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Perhaps the Most Riveting First Chapter I Have Ever Read:
I have just finished reading the first chapter of my GW colleague Paul Butler's new book, Let's Get Free: A Hip-Hop Theory of Justice.

  Wow! In the first chapter, Paul details a remarkable story that he has never publicly told: That when he was a federal prosecutor at the Justice Department, in the Public Integrity Section as part of the DOJ Honors program, he himself was arrested, charged, and went to trial for simple assault in DC Superior Court thanks to a vindictive and mentally unstable neighbor and a DC cop who took the stand and lied about what he saw. Fortunately, Paul was acquitted by the jury after about 5 minutes. The government's theory of the case completely fell apart at trial. But Paul's retelling of the story — and his reflections on why he was arrested and why he was able to mount a successful defense — make for truly riveting reading. Perhaps part of my reaction follows from the fact that Paul has been a wonderful colleague since I joined GW in 2001, so I trust him and I have no doubt he is telling the truth. But If so, that's only part of it: It is really a very well told story.

   In the part of the book I haven't read yet, Paul then uses that story as a launching point to discuss his views of race in the criminal justice system, jury nullification, and the war on drugs. I assume I'll disagree with Paul about a lot of it, as he and I come from pretty different perspectives on these issues. But for now I just wanted to flag the first chapter. Whatever your views, it really should be required reading for law students interested in the criminal justice system.
Losantiville:
Website for the book here.

How did I guess the author's race in advance?
5.28.2009 3:24pm
Yikes (mail) (www):
This blog is definitely a bit more on the conservative (whatever that means) end of things, relative to the blogs I ordinarily read. But I generally like the change of pace. And I like the topics posted on here, by an interesting group of Conspirators. Generally, I like this site on the whole.

But what is up w/ the just-under-the-surface racism going on w/ the commenters on here recently? I know commenters try to frame it as I'm-not-racist-I'm-just-telling-it-like-it-is. Or whatever. But yikes.
5.28.2009 3:48pm
JE:

How did I guess the author's race in advance?


Probably when Orin wrote:


he himself was arrested, charged, and went to trial for simple assault in DC Superior Court thanks to a vindictive and mentally unstable neighbor and a DC cop who took the stand and lied about what he saw.


When that happens to you, it usually means you woke up black that day.
5.28.2009 4:02pm
Commenterlein (mail):
Yikes,
Just wait till the next threat about torture. That really brings out the nuts.
5.28.2009 4:02pm
A. Zarkov (mail):
It seems to me that a lawyer advocating jury nullification is skating on ethical thin ice. Courts tell jurors that their job is decide the facts of the case and not judge the law or the fairness of the possible penalty. Many jurors don't really understand that they can find a defendant not guilty for any reason, or no reason, and not suffer a penalty. They don't have to justify their verdict, just give it. Judges will often get angry at the mere mention of the phrase "jury nullification" and tell a jury that there is no such thing.
5.28.2009 4:02pm
Constantin:
But what is up w/ the just-under-the-surface racism going on w/ the commenters on here Supreme Court nominees recently? I know commenters wise Latinas try to frame it as I'm-not-racist-I'm-just-telling-it-like-it-is. Or whatever. But yikes.
5.28.2009 4:07pm
Tom952 (mail):
Americans of all ethnic backgrounds have been falsely accused, prosecuted, and sometimes convicted. It is a problem for all Americans, not a black civil rights problem.
5.28.2009 4:10pm
Laura Victoria (mail):
Just put the book in my shopping cart on Amazon. Sounds terrific. But believe me, as a middle aged white woman, these same things can happen. Most police abuse is not racially motivated, it's ego-driven by cops on a power trip and DAs who routinely break the law by a win at all costs vs. seeking justice mentality. It is then aided and abetted by judges whose entire pre-judicial careers were spent as low-level prosecutorial drones.
5.28.2009 4:10pm
A. Zarkov (mail):
"When that happens to you, it usually means you woke up black that day."

It could also have something to do with the extremely high black crime rate, and not a biased justice system.

