not going to help the poor bastard in front of me, accused of a crime today.
8.15.2008 7:06pm
jgshapiro (mail):
R.E.L.:

So what would you do in my hypo? Why won't you answer the question?

Would you convict the bus rider? If not, why not?

Would you convict the accused witch (where the evidence is there that she is a witch, according to the court)? If not, why not?
8.15.2008 7:10pm
R.E.L.:
"where the evidence is there that she is a witch, according to the court"

I don't think you understand Jury trials. The court cannot instruct that the evidence proves the defendnat's guilt under any law, ever.
8.15.2008 7:15pm
XON:
I have to confess a certain amazement at the utter dogmatism of Oren and the pro-Oren contingent. The whole of their argument prefigures the jury process. "We must have law, thus juries cannot deviate from the law."

On the other hand, there have been several very able posts trying to point out this mistake, but it's not getting through. Unless the jury has the power to deviate from the state's position, it is a nullity. Worse, those arguing against a jury's power of nullification via hung jury or nullification are perpetuating a, ahem, Unitary Judiciary theory that is merely bolstered and window dressed by having some 'common folks' rubber stamping their actions.

Juries form an extremely powerful check to legislative impropriety. It follows, somewhat, Andrew Jackson's comment, i.e., they've made their law, now let them enforce it. . . If a small, interested contingent decides to exploit the citizenry, then it should be unremarkable that the citizenry, picked at random (as it were,) fails to uphold their actions.

On the other hand, if representatives enact representative laws, then those represented will uphold those laws.

The anarchic tendency is a feature, not a bug.

Also, for an interesting rebuttal to Oren's 'picked at random' critique, see Nick Szabo's discussions of Italian city-state governance, and the direct anti-corruption elements of their approach here
8.15.2008 7:24pm
Crackmonkeyjr (www):
I to oppose jury nullification, although I acknowledge that there is generally nothing that can be done about it. My reason for opposing it is that jury nullification swings both ways.

It is just as easy for a juror to vote to convict because they don't like the way the person speaks or dresses as it is for a jury to acquit because they don't like the law that the person is charged with. Further, I suspect that most jury nullifications do not take place because the jury opposes the crime that the person is charged with, but rather that the jury opposes charging this particular person with a crime (think O.J., I don't think that anyone thinks that it should be legal to murder your ex-wife and her boyfriend without any justification).

I suspect that if you were to somehow count all of the times that a jury has engaged in nullification, you would find that the vast majority of jury nullifications have been either convicting people for being poor and/or black or letting off celebrity defendants who have broken laws that the jury otherwise finds legitimate. Very few cases would be situations where juries have decided that the crime the defendant is being charged with is unjust.

That being said, I think that it would be pretty darn hard to prevent jury nullification in most cases, the jury could just lie as to why they decided to convict.
8.15.2008 7:31pm
jgshapiro (mail):
R.E.L.:

I don't think you understand Jury trials. The court cannot instruct that the evidence proves the defendnat's guilt under any law, ever.

I don't think you understand hypotheticals. The point is to ignore certain aspects of the hypo (given in the hypo) to get at the meat of the question presented. If you consistently argue with the given facts in the hypo, it is reasonable to assume that you have a motive for doing so.

In this case, it seems as though there are two possibilities: (1) because you would convict the witch and the bus rider, but you don't want to say so; or (2) because you would cite insufficient evidence (even though the evidence in the hypos is overwhelmingly against the defendants) as a pretext for JN. That is still JN, it is just JN through deceit, rather than honest JN. In case it is not obvious by now, I prefer honest JN to JN by deceit.

If I am am wrong, then please say how you would get out of the predicament as a juror if the evidence was conclusively toward conviction but the crimes are absurd (and the courts insist that they are not).
8.15.2008 7:34pm
Golda:
Although I have seen people walk on JN for a greater variety of issues than you outline, I think you are right, XCM, JN is an invitation to popularity contest not justice.
8.15.2008 7:39pm
Law & Order (www):
In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders. These are their storie
8.15.2008 7:40pm
Perseus (mail):
For that matter, since any juror is qualified to say what the law is, let's abolish the restraint of trade that requires judges and lawyers to have law degrees.

Federal judges are required to have law degrees?
8.15.2008 7:45pm
J.R.N.:
"it is reasonable to assume that you have a motive for doing so"

Yes. To do what I just did: show you don't have an understanding of real juries or thier instructions. As XSM and Golda point out juries, today, nullify all the time, for all kinds or reasons. Even without your invitation that they do so. Your arrogance, that you can insruct them in it, is unbounded.
8.15.2008 7:49pm
Dave D. (mail):
..JG, you beclown yourself. How can you "help the poor bastard in front of me , accused of a crime today " if (you) are not the jury and are "just commenting on the post. " ? A cheap retorical trick poorly executed.
8.15.2008 8:12pm
Oren:

I have to confess a certain amazement at the utter dogmatism of Oren and the pro-Oren contingent. The whole of their argument prefigures the jury process. "We must have law, thus juries cannot deviate from the law."

Let me state clearly my position here, so you can at least insult my actual statements instead of a strawman.
(1) I acknowledge JN as a de-facto power of the jury.
(2) I am pro-JN in cases where the State conduct is so offensive to the jurors that they decides, of their own accord, not to convict.
(3) Many people hold crazy theories of Constitutional Law. For instance, I have a very intelligent colleague of mine that insists, for a variety of reasons that are all rebuked by the courts, that the Income Tax is unconstitutional despite the existence of the 16A.
(4) In many cases, JN is based on theories of the law that are, on their face, incorrect.
8.15.2008 8:20pm
Brett:
Yes. To do what I just did: show you don't have an understanding of real juries or thier instructions.


