OK, State A passes a law criminalizing “denigrating the practice of marriage” which makes it a criminal offense to treat same-sex marriages as real in a legal sense, which criminalizes actions, not speech, or so the legislature is convinced.
The judge in question rules that State A’s ban on same-sex marriage is unsupportable and cannot continue. The prosecutor sees this as clear denigration, and doesn’t rest until the judge has been arrested.
This is obviously insane. So what? It only gets stopped if there’s explicit rules against it.
Arrested - and what then? If he’s been arrested because the prosecutor thinks he has committed a criminal offence by issuing the judgment he did, then he will have to be charged and brought before - hey, a court! With judges!
Whereupon a lesson will be imparted to the prosecutor and the state legislature about the separation of powers. The legislature cannot make it a criminal offence for a court to perform its function of determining questions of law that come before it. A law which purports to do so is transparently unconstitutional. Either the law, correctly interpreted, does not criminalise the judges ruling, so the judge must be immediately released and the prosecutor needs to consider his position, or the law does purport to do that, in which case it is simply invalid and the judge must be immediately released and the legislature exposed to ridicule and derision.
There it is. I didn’t realize it was that absolute a protection, but I suppose it makes sense for it to be. The Founders really must have been worried about any one branch usurping dictatorial powers.
Meh. Were that the only hindrance, the other two branches could figure something out. Practical problems can be met with practical solutions, especially when judges have to walk streets along with police officers controlled by the executive branch.
Strom Thurmond and Orville Faubus did OK for themselves.
It does, but on rereading it does look like there’s a bit of an exception for actual criminal penalties. Takes a better scholar than I am to figure out if your exact scenario is barred, but I would imagine, just from a practical POV, that any upper court is going to back the judge so long as the judge was acting in the role of judge (and not in the role of nose-biting fool).
As a general rule, separation of powers bars the prosecution of a sitting member of the judiciary for actions taken in an official capacity. However, not all states have a separation of powers arrangement that mirrors that of the federal government.
It is an absolute rule that federal employees are immune from state prosecution when there is an “official connection” between the proscribed act and the employee’s duties (this is called “qualified immunity”, because the judge could still be prosecuted for a state-law offense unrelated to his job like speeding.
It is illegal to nullify in most US jurisdictions. There’s just nothing that can be done to prevent it unless the jurors explicitly say they nullified after the fact.
Here’s a question. Obviously it is illegal for a judge to accept a bribe to make a certain decision, but would it also be illegal to make that ruling because of the bribe? Like if a judge accepts $10,000 for ruling certain evidence as inadmissible, would the ruling itself be illegal in addition to accepting the bribe?
Yes. Once the fact of the bribe is established, not just the ruling but the entire trial will be set aside. Back to square 1 for all the parties, if a civil matter. Defendant released and conviction expunged if a criminal matter.
For a start, how is the judge’s ruling on the law a denigration of the practice of marriage? It’s a denigration of the law, not marriage.
Generally, judicial privilege is not required because when judges are wrong about the law, they don’t break the law, they are just wrong about the law.
Huh? The judge would rule based on the laws of the land. Of course, the judge’s personal bias will figure into the decision unless the person has outstanding integrity, which is why there is a stacked supreme court. Unsupportable is not a legal reason to void a law, nor does a judge rule in that way. However, no judge is so incompetent (maybe I should be so absolute?) as to fail to find a form of legal basis for their ruling - "this law is void because it is unconstitutional based on the following… " Arresting a judge for a ruling that the law you are arresting him for is unconstitutional is a sure way to get the feds to cancel your bar ticket.
Of course, a state cannot challenge the actions of a federal judge. The federal government is paramount. If the state believes they have a law that “trumps” the judge’s opinion, they can appeal all the way if necessary to the Supreme Court, which becomes the final arbiter of what is permitted, where the boundaries between state and federal law are.
I don’t think it’s illegal for a jury to nullify in any US jurisdiction, is it? As has been mentioned, courts don’t tend to like it, and judges will sometimes instruct jurors not to, but where is it illegal? Do you have any statutes?
Exactly. Juries do not give reasons for their decisions, they just decide. They are free to judge the facts of a case and decide if it meets the definition of “guilty” according to the law as explained to them, throwing in community norms.
Unless there is evidence of tampering - someone outside the jury trying to influence them, causing them to change their verdict - the jury’s decision is final, whether it is logical or not. Final - double jeopardy rule applies, cannot re-try a final jury verdict.
There is no illegal. Various jurisdictions may state that “you cannot consider anything other than the law” but it is impossible to enforce a nullification law; how would it work? A jury could simply decide “we don’t believe any of the witnesses, we think the whole case is a fabrication” and vote “Not Guilty”.
What RNATB is thinking of - if the judge gets wind of a juror trying to persuade the others to ignore the law and acquit they will bounce that juror very quickly. Any resistant juror simply has to tattle on the culprit. I like the idea of jury nullification, but this is correct too. If 100% of the jurors do not themselves agree that this should not be a conviction, without heavy persuasion, then that is the time for a not guilty verdict. One noisy nutbar should not derail a trial.
We’ve covered it in a few threads, but Bricker’s staff report puts it better than any post I can recall:
It might be a bit more accurate if I were to say it is legal (and correct in nearly all jurisdictions) for a judge to instruct a jury that they are not permitted to nullify, rather than to say nullification is illegal per se.
No, I’m aware that it’s constitutional for judges to not let lawyers argue jury nullification. But there have been places and times where jury nullification itself was illegal, and juries could be punished for doing it, like 17th century England, most famously in the William Penn case.
Just the reverse. The judges had wider latitude and minimal guidelines and precedents in the good old days. Things were not as fixed then. The Penn case was the main one that established that the jury’s decision was paramount and unquestionable and the jury could not be told what to decide.
Jury nullification was not illegal, so much as the jury disobeying the (allegedly impartial) judge and deciding the opposite verdict was considered an offense of contempt of court, and like the witness who refuses to testify, the jury could be held in jail until it obeyed the judge’s wishes. Times have changed.
Jury nullification is illegal in the sense that the jury’s legal duty is to apply the law to the facts before them to arrive at a verdict. A refusal to apply the law because they don’t like it is a refusal to discharge their legal duty.
There’s is no sanction for engaging in jury nullification - no possilbity of fine, penalty, imprisonment, etc. But that means that jury nullification isn’t a crime, not that it isn’t illegal.
Why not? It is a crime to willfully not respond to a jury summons. What is the difference between not obeying a summons for jury duty, and not obeying the judge’s instruction as a juror?
Because if you don’t show up for jury duty, your absence will be noticed. If you don’t obey a judge’s jury instructions, all you have to say is that you didn’t think the government proved its case. That’s all. You won’t (can’t, I think, but a lawyer might join in here and correct me) be questioned any further.