The New Jersey Turnpike matter provides a good example. To refute the false claim that the police stopped black drivers for speeding more often than white drivers out of prejudice alone, a carefully controlled set of measurements was taken. It turns out that on the New Jersey Turnpike blacks do speed more often than non-blacks. The DOJ did its best to find flaws with the study, but couldn't. DOJ even tried to suppress the results of the study, but the Bergen Record leaked the report.
5.28.2009 4:11pm
PC:
It seems to me that a lawyer advocating jury nullification is skating on ethical thin ice.

Really?

"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, State Of Georgia v. Brailsford, 1794
5.28.2009 4:11pm
Laura Victoria (mail):
YIKES. I am basically a consistent civil libertarian, which means I wind up agreeing and disagreeing with both "liberal" and "conservative" legal commentators. I'm not familiar with many liberal legal blogs, though. Might you suggest some? Thanks.
5.28.2009 4:13pm
tbaugh (mail):
"Most police abuse is not racially motivated, it's ego-driven by cops on a power trip and DAs who routinely break the law by a win at all costs vs. seeking justice mentality. It is then aided and abetted by judges whose entire pre-judicial careers were spent as low-level prosecutorial drones."

Speaking as a current "prosecutorial drone," you speak of a system with which I have been unfamiliar for 34 years (throughout my career we have dismissed cases where appropriate, confessed error on appeal where appropriate, and prosecuted vigilently, as is our duty).
5.28.2009 4:21pm
Nathan_M (mail):

YIKES. I am basically a consistent civil libertarian, which means I wind up agreeing and disagreeing with both "liberal" and "conservative" legal commentators. I'm not familiar with many liberal legal blogs, though. Might you suggest some? Thanks.

Balkinization and Dorf on Law are both excellent.
5.28.2009 4:22pm
Gabriel McCall (mail):
It seems to me that a lawyer advocating jury nullification is skating on ethical thin ice.

Why so? Angering the judge isn't malum in se. Advocating jury nullification is only unethical if jury nullification is itself unethical- a highly questionable stance, given such historical examples as the Zenger libel case, the nullification of the Fugitive Slave Laws, and the role of nullification in the repeal of Prohibition.
5.28.2009 4:23pm
levisbaby:

It could also have something to do with the extremely high black crime rate, and not a biased justice system.

And the fact that you would say that could have something to do with your racial views, rather than reality.
5.28.2009 4:26pm
A. Zarkov (mail):
PC:

Really?

Yes. Next time you are on a jury, try asking about jury nullification and see how the judge reacts. If a lawyer tells the jury to ignore the law (and possibly the facts as well) and decide the case based on what they believe is right, that lawyer is in essence trying to subvert the system of justice.
5.28.2009 4:27pm
Dave N (mail):
tbaugh,

I second you thought. As a similarly situated "prosecutorial drone" (though without as many years of experience as you have), my experience is that the overwhelming majority of prosecutors do not have a win-at-all-costs mentality and take their ethical responsibilities seriously.

I would add that few other things make a prosecutor (or "cops on power trips") look worse than if he or she prosecuted someone only to have someone else credibly confess to the same crime sometime later.
5.28.2009 4:32pm
PC:
Dave N, from your lips to Mississippi's ears.
5.28.2009 4:35pm
Gabriel McCall (mail):
If a lawyer tells the jury to ignore the law (and possibly the facts as well) and decide the case based on what they believe is right, that lawyer is in essence trying to subvert the system of justice.


If you believe that juries have no right to judge the law, then nullification is a subversion of justice. On the other hand, if you believe that juries do have a right, or even a duty, to judge the law, then attempting to deny them that right is a subversion of justice.

John Jay said that "The jury has the right to judge both the law as well as the fact in controversy." Was the first Chief Justice of the United States Supreme Court subverting the law?
5.28.2009 4:36pm
A. Zarkov (mail):
levisbaby:

"And the fact that you would say that could have something to do with your racial views, rather than reality."

What is the reality? Is my statement false?

