September 4, 2013

"Jury Nullification vs. The Drug War: NJ Weedman on His Unlikely Marijuana Acquittal."



"I should be 10 months into a 10-year prison sentence," says Ed Forchion aka NJ Weedman. 'The only reason I'm standing here is because I happened to know about jury nullification. And I used it.'"

116 comments:

Robert Cook said...

More people need to know about jury nullification. It's one of our few actual means to exercise real and immediate power.

Matthew Sablan said...

A thing I completely, 100% agree with Cook on.

John said...

Good!

We need more education about jury nullification.

Everyone who serves on a jury should be given a pamphlet explaining what it is, how it works.

John Henry

donald said...

Right on man.

SGT Ted said...

I concur with Cook and Matt. Jury nullification is a good check on the courts.

MadisonMan said...

To live with bone cancer for 13 years is something noteworthy. My brother lasted scant months.

He didn't -- to my knowledge -- use marijuana to alleviate his pain/nausea. It might have helped.

I see nothing wrong about NJ Weedman's approach. Kudos to him. It's completely bogus that he was pulled over for having a wheel over a white line to begin with.

MadisonMan said...

There's a lot of anti-lawyer animosity in America...I capitalized on that.

(laugh)

MadisonMan said...

And how could the Prosecutor try him again after acquittal? Does Double Jeopardy not fit here?

I can see the Prosecutor being pissed off by Jury Nullification. (I'm really crying real tears here for him or her -- honestly!!!) So I suspect he went and tried him on something different. A little overreach, IMO.

MadisonMan said...

By the way -- my last post (Honest!) -- why have that big clock in the background if it isn't working! It shows the same time during the whole 10-minute interview.

(I do like that it's set at 4:20, of course).

traditionalguy said...

Jury nullification is always there, but it takes a good case and a skilled talker to get 12 for acquital. this guy did it on the second try, the DA having retried the hung jury first result.

He did it by good opening statement, and he used the non-lawyer trick accusing the lawyers of all being against him, even the public defender.

But it is a rare case that will have everything going for him. As he said, the first thing is to get the jury to view you as not a criminal. It helps not to be a criminal.

William Chadwick said...

While Garry Wills has a heart attack . . .

Strelnikov said...

Right on, Weedman. Best superhero name, ever.

jr565 said...

A lot of those white racists used jury nullification when it came to protecting their white brethren who killed black folk in the 60's. How does Cook feel about that?

Larry J said...

I strongly support the jury's right to refuse to convict someone charged with violating a bad law. It's the ultimate veto authority by the people.

Oso Negro said...

Remember this if you are charged with failure to comply with Obamacare rules.

garage mahal said...

Jury nullification: The real power of the people.

jr565 said...

I actually served on a jury once where two of the members who were black, refused to find someone guilty, despite plain evidence that he was, because he was black (even though his victims were also black). It was complete bullshit.

We are a nation of laws. Anyone, can cite nullifcation to overturn any and all results.

Even if you disagree with the law being illegal, nullifying the law based on your own personal morality is often exremely problematic.

madAsHell said...

The pot I smoked never took my pain away. There must be something else going on.

jr565 said...

This was posted on Instapundit. It was about the disturbing trend of public officials outside the judicial system are declaring laws unconstitutional.

A Nation Of Laws, Not Men


But in fact, isn't jury nullification an offshoot of this same exact trend. Jurists taking it upon themselves to say what is or isn't a bad law.

As Larry says:
"I strongly support the jury's right to refuse to convict someone charged with violating a bad law. It's the ultimate veto authority by the people."

Larry, you are not a member of the legislature and it is not your call as to say what is or isn't a bad law. if you are using the jury room to enact or repair social policy you don't like. It's to follow the law.

Conservatives are pissed that Obama is picking and choosing what portions of the law to follow when it comes to his health care. But if you are arguing that it's ok for you as a juror to say what laws are bad and find people innnocent simply because you don't like the law, then you are engaging in tyranny.

Conservative justices say its not their job to make public policyw while on the supreme court, its their job to follow the law even if that means it continues a policy they don't agree with.

That is a standard you should take to a jury room. You are not there to dtermine whether a law is just or not, and if you are using the jury room to effect social change at the expense of the law, they you are engaging in tyranny and should not be seated on a jury.

prairie wind said...

Being a nation of laws doesn't mean all the laws are good nor does it mean all the laws are applied in ways that make sense.

Bruce Hayden said...

There is something very fundamentally American about jury nullification. It was used at our founding against the British apparently on multiple occasions by some of our founding fathers.

The basic problem seems to be that juries most often don't know about it, and courts try to keep them ignorant (supposedly part of the reason that attorneys are excluded from criminal jury duty in many jurisdictions). Judges routinely deny requests for jury nullification jury instructions, and are just as routinely upheld on appeal.

Finally, as far as I know, once a jury comes back with a not guilty verdict, whether it was on the facts, or due to jury nullification, that should be it for prosecution by that sovereign. Jepardy attached when the jury was instructed, and retrying him would be double jepardy.

PoNyman said...

MadisonMan said...
By the way -- my last post (Honest!) -- why have that big clock in the background if it isn't working! It shows the same time during the whole 10-minute interview.


Awesome catch on the 4:20pm. That made me curious and here is what Wikipedia had to say:
420, 4:20, or 4/20 (pronounced four-twenty) is a code-term used primarily in North America that refers to the consumption of cannabis and by extension, as a way to identify oneself with cannabis subculture or simply cannabis itself. Observances based on the number 420 include smoking cannabis around the time 4:20 p.m. (with some sources also indicating 4:20 a.m.[1][2]), on any given day, as well as smoking cannabis on the date April 20 (4/20 in American form).[3]

Virgil Hilts said...

Bruce Hayden is correct. But I often thought it would be fun to go stand outside the courthouse and hand jurors entering for jury duty a one page short description of jury nullification (since judges and prosecutors do not want jurors to know what power they really have).

jr565 said...

prairie wind wrote:
Being a nation of laws doesn't mean all the laws are good nor does it mean all the laws are applied in ways that make sense.

Well how are you determining what laws are good and not good? If I don't think burglary laws are good, I can simply not follow them and rob your house?
every one can make distinctions as to what laws are good and not good, and which ones are applied in ways that don't make sense (to them).
So then what, what laws do we actually have to follow, according to you?


jr565 said...

Bruce Hayden wrote:

Finally, as far as I know, once a jury comes back with a not guilty verdict, whether it was on the facts, or due to jury nullification, that should be it for prosecution by that sovereign. Jepardy attached when the jury was instructed, and retrying him would be double jepardy.


Jury nullifcation undermines the rule of law and the concept of a fair trial.
If the very legality of the law is arbitrary and determined by juries then trying people for violating laws becomes arbitrary.

If for example the case is about environmental terrorism, and you get a juror on the jury that thinks that corporations are evil and should be punished for their environmental sins, then they can simply nullify the jury verdict based on their own preferences, and not on because the person on trial is guilty or not guilty of what he's on trial for.

When Byron De La Beckwith killed Medgar Evers a white jury refused to find him guilty because of jury nullification. Are we supposed to applaud that?

jr565 said...

this is exactly what the gay marriage proponets did. They simply ignored the law and married gays. Then said since they were married it would be unlawful to have their marriages oveturned. That is complete bullshit and a completely unfair way to get laws passed.
Why have legislatures then? Why have constitutions?
Sorry if you find laws to be stupid, or wrongly applied. Tough titty.Who are you that you can circumvent laws simply because you don't like them?

Unknown said...

Hey, jr65,

I used to be a law and order type of guy but that has changed. I have already decided taht I will not ever convict a person of a non-violent crime that he has comitted against the government (think of perjury or tax evasion). When the government and it's lackeys (i.e., the DOJ thugs, the IRS thugs, the police gangs, etc) start following the rule of law, I will once again vote to enforce it. In it's current state, not gonna happen! You can moan all you want about how this degrades the American legal system, but just like all of us who pay taxes, pay their bills and work hard have been shown to be chumps, so too, have those who think the government is going to tell you the truth about anyone it is prosecuting. Fuck them all. Nullification uber alles!

raf said...