There is such a thing as addressing the hypothetical on its own terms, for the sake of argument, rather than loudly and stubbornly insisting that it isn't reflective of the real world. We all get that it's not reflective of the real world. If it was, it wouldn't be hypothetical.

Though I do savor the irony of you complaining about JG's "unbounded arrogance" given the sanctimony you've displayed here.
8.15.2008 8:23pm
Oren:
If I am am wrong, then please say how you would get out of the predicament as a juror if the evidence was conclusively toward conviction but the crimes are absurd (and the courts insist that they are not).
The witch and the bus rider are outlier cases. The vast majority of JN involves
(1) refusal of jurors to convict people of the same race (which happens with whites, blacks, latinos, Asians, Jews, everyone)
(2) acquittal based on nothing more than blind distrust of the Justice System (distrust that might be well deserved)
(3) wacky theories of law/constitution that no serious scholar has ever endorsed
(4) categorical refusal to convict certain classes of people for certain offenses (e.g. refusal of a juror on the pepper-spray-eye-case to convict *ANY* officer against a protester)
(5) disapproval for the law that does not rise to actual offensiveness against justice (e.g. this cocaine case)

In the witch case and the bus case, JN is appropriate. In the mundane every-day cases that make up the other 99.9%, allowing lawyers to advocate JN is to invite jurors to rationalize their own prejudices into whatever conclusion they want.
8.15.2008 8:26pm
Steph (mail):
I should start by apologizing for getting a little sharp tongued. I thank Nick for pointing out that I misspelled usurpation. However I also want to point out that there are several poster who think it appropriate to label all JN supporters unprincipled pot heads and anarchists. Since, in 37 years, I for one have never touched the stuff and since, I think anarchism is to put it mildly a bad idea, I find the those insinuations insulting. So for those who make those insinuations, go soak your head.

As to the issue at hand, JN was supported by Lord Chief Justice Coke. It was supported by John Adams and Thomas Jefferson, the second and third presidents, the “North and South Poles of the American Revolution,” the leaders of the conservative and liberal factions of the founders. I have cited and provided the actual words of jury instructions written by John Jay, the first Chief Justice, for a unanimous Supreme Court. I have cited state supreme court opinions from five state supreme courts upholding JN. The opinion’s I cited run from 1794 to 1849, the period immediately following the founding. If this doesn’t show the original public meaning what would?

All I have gotten in reply is an argument along the lines of, “well we don’t do things this way anymore.” This is just the worst form of living constitutionalism. I would have thought it was more respectable around here to engage in carnal relations with the devil, than to follow the constitution is what judges say it is, living constitution BS. A theory of interpretation that allows judges to usurp power to themselves is being used as a cover for more usurpation.
8.15.2008 9:01pm
JKeith:
Oh, and the drug laws that juror was complaining about have already been determined constitutional by all 3 branches of government - the executive and legislative, by passing them, and the judiciary, by upholding them as against constitutional challenge. It's rather scary to know that one person's idiosyncratic opinion, no matter how ill-informed, would be given veto power over all of their decisions in your ideal America.


Oh, and the segregation/slavery/sedition/flagburning laws that juror was complaining about have already been determined constitutional by all 3 branches of government - the executive and legislative, by passing them, and the judiciary, by upholding them as against constitutional challenge.
8.15.2008 9:05pm
JKeith:
And any one racist enough to give a murderer a free pass because his victim was black is going to do so with or without jury nullification.
8.15.2008 9:06pm
pluribus:
If the most famous recent case of jury nullification was The People of the State of California vs. OJ Simpson, then it would seem that JN can be used for some reason other than reaching a just decision. In that case, the jury wanted to punish the police for an alleged course of conduct in entirely separate cases. It is hard to argue that JN produced justice in that case, unless you believe that acquitting a vicious murderer is just when it sends a "message" to the constable.
8.15.2008 9:17pm
Dave D. (mail):
..They can only do that if they're a juror, JKeith, and only through nullification. Nullification is the key to unlocking the prison door at your whim. Racism is only one possibility, though. I too spent fruitless time trying to find the definition of " Userpation ". I supposed that has some equivalency to insulting insinuations. It was silly of me to insinuate that all Libertarians were dopers. If I meet one, some day, who isn't, I'll apologize. Really I will.
8.15.2008 9:21pm
JKeith:
They can only do that if they're a juror, JKeith, and only through nullification.


No they can do it through outright lying too, which I would imagine racists have had no compunction about doing throughout history.
8.15.2008 9:23pm
jgshapiro (mail):
What JKeith said, but also add:

anti-micegenation statutes upheld for years, then struck down in Loving
anti-birth control statutes, upheld for years, then struck down in Eisenstadt
anti-sodomy statutes, upheld for years, then struck down in Lawrence
anti-gun possession statutes, upheld for years and now struck down or called into question (state laws) by Heller

And so on.

It's easy to point to these issues now, because you have the benefit of hindsight. But if you were sitting on a jury before the law was voided, you don't have that luxury. You just have JN or the jury instructions telling you to convict if the evidence shows the defendant did it.

I am still stunned at the number of people on this thread (see JRN and Golda, for example) that think the solution is not to instruct juries about JN, but just let them do it if it occurs to them. Or for the jurors in question to lie about it.

