# Fuck you, Wayne Burgarello & fuck that jury too **URL:** \ **Category:** The BBQ Pit\ **Created:** [June 1, 2015, 4:31pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352 "2015-06-01T16:31:42Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 4, 2015, 6:19pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/101 "2015-06-04T18:19:48Z")
> [@Bricker](#): > > You’re right, but I took **muldoonthief** ’s question to be more along the lines of, “…but what if the prosecution doesn’t have directly contradictory evidence?” And your answer clarified something I wonder but didn’t ask clearly. IIUC an appellate lawyer can say “such and such a piece of evidence convinced the jury it wasn’t self-defense”, even if a different jury might have concluded otherwise. And then the verdict would be upheld. Because there was contradictory evidence, even if another jury might not have considered it so. So if you ask one jury, there was evidence contradicting self-defense. If you ask a different jury, they might not think it was contradictory. I suppose that is an inevitable feature of a jury system. What I am thinking is, Joe shoots Bill, and claims self-defense. There is evidence X of some sort that a reasonable person could conclude disproves self-defense. A different reasonable person might or might not agree. The jury, however, is comprised of 12 highly secretive people who are hell-bent on jury nullification. They hate SYG, and so they decide in the jury room during deliberations that they are going to convict. They don’t care about evidence X. They want Joe to go to prison. But they never, ever say word one about why they arrived at their verdict. Not during the trial, not ever. So Joe is convicted and appeals. Can the defense argue that he should be acquitted because a reasonable person might or might not have had a reasonable doubt? Can the judge compel the jury to give their reasons for the verdict? I suppose the appellate court could order another trial and hope for a different jury. Is that the only remedy? If it is, what legal principle is being upheld? Regards, Shodan ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [June 4, 2015, 6:27pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/102 "2015-06-04T18:27:33Z")
> [@Shodan](#): > > The jury, however, is comprised of 12 highly secretive people who are hell-bent on jury nullification. They hate SYG, and so they decide in the jury room during deliberations that they are going to convict. They don’t care about evidence X. They want Joe to go to prison. But they never, ever say word one about why they arrived at their verdict. Not during the trial, not ever. Not gonna happen. ---
**Author:** ![Kobal2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kobal2/32/20_2.png) [@Kobal2](https://boards.straightdope.com/u/Kobal2)\ **Post date:** [June 4, 2015, 6:27pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/103 "2015-06-04T18:27:47Z")
> [@Bricker](#): > > But even if you don’t, what normative message is this example intended to advance? Even before SYG laws became the topic _du jour_, you were entitled to defend yourself with deadly force against a gun wielding assailant. If you can, without discovery, procure a gun and plant it in your victim’s hand, you have a strong claim for self-defense, _and always have._ \*\*Steophan \*\*went further - the gun could be anywhere on the scene, or on the corpse. The mere \*presence \*of a weapon was enough to claim self-defence. Beyond that, I simply argue that one ought to look further than this single item of evidence. For example, and going by Hollywood contextual standards, my inheriting five million dollars off the corpse and his having zero reason whatsoever to want to wish me harm (beyond, yanno, the fact that I was about to kill him about them five million bucks) would conspire to disprove my allegations of self-defence against my suddenly homicidal rich uncle. Moving back into the fact-based realm ; the flashlight thing smells to high heavens to me, even though I’ll readily agree to not having access to all the details. Either the scene was dark enough to require a flashlight, in which case how did the shooter see the unlit flashlight in the first place(and if it was lit, how did the shooter mistake it for a gun ? Yes, yes, I know, tactilol guns have them. Is it reasonable to believe a crackhouse squatter to have a tricked out gun ?) ; or the scene was clear enough for the shooter to see an unlit flashlight, in which case why would the dead squatter reach for it ? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 4, 2015, 6:31pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/104 "2015-06-04T18:31:36Z")
> [@Shodan](#): > > And your answer clarified something I wonder but didn’t ask clearly. > > IIUC an appellate lawyer can say “such and such a piece of evidence convinced the jury it wasn’t self-defense”, even if a different jury might have concluded otherwise. And then the verdict would be upheld. Because there was contradictory evidence, even if another jury might not have considered it so. > > So if you ask one jury, there was evidence contradicting self-defense. If you ask a different jury, they might not think it was contradictory. I suppose that is an inevitable feature of a jury system. Correct. Criminal defendants are promised a fair trial, not a perfect trial. > [@](#): > > What I am thinking is, Joe shoots Bill, and claims self-defense. There is evidence X of some sort that a reasonable person could conclude disproves self-defense. A different reasonable person might or might not agree. > > The jury, however, is