Jury nullification would not be effective if it were over-used. I don't agree that juries should be instructed on jury nullification, they should be instructed to apply the law. When a case is egregiously unfair, the jury can vote to acquit notwithstanding the law, but they should know that they are taking an extreme action and be reluctant to do so. Otherwise, jury trials are reduced to a popularity contest and that leads to bad results, e.g., Jim Crow era lynching acquitals, OJ, etc.

MadisonMan said...

A lot of those white racists used jury nullification when it came to protecting their white brethren who killed black folk in the 60's.

Because x was used to a bad end in the distant past, I can't use x now. That is the crux of your argument? Then surely you are for reparations for Blacks now, based on their treatment before the Civil War.

Nonsense.

jr565 said...

All it takes to show that jury nullification is wrong is to find an example of a law you don't think is unjust and a case where someone is being tried legitimately because they violated that law. And then have a jury find that person not guilty because of jury nullification in that case.

Larry J said...

jr565 said...

But in fact, isn't jury nullification an offshoot of this same exact trend. Jurists taking it upon themselves to say what is or isn't a bad law.

As Larry says:
"I strongly support the jury's right to refuse to convict someone charged with violating a bad law. It's the ultimate veto authority by the people."

Larry, you are not a member of the legislature and it is not your call as to say what is or isn't a bad law. if you are using the jury room to enact or repair social policy you don't like. It's to follow the law.


Sorry, but it damned well is my place to say whether a law is bad. That's my responsibility and right as a citizen. My respect for most lawmakers is even lower than for lawyers and judges. Don't bother trying to justify something just because it was enacted by a legislature. Would you claim that all laws are reasonable and just? Or that all prosecutions are justified and equally applied? If so, you're either dangerously naive or a would-be tyrant. Jury nullification is the citizen's last tool against tyranny.

Can jury nullification be abused? Sure, so can everything else including the legislative and prosecution process. Ultimately, nullification is the public's veto authority over the legislatures, lawyers and judges.

MarkD said...

There are FAR too many laws, many of which can be used to punish someone who had no intent to break the law, or who has harmed no one. This ought to be far more common.

jr565 said...

George Jung from Blow:
"Alright. Well, in all honesty, I don't feel that what I've done is a crime. I think it's illogical and irresponsible for you to sentence me to prison. Because, when you think about it, what did I really do? I crossed an imaginary line with a bunch of plants. I mean, you say I'm an outlaw, you say I'm a thief, but where's the Christmas dinner for the people on relief? Huh? You say you're looking for someone who's never weak but always strong, to gather flowers constantly whether you are right or wrong, someone to open each and every door, but it ain't me, babe, huh? No, no, no, it ain't me, babe. It ain't me you're looking for, babe. You follow?
Judge in response to his inanity:
Judge: Yeah... Gosh, you know, your concepts are really interesting, Mister Jung.
George: Thank you.
Judge: Unfortunately for you, the line you crossed was real and the plants you brought with you were illegal, so your bail is twenty thousand dollars.


This guy should be in jail too.


jr565 said...

Larry J wrote:
Sorry, but it damned well is my place to say whether a law is bad. That's my responsibility and right as a citizen. My respect for most lawmakers is even lower than for lawyers and judges. Don't bother trying to justify something just because it was enacted by a legislature. Would you claim that all laws are reasonable and just? Or that all prosecutions are justified and equally applied? If so, you're either dangerously naive or a would-be tyrant. Jury nullification is the citizen's last tool against tyranny.

Or to commit tyranny.
Whites used jury nullification to get off whites who lynched blacks because they didnt' want to see their buddies get charged with crimes.
That's not tyrannical.
And I'm not saying you can have no opinion on laws. It's not your right to sabotage a case though because of your personal preference. And the jury trial is not the place for you to do your little social engineering. Who the hell are you?

jr565 said...

Madison Man wrote:
Because x was used to a bad end in the distant past, I can't use x now. That is the crux of your argument? Then surely you are for reparations for Blacks now, based on their treatment before the Civil War.


Everyone has a law they don't like. How is your jury nullification over laws you don't like different than that other guys jury nullification of a law you agree with?

Opinions are like assholes. Everyone's got one. And everyone has opinion about laws being just or unjust.

Edward Lunny said...

Several comments here question jury nullification as regards lawfulness. Mr. Forchion did state, correctly, that jury nullification is a double edged sword. He is not oblivious to the possibility of misuse. And yes, we, citizens, should question the validity of every, indeed any, law. We are after all citizens not subjects, Obama's behaviours and actions notwithstanding. We should not blindly follow laws that we do not feel are of benefit to society. We must also understand that disregarding those laws, jury nullification is not guaranteed. And ,yes, prosecutors and judges are not necessarily looking out for your best interests, nor are law enforcement personnel. Nor the legislators and bureaucrats who write so much of this rubbish. Should you find yourself on the wrong side of a bad law, one should make use of every tool available. Should you be an advocate of jury nullification, and should you be called for jury duty, know that the mere mention of jury nullification during the interview process will get you dismissed immediately. Apparently the citizenry having such power does not sit well at all with the legal profession.

jr565 said...

MarkD wrote:
There are FAR too many laws, many of which can be used to punish someone who had no intent to break the law, or who has harmed no one. This ought to be far more common.

A jury trial is about whether someone is innocent or guilty of violating a law. Not whether there are too many laws. Legislators write laws. Not you.
And if a law is unjust, then vote to have the law repealed. Don't sabotage court cases because you personally dont' like a law. It's not about your personal opinion.

jr565 said...

LarryJ wrote;
Don't bother trying to justify something just because it was enacted by a legislature. Would you claim that all laws are reasonable and just? Or that all prosecutions are justified and equally applied? If so, you're either dangerously naive or a would-be tyrant

Who's the tyrant here? You seem to think you're above the law, simply because you don't agree with it. Why do you have that special power? Are you more special than the rest of us? You get to dictate what laws are good or bad and should be followed or not followed simply because you like or don't like the law?

jr565 said...
This comment has been removed by the author.
jr565 said...

LarryJ wrote:
Don't bother trying to justify something just because it was enacted by a legislature. Would you claim that all laws are reasonable and just? Or that all prosecutions are justified and equally applied?

Whether a law is just or unjust is my opinion. But even if find a law unjust I don't have the right to violate it simply because I personally find it to be unjust.

I can't drive 55 therefore speeding limits are completely up to me. Is that how laws work?

jr565 said...

MarkD wrote:
There are FAR too many laws, many of which can be used to punish someone who had no intent to break the law, or who has harmed no one.

So which of the laws should we violate and which should we adhere to while they are still on the books as laws? How are you determining which ones to violate, how are you determing the exact right amount of laws that should govern our lives and how are you determining the harm committed? Just because YOU say there is no harm doesn't mean that there is no harm.
I'd imagine someone who likes to screw little boys and is part of NAMBLA would say there is no harm in diddling kids. So the harm from his molestation is purely subjective. HE doesn't see the harm. So then how are we determining there is harm?
If you disagree with a law, you probably also aren't going to see the logic behind why it is passed or enforced. And you may not even think there is a logical reason for it to be enforced at all. Nor see any harm in it.
Where's the harm in letting 20 year olds vote? Where's the harm inleting 19 year olds vote? Where's the harm in letting 18,17,16,15,14 year olds vote. Where's the harm? Is that a stupid law or not? Well it may be, and 14 year olds may physically be able to pull a lever in the voting booth, but the voting age is set into law and you either are voting age or not. Determinng where that line is not up to legislators not the 14 year old guy who thinks its a stupid law. I may even disagree with the stupiditing of drawing the line where the law draws the line. But I could say that about any law. Couldn't I?
Does that mean that all laws are void simply because I find them stupid?

jr565 said...

Larry J wrote:
Don't bother trying to justify something just because it was enacted by a legislature. Would you claim that all laws are reasonable and just? Or that all prosecutions are justified and equally applied? If so, you're either dangerously naive or a would-be tyrant. Jury nullification is the citizen's last tool against tyranny.

And if you're defining tyranny as the laws that prevent you from doing exactly what you want then all laws are tyranny. So then, I guess you don't have to follow any laws?

And you can prevent people from going to jail who have violated those laws when you sit on a jury simply because you personally find the law to be an ass?

JackOfVA said...

You walk out the front door one day and see a large brown and white feather on the ground, and pick it up.