If you are going to let it happen, due process would suggest that you be up front about it. And if you are not going to let it happen, then you have to admit that you will convict in the outlier cases.
8.15.2008 9:24pm
jgshapiro (mail):
Dave D:

I'm not the jury. I'm just commenting on a post. But I do acknowledge the higher authority of the jury, created by the Constitution, over the whims of a prosecutor. Yes, the prosecutor can be replaced at the next election. But that's not going to help the poor bastard in front of me it, accused of a crime today.

There, fixed it.

Now will you address the issue, instead of railing against libertarians and mounting one ad hominem attack after another?

Would you send the bus rider and the witch to jail? If not, why not?
8.15.2008 9:30pm
Crackmonkeyjr (www):
<b>Re The Bus Hypo:</b>

If you were on that jury, nullifying the law would probably do the defendant, or at least the country in general, a disservice. The whole point of that sort of case is that the defendants want a test case so that a judge can find the law unconstitutional.

If you find the defendant not guilty, sure that defendant gets off, but the case cannot be appealed, the law stays on the books and future defendants have to keep hoping that someone like you is on the jury. If the defendant gets convicted, the appellate court gets a chance to find the law unconstitutional. Even if they don't, you get a chance for a public outcry that may result in the law being legislatively overturned.

I think that the main reason why pot is still illegal is arguably because the only people who get convicted for smoking pot are people who have little political power. I know a number of established middle class people who smoke pot, teachers, lawyers, doctors, etc. They don't really care that it is illegal because they know that they will never be convicted. Heck, Bill Clinton and Barak Obama have both admitted to doing drugs and it is pretty widely accepted that Bush has done so as well. If the government started going after this sort of person, I suspect that pot would be legal tomorrow. Jury nullification of unjust laws just leads to more of this problem.

<b>Re the purpose of a jury:</b>

There are good reasons for having a "jury of your peers" other than jury nullification. Another good reason to have a jury of your peers is that, if the government gets to decide everything, they can not only convict you of violating a law that is unjust, but of laws that you didn't even break. I personally think that the latter is much more hazardous than the former. Going back to the bus example, it certainly wasn't fair that blacks had to sit in the back of the bus, but at least they could avoid problems by sitting in the back of the bus. Without an impartial jury, the government could decide to charged and convicted Rosa Parks (or anyone they don't like) with violating that law (or a law that brought greater punishment) even if she did sit in the back of the bus.

This actually goes to my previous post. Allowing the jury to disregard the law leads to a situation. As I pointed out, jury nullification swings both ways and often leads to people being convicted who did not even violate a law (just or unjust).
8.15.2008 9:31pm
JKeith:
It was silly of me to insinuate that all Libertarians were dopers. If I meet one, some day, who isn't, I'll apologize. Really I will.


Believing that a behavior should be legal does not imply approving of said behavior. Your statement says a lot more about you than it does about libertarians, and it's not flattering.

Full disclosure: I'm a libertarian who's never touched an illegal drug in my life and generally looks down upon those who do, but does not wish to see them in jail.
8.15.2008 9:32pm
pluribus:
Steph:

I have cited and provided the actual words of jury instructions written by John Jay, the first Chief Justice, for a unanimous Supreme Court. I have cited state supreme court opinions from five state supreme courts upholding JN. The opinion’s I cited run from 1794 to 1849, the period immediately following the founding. If this doesn’t show the original public meaning what would? All I have gotten in reply is an argument along the lines of, “well we don’t do things this way anymore.” This is just the worst form of living constitutionalism.

You have shown that jury nullification was practiced. Can you show that this was constitutionally required? If not, I do not see why it is "living constitutionalism" to reject it today. I wasn't aware that every change of criminal procedures, even those regarded as "reforms" or "improvements," are objectionable as "living constitutionalism."
8.15.2008 9:32pm
Crackmonkeyjr (www):
PS: What's the point of having a button above the comment box for making text bold if this website has disabled bold tags?
8.15.2008 9:32pm
Steve2:
You know, we wouldn't have this problem if we went to trial-by-grand jury, sans judges altogether. 'Course, I'd also go to a hybrid inquisitional/adversarial system, where both sides present their cases to the jury while the jury interrogates both sides.
8.15.2008 9:40pm
Brett:
It was silly of me to insinuate that all Libertarians were dopers. If I meet one, some day, who isn't, I'll apologize. Really I will.


I'll have that apology now, troll.
8.15.2008 10:09pm
Mark E (mail):

Those who have a fear of a jury deciding what the law is ... don't seem to have a problem with 5 unelected, unaccountable, uncontrollable lawyers in black robes doing the same thing.
8.15.2008 10:21pm
Golda:
You people really do not seem to have spent much time around jurors. Jurors don't lie about these things.

When jurors see an unjust prosecution, for any reason, guess whom they distrust -- the prosecutor, the cops, the prosecution witnesses, the prosecutor's evidence. Because they don't find these credible, they have doubts. Jurors being the only judges of whether thier doubts are resonable, vote not guilty.

They are not "lieing" about it, except in the eyes of the losing prosecutor and apparently many of you, who know so much better, than they.
8.15.2008 10:30pm
XON:
Oren,

I really wasn't trying to be ad hominem. I tried to paraphrase the discussion as I read it. . . with mouth agape in astonishment.

To try it one more time: this discussion is circling around two poles, one of which is proceeding from an initial point that the Law predominates Juries. The opposite pole is trying to place juries in the constellation of divided powers inherent in the Constitutional system.

I just don't think you can logically retain any notion of Constitutional freedoms if you can accept that ab initio, juries can be constrained by Judges.