This article gives the details of the New Jersey Turnpike speeding study. Everyone was so sure that blacks did not speed more than non-blacks until the data came out.
The institute proposed a solution to the impasse: Let us submit the study to a peer-reviewed journal or a neutral body like the National Academy of Sciences. If a panel of our scientific peers determines the research to be sound, release the study then. No go, said the Justice Department. That study ain't seeing the light of day.
But then the Bergen Record leaked the study and DOJ could no longer suppress the facts.
5.28.2009 4:37pm
Gabriel McCall (mail):
5.28.2009 4:43pm
Cornellian (mail):
I used to take a dim view of jury nullification, but a relentless tide of prosecutorial overreaching, an insane war on Americans who take drugs and various other things are slowing turning my views around.
5.28.2009 4:44pm
Cornellian (mail):
Of course I meant "slowly" not "slowing."
5.28.2009 4:45pm
A. Zarkov (mail):
Gabriel McCall:

"John Jay said that "The jury has the right to judge both the law as well as the fact in controversy." Was the first Chief Justice of the United States Supreme Court subverting the law?"

I see we have an originalist here. The jury power to nullify the law is a power implicit in their authority to render any verdict without reprisal. Nor can the judge reverse an innocent verdict. But they don't enjoy that power explicitly, and anyone who advocates that juries simply substitute their law for the state's law is subverting the law.

The narrow answer to your question is "no."

As I said try asking about jury nullification the next time you are in court and see what happens.
5.28.2009 4:46pm
A. Zarkov (mail):
Gabriel McCall:

Full disclosure. I'm playing devil's advocate here. I'm really a closet nullifier. Shhh. Don't tell anyone.
5.28.2009 4:49pm
Cornellian (mail):

As I said try asking about jury nullification the next time you are in court and see what happens.

I wonder if that would get you out of jury service.
5.28.2009 4:49pm
rarango (mail):
Tom 952: I think the Duke Lacrosse players might agree with you.
5.28.2009 4:51pm
PC:
I wonder if that would get you out of jury service.

I'd guess one of the quickest ways to get out of jury duty is to say you believe in the right of jury nullification.
5.28.2009 5:00pm
krs:
Different states have different views on jury nullification.

Florida standard jury instructions tell jurors not to nullify.

By contrast, Art. 23 of the Declaration of Rights in the Maryland Constitution seems to declare a right to have juries nullify if they think it appropriate to do so.

My own view is that jury nullification is inconsistent with the rules of evidence--we keep lots of things away from the jury in order to keep them focused on the narrow question whether the prosecution proved the elements of the crime beyond a reasonable doubt; if we want juries to look beyond that to the broader justice of the matter, then we should allow them a fuller picture and not keep from them things like character evidence and prior bad acts.

I feel like this was discussed on the blog a long time ago.
5.28.2009 5:02pm
byomtov (mail):
What is the reality? Is my statement false?

Yes. It is false.

Why should a high crime rate among blacks make false accusations against blacks more likely?

Why should that make police more willing to lie, and prosecutors to present silly cases, in matters involving black defendants?
5.28.2009 5:06pm
NaG (mail):
Judges (and most lawyers) hate jury nullification because it basically means that a jury is deciding on its own not to enforce a law that was enacted by the duly-elected legislature and (usually) approved by the executive branch. It is akin to saying, "Yes, I know the defendant is guilty/liable, but I'm letting them off anyway." It is the ultimate activist act to refuse to apply a duly-enacted law. It's no wonder that judges, who are charged with applying the law, chafe at the suggestion that the law should be summarily ignored in a particular case.

Personally, I sympathize with the concept of jury nullification. Laws are not perfect, nor always just, and there can be cases where fair-minded jury members may very well conclude that to follow the law in a particular instance is counter to the goals of justice -- a "three strikes" situation over the stealing of a loaf of bread comes to mind. However, I get uncomfortable with the idea of juries being advised that they can ignore the law if it suits them. The answer to a bad law is to push for the legislature to change the law, not to arbitrarily ignore it. Otherwise, while there may be laws that many of us would agree should not be enforced, the principle would similarly allow juries to nullify laws that people WOULD want enforced. Some would say that the O.J. Simpson acquittal was jury nullification in action, after all. It's not always a good thing.