comprised of 12 highly secretive people who are hell-bent on jury nullification. They hate SYG, and so they decide in the jury room during deliberations that they are going to convict. They don’t care about evidence X. They want Joe to go to prison. But they never, ever say word one about why they arrived at their verdict. Not during the trial, not ever. > > So Joe is convicted and appeals. > > Can the defense argue that he should be acquitted because a reasonable person might or might not have had a reasonable doubt? Can the judge compel the jury to give their reasons for the verdict? No, the jury’s verdict cannot generally be impeached like that. The safeguards against the scenario you describe are found in the jury selection process. The _venire_, the pool from which the jury is drawn, is created randomly from a number of different sources – typically voter registrations, although other sources such as drivers’ license databases may be authorized as well. Each member of the venire is subject to questioning by both sides, under oath, and such questions are intended to root out any such strong preconceptions as you describe, and theoretically a juror could be charged with contempt of court, or even perjury, for actively lying. (See [here](http://www.straightdope.com/columns/read/2899/whats-the-story-on-jury-nullification) for a brief description of the case of juror Laura Kriho). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 4, 2015, 6:35pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/105 "2015-06-04T18:35:46Z")
> [@Kobal2](#): > > \*\*Steophan \*\*went further - the gun could be anywhere on the scene, or on the corpse. The mere \*presence \*of a weapon was enough to claim self-defence. > > Beyond that, I simply argue that one ought to look further than this single item of evidence. For example, and going by Hollywood contextual standards, my inheriting five million dollars off the corpse and his having zero reason whatsoever to want to wish me harm (beyond, yanno, the fact that I was about to kill him about them five million bucks) would conspire to disprove my allegations of self-defence against my suddenly homicidal rich uncle. > Moving back into the fact-based realm ; the flashlight thing smells to high heavens to me, even though I’ll readily agree to not having access to all the details. Either the scene was dark enough to require a flashlight, in which case how did the shooter see the unlit flashlight in the first place(and if it was lit, how did the shooter mistake it for a gun ? Yes, yes, I know, tactilol guns have them. Is it reasonable to believe a crackhouse squatter to have a tricked out gun ?) ; or the scene was clear enough for the shooter to see an unlit flashlight, in which case why would the dead squatter reach for it ? The action took place at night, and I don’t agree that the only two possible descriptions are ‘lit’ and ‘can’t see an unlit flashlight.’ Presumably the jury believed that it was dark enough to be unable to make out more than shapes, but not so dark that it was impossible to see anything. More light would have been helpful so the victim reached for a flashlight, which the accused perceived as a pointed, dark shape similar to a gun. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 4, 2015, 6:41pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/106 "2015-06-04T18:41:40Z")
Thanks as usual, **Bricker**. If I am ever charged with something, I’d want you as the judge, love you as my defense attorney, but if I look over and see you in the prosecutor’s chair, I’m pleading insanity. Regards, Shodan ---
**Author:** ![Kobal2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kobal2/32/20_2.png) [@Kobal2](https://boards.straightdope.com/u/Kobal2)\ **Post date:** [June 4, 2015, 6:48pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/107 "2015-06-04T18:48:03Z")
> [@Bricker](#): > > Presumably the jury believed that it was dark enough to be unable to make out more than shapes, but not so dark that it was impossible to see anything. That’s a very \*specific \*level of dark, innit ? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 4, 2015, 6:55pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/108 "2015-06-04T18:55:34Z")
> [@Kobal2](#): > > That’s a very \*specific \*level of dark, innit ? No, I don’t think so. As I’ve aged (and as I now deal with a cataract in one eye, for which I am terrified of getting surgery because of phobias about things being done to my eye, but I digress) I’ve found it more difficult to see at dusk. A few months ago, one of my headlights died, and it was on the same side of the car as the weak eye; I struggled with the drive home for a few minutes and finally asked my wife to take over. She had no problems at all. The accused in this case is about twenty years older than I am. According to [one source](http://pods.dasnr.okstate.edu/docushare/dsweb/Get/Document-2418/T-2140web.pdf): > [@](#): > > Many older adults have trouble seeing at dusk, making out objects in low-lighted areas, or telling one dark color from another. Thus, an older person needs more light to see well. In fact, a person aged 65 or older needs twice as much light as does a 20-year-old. The accused is 74. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 4, 2015, 7:05pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/109 "2015-06-04T19:05:28Z")
How “admissible” is the deceased status as junkies? Homeowner protecting his property against junkies? A wonder the jury didn’t carry him out on their shoulders and buy him drinks… ---