I'd also point out that there are several checks on juries outside of judicial fiat. JNOV, adversarialy argued instructions, and most importantly, appeal from a verdict to a panel of justices form a bulwark against the anarchy that is so quavered at. . .
8.15.2008 10:32pm
Dave D. (mail):
...OK, Brett and JKeith, A sensitive lot you Libertarians are. I apologize to any doper who's not a Libertarian, and any Libertarian who's not a doper, for insinuating that you were, are or mighta thoughta being a Libertarian or an illegal drug user. That'll let you sleep tonight.
...Full Monty, I'm a retired cop (32yr) and JG, since I'm probably the only one here who's actualy sent someone to jail, my answer to your silly construction is yes, if the evidence proved guilt, I'd vote for conviction. Go ahead and pump yourself up about it. It's not an illusion, you really are superior.
..But Brett, I gotta tell ya. I've NEVER had a Libertarian not say that he only supports dope in theory but doesn't use it in practice. Never. My friends who are dopers all tell me they don't want anything to do with Doctors/cops or other important service providers who are doing their job under the influence. I can only conclude that there in something about dope use that engenders candor on their part.
8.15.2008 10:48pm
Crackmonkeyjr (www):
Mark E:
The Supreme Court has a couple things going for them that a juror doesn't.

A) They aren't picked at random, they have to be vetted by both the President and Congress, both of whom are accountable. This significantly decreases the chance that they are a crackpot (Thomas not withstanding). Voir dire does serve this purpose to some extent, but is much less in depth, and basically is based on what you can see of the juror during voir dire and what they are willing to tell you.

B) Their decisions are universal. If they declare something legal or illegal, its legal or illegal for everyone. They don't really get to decide things on a case by case basis the way jurors do, which limits the ability to impose personal favor or animus.

C) They are accountable to public opinion; not in terms of election, but in terms of popularity. This is a weaker motivator but still a motivator. Jurors are essentially (and sometimes actually) anonymous and so they don't have much to fear from making an unpopular decision.

D) They can be impeached. Congress basically has the power to impeach them with no review. It has never happened, but it can. Sure jurors can be removed, but you need a legal reason to do so, and this will be reviewed.

E) They can have their votes diluted. Congress gets to set the number of judges. If a majority of the judges are being loose cannons, Congress can pass a law to add a few more judges to eliminate that majority. This has happened before. No one can just add jurors to cancel out the ones they don't like.

F) They have no actual power beyond their credibility. The only power they do have is that the other branches of government ignore them, those branches look bad to the public. If they get to out of hand, they will just be ignored. This also has happened before. Juries are too ephemeral to lose any credibility.
8.15.2008 10:51pm
Steph (mail):
Pluribus thank you for addressing this. The reason I regard the abandonment of JN as living constitutionalism, is because I assume that when the constitution uses the word jury it means now what it meant then. If, arguendo, at the time of founding a jury meant a body of 12 persons with the power to judge law and fact and render a general verdict, then it means the same thing today. If on the other hand, it meant then, a body of 12 persons who could only judge the facts and had to submit to the judges instructions as to the law, it means that today.

Let me use another closely related example. The sixth amendment reads in part, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,.“ When the question what does “the value” of “twenty dollars” mean, the court, as I understand it, does not say it means, twenty of those portraits of George Washington we carry in our pockets. It takes the meaning at the time of the founding, when a dollar was silver coin containing 371 and four sixteenths grains of fine silver. (slightly more than ¾ of a troy ounce) Since silver is at about $12.50 an ounce is about $193, in currant dollars.

To change the meaning of dollar would change the sixth amendment, to change the meaning of jury would change the meaning of the constitution and amendments 5 and 6.
8.15.2008 10:53pm
JKeith:
My friends who are dopers all tell me they don't want anything to do with Doctors/cops or other important service providers who are doing their job under the influence.


What's your point? I assume they would say the same about Doctors who use alcohol (a perfectly legal substance) on the job, and I would agree with them in both cases.
8.15.2008 10:59pm
Golda:
Most crimes are not Federal crimes and most procecutions are not Federl procecutions. The full guarantees of the 6th amendment were not incorporated against the States by the 14th amendment.
8.15.2008 11:14pm
Dave D. (mail):
..My point, JKeith, is that my doper friends are cognitively dissonat about using dope but not wanting others to do so if it effects them. Yet, they are candorous about it. Libertarians aren't. There's something in my nature that likes a fellow who cops straight up.
8.15.2008 11:26pm
Skyler (mail) (www):
Dave,

You really should get out and meet a better sort of people. There are plenty of people who don't use drugs who think they should be legal. This is not news.

And besides, whether someone uses drugs doesn't change the argument as to whether they should be legal or not. The argument is valid or invalid regardless of who is making it.
8.15.2008 11:48pm
YYY:
Here is a layman’s perspective of a jury trial, though few have presented it.

The police and the prosecutor represent the executive branch (branch 1 of the government) attempting to enforce laws passed by the legislature; city, county, state and/or federal (branch 2).

The defense attorney represents the defendant.

The judge (branch 3) referees the debate between the prosecutor and the defense attorney.

All the above have sworn an oath to uphold the region’s Constitution and laws of the land. See a conflict of interest here?

The jury (the fourth branch of government and the sovereign of all other branches), needs no knowledge of the constitution, no knowledge of laws and no knowledge of precedence. It only has a conscience and wants/needs to vote thusly.