So, I guess I find myself closer to the judge than to the nullification side of this. If you want to teach jury nullification, do it in high school as part of civics class -- not in the courtroom during closing argument, or during voir dire. And be prepared to get some results you may not like.
5.28.2009 5:10pm
Thales (mail) (www):
Butler has written extensively about (and encouraged the practice of, as Orin notes) jury nullification. It has been controversial whether nullification is a right or merely a power (or whether this distinction has any meaning in the context of juries) since before Penn &Mead's trial and the subsequent Bushell's Case (appeal by the head juror of the prosecution for rendering a "false" verdict) cemented it as a permanent fixture of Anglo-American criminal law. So it appears in a number of state constitutions, and is arguably implicit in the 6th Amendment.

David Simon and the co-writers of The Wire recently advocated jury nullification for all nonviolent drug offenses, since it seems to be impossible to make legislatures see reason on the failed war on drugs (thankfully the President's new drug czar seems to be moving away from a criminal model). I have a hard time disagreeing with his campaign.
5.28.2009 5:11pm
loki13 (mail):
Gabriel McCall wrote:

London's automatic traffic cameras are racist, too.


From the article:
"The technology allows car registration plates to be scanned and automatically run through databases to determine whether a vehicle is stolen, uninsured or has not had its road tax paid. . . . The Met has deployed six mobile ANPR camera units in the capital, primarily in areas with high levels of street crime."

In related news, a pilot program from the FBI set up to catch ne'er do-wells who are guilty of insider trading, fraud, misappropriation of TARP funds, and other "white collar" crime by the automated use of cameras in Greenwich, Jupiter Island, and Scarsdale to match vehicles with asset lists has come under fire from Fox News because of the racial imbalance of 99.8% of the arrestees being white.
5.28.2009 5:17pm
Jeff R.:
How many nonviolent drug offenses are actually tried by a jury, though? Nullification isn't going to do diddly in categories that are almost always plea-bargained to one extent or another...

(Now, a mass movement amomg public defenders and/or potential defendants to demand jury trials for all such , every time, now that would have some potential...)
5.28.2009 5:19pm
NaG (mail):
From Butler's web site for his book: "Specifically, [Butler] argues that the race of a black defendant is sometimes a legally and morally appropriate factor for jurors to consider in reaching a verdict of not guilty or for an individual juror to consider in refusing to vote for conviction. Professor Butler argues that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison. He believes that the decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers."

So here, Prof. Butler is arguing for jury nullification based on ethnicity, not on whether a given law is just or not. I would think that this would give many pro-nullification people pause.

Moreover, if Prof. Butler's theory were to become popular, I wonder whether that would make it easier for prosecutors to overcome Batson challenges on the basis that minority jurors are more likely to acquit defendants of the same ethnicity based on this theory of nullification. Given the choice between striking jurors based on ethnicity and wholesale nullification of the law, judges would opt for the former over the latter.
5.28.2009 5:19pm
levisbaby:
Suree, Zarkhov, there is no prejudice among police departments and black men are no more likely to be targeted for harassment than any other group.

It would be refreshing if you had the balls to just say "I don't like black people". At least then you would be honest.
5.28.2009 5:20pm
LoopFiasco:
Okay - a jury in central IL recently acquitted a man for possession of marijuana plants which NOBODY CONTESTED HE HAD because the man, a veitnam vet with injuries and PTSD said it helped him live his life. Medical marijuana is not legal. In fact, there is solid precedent against even using a medical necessity defense to a charge of possession for cannabis. (People v Kratovil) Nevertheless, the man testified in his own defense and gave his reasons for doing what he did.

The 'law' said 3-5 yrs. The Jury said "thats fkn stupid."

I agree with the jury.

And yes i know it goes both ways - but this isn't 1955 and we ain't in Birmingham Alabama no more.