Congratulations, you have violated a federal law (Migratory Bird Treaty Act of 1918)by taking possession of a protected bird, or part thereof, and are subject to a large fine and up to 6 months imprisonment.

Should you be observed by a park ranger passing by your house, you could well be arrested and prosecuted. (Recent case involving an 11 year old girl comes to mind, although that involved "contempt of cop" at least as much as anything else.)

Anyone think that 6 months in the federal pen for picking up a feather from your yard is reasonable? Don't argue that such a case would never be brought or that it would be dismissed, as that would be making us a country of men, not of laws, because prosecutorial discretion by an unelected federal prosecutor.

There's a book out claiming the average person commits three felonies a day just going about their normal business. Don't know if that's true, but it would not at all surprise me if it is.

You can't screw the pressure relief valve down too tight or else the boiler will explode. Jury nullification is an essential method to prevent that explosion.

jr565 said...

LarryJ wrote:

Can jury nullification be abused? Sure, so can everything else including the legislative and prosecution process. Ultimately, nullification is the public's veto authority over the legislatures, lawyers and judges.

so you have veto over the judges even? So if a judge holds you in contempt and you think judges holding people in contempt is tyrannical that you can make up your own rules in the courtroom or ignore his/her contempt citation?

Archie said...

We proved that the initiative process couldn't nullify what our betters wanted to poke down our throats in California (Prop 8 ruling) but can we nullify homosexual marriage some other way?

jr565 said...

MadisonMan wrote:
ecause x was used to a bad end in the distant past, I can't use x now. That is the crux of your argument? Then surely you are for reparations for Blacks now, based on their treatment before the Civil War.

I don't see what reparations has to do with jury nullification. Is reparation law that is being followed or ignored?
Stick to jury nullification. What if were blacks nullifying a jury of a black man killing a white guy, because they feel that due to societal injustice they don't have to follow American law. Or that they wont convict a black man with White Mans Laws even if they know the person is guilty. Because the law doesn't apply to them. Or they find the law to be stupid.
How are they able to make that determination for themselves?
Are all laws optional? We can follow them - unless we think they're stupid, and then not follow them.
And if you clearly violate a law, you can be found not guilty of violating that law becuase a juror thinks the law is stupid. Is the law on trial or the defendant?

jr565 said...

Larry J wrote:
That's my responsibility and right as a citizen. My respect for most lawmakers is even lower than for lawyers and judges

Knowing this you should immediately be disqualified from serving on a jury. because you can't be impartial enough to even follow simple jury instructions.

jr565 said...

Unknown wrote:
I used to be a law and order type of guy but that has changed. I have already decided taht I will not ever convict a person of a non-violent crime that he has comitted against the government (think of perjury or tax evasion). When the government and it's lackeys (i.e., the DOJ thugs, the IRS thugs, the police gangs, etc) start following the rule of law, I will once again vote to enforce it. In it's current state, not gonna happen!


The difference between you and a criminal is what again?

jr565 said...

Larry J wrote;
Would you claim that all laws are reasonable and just? Or that all prosecutions are justified and equally applied?

If you are for jury nulification then how are you having problems with prosecutions equally applied. That would require that all people must follow the same law and be tried for not following the same law. And when juding them, juries would say they are innocent or guilty based on those same laws. If jurors are deciding that some laws don't have to be followed, how is that applying an equal standard. Will the next person who gets tried also have jury nullification for his trial, or will he have to go to jail if he's found guilty of violating the same law that you as a juror found to be unjust?

Bob Ellison said...

jr565, I'm with you. Why have rules? They have them in ball games. Players can argue about them and try to change them.

Jury nullification is also another argument against peer juries. An American ideal that doesn't work.

Unknown said...

The difference between you and a criminal is what again?

I am not breaking the law, I am holding the "criminal" to the same lame standards that our government holds itself and certain special people. You seem to think that it is okay to arrest an 11 year old for helping a bird that is considered endangered but letting the (detestable) Kenndy clan off when they are caught red handed doing the same thing to an endangered sea turtle. Do you really think our privileged class is going to start applying the same laws to themselves as long as they can get away with something that the ordinary folks can't? Is Justice blind or are you?

To paraphrase you: the difference between a dolt and you is what again?

Robert Cook said...

"A lot of those white racists used jury nullification when it came to protecting their white brethren who killed black folk in the 60's. How does Cook feel about that?"

I'm not happy about it, but what do you propose? That jurors be compelled under threat of punishment to return a preordained verdict?

I suggest that, on balance, most jurors try to reach a fair verdict based on their understanding of the facts--at least this has been my experience from having served on quite a few juries. The power of jury nullification--little known about and rarely used--allows the people to act as a check on an abusive police or judicial system, or to vote with their verdicts that they believe a law is a bad law. It is an aspect of a free society that if the people have a power that is theirs to exercise, we must assume they can and, at times, will use it badly.

jr565 said...

Unknown wrote:
You seem to think that it is okay to arrest an 11 year old for helping a bird that is considered endangered but letting the (detestable) Kenndy clan off when they are caught red handed doing the same thing to an endangered sea turtle


If the Kennedy clan got off when they were caught red handed violating a law that wold probably be an example of jury nullification. I already said I had a problem with it as a concept.
Defend treating a Kennedy differently because he's a celebrity rather than following the law, whether its stupid or not, and treating him the same way you would anybody else who violated the same law.
Jury nullification would allow for this travesty of justice.

jr565 said...

Robert cook wrote:
I'm not happy about it, but what do you propose? That jurors be compelled under threat of punishment to return a preordained verdict?

follow the law and determine simply whether the person violated the law or not. That's all that is required of a jury. Not to determine the worth of the law.
If there was evidence that Byron killed Mear Evers then a jury should have found him guilty.period. And if not, then innocent.
The argument as to whether blacks should be allowed into society proper and whether society should be integrated should not be decided by jurors. They may have opinions on it, but it doesn't have a bearing on the case.
Fair trials require impartial juries, not juries trying to enact social justice through sending a message at the expense of the law.

Jupiter said...

Jr565:

"Does that mean that all laws are void simply because I find them stupid?"

No, it means that any law is void at the time a unanimous jury finds it so.

But it is amusing to see you get so upset about it. If twelve jurors, selected by legally correct principles, duly impaneled and sworn, choose upon sober deliberation to ignore the instructions given them by judge and prosecutor, who are you to find fault with the decision?

jr565 said...

Edward Lunny wrote:
Should you be an advocate of jury nullification, and should you be called for jury duty, know that the mere mention of jury nullification during the interview process will get you dismissed immediately


And why shouldn't it? if I said I hated black people and will find them guilty always that shows I can't be impartial. If you say you are going to find someone innocent despite their guilt simply because you don't like the law, why should you ever serve on a jury.
A prosecutor knows you won't give him a fair shake even if he does his job and proves guilt beyond a reasonable doubt.

Ambrose said...

Everyone is so confident that jury nullification will only result in good folks evading bad laws. It can go both ways.

jr565 said...

Unknown wrote:
I am not breaking the law, I am holding the "criminal" to the same lame standards that our government holds itself and certain special people. You seem to think that it is okay to arrest an 11 year old for helping a bird that is considered endangered but letting the (detestable) Kenndy clan off when they are caught red handed doing the same thing to an endangered sea turtle. Do you really think our privileged class is going to start applying the same laws to themselves as long as they can get away with something that the ordinary folks can't? Is Justice blind or are you?


Justice is supposed to be blind, and that can't happen if jurors are engage In jury nullification. You justifying jury nullification by saying justice is or should be blind is a contradiction.
The privileged and non privileged should all face the same law equally, even if jurors personally find the law to be silly.

prairie wind said...

All it takes to show that jury nullification is wrong is to find an example of a law you don't think is unjust and a case where someone is being tried legitimately because they violated that law. And then have a jury find that person not guilty because of jury nullification in that case.

No. That's not all it takes to show that jury nullification is wrong. That might be all it takes to show why someone could disagree with the verdict--but that's different. I can argue for jury nullification AND recognize that I will sometimes get results I don't like.