**Author:** ![Kobal2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kobal2/32/20_2.png) [@Kobal2](https://boards.straightdope.com/u/Kobal2)\ **Post date:** [June 4, 2015, 7:08pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/110 "2015-06-04T19:08:04Z")
> [@Bricker](#): > > The accused is 74. The accused is not the one who supposedly pulled out a gun-like flashlight. ---
**Author:** ![Inigo\_Montoya](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inigo_montoya/32/124_2.png) [@Inigo\_Montoya](https://boards.straightdope.com/u/Inigo_Montoya)\ **Post date:** [June 4, 2015, 7:34pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/111 "2015-06-04T19:34:43Z")
> [@elucidator](#): > > How “admissible” is the deceased status as junkies? Homeowner protecting his property against junkies? At least in civil proceedings, that would likely be omitted if the court felt the fact was more inflammatory than informative. But as this plea sorta hinges on someone being in fear for his life, it would matter what he believed he was up against, and what he believed to be the capabilities of a skulking methhead. Seems the more ignorance he could display in the matter, as long as he seemed sincere, the better. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 4, 2015, 7:35pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/112 "2015-06-04T19:35:15Z")
> [@Kobal2](#): > > > [@Bricker](#): > > > > The accused is 74. > > The accused is not the one who supposedly pulled out a gun-like flashlight. The accused’s vision – not being able to see the object for what it was – was the relevant point of my post. You had wryly observed, in response to my comments about it being dark enough to see shapes but not details, that I was describing a narrowly specific range of light. And my post was intended to show that this wasn’t true; especially as we age, our ability to perceive details in low light worsens dramatically. Since the accused was 74, this observation applies to him, and since he was the one who was unable to perceive that the object was a flashlight and not a gun, this observation is relevant. > [@elucidator](#): > > How “admissible” is the deceased status as junkies? Homeowner protecting his property against junkies? A wonder the jury didn’t carry him out on their shoulders and buy him drinks… If he knew they were likely junkies, it’s certainly admissible under the general concept of _res gestae_ – the ongoing narrative, the complete story. If he didn’t know at the time that they were likely junkies, then it’s probably not admissible because it’s generally irrelevant, and even if slightly relevant it’s more prejudicial than probative. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 4, 2015, 8:03pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/113 "2015-06-04T20:03:27Z")
> [@Bricker](#): > > Would it surprise you to learn that, apart from Hollywood, the “warning shot” concept is not recommend by any legitimate firearms training course or protocol? > > I ask about your training and experience because, from the invocation of your idea of using a “warning shot,” you appear to have developed your ideas about firearm use from television or movies. You can think whatever you want about the intelligence of a warning shot, but since the reality seems to be that most people miss shots they take, even trained police, then you can assume that I would fire a shot to miss on purpose to try and scare them off. I’m familiar with the saying that you don’t point a gun on someone unless you intend to shoot them, I’ll gladly ignore that. I would have fired a shot to miss, either in the air or into the ground, and then just see how the situation develops from there. Why’s that so bad? > [@FuriousGeorge](#): > > If you are going to fire a warning shot… like in the movies, you also need some cool dialogue or turn of phrase… like in the movies. If you can’t think of one on your own, I like Deapool’s “I wore my red shirt so you can’t see me bleed. I hope you wore your brown pants.” It would have been my first shooting outside of a range, so I’ll probably just say something stupid like “Back off, fuckers!” ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [June 4, 2015, 8:35pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/114 "2015-06-04T20:35:32Z")
> [@YogSosoth](#): > > I almost don’t want to ask but I am afflicted by a morbid fascination. Are you saying backing away and calling police would be illegal? Your ideas are fascinating to me > > I think its fairly obvious that I don’t subscribe to that school of thought. > > I would take being a dick over being a murderer > > Then just point the gun at them and back away You do realize that threatening people with a gun, which certainly includes “firing a warning shot” can get you prosecuted don’t you? ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [June 4, 2015, 8:38pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/115 "2015-06-04T20:38:45Z")
> [@Steophan](#): > > The point is you shouldn’t be threatening people in the first place. You don’t use force (armed or otherwise) except to defend yourself against an imminent threat (someone running at you with a heavy flashlight would count as that). If you have time to brandish a weapon threateningly or fire a warning shot, you’re either not in imminent danger, not in sufficient danger that you need to use lethal force, or you’re an idiot who’s gonna end up either seriously injured or dead. > > If you fire a warning shot that accidentally hits someone, or accidentally fire whilst threatening someone, you’ve shot someone who was not an imminent threat. What’s being advocated by people who say you should do those things precisely what people claim is happening - the injury or death of innocent people. Certainly if the homeowner in this case fired a warning shot which ricocheted and hit someone I’m reasonably be certain hedge facing very serious charges. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 4, 2015, 8:49pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/116 "2015-06-04T20:49:52Z")