Bring nullification back already. Let's end this war on (some) drugs in the jury box!
5.28.2009 5:22pm
Crackmonkeyjr (www):
Cornellian: The last time I was called for jury duty (about 6 years ago), I indicated that I supported jury nullification. Even though I followed up by saying that I would likely not have any objection to applying the law in that particular case, which was a homicide case, I was sent home almost immediately.

Of course I now oppose jury nullification, since I see it as doing more harm than good, although I recognize that there isn't all that much that can be done to avoid it.
5.28.2009 5:22pm
Le Messurier (mail):

"As I said try asking about jury nullification the next time you are in court and see what happens."

Mentioning it while still in the jury pool is a great way to get dismissed from jury duty.

My own view as a non-lawyer is that Judges and lawyers administer/decide/determine the law; and the jury determines the justice in a given case. And I fervently believe that justice trumps the law even if it gets a judge angry. As someone said before here, juries do not need to justify their decision.
5.28.2009 5:22pm
Bad English:
Yikes:

Just for good measure, stick around for the next mention of Sarah Palin. You ain't seen nothing yet.
5.28.2009 5:25pm
NaG (mail):
Thales: The legislatures that aren't willing to undo the War on Drugs are not assembled in a vacuum. Hordes of voters elected the members of those legislatures -- majorities, in fact. If ending the drug war was a major issue for voters, they would be electing politicians with that position. So far, they are not. And I say this as someone who generally equates the drug war with the experience of Prohibition.

Here's a query for you. Which do you trust more: the decision of a single juror to not enforce a law, or the decision of a majority of legislators elected by respective majorities of their districts, along with the approval of an executive also elected by a majority of the entire jurisdiction? While I would certainly submit that it is possible for one person to be "right" and the majority to be "wrong," how often are you willing to subvert the majority? And are you willing to do this for all laws or just some?
5.28.2009 5:32pm
RichW (mail):
Tbaugh and Dave N - I would suggest that you go to traffic court in NJ which is viewed as a revenue enhancement system for the towns. The cops pull the over the prosecutor offers to drop the moving violations for a non-moving violation which just happens to be the same ticket price. And if you do not think that the towns don't plan it into their budgets you are naive. It is also common in NY and Vermont based on personal experience.

Few if any respect the legal system, when it comes to traffic violations and in NJ many have no respect for any part of it.

Oh, just to make it clear I am not a lawyer or police but know many and listen to their own small talk.
5.28.2009 5:51pm
Gabriel McCall (mail):
In related news, a pilot program from the FBI set up to catch ne'er do-wells who are guilty of insider trading, fraud, misappropriation of TARP funds, and other "white collar" crime by the automated use of cameras in Greenwich, Jupiter Island, and Scarsdale to match vehicles with asset lists has come under fire from Fox News because of the racial imbalance of 99.8% of the arrestees being white.

Addressed and dismissed in the same article.


It reveals that between April 2005 and January this year the units generated 2,023 arrests. Of these 923 [46%] were black suspects, while 738 (36%) came from white backgrounds. Asians accounted for just over 9% of arrests.

...

Last week the Met attempted to explain the high number of arrests among blacks by the fact that they make up a higher proportion of the population in areas such as Southwark and Lewisham in south London, where the ANPR units operate.

However, statistics from the 2001 census show that the highest black population in any borough is no greater than about 25%. The proportion of black people across the capital as a whole is about 11%.
5.28.2009 5:53pm
bonze (mail):

NaG:

If ending the drug war was a major issue for voters, they would be electing politicians with that position.


E.g., one Barack Obama... who prior to his election had stated that the War on Drugs was a big mistake.

OK, the Obama administration's new Drug Czar Gil Kerlikowske has announced we will no longer refer to it as a "War on Drugs", but 99% of the policies will remain in place. Not: "We intend to re-examine the scheduling of marijuana under the Controlled Substances Act in order to make it available to patients for whom it is medically indicated." Instead we are told: "Legalization isn't in the president's vocabulary, and it certainly isn't in mine."