Jury nullification is legal. It may not be the preferred way to do things but it is legal. Juries decide the verdict and what they say goes. Even when you or I disagree with their verdict.

dvlfish13 said...

jr565, if the congress duly passed, and the president duly signed, a law mandating a 10 year minimum for farting in public - and you were called as a juror in a case touched by this law - would you calmly consider the evidence and witness testimony before rendering a verdict? And, if the evidence of the accused's public flatulence was overwhelming (perhaps he even farted right there in court), would you send him or her to the pen as the law and your office dictates?

Jury nullification is always on point under some imaginable circumstance. It's only a question of where to draw the line.

And bear this in mind: Anthony Weiner was once (and recently) a member of Congress.

Skookum John said...

Anything that undermines the power of the filthy government monster is fine by me. I will happily accept the risk of a few OJ Sompson verdicts here and there for a chance to shove a stick into the spokes of the nanny state.

Lem said...

The weed is strong with Althouse.

Bruce Hayden said...

Jury nullifcation undermines the rule of law and the concept of a fair trial. If the very legality of the law is arbitrary and determined by juries then trying people for violating laws becomes arbitrary.

Not sure if I understand what you are saying here, but do agree that jury nullification does tie into your rule of law/rule of men distinction.

The problem has long been, at least since William Penn was prosecuted for giving a sermon and therefore breaching the peace in (I believe) 1670, that jury nullification has worked as a relief valve to overzeleous prosecution. Prosecutors have long had a lot of power, and that translates into a lot of discretion, esp. today when there are many, many thousands of laws on the book. They routinely grossly overcharge, stacking many more charges onto defendants than they could reasonably prove in order to get setttlements, and therefore keep their backlogs under some sort of control. Mostly, those affected are guilty, but not always, or sometimes they are guilty of technical violations, but there wasn't much in the way of criminal intent.

We have long seen selective prosecution, but maybe never more blatantly than today under AG Holder, where the decision to prosecute seems to be intensely political, with the DoJ dismissing responsible pleas by the NBP, and refusing to investigate obviously illegal behavior in numerous overreaches by government employees. The government leaks its secrets these days like a sieve, but the only ones prosecuted are those who embarass the government. I could go on, but Blogger would ultimately object.

So, we have either unelected bureaucrats with close to life-long protection from being fired, or, on occasion, elected officials acting to benefit themselves being the ones who determine what charges to bring, in an age where most of us commit multiple crimes every day. What do we have to protect ouselves from such a system? And, part of the answer is jury nullification.

As a note of sorts, this may be made worse by our federalist system of government in such a large company. I am sitting right now maybe 80 miles from Ruby Ridge, Idaho, where Randy Weaver was (apparently) enticed, pressured, or entrapped by an undercover ATF agentt to cut the barrel of a weapon off a fraction of an inch too far, thus violating federal firearms laws (notably the NFA). By the end, multiple people were dead, including his wife, shot by an FBI sniper pursuant to an illegel shoot-to-kill order. He was ultimately tried and found not guilty on the federal charges, most likely through jury nullification, and the state murder charges against the FBI sniper were overridden through federal supremacy. Yes, he had technically violated federal law, but did so under pressure from federal agents, and had already suffered as a result, losing a wife and a son. Did it make sense, or was it right, to also send him to federal prison, just to protect the reputations of the overzeleous federal employees involved in the whole mess? The jury of his peers didn't think so,, and so returned a not guilty verdict.

Bruce Hayden said...

In my last post, I concentrated more on jury nullification being a relief valve for overzealous or politicized prosecutorial discretion in an age when we all probably violate at least one law every day, but should also point out that it is also a release valve for police and other law enforcement agents crossing the line (as happened with Randy Weaver). I know from personal experience that some police routinely shade the truth, and even outright lie, with impunity, on the stand. They are the ultimate professional witnesses, learning very quickly how to sound authoritative on the stand, while not exactly being completely truthful. What is there to protect us from such behavior, and the reality that it is not the imposition of a rule of law, but often merely personal bias on the part of the police investigating crimes that determines who gets charged, and for what. The prosecution is supposed to protect us from such, but they often seem to fall prey to an us-versus-them attitude in regards to criminal defendants, and soon find out that if they cross the police too often, they won't get their cooperation when they need it. (And, we saw recently that prosecutors can be highly susceptible to pressure to prosecute in the George Zimmerman murder trial). This isn't rule of law, but rather rule of fallible men (and women).

Matthew Sablan said...

"Justice is supposed to be blind, and that can't happen if jurors are engage In jury nullification."

-- Jury nullification is a check on the fact that justice is *NOT* blind. Sure, you might end up with 12 mobsters letting Knee-cap Kenny off guilty as sin, free as a bird, but that's part of the risks inherent in our legal system.

The potential for harm from jury nullification is no greater than that already inherent in the jury system, and it gives the people another direct voice in telling legislators: "We find this law unjust."

Matthew Sablan said...

"So if a judge holds you in contempt and you think judges holding people in contempt is tyrannical that you can make up your own rules in the courtroom or ignore his/her contempt citation?"

-- If you can convince 12 of your peers, yes. That's where the check on jury nullification is. You might get one wacko on the jury who slipped by the lawyers in an environmental terrorism case who thinks that spiking trees and sabotaging boats are harmless, good acts.

But, are you going to get 12 of them, past the lawyers, past the judge, and all able to agree on the verdict?

Matthew Sablan said...

Wait: I think I see the problem. Jury nullification is a very specific thing, where the jury returns a not guilty verdict based on the fact they think the law is wrong/immoral. Letting Simpson off because they think the DNA evidence was planted is not nullification. Letting whites off because you don't think murdering a black (or vice versa) isn't a crime isn't jury nullification either. It *looks* like it, but it is not.

Rusty said...

Ambrose said...
Everyone is so confident that jury nullification will only result in good folks evading bad laws. It can go both ways.

Yes and innocent people are convicted. The guilty go free. jury nullification is no different than other tools both sides use to giver their case an advantage. lying Prosecutors. Corrupt or lazy judges.
jr565
Holder has proven that the law is for those in power. It falls with its full weight on those without power. The current resident has seen to that our constitution is nullified. He makes laws at will.
Jury nullification should be the least of your worries.

Larry J said...

Or to commit tyranny.
Whites used jury nullification to get off whites who lynched blacks because they didnt' want to see their buddies get charged with crimes.
That's not tyrannical.
And I'm not saying you can have no opinion on laws. It's not your right to sabotage a case though because of your personal preference. And the jury trial is not the place for you to do your little social engineering. Who the hell are you?


I'm a taxpaying citizen and military veteran. Who the hell are you? What the hell have you ever done to warrant my respect? It sounds like you worship at the altar of the almighty law, lawmakers and judges. I don't.

And if you're defining tyranny as the laws that prevent you from doing exactly what you want then all laws are tyranny. So then, I guess you don't have to follow any laws?

Nice strawman argument. If the "Three Felonies a Day" author is correct, we already live in a tyranny where a prosecutor can make someone's life a living hell for whatever reason and with no consequences for his behavior. Should a jury have the right to throw out wrongful prosecutions? Hell yes and you can go to hell if you don't like it.

Yes, in the past, some all-white juries acquitted whites accused of crimes against blacks. And today, some black jurors have refused to convict black defendants. I cannot undo the past nor change anyone else's mind. However, if I'm on a jury and believe the charge or the law is unjust, I'm not going to vote for conviction. It may result in a hung jury or perhaps I can persuade others to also vote to acquit. Either way, I’ll vote as I see fit. That’s what disturbs you so, isn’t it? The idea that jurors won’t blindly accept the dictates of the lawyers and judges anymore seems to terrify you.

so you have veto over the judges even?

Yes, I have the same general opinion of judges as I do of politicians and lawyers. A significant percentage of judges are little more than failed lawyers with sufficient political connections to get on the bench. While judges may be the high priests of your world, they aren’t of mine.

Knowing this you should immediately be disqualified from serving on a jury. because you can't be impartial enough to even follow simple jury instructions.

If they put me on a jury, I’ll vote my conscience on the merits of the case. If the charge is justified and the evidence warrants conviction, I’ll vote to convict. However, if the law or the prosecution is unjust in my opinion, I’ll vote to acquit. Just because a judge says something, it doesn’t mean it’s the truth.

We are supposed to be a nation of, by and for the people, not of, by and for the lawyers. While some lawyers perform useful functions, most are little more than parasites on the nation, producing nothing of value to anyone but themselves. When about one out of every 300 Americans is a lawyer, we've gone well beyond the point of absurdity and onto the path of national decline.

phx said...