What Judge W. Young did by replacing the juror while in deliberation in this case should be considered tyranny. And, most of us know what this country has done in the past and may do in the present/future with those that practice tyranny.
8.15.2008 11:51pm
cboldt (mail):
Oren: -- In my view, the democratically ratified law gets the benefit of the doubt and unless the jury is so outraged that they nullify of their own accord, that law should stand. --
.
Jury nullification doesn't reverse law. Even when a jury nullifies, the criminal law stands. The power of juries is markedly different from the power of an appellate court.
.
Your threshold for nullification is on the degree of outrage of the jury, and isn't a per se rejection of the concept of a jury finding either the application, or the law itself to be out of rig.
.
I haven't spent a significant amount of effort on the opinion, but I was struck by its importation of civil law principles. I think juries ought to give more weight to a judge on civil/common law application, and less on criminal code. IOW, using civil law to reinforce a bias to criminal conviction (jury can't judge the criminal code) is WRONG.
.
The last bastion of the public against its overseers (short of the cartridge box/2nd amendment) is rejection of criminalizing. I believe this application of jury nullification is a wise safety valve in a moral and just population.
8.15.2008 11:52pm
cboldt (mail):
-- The jury (the fourth branch of government and the sovereign of all other branches) --
.
Hear hear.
.
The constitution describes the role of all four branches, too. The public is to be involved in all aspects of its self-governance. I've used the "fourth branch" meme frequently, to highlight the importance of the public role.
8.16.2008 12:11am
Fub:
Alan Gunn wrote at 8.15.2008 2:15pm:
It is still the case in Indiana that jurors are supposed to judge the law as well as the facts, though I have seen one jury trial in which the jury wasn't told anything about that.
Although I'm working from memory here, I think the Indiana constitutional provision goes further than that, something along the lines that the jury is to be judge of both the law and the facts. I believe that both Maryland and Georgia constitutions have very similar provisions.

But as you said, I don't think the courts of those states inform juries of those constitutional provisions, and I also think they forbid attorneys from doing so.

Perhaps those who oppose jury nullification can describe the judicial process through which that state of affairs came about -- a provision once thought important enough to enshrine in a constitution, never repealed, yet currently not only unenforced but made illegal to mention to a jury.

I have read this entire thread and have seen no explanation for that.
8.16.2008 12:23am
cboldt (mail):
-- jury nullification swings both ways and often leads to people being convicted who did not even violate a law --
.
Charging people who don't violate the law is prosecutorial misconduct. I can imagine that prosecutorial misconduct being amplified by a jury, but it isn't the jury's fault in the first place. In fact, insisting on "following the law" and telling a jury they must convict if the facts fit the judge-stated pattern (absence of jury nullification) leads to the injustice you decry.
8.16.2008 12:28am
Dave D. (mail):
.YYY, a jury only use it's conscience : " a persons inner sense of what's right and what's wrong, morally " ? to decide cases ?
...Man you made it a lot easier ! No laws, no evidence, no testimony, no legal arguments, no judges, just haul 'em in before a jury of peers and let them use their inner sense of whats right or wrong, morally. Is that the due process you want ? Sounds like a replay of the French Revolutionary justice system to me.
8.16.2008 12:28am
JKeith:
My point, JKeith, is that my doper friends are cognitively dissonat about using dope but not wanting others to do so if it effects them. Yet, they are candorous about it. Libertarians aren't. There's something in my nature that likes a fellow who cops straight up.


That makes no sense. I fully admit that drugs have adverse effects. That is not a sufficient argument for making them illegal, however. As I pointed out, alcohol also has adverse effects but remains perfectly legal. Should we outlaw alcohol and tobacco too?

Finally, there's a difference between not wanting somebody to do something, and thinking it should be illegal for them to do it. I don't want anybody to do drugs, but I think they should have the right to do so.
8.16.2008 12:38am
YYY:
".YYY, a jury only use it's conscience : " a persons inner sense of what's right and what's wrong, morally " ? to decide cases ?
...Man you made it a lot easier ! No laws, no evidence, no testimony, no legal arguments, no judges, just haul 'em in before a jury of peers and let them use their inner sense of whats right or wrong, morally. Is that the due process you want ? Sounds like a replay of the French Revolutionary justice system to me.

The jury/"THE PEOPLE" do hear the debate as refereed by the judge.

Ya, the vodka made me a little too concise.
8.16.2008 12:39am
Jay Myers:
LTEC:

Would those people who support jury nullification as a part of the system please give an example of what they would suggest in the way of instructions from judge to jury?


"It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision. ... you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy."
Chief Justice John Jay in his instructions to the jury in the first jury trial before the Supreme Court of the United States. State of Georgia vs. Brailsford (3 Dall 1) February term of 1794

Is that a satisfactory example?
8.16.2008 12:52am
Cornellian (mail):
"you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy."

I think that is not to be taken literally in the sense of the jury deciding what the law is, but rather to be the "judge" of the law in the sense of regarding the law itself as unjust, inherently or as applied, and refusing to enforce it, much like a prosecutor is free to do.
8.16.2008 1:06am
Jay Myers:
jvarisco:

That means you obey the instructions of the court, even if you might think they are unconstitutional. The SC is the only branch of government that gets to interpret the constitution, not any Joe on the street.

So Congress can't consider the constitutionality of laws they are voting on and the executive branch can't consider whether the actions they are contemplating are constitutional? What if Congress sends a bill to the President that he considers unconstitutional? Is he or she then required to allow the bill to pass into law because it is the judiciary's sole province to decide what laws are allowable under the Constitution and he doesn't get to interpret the Constitution?