"Change? Yeah, I got change." [She walks away...] -- Slacker.
5.28.2009 5:59pm
Thales (mail) (www):
"Here's a query for you. Which do you trust more: the decision of a single juror to not enforce a law, or the decision of a majority of legislators elected by respective majorities of their districts, along with the approval of an executive also elected by a majority of the entire jurisdiction? While I would certainly submit that it is possible for one person to be "right" and the majority to be "wrong," how often are you willing to subvert the majority? And are you willing to do this for all laws or just some?"

Just in those cases that a) involve wholly consensual behavior (nonviolent drug offenses), b) where the path to reform through the political process is dead letter and c) where the law in question does a great deal of social harm and diverts public resources away from more pressing problems, as I believe the war on drugs does on any rational evaluation of our experience with it.
5.28.2009 6:03pm
glangston (mail):
Remember the first rule of Fight Club?


Same with Jury Nullification.
5.28.2009 6:07pm
NaG (mail):
Thales: Okay. But how are you going to enforce those limits on jurors? If you approve of jury nullification, then ALL laws can be nullfied, not just some. Are you willing to allow that?

bonze: Well, then, if ending the drug war is of high importance to a majority of voters, then I would expect a nationwide backlash against President Obama's change in position. So far, I'm not seeing it. Same goes for President Obama's shift on Iraq and his general adoption of most of President Bush's anti-terrorism policies.
5.28.2009 6:12pm
loki13 (mail):

Addressed and dismissed in the same article.


No, not really. Without looking at the demographic information of, say, Greenwich, I can safely assume that it is not 100% white (there is a need for a few workers, and some might even live within the confines). However, the percentage of people who would commit the crimes being sought out (financial crimes) combined with the location might lead the result of almost all people apprehended being white. You follow now? Or is it still too basic?

This is the problem with racial conversations in America. To acknowledge (as is true) that most stranger (aka street) drug sales are performed by minorities is verboten on the left. OTOH, the right doesn't want to talk about selective enforcement. When I resided recently in a college town, it was easy to see this first hand. The rate of drug use between the white and black community was the same. The rate of drug sales between the white and black community was the same. But the enforcement? Almost all enforcement resources were targeted on "one side of town" (the black side) while ignoring the high rate of drug use by, inter alia, the denizens of the sprawling college campus and the middle class areas. Moreover, the penalties were often disproportionate- first time offenders from "good families" (middle class or upper class, usually white) were often given opportunities through diversion programs (if they were charged at all) that did not exist for for first time offenders from "bad families" (lower class, usually black).

In addition, the increased level of enforcement in the other side of town led to a higher level of scrutiny and over-enforcement of laws that were not enforced in other parts of town, and a general feeling of harassment even for law-abiding citizens (walking on the wrong side of the road?).

And the cycle goes on. Unfortunately, neither "all difference in statistics are racism!" or "the statistics are right, blacks just commit more crimes" is really an adequate or correct response to a real structural problem. Such nuance doesn't fit in well with our current talking point divide, however.
5.28.2009 6:14pm
Thales (mail) (www):
"Okay. But how are you going to enforce those limits on jurors? If you approve of jury nullification, then ALL laws can be nullfied, not just some. Are you willing to allow that?"

I don't think there is a choice about that--as discussed above, it's at least a power of the jury, if not a right. I was merely expressing my own convictions about when I think it makes sense to wholesale nullify on the basis of the propriety of the law in question (as opposed to a law's application to a particular defendant, or other facts about the government's conduct that may come to light in a trial, for example).
5.28.2009 6:18pm
Oren:

As I said try asking about jury nullification the next time you are in court and see what happens.

The power of the jury to nullify (not in question) does not mean that counsel have the right to make an argument based on it.

It's perfectly consistent for a judge to say "the jury has the power to nullify, but if they are to do so, they must do so of their own initiative and I'm not going to allow lawyers to argue it".
5.28.2009 6:27pm
Oren:

But the enforcement? Almost all enforcement resources were targeted on "one side of town" (the black side) while ignoring the high rate of drug use by, inter alia, the denizens of the sprawling college campus and the middle class areas.