So what's the difference between jury nullification and "activist" judges?

How can you support strict constitutional constructionism and jury nullification?

Scott M said...

I was wondering what had happened to Adam Duritz...

Gabriel Hanna said...

Jury nullification is, and ought to be, extralegal at best and illegal at worst.

Armed rebellion against the government is, and ought to be, extralegal at best and illegal at worst.

Both can be justified, or not, depending on the circumstances. Most modern Americans say rebellion was right when the Founders did it and wrong when the Confederacy did it. No need to get into the rights and wrongs of it here. It's the same with jury nullification, you can always find cases where it was right or wrong.

A few commenters are arguing that one misuse of jury nullification makes all jury nullification wrong--but why does it not then follow, that one unjust law makes the concept of lawmaking wrong?

We recognize that the government has the right and power to make our laws, delegated by us, and that this power is usually used appropriately and sometimes not. Jury nullification is a right we reserve to ourselves, which may be used inappropriately.

We can use free speech inappropriately too.

Gabriel Hanna said...

@phx:So what's the difference between jury nullification and "activist" judges?

The difference between me putting you in handcuffs and a cop putting you in handcuffs. Only one of us has the delegated authority to do it.

See also the Tenth Amendment. We're citizens, not subjects, and we did not sign away all of our rights to judges and elected officials. Judges have an authority delegated to them which they ought not to exceed. They don't get to arrest, try, and execute the accused either.

Jason said...

jr565 is whacked.

It's like, "If the President can veto laws, why even have Congress?"

The fact that a jury of citizens can practice jury nullification is part and parcel of the system of checks and balances in this country. Juries don't work for the prosecution nor the defense. It's the other way around. Prosecutors work for citizens, represented by the people on the jury. Citizens ultimately direct their work, and prosecutors are accountable to the people.

It is also a recognition that the judgment of prosecutors in bringing charges is not infallible. Jury nullification does not, in any way, undermine the rule of law, but upholds it. A jury may simply be saying "the law is fine, but this is not the criminal this law was intended to cover. The prosecutor is wrong.

This is a just and necessary thing for juries to be able to do.

Matthew Sablan said...

"So what's the difference between jury nullification and "activist" judges?

How can you support strict constitutional constructionism and jury nullification?"

-- The judge isn't there to make law. The judges specific job is to adjudicate the law. There's a difference between finding a penumbra and effectively enacting a new law (which judges can do), and finding a specific case does not warrant punishment (what jury nullification does.)

Jury nullification doesn't overturn or change a law on the books. Not only that, strict constitutionalism requires adherence to jury nullification. It is a principle enshrined in our justice system as much as not allowing a confession that was engineered/brought about without informing a suspect of his or her rights.

Matthew Sablan said...

(Well, several cases, but probably not at the Supreme Court level. So, enshrined might be too strong a word.)

Bob Ellison said...

Gabriel Hanna and Matthew Sablan, I think you might misunderstand phx's point. Strict constitutionalism is inextricably tied to the "rule of law, not of men" concept. The law says what it says, and citizens can try to change it, but cannot rightfully ignore it. That way lies Roe v. Wade.

Jury nullification is by definition a refusal to apply the law. phx asks how that can be resolved in a philosophy that holds the system of laws, and the amendment of them, sacrosanct?

It cannot. You get laws, or you get outlaws. Choose one, but not both.

Bob Ellison said...

Matthew Sablan said "It is a principle enshrined in our justice system as much as not allowing a confession that was engineered/brought about without informing a suspect of his or her rights."

It's enshrined because the SCOTUS said so. It's morally weak, like the exclusionary rule. If the perp confesses, he should be found guilty. Don't beat him to get the confession, but don't beat the cops because they didn't talk fast enough while handcuffing him.

Larry J said...

Judges aren't superior beings deemed worthy to lord over the rest of us. They're government employees. Instead of rising when a judge enters the courtroom, the judge should rise for the jury. After all, it's the jury that ultimately represents the people in the legal process.

jr565 said...

Phx wrote:

So what's the difference between jury nullification and "activist" judges?

How can you support strict constitutional constructionism and jury nullification?


Exactly! Its a contradiction.

Bob Ellison said...

Bob Ellison said "Don't beat him to get the confession, but don't beat the cops because they didn't talk fast enough while handcuffing him."

I should have said "...but don't beat the public because the cops didn't follow the rules."

jr565 said...

Jason wrote:
The fact that a jury of citizens can practice jury nullification is part and parcel of the system of checks and balances in this country. Juries don't work for the prosecution nor the defense. It's the other way around. Prosecutors work for citizens, represented by the people on the jury. Citizens ultimately direct their work, and prosecutors are accountable to the people.

prosecutors don't write laws, they follow them. And charge people based the the illegality of their actions. So saying the prosecutor is accountable for a bad law punishes the prosecutor for something beyond his control.
Did the person violate the law or not is really the only question a jury is supposed to answer. The law is not on trial. If jury nullification goes through and you find a guilty person innocent the law is still in effect the next day.
All that happens is the jury look like vigilantes who took the law into their own hands and circumvented a trial for their own purposes.
When if you want laws to change you are supposed to elect legislators. Trials are not the place for your selfishness.

Gabriel Hanna said...

@Bob Ellison: Apply that argument to the acts that established the Constitution in the first place--the Revolution and the writing and ratification of the Constitution. Both were illegal.

So is jury nullification. Like armed rebellion, it can never be legally justified, but it can certainly be morally justified.

No strict constitutionalist maintains that the Constitution is itself illegal, they'd have to if they believed what you claim they do.

jr565 said...

Dvilfish13 wrote:

jr565, if the congress duly passed, and the president duly signed, a law mandating a 10 year minimum for farting in public - and you were called as a juror in a case touched by this law - would you calmly consider the evidence and witness testimony before rendering a verdict? And, if the evidence of the accused's public flatulence was overwhelming (perhaps he even farted right there in court), would you send him or her to the pen as the law and your office dictates?

Jury nullification is always on point under some imaginable circumstance. It's only a question of where to draw the line.

if the law was no farting and you were on trial for farting, the question would be did you fart or not. Did the prosecutor prove his case. I personally would have a problem with the law, and would seek to elect politicians tht would overturn said law. But if I was called on to judge guilt or innocence then that's all I'm supposed to do.
The problem, when you say "its only a question of where to draw the line" is that the line has already been drawn. That's the whole point of a law. Having 12 random people on a jury with their own axe to grind can draw the line anyway they want and ignoring the law because it doesn't suit them leads to potentially horrible completely unfair outcomes.

Lets say the case involved someone who defrauded me. And lets say they are on the stand committing perjury about defrauding ME. And lets say Larry, the ASSHOLE is on the jury, and he says because Obama is In the White House and he doesn't like how the DOJ is being run that he won't find anyone guilty of perjury that is being prosecuted by a prosecutor, what does that mean for MY case? Or lets say the jury doesn't think the law for defrauding rich people (lets pretend that I'm rich) should be upheld because rich people are scum. That impacts on MY ability to get justice. I'm relying on perjury being a crime because the law says it is not because some jerk on the jury wants to make a statement at a trial that impact MY justice.
libertarians argue that My right to swing my fist ends where your nose begins.
But how is this not an example of that. You're asserting your right to derail a trial because you personally don't like the law, over the right to have a fair trial where the law is the law. And you have gone into a jury and swore to be objective and impartial. And you're lying.

Matthew Sablan said...

"It's morally weak, like the exclusionary rule."

-- The exclusionary rule is not morally weak; it is designed to prevent abuse of power and to maintain faith in the police force. It is a bulwark against bad officers.

jr565 said...

Larry J wrote:

"Judges aren't superior beings deemed worthy to lord over the rest of us. They're government employees. Instead of rising when a judge enters the courtroom, the judge should rise for the jury. After all, it's the jury that ultimately represents the people in the legal process."


right. Because you think you are above all laws. You get to determine how court proceedings should go because you are somehow special. The laws don't apply to you.
What should or shouldn't be done in a court is not for you to decide. You are not the maker of court rules. Judges don't go to Larry and ask whether they should rise for the jury or whether the jury should rise for them. what do you think your rights entitle you to?


Bob Ellison said...