Pray tell, where in the text of the Constitution do you see this grant of power to the judicial branch that is denied to the other two branches?

Do you also agree with Joe Biden that the members of the Supreme Court "get to make new law", unlike judges of other courts?
8.16.2008 1:17am
Dave D. (mail):
...Jesus, Jay, the Joe Biden proviso. That's worse than comparing somebody to Hitler, who, by the way, was NOT a plagiarist. You play too rough.
8.16.2008 2:48am
Confused:
So isn't it kind of weird that Judge Young -- in all the 41 pages of his memorandum -- fails to address the apparently on-point U.S. v. Dougherty (473 F.2d 1113) opinion that is the darling of the likes of FIJA?
8.16.2008 4:14am
Visitor Again:
Here's a case I'd consider appropriate for jury nullification. Read the entire story, from today's Los Angeles Times.
8.16.2008 6:29am
Splunge:
So, Oren, aside from the extremely rare case of a law enacted by direct initiative, how do you know any particular law has the support of (say) 66% of the people?

Seems to me that laws are enacted by legislatures, and our confidence that any such law would be supported by even a clear majority of citizens, were it actually put to a vote, is pretty iffy. Rarely does a particular law so excite public opinion that a legislator voting for it is guaranteed re-election, and one voting for it guaranteed defeat. In the absence of such clear evidence about public approval of the legislature's actions, the best we generally can do is take a poll about a specific law -- that is, consult some of those "small groups" which, you accurately point out, can quite easily display opinions that differ from the opinions of the entire electorate. (Hence the disappointing accuracy of Presidential election polls, of course.)

So I suggest your objection to nullification contains a hidden and highly dubious assumption: that you know with confidence that law X passed by a legislature and perhaps reviewed by some very small fraction of the Federal judiciary, rarely by the Supreme Court itself, would have the support of a substantial majority of the citizens if put to an actual vote. If, as I think is more reasonable, you do not begin with this assumption -- if you realize that the public support for a particular law is profoundly difficult to measure, and almost never well known -- then what? How can your elegant statistical analysis have any relevance to reality?

The other side is essentially arguing that putting cases to juries is putting the law to a direct vote: if juries consistently refuse to convict, you can very reasonably conclude that the law is not supported by the majority. Your own statistical analysis bears this out: if a jury fails to convict in 1 out of 5 cases, for example, then all other things being equal we can conclude that only 66% of the people support it.

I suppose you consider a 4/5 probability that jury decisions will be consistent with the law to be a flaw in the system. But those of us with a strong taste for republican principles -- who are more alarmed by the possibility of the legislature enacting and judges enforcing laws that do not have the support of the people -- are more concerned that convictions accurately reflect the will of the people. And I suggest it turns out you can only choose one of these goods: you can either have convictions 100% consistent with the law or you can have certainty that convictions on average reflect the true will of the majority. If you want the former, be a good robot and follow the law as written. If you want the latter, exercise your judgment just as if you were asked to vote on the law before you voted whether the schmo in the dock had broken it.
8.16.2008 7:21am
A. Zarkov (mail):
Removing a juror during deliberations is very troubling. Generally a jury can acquit for any reason, or for no reason, and are not subject to retaliation by the court. Thus jurors do have the power to nullify because they face no consequences for acquittal. A judge should never be allowed to remove a juror because he doesn't like the way the juror will decide a case. In this case, Thomas Eddlem should have kept his mouth shut and voted for an acquittal.
8.16.2008 7:55am
pluribus:
Steph, thank you for a cogent answer. I am going out of town and won't be able to give this mature consideration before this thread closes. I appreciate your argument but must reserve judgment as to whether I agree or disagree that that is precisely what the Constitution meant by trial by jury.
8.16.2008 8:26am
YYY:
“Removing a juror during deliberations is very troubling.”

Indeed!

Who here would want to play in a high stakes pooker(mis-spelled to get through spam filter) game with Judge Young (or any judge) where he alone can remove a card from his hand then publically replace it with one up his sleeve?
8.16.2008 9:53am
Crackmonkeyjr (www):
cboldt: You are right that a prosecutor isn't supposed to charge someone who he thinks is innocent, but it is built into the system that prosecutors are not the most trustworthy judges of this fact. This is why we bother to have juries at all. Its acknowledged that prosecutors can be biased for all manor of reasons from personal malice against the defendant, to a desire to win cases, to simply not seeing the facts clearly because his job is generally to try to convict. Depending on the situation, this isn't even necessarily prosecutorial misconduct.

The reason for the jury is to be a neutral party, hopefully free of the biases that the prosecutor (and the defense) might have. They get to look at the facts with fresh, disinterested eyes and decide if they violate ay of the laws that the defendant was charged with. This protects both against prosecutorial misconduct and prosecutorial bias. It also is an important role that has nothing to do with judging the law.
8.16.2008 10:00am
cboldt (mail):
I said, "Charging people who don't violate the law is prosecutorial misconduct."
.
On a quick re-read, of course that isn't literally true. Presumption of innocence and all that. The general notion I meant to convey with my post was that wrongful convictions start with wrongful indictments.
8.16.2008 10:29am
Crackmonkeyjr (www):
And my point is that the reason why we have a jury is to prevent wrongful convictions following wrongful indictments. However, the same latitude provided to jurors that allows them to nullify also allows them to go along with wrongful indictments. If juries were somehow required to only consider the facts and apply it to the law as specified by the judge, you wouldn't get wrongful convictions. You may get convictions based on laws that you believe are unjust, but that is a different story.
8.16.2008 10:40am
Crackmonkeyjr (www):
And my point is that the reason why we have a jury is to prevent wrongful convictions following wrongful indictments. However, the same latitude provided to jurors that allows them to nullify also allows them to go along with wrongful indictments. If juries were somehow required to only consider the facts and apply it to the law as specified by the judge, you wouldn't get wrongful convictions. You may get convictions based on laws that you believe are unjust, but that is a different story.
8.16.2008 10:40am
Ben Franklin (mail):
No judge can force a person to violate their conscience and send another person to prison. If, in addition they have the power to shuffle jurors until they find one sufficiently supple enough in their morality to go along with whatever the state has in mind then there is really no use in having a jury system to start with. This is how banana republics operate.

