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Rick, you are much more patient than I.
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[sub]Pssst! Rick! You’re giving away the secrets to the club![/sub]
Does it seem to any one else that we are playing bull in the ring with every misinformed malcontent in four counties. I appreciate that lawyers and judges