Gabriel Hanna, you make a good point. But a famous document, the Declaration of Independence, describes the philosophical basis for the American Revolution.

Jury nullification is blind and bizarre-- an act of unlawfulness that the jury does not justify. Let them make the case. Let them be Thomas Jefferson, telling the government that they are morally above the people.

jr565 said...

Should black jurors let off black defendants?
should black jurors let off black defendants?
How is this any different than what Larry J is saying? Or what the KKK is saying. Because you have an axe. To grind, certain people shouldn't have to go to jail for burglary, say, because you personally think its a victimless crime and think the law is unfair.
Yet, if I'm the guy who was burglaried by a black defendant, how is justice served for me when a jury decides that because the defendant was black, that his burglary doesn't rise to the occasion of burglary if the defendant were, say white.
To me, burglary is burglary. And it shouldn't be up to the jury to say that the crime committed against me doesn't matter because of who the defendant is.

And why would this type of jury nullification be wrong for people who say they are for jury nullification? You've already established that juries should be able to find not guilty because of their personal opinion about the fficacy of laws themselves.

Well this professor thinks black people should never convict black people. And the kkk thinks that whites should never convict whites. The problem with saying that the jury can decide to draw the line as opposed to follow the law is that the line could be drawn anywhere, and you can then say we should be able to ignore the law, but that ignoring the law is bad while my ignoring the law is perfectly reasonable. According to who? you?
Well who are you, and why is your moral philosophy more important than the law itself?

This particular jerk thinks that he can say that robberies committed by blacks are victimless crimes and blacks shouldn't convict them. Tell that to the person who is robbed.
"Sorry, but your robbery is not really a crime because the laws are biased against black people and we can't punish them becuse the laws are unjust. So, suck it up. If the criminal were white, then of course he should be found guilty of crimes since theft is theft. But he wasnt so, sucks to be you"
The libertarians on this board are this guy. They just not drawing the line on nullification racially, but are doing the exact same thing regardless.

Larry J said...

Of all the people who have argued in favor of jury nullification, you've decided to make it personal against me. Since you decided to make it personal, jr565, I'll take a couple minutes to respond even though you really aren't worth the effort. My opinion of you is about the same as animal feces except feces can be used as fertilizer. You're less useful than that.

You're the one who is arguing that the state is always right, that the citizen has no recourse should he sees another citizen being railroaded by a wrongful prosecution or an immoral law. You're saying that we must always obey every law even when it's wrong, that we must convict even when the prosecution is unjust, that the jury is little more than a rubber stamp for the prosecutor and judge. That makes you a complete fascist. When I took the oath of enlistment in the military, I promised to perserve, protect and defend the Constitution against all enemies, foreign and domestic. Fascists are domestic enemies to the Constitution. Take that as you will.

What the hell have you ever done except spout off on a website? Why should anyone give a damn about your opinion on anything, you statist asshole?

raf said...

@Bruce Hayden: I know from personal experience that some police routinely shade the truth, and even outright lie, with impunity, on the stand.

If I suspect/think that the police have not been forthright in their testimony and I can convince my fellow jurors that their is therefore reasonable doubt, that is not jury nullification. It is a finding that the prosecution did not adequately prove their case.

jr565 said...

Matthew Sablan wrote:
"-- The judge isn't there to make law. The judges specific job is to adjudicate the law. There's a difference between finding a penumbra and effectively enacting a new law (which judges can do), and finding a specific case does not warrant punishment (what jury nullification does.) "

the jury isn't there to make law either. Or to punish prosecutors because they don't like laws, or think laws on the books should be applied differently to black people or white people or not applied at all.
If you think the jury is for that you are an activist. And shouldn't then complain when judges are activists or the DOJ is not adhering to the law.
Why should they?

raf said...

Jury nullification is an unavoidable consequence of a jury system. If a jury, for whatever reason, finds a defendant not guilty, that is all there is to it. I don't disagree that juries should be admonished that they are there to judge the facts of the case and apply the law per instructions, but beyond persuasion there is nothing to prevent a jury from disregarding those instructions without destroying the principle of trial by jury. You don't need to convince anyone that jury nullification is valid. It exists. I just think it should only be used in extreme circumstances.

jr565 said...

Gabriel Hannah wrote:
So is jury nullification. Like armed rebellion, it can never be legally justified, but it can certainly be morally justified.


Morally justified to who? The person who commits the nullification? Well of course. But is their morality above the law, simply because they say it is?

Jason said...

jr565: So saying the prosecutor is accountable for a bad law punishes the prosecutor for something beyond his control.

False. A jury nullification does not punish the prosecutor in any way. He might feel embarrassed by it. That's a good thing, in my book. And citizens are under no obligation to shelter public employees from being embarrassed.

Your child-like faith in the integrity of prosecutors and their law enforcement agents is touching. However, I do not share that delusion, and I am under no obligation to do so whatsoever.

Jason said...

Larry J: "Judges aren't superior beings deemed worthy to lord over the rest of us. They're government employees. Instead of rising when a judge enters the courtroom, the judge should rise for the jury. After all, it's the jury that ultimately represents the people in the legal process."


jr565: right. Because you think you are above all laws.

Ok, it's official. Jr is off his/her frigging rocker.

jr565 said...

Jason wrote:

It is also a recognition that the judgment of prosecutors in bringing charges is not infallible. Jury nullification does not, in any way, undermine the rule of law, but upholds it. A jury may simply be saying "the law is fine, but this is not the criminal this law was intended to cover. The prosecutor is wrong.

This is a just and necessary thing for juries to be able to do.


But in act jury nullification is often based on the idea that the law itself is wrong, as is attested to by the people arguing for jury nullification on these boards. And because you don't like the law, you should find someone not guilty, even if you think they did in fact violate the law.how is that not undermining the rule of law?

I linked to Paul Butler saying that blacks shouldn't convict blacks of what he calls "victimless crimes" even if the prosecution has prone his case beyond a reasonable doubt, because the law is unfair, or an ass, or blacks are special or whatever the rationale.
Muslims wanted to I plement Sharia law for Muslims in Canada. They shouldn't be bound by the same rules as non Muslims. So, should we setup separate rules for blacks, and whites and Muslims, or only allow blacks to serve on juries where blacks are the defendant or NEVER allow blacks to serve on juries where blacks are defendants (since they might never actually convict blacks of crimes as per White Societies laws which are discriminatory (as per them)).
Either we live by the rule of law or we don't.

jr565 said...

Raf wrote:
You don't need to convince anyone that jury nullification is valid. It exists. I just think it should only be used in extreme circumstances

judges can overturn verdicts if they think the jury engaged in nullification. But you say it should only be used in extreme circumstances. Aren't you the one defining whats extreme? Since we are talking about drawing your own personal line and not following the line set by the law, then isn't extreme a subjective choice? Ad if its a subjective choice then there is no such thing as a definition of extreme except as defined by you.
It would almost require a system of laws to be setup that define when and when you can't engage in nullification. But what if you were protesting those laws?
Your only reference would en whether you personally found the nullification to be extreme. But does the jury sitting in they jury room share our values? Is it extreme to them when they do it?

jr565 said...

Larry J wrote:
You're the one who is arguing that the state is always right, that the citizen has no recourse should he sees another citizen being railroaded by a wrongful prosecution or an immoral law. You're saying that we must always obey every law even when it's wrong, that we must convict even when the prosecution is unjust, that the jury is little more than a rubber stamp for the prosecutor and judge

in my opinion Zimmerman was railroaded by the prosecutor. But was found not guilty. One of the jurors came forward and said she personally felt that Zimmerman was guilty but hat the law didn't allow her to convict. She personally didn't articulate well what she meant by guilt. As in, think she was saying that the prosecutor overcharged and while she personally thought he was capable in some way, asked on he law she couldn't convict him.
That's the way its supposed to work. You're supposed to follow the law even if it means that it produces the result that you don't like.
But imagine if it were the opposite. imagine if here were people on the jury who will convict solely on the grounds that the defendant is who he is, and the accused is who he is. Or who won't convict because they don't like a law. Imagine if the Zimmerman verdict was predicated on what the juror thought about Stand your ground laws, and not whether George Zimmerman was actually guilty in their minds.
Courts should not be forums for individual jurors to stick it to the man because of their own personal grievances. Its not about you.
Because they don't actually stick it to the man. They just produce miscarriages of justice because of their own personal preferences and the stick up their ass.
You are not bigger than the law.