It is kind of funny that the juror in question was probably the only one in the bunch to know anything about the law whatsoever. Clearly the judge feels it is better to have a bunch of ignorant sheep on a jury than to have someone with some knowledge, even if imperfect, of the subject at hand.

Sad, but judges like Young have to protect the state's monopoly on power. Where would it end if citizens didn't have to go along with every bit of silliness that a politician or regulator could think up? What would happen if we could no longer pit one group against another based on their choice of intoxicants or their skin color etc...? How would we justify our "no knock" raids, the militarization of our police forces and the confiscation of property from people who have not been proven guilty of any crime? No, clearly, the status quo must be protected at all costs.

I decided a long time ago that I would never convict a person for many of the things that are nominally "illegal" in this country. If that makes me unfit to sit on a jury in judge Young's court then I will take that as a mark of honor.
8.16.2008 10:45am
Michael Edward McNeil (mail) (www):
The trust so many above exhibit in majoritarian principles (“democracy”) might be touching if it weren't so naive. Alexis de Tocqueville perhaps expressed the contrary view best in his insightful look at the early U.S. Democracy in America (termed by Supreme Court Justice Potter Stewart one of America's “Crown Jewels”):

“My greatest complaint against democratic government as organized in the United States is not, as many Europeans make out, its weakness, but rather its irresistible strength. What I found most repulsive in America is not the extreme freedom reigning there but the shortage of guarantees against tyranny.

“When a man or a party suffers an injustice in the United States, to whom can he turn? To public opinion? That is what forms the majority. To the legislative body? It represents the majority and obeys it blindly. To the executive power? It is appointed by the majority and serves as its passive instrument. To the police? They are nothing but the majority under arms. A jury? The jury is the majority vested with the right to pronounce judgment; even the judges in certain states are elected by the majority. So, however iniquitous or unreasonable the measure which hurts you, you must submit.

“But suppose you were to have a legislative body so composed that it represented the majority without being necessarily the slave of its passions, an executive power having a strength of its own, and a judicial power independent of the other two authorities; then you would still have a democratic government, but there would be hardly any remaining risk of tyranny.”

Tocqueville doesn't mention jury nullification above, but clearly it would seem to be an institutional feature of juries which to some extent steers them away from being mere creatures of the majority view. Yes, the process is somewhat random, but if the viewpoint in question is shared by a significant segment of society (though not a majority), it will reappear in jury trials again and again.

Zenger was disparaged above as being completely inapplicable to the modern day; perhaps the author who said that would assert that Tocqueville is as well; but I think that's wrong in on both counts.
8.16.2008 10:50am
htom (mail):
Bad move by the judge, he's not supposed to make things so obvious. I think that the juror had a reasonable question, and deserved a reasonable answer. Being given the "standard answer", the juror, it seems, was not content (and I, too, don't think that the commerce clause explanation is a very good answer), and removing him was indeed a way to a verdict -- but it was not a good way.
8.16.2008 10:50am
M. Simon (mail) (www):
Oren says:

Then we are not a country of democratically-derived law but a country where a random collection of 12 citizens can override the judgment of the legislature at will. How this is even remotely just is entirely beyond me.

Didn't this question come up once before in re:slavery?

I believe it did.

Actually Oren we are nominally a common law country. Our laws in the main are to be derived from the people. A lot messier than legislation. Better in the long run.
8.16.2008 10:57am
jxr (mail):

Two wrongs do not make a right. If, having failed at the ballot box to impose my view of the law and, likewise, having failed to establish in the Courts that the law in question violates the Constitution and, furthermore, having failed at the ballot box to require different jury instructions, it seems far-fetched to say that the juror retains some moral right to ignore the manifest judgment of his peers.


And yet, death penalty qualified jurors regularly vote against applying it even when the law clearly calls for it.

I guess they feel that they "retain[] some moral right to ignore the manifest judgment of [their] peers."
8.16.2008 10:59am
Mark E (mail):
CrackmonkeyJr -- "The Supreme Court has a couple things going for them that a juror doesn't.

A) They aren't picked at random, they have to be vetted by both the President and Congress, both of whom are accountable."
Response -- The only vetting that seems to occur is whether or not the candidate believes the same as whatever the Lawyers Guild beleives is the right thing. Any possible repercussions to the Supremes is soo diluted as to be ineffective

Oh, &you just couldn't resist taking a swipe at one of the few Judges who understands that the Constitution means exactly what it says.

"B) Their decisions are universal. If they declare something legal or illegal, its legal or illegal for everyone. They don't really get to decide things on a case by case basis the way jurors do, which limits the ability to impose personal favor or animus."