This is a well-known fact, but I thought it springs from the greater legal protection that wealthier folk have courtesy of the 4A. As Orin pointed out, the rich can afford much more "reasonable expectation of privacy" than the poor.
5.28.2009 6:29pm
loki13 (mail):

But the enforcement? Almost all enforcement resources were targeted on "one side of town" (the black side) while ignoring the high rate of drug use by, inter alia, the denizens of the sprawling college campus and the middle class areas.


This is a well-known fact, but I thought it springs from the greater legal protection that wealthier folk have courtesy of the 4A. As Orin pointed out, the rich can afford much more "reasonable expectation of privacy" than the poor.


Hmmmm..... good point. I thought it was because college kids didn't do drugs.
5.28.2009 6:30pm
A. Zarkov (mail):
levisbaby:

"Suree, Zarkhov, there is no prejudice among police departments and black men are no more likely to be targeted for harassment than any other group.

It would be refreshing if you had the balls to just say "I don't like black people". At least then you would be honest."


I can't say what all police departments do. What I can say is that in certain specific instances such as the NJ Turnpike, the accusations are unfounded. You seem to think that the mere assertion that police departments target blacks is enough evidence. Moreover calling me names does not give your arguments credibility.

You have to realize that the NJ Turnpike accusation was a big deal, and lots of people would talk about the dangers of "driving while black." The DOJ's attempt to suppress the "inconvenient truth" should give us pause and make us at least suspicious about accusations.
5.28.2009 8:47pm
A. Zarkov (mail):
byomtov:

"Why should a high crime rate among blacks make false accusations against blacks more likely?"

Because actual high crime from an identifiable group creates an expectation of future crime. People are like that. They form expectations based on experience and that hypersensitivity leads to mistakes.
5.28.2009 8:51pm
Ricardo (mail):
Because actual high crime from an identifiable group creates an expectation of future crime. People are like that. They form expectations based on experience and that hypersensitivity leads to mistakes.

Yes, which is exactly why our system of justice should be very sensitive to any accusations of racial bias. My African-American roommate in college (and he really was African-American -- the son of a Nigerian army officer who immigrated to the U.S.) got stopped by police on several occasions while walking around campus late at night. He was walking from the library where he was doing some late-night studying to the dorm.

I think he laughed off these encounters for the most part -- I don't remember him saying that the police were particularly disrespectful. On the other hand, that kind of thing grates on a person after a while.
5.28.2009 9:31pm
PeterWimsey (mail):
It seems to me that people who live in states where jury nullification is not a right specifically granted to juries - which I think is every state except for IN, MD, and AZ - have either an overly-romantic view of nullification, or else an overly fearful view of it.

In IN, a defendant is even entitled to an instruction informing the jury that they are the judge of the law and the facts. But, in practice, I don't think that results here are any different than results in non-nullification states. Juries just really aren't that interested in finding reasons to let criminals get away with crimes, and a crusade for jury nullification just won't resonate with most people who serve on juries, except in rather unusual circumstances.
5.28.2009 10:02pm
Blue:
"When that happens to you, it usually means you woke up black that day."

I'd generally agree with this sentiment...but not necessarily in DC!
5.28.2009 10:33pm
Mr. X (www):
It seems to me that a lawyer advocating jury nullification is skating on ethical thin ice. Courts tell jurors that their job is decide the facts of the case and not judge the law or the fairness of the possible penalty. Many jurors don't really understand that they can find a defendant not guilty for any reason, or no reason, and not suffer a penalty. They don't have to justify their verdict, just give it. Judges will often get angry at the mere mention of the phrase "jury nullification" and tell a jury that there is no such thing.



Ethically, I think a lawyer can argue in favor of jury nullification outside the courtroom. Within the courtroom one risks a contempt citation.
5.29.2009 3:47pm
EPluribusMoney (mail):
How did I guess the author's race in advance?

Because he wrote a Hip Hop Theory of Justice.
5.29.2009 10:33pm
A. Zarkov (mail):
"Ethically, I think a lawyer can argue in favor of jury nullification outside the courtroom."

Not with regard to a particular on-going case where his arguments could influence the sitting jury. If the jury were sequestered that would be something else.
5.30.2009 5:36pm

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