Gabriel Hanna said...

What do unmoderated comments look like? I ask merely for information.

jr565 said...

Larry J wrote:
"You're the one who is arguing that the state is always right, that the citizen has no recourse should he sees another citizen being railroaded by a wrongful prosecution or an immoral law. You're saying that we must always obey every law even when it's wrong, that we must convict even when the prosecution is unjust, that the jury is little more than a rubber stamp for the prosecutor and judge. That makes you a complete fascist. When I took the oath of enlistment in the military, I promised to perserve, protect and defend the Constitution against all enemies, foreign and domestic. Fascists are domestic enemies to the Constitution. Take that as you will.

the law is the law. So if a prosecutor is prosecuting based on the law being what it is then how is it unjust or wrong that he prosecutes? How are you determining the rightness and wrongness of things in a court of law, other than the law? You really think that the law should comport to your personal preference and that you are literally above it. Why must society adhere to your morality simply because you say so? Which makes you an anarchist or a sociopath. Take that as you will. Laws are merely optional if you disagree. Except, that's not how the law works.

I beleive in the rule of law, even if I don't agree with every law on the books. Still, laws on the books should be enforced. I don't have the right to ignore laws simply because I don't like them. And if I do, and get caught I should pay the price for disobeying the law, even if the law is stupid. My outrage at the law doesn't make me immune to it simply because I'm me. And he could it work otherwise? Tere are millions of people in this country and each one of them may not agree with every law. Does that make them above the law, able to pick and choose which laws to follow and not follow based simply on their preference?
You remind me of someone at an Occupy Wall Street event who engages in anarchy and or disruption, but then gets mad that the cops are coming to arrest you for anarchy or disruption. Sorry, if your outrage at the unjust system (help help I'm being repressed!) doesn't make you immune from the outcome of disobeying the law. What a sense of entitlement t you have. What a child you are.
You also say you were in the military. Did you understand the concept of orders and ranks and that you didn't have complete autonomy. Or were all orders just optional to you. You only obeyed orders you felt like obeying? Is the fact that the president is commander in chief and thus the leader of the military a sign of inherent fascism. Or did everyone else have to follow orders except you because you are special and only you can determine the worth of an order and whether it is just or unjust. Or that all orders must conform to your personal sense of right and wrong otherwise they are unjust. And who is the president or your immediate superior to tell you you have to do something or go somewhere. "Don't tread on me!"

You might disobey an order because your conscious dictates it. But you should still have to face a jury over your insubordination. Because the law is still the law even if you don't personally like it.

And if you are facing military justice it should be based on the laws in place, not on what you personally think the laws should be. Because, who are you over any other man or woman also living under the same rules?

prairie wind said...

Jury nullification is by definition a refusal to apply the law.

The jury does not "apply" the law. The jury is supposed to find the defendant guilty or not guilty. Finding him "innocent" is not one of the options.

jr565 said...

Larry J wrote:
What the hell have you ever done except spout off on a website? Why should anyone give a damn about your opinion on anything, you statist asshole?

its a good point. But by the same token, why should anyone care about YOUR opinion on the law when you're on a jury? yes you have a problem with the law, but you are trying to push your opinion over the law itself and saying THAT should dictate how a verdict should go. What gives you that authority. Yes, it's my opinion, and yes it's your opinion, but neither should be greater than the law itself. You've made my point.
You don't have to heed my words, I don't have to heed your words.

Imagine if you were on trial and it was my opinion that dictated the outcome of the trial and not the law itself. Te law may be an ass, but at least it has the authority of being the law. If your personal opinion dictates how the trial turns out then how is that better? I realize you are a paragon of virtue, and the ultimate decider of what laws have merit and what laws don't in your mind.
But to me you're just Larry j. Ad I'm not saying that as a bad thing.

jr565 said...

larryJ wrote:
"I'm a taxpaying citizen and military veteran. Who the hell are you? What the hell have you ever done to warrant my respect? It sounds like you worship at the altar of the almighty law, lawmakers and judges. I don't."

right, because you pick and choose the laws to follow. Just like criminals. The law is beneath you, because you are LarryJ.

Bob Ellison said...

Matthew Sablan, the exclusionary rule is morally weak because it punishes not the miscreants (the cops) but the innocents (the society). As you note, it makes some sense. A little. A tiny bit. But not much.

How about an exclusionary rule that subjects the cops/attorneys who violate to, say, 30% of the possible punishment of the perps in question? And then we still try the perps. Wouldn't that make more sense?

jr565 said...

Larry J wrote:
You're saying that we must always obey every law even when it's wrong, that we must convict even when the prosecution is unjust, that the jury is little more than a rubber stamp for the prosecutor and judge.

no, I'm not saying that. I'm saying the law is the law, and we don't get to disobey it simply because we find it immoral. We can do so despite the illegality of doing so, but will then have to face the consequences if we are caught. Because, like it or not we don't make the laws, we live under them.
And I wouldn't say you must convict if a prosecutor brings a case, but you should certainly convict if a prosecutor proves his case. And the case should be decided based on what the law says, not what we want the law to say. Juries shouldn't insert there own morality into the mix over the law, even if he law proves itself to e an ass.

I can't say laws are wrong or right, except based on my own preferences. But I'm just one person in the world and the world doesn't revolve around my personal choices and feelings. Nor does it revolve around yours.
The law is the law is the law.

Lets take a law that is supposedly benign. The age when you can vote. What is the morality of the question? Sould 18 year olds vote? Should 21 year olds vote? Should there be no voting age at all? I may have my opinion, and it may disagree with your opinion, but the ultimate authority is the law itself. If a 14 year old goes to vote, then I may personally think that he can do it, but how am I a fascist if I say he should only be able to vote if the law says he should be able to vote?
If somehow he's on trial for voting illegally the question would be, was he eligible to vote not whether I personally think 14 year olds should be able to vote.

What am I, a democrat saying all votes should count even if its a vote from a dead guy or Mickey Mouse or someone inelgible to vote.Bullshit. Rules matter, the rule of law matters.

prairie wind said...

Rule of Law is not the same as thinking we should all obey the law. Rule of Law is the idea that we are all--no matter our life circumstances, our rank, our social position, our employer--accountable under the law. That's different.

Thinking we should all obey the law would have kept us curtseying to the Queen.

Archie said...

Amazingly enough no one has mentioned Trayvon. I guess he is too yesterday.

Richard Dolan said...

In many jurisdictions, the standard jury instruction states that, if the jury finds that the prosecution has proven each element of the offense beyond a reasonable doubt, the jury may return a verdict of guilty; if the jury finds that the prosection has failed to prove an element beyond a reasonable doubt, then it must return a verdict of not guilty. That interplay between 'may convict' and 'must acquit' permits the jury to decline to convict, while acting consistently with the court's instructions, even if the crime has been proven.

But many courts will not permit an argument to the jury based on the may/must distinction (other courts have done away with it altogether). As the Second Circuit said in US v. Thomas, 116 F.3d 606 (2d Cir. 1997), the jury has the undoubted power to refuse to convict, despite the law and the evidence, but it is a power that the law disdains. The most remarkable fact about this NJ case is that the trial judge (apparently) allowed the defendant to make an explicit argument to the jury in favor of nullification. That is very far from the norm.

The strongly negative attitude of courts to jury nullification that one finds today was not always the law, as the late Prof Stuntz showed in his last (and very influential) book, The Collapse of American Criminal Justice. More's the pity for that change in attitude, since the reality is that jury nullification adds a layer of discretion into a criminal justice system that is both draconian and heavily weighted in favor of the prosecution. Prosecutors have the power to indict or not as they deem best. By long-standing (and equally unfortunate) precedent, there is no judicial control over how a prosecutor exercises that discretion. But no one thinks that, in exercising its discretion, the prosecutor is acting contrary to law, even if there is more than enough evidence to prove the commission of a crime.

A jury's discretion to decline to convict, even where such evidence has been adduced, is similarly an exercise of a power given to the jury by the law -- it is why, for example, there is no motion for summary judgment in criminal cases. And, since courts will not review the propriety of a prosector's exercise of discretion to bring charges in any case, the only possible check on a prosecutor's abuse of that power is provided by the jury's exercise of its equivalent discretion.

Whereever it exists, of course, discretion can be abused. But there is no reason to believe that a jury of 12 will abuse its power to dispense leniency, or that (compared with the harm that can result from a prosecutor's abuse of discretion) any such abuse will work a substantial injustice.

JackOfVA said...

The Fugitive Slave Act of 1850 established special procedures for handling the return of escaped slaves, no jury, just a brief hearing before a special commissioner.

Was it proper for such a hearing commissioner to order escaped slaves to be returned to their masters or should the hearing commissioner found a way to deny the return? From what I've read - and it's far from exhaustive - it seems that the escapees were returned.

Returning to jury nullification in the context of the Fugitive Slave Act of 1850, there were cases of locals raiding jails, freeing slaves awaiting return and spiriting them away. When the raiders were put on trial, it was rarely, if ever, the case that a guilty verdict was reached - it was generally accepted that jury nullification was at work and it would be impossible to select a jury that would return a unanimous vote to convict.

The Federal Government found it necessary to use the Marines in some cases to escort the to-be-returned slave out of some northern cities (Boston for one) and put him into the hands of the US Marshal Service for return to his master.

So who was right here - the Commissioners who returned escaped slaves to their masters in scrupulous attention to the Fugitive Slave Act of 1850, or those who aided escapees to break out of jail, or the juries that refused to convict those assisting in jail breaks? Which side of that history would you prefer to have been on?

Jason said...

jr565: But by the same token, why should anyone care about YOUR opinion on the law when you're on a jury?

'Cause I'm on the jury, representing the people, genius!

jr565 said...

Here's the conversation from Jason:

Larry J: "Judges aren't superior beings deemed worthy to lord over the rest of us. They're government employees. Instead of rising when a judge enters the courtroom, the judge should rise for the jury. After all, it's the jury that ultimately represents the people in the legal process."


jr565: right. Because you think you are above all laws.

Ok, it's official. Jr is off his/her frigging rocker.


Larry J is talking about judges lording it over the rest of us in the judges courtroom, as if its not the judges courtroom. Why would Larry J's opinion of how courtrooms are supposed to work trump how courtrooms actually work? The judge is lording it over us? He's the judge!

It reminds me of Jeff Spicoli ordering pizza in Mr Hands class because its shared time as opposed to the teachers class. (Fast times at ridgemont high reference).

dvlfish13 said...

"You're asserting your right to derail a trial because you personally don't like the law, over the right to have a fair trial where the law is the law. And you have gone into a jury and swore to be objective and impartial. And you're lying."

Well, now we know you'd send a man to prison for ten years for farting in public, if that's what the law said. So at least we have that settled.

But the part of the argument quoted above is your strongest point so let's have a look at it. In Texas one of the ways to summarily dismissed from jury duty is to answer the question "Can you imagine some circumstance in you would sentence somebody who committed the crime of [whatever] for the minimum penalty and the maximum penalty?" I remember answering in the negative in a case that involved the possession of a controlled substance. The range of penalties was from 2-99 years (I think that the guy lived near a school). 99 years. For possession. So, I took myself out of that jury pool. I personally think that such a questioning process, when honest answers are given, will necessarily generate a jury of psychos.

What if the question was, "can you sentence a man to death for the crime of being a jew?" Would I be wrong to give a lying answer in order to sit on the jury and vote for acquittal?

More generally, what if I'm asked to serve on a jury concerning a law that is blatantly unconstitutional? Which law am I beholden to?

And if you go back to saying that I'm putting myself above the law - I am, in fact, coequal with the law. So are you. Our laws did not come down from Sinai. Their authority comes directly from us. They are the creatures, we are the creators. If this sounds somehow weird to you, reflect for a bit on the deep meaning of the term popular sovereignty.

Jason said...

jr565: Larry J is talking about judges lording it over the rest of us in the judges courtroom, as if its not the judges courtroom.

Wrong, statist. It's the people's courtroom.

Bruce Hayden said...

I think that maybe the reason that JR565 comes to a different opinion aboutu jury nullification than many of us here do is that he seems to trust the governmet, and government workers, to do the right thing, when it comes to prosecuting people. My problem is that prosecutors are human, wth all the weaknesses and frailties of most humans. They can be just as greedy, selfish, vindictative, etc. as any of the rest of us. And, may act on those vices more often than many of us due to the reality that it is hard to penalize or remove them, even for fairly egregious behavior. Most line prosecutors are civil servants, with all the job protections that other government employees have. And, their political bosses are rarely thrown out of office because of prosecutorial zeal. And, indeed, they routinely ride their reputations for overprosecution to higher office.

I mentioned earlier the George Zimmerman trial as an example of politicized prosecution. Absent political pressure by the Back community, he most likely would never have been charged, and even more likely not for 2nd Degree Murder. The local prosecutors had turned down prosecution, knowing most tlikely that they would not be able to disprove self-defense beyond a reasonable doubt. And, this was born out at trial, where the prosecutors couldn't even disprove it beyond a preponderance of the evidence (and, arguably, the deffense came close to proving it beyond a reaosnable doubt) But, after the governor appointed a special prosecutor (after the local prosecutors refused to file charges), the special prosecutor bypassed a grand jury, and filed by information instead, ignoring in such all the exonerating evidence that was a good part of the reason that the local prosecutors didn't indict. And, the "facts" that she filed to support the depraved mind requirement for 2nd Degree Murder were most likely known by her to be inaccurate. Her information was so egregious that liberal law professor Alan Dershowitz called it unethical. And, yet, George Zimmerman was tried for 2nd Degree Murder, with scant evidence, causing him to go into hiding for a year or so, and raise hundreds of thousands of dollars for both his defense and his bail. All to satisfy the political aspirations of the Black leadership nationwide, the governor's and special prosecutor's political aspirations, and greed of the Martin family and their lawyer, Crump.

So, when JR565 talks about the law being the law, and breaking it warranting trial, he igores that prosecution is often anything but even handed, with people known to be innocent being prosecuted Moreover, if the commision of crimes were so obvious and clear, then there would be no need for juries and trials. Jury nullification becomes relevant when the defendant may technically have committed the offense(s) charged, but it just isn't right to prosecute them for such. In the case of Randy Weaver, he had been enticed and entrapped by the ATF to barely break the law (by maybe a quarter inch extra of barrel removed from a firearm), and then the overzeleousness of the ATF and FBI in going after him resulted in the death of his wife and son, the former with their baby in her arms at the time. The trial was essentially to exonerate thet two agencies for their egregious actions, and jury just didn't think that it was right for the feds to prosecute him after all that, and so found him not guilty.

Larry J said...

It looks like I hit one of the few functioning nerve cells in jr565's pitiful fascist little brain. He's turned into my personal leg humper. You know what a leg humper is, don't you? It's a troll that seizes onto someone like a nearsighted little dog humping a table leg. The dog thinks it's scoring big time but only looks like an idiot.

You claim you believe in the rule of law. That's sweet. Too bad the government doesn't share your belief except as a means of expanding and maintaining its own power. As but one example, it's illegal for the IRS to discriminate against people based on their politics but no one is being prosecuted. A lot of the stuff that the government does is illegal based on the Constitution but no one is prosecuted. But let an overzealous prosecutor take a dislike to you and you'll find yourself on the receiving end of a legal colonoscopy. It doesn't matter whether you believe you've broken the law or not. When there are some 3000 federal felonies on the books and according to some, the average person may break an average of 3 laws a day without even knowning it. So, in your pitiful mind, that's tough. Screw them to the wall, those terrible lawbreakers! Let's just hope, for your sake, that you're never on the receiving end of a political vendetta. Actually, I take that back. In your case, I do hope you're on the receiving end of such a prosecution. Then you'll pull your head out of your ass and see that the "rule of law" isn't as clear-cut as you believe. You'll have plenty of time in prison to reflect on your beliefs and how stupid they are.

Matthew Sablan said...

"The most remarkable fact about this NJ case is that the trial judge (apparently) allowed the defendant to make an explicit argument to the jury in favor of nullification."

-- Woops. I posted in the wrong thread about this. Do you think that if he wasn't representing himself, that his lawyer would've been able to argue this without the judge stopping him?