Response -- So what. If a bad or unjust law is universal, it is only worse. Cases in point -- Dred Scott, Plessy, Kelo.
An I thought that "deciding things on a case by case basis" was the foundation of "case law". Isn't there a legal principle, something about using prior cases &letting those decisions (by the jury) guide future trials?

"C) They are accountable to public opinion; not in terms of election, but in terms of popularity. This is a weaker motivator but still a motivator. Jurors are essentially (and sometimes actually) anonymous and so they don't have much to fear from making an unpopular decision. "

Response -- even you admit that this "control" is useless. And BTW, even looking cross eyed at an "officer of the court" is a federal felony. Lots of accountability there.


"D) They can be impeached. Congress basically has the power to impeach them with no review. It has never happened"

Response -- So, since it has never happened ... can it ever happen?

Please cite instances where it would be warranted? What would the procedure be? Couldn't a 'talented' lawyer argue that since it hasn't been used in the last 220 years, it is now no longer an active feature of law (similar to the arguments on this list about JN being 'allowable' in years gone past but no longer')?

Even if it was possible to do this, who would sit in judgement? It would be their judge peers in the court system or their lawyer peers in the legislature. The will no more rat on one of their own than a prosecutor or defense lawyer will complain too much about a judge today due to the "Brotherhood of the Black Robe".


"E) They can have their votes diluted. Congress gets to set the number of judges. If a majority of the judges are being loose cannons, Congress can pass a law to add a few more judges to eliminate that majority. This has happened before. No one can just add jurors to cancel out the ones they don't like. "

Response -- When was the last time the the Supremes were diluted?

Oh, &BTW, adding jurors was exactly what the judge in this case did. So that can happen more often &easier than "diluting" the number of judges.

"F) They have no actual power beyond their credibility. The only power they do have is that the other branches of government ignore them, those branches look bad to the public. If they get to out of hand, they will just be ignored. This also has happened "

Response -- So, all of the legislating from the bench never happens? Does that mean that all of the forced busing situations can be ignored? How about forced integration of private clubs?
please list when "they will just be ignored" has actually happened?
Your argument here seems to be a negative one -- 'if the courts are out of line then the other branches will ignore the courts which will make them look bad". With the positive perception of "the other branches" at less than 20% and the Congress threatening to slip into single digits do you really think that how "the other branches" are viewed is an deterent?
8.16.2008 11:22am
Oren:
Your threshold for nullification is on the degree of outrage of the jury, and isn't a per se rejection of the concept of a jury finding either the application, or the law itself to be out of rig.
You are correct, it's absolutely not a rejection of nullification for any reason whatsoever. My point is, the jury has to do it of their own accord -- not because some defense lawyer suggests to them that they ought to exercise independent constitutional judgment on, say, the war on drugs.
8.16.2008 11:30am
Oren:
jxr, sentencing is a much more flexible thing than constitutional judgment. I've never seen a death penalty case where DP was 'called for by law'.
8.16.2008 11:40am
Oren:

Your own statistical analysis bears this out: if a jury fails to convict in 1 out of 5 cases, for example, then all other things being equal we can conclude that only 66% of the people support it.

Only 66%?!? 66% is a landslide. In 1984, Regan won 49 states but only got 58.8% of the popular vote and it was considered a towering victory.

This is the heart of my point -- 66% is an enormous majority in a democracy (2:1, in sports-betting odds) and indicative of a policy that, if we believe in the normative power of democratic societies to self-govern, absolutely ought to be implemented. For such an overwhelming mandate to be ignored 20% of the time is (IMO) an insult to the theory of self-government.
8.16.2008 12:09pm
Steph (mail):
Oren wrote

"You are correct, it's absolutely not a rejection of nullification for any reason whatsoever. My point is, the jury has to do it of their own accord -- not because some defense lawyer suggests to them that they ought to exercise independent constitutional judgment on, say, the war on drugs."

Oren, I agree with you in part, it would be inapropreate for a juror to nullify a law that he just disagreed with. i.e. if he thought we should drive on the left side of the road instead of the right. But why in the case in question should the juror vote to convict when he thinks the law is beyond the power of congress. Their is no sugestion that the juror was agains the war on drugs in general he even stated as much and he is a member of the JBS which is more conservative than libertarian. This sounds like exactly the sort of case Jefferson was thinking of when he spoke of JN.
8.16.2008 12:12pm
Oren:
I don't see the difference between disagreeing with the law and coming up with a laughable theory that it is beyond Congress' power when every SCOTUS since Atlanta Motel is to the contrary.
8.16.2008 12:21pm
Tharsis (www):
The only reason to have a trial by jury is to prevent the State from making unreasonable prosecutions. The only reason. Anything else the judge could do better.
8.16.2008 12:31pm
H Tuttle:
Oren makes the facially logically point that:

"If, having failed at the ballot box to impose my view of the law and, likewise, having failed to establish in the Courts that the law in question violates the Constitution and, furthermore, having failed at the ballot box to require different jury instructions, it seems far-fetched to say that the juror retains some moral right to ignore the manifest judgment of his peers."


I say facially, because given the level of partisan gerrymandering that exists, certainly for members of the U.S. House were safe districts are carved and established, as well as for members of many state houses, to say that I "failed at the ballot box" is to simply say that 49% of the people fail each election and that 100% of the people fail at the ballot box in safe electoral districts. I'm an attorney and I do support jury nullification in certain cases given the massive increase in the number of total federal crimes year after year - the jury is and should be in effect the last thin blue line. To abrogate its power is to effectively remove the reason for, as many have already noted, having a jury of one's peers in the first place.
8.16.2008 12:39pm