> [@Bricker](#): > > …If he knew they were likely junkies, it’s certainly admissible under the general concept of _res gestae_ – the ongoing narrative, the complete story. If he didn’t know at the time that they were likely junkies, then it’s probably not admissible because it’s generally irrelevant, and even if slightly relevant it’s more prejudicial than probative. So, the defense slips that fact into the narrative, the prosecution objects, the judge agrees with the prosecution, and instructs the jury to disregard that. Then the jurors take out their brain bleach and scrub the fact from their memory. Boy, what a lucky ducky of a prosecutor, who went to the office that morning and got handed this turd taco of a case. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 4, 2015, 10:03pm UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/117 "2015-06-04T22:03:39Z")
> [@Ibn\_Warraq](#): > > You do realize that threatening people with a gun, which certainly includes “firing a warning shot” can get you prosecuted don’t you? I had an inkling, but I would place my faith in the fact that once the jury hears the case, I will be acquitted under the circumstances. Just because it can happen doesn’t mean it will, and if a jury hears the story of a person drawing a gun on trespassers but not shooting them, and only trying to scare them away, I would be fine in placing my fate in their hands and expect an acquittal ---
**Author:** ![FuriousGeorge](https://avatars.discourse-cdn.com/v4/letter/f/ecae2f/32.png) [@FuriousGeorge](https://boards.straightdope.com/u/FuriousGeorge)\ **Post date:** [June 5, 2015, 12:26am UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/118 "2015-06-05T00:26:57Z")
> [@YogSosoth](#): > > It would have been my first shooting outside of a range, so I’ll probably just say something stupid like “Back off, fuckers!” …and thus another difference between real life and the movies, ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2015, 12:55am UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/119 "2015-06-05T00:55:40Z")
> [@YogSosoth](#): > > You can think whatever you want about the intelligence of a warning shot, but since the reality seems to be that most people miss shots they take, even trained police, then you can assume that I would fire a shot to miss on purpose to try and scare them off. I’m familiar with the saying that you don’t point a gun on someone unless you intend to shoot them, I’ll gladly ignore that. I would have fired a shot to miss, either in the air or into the ground, and then just see how the situation develops from there. Why’s that so bad? The primary reason it’s bad is that you are holding a gun and have never received the proper training about using it – _viz._, not firing warning shots. Firearms training virtually universally warns against the use of warning shots, primarily because of the danger associated with them. Shooting into the ceiling means punching through the roof into the air, air means the bullet goes up, and since the bullet doesn’t reach escape velocity, it then falls down again. Of course the odds are that it won’t hit anyone, but a couple of people per year die in Puerto Rico from News Years’ Eve celebratory gunfire, where the bullets tumble back to Earth in a very unfortunate trajectory. Shooting into the floor raises the possibility of ricochet. It would be hilarious, in a sick, twisted version of hilarity, if your efforts to avoid shooting a squatter ended up ricocheting through your window and into the chest of your neighbor, who is on his own property and done nothing wrong. Again unlikely, but firearms training stresses the value of _knowing where your shot is going to go._ That doesn’t guarantee it will go where you wish, but the overwhelming consensus is that warning shots are not the best practice. (By the same token, using a hollow point or wadcutter load for home defense is recommended for generally the same reason: you don’t want your full metal jacket round to pass through the malefactor and hurt someone behind him.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2015, 12:58am UTC](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352/120 "2015-06-05T00:58:49Z")
> [@elucidator](#): > > So, the defense slips that fact into the narrative, the prosecution objects, the judge agrees with the prosecution, and instructs the jury to disregard that. Then the jurors take out their brain bleach and scrub the fact from their memory. > > Boy, what a lucky ducky of a prosecutor, who went to the office that morning and got handed this turd taco of a case. Is that what happened? I suppose it’s possible, but unlike “Law and Order,” in which both prosecution and defense can say whatever they please as long as they quickly follow an opposing objection with “Withdrawn!” real trials don’t really work that way. If the information is off-limits, this would have been thrashed out ahead of time with motions _in limine_, and it would be unusual for a defense attorney to flout that order at trial. [Previous page](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352.md?page=5) [Next page](https://boards.straightdope.com/t/fuck-you-wayne-burgarello-fuck-that-jury-too/721352.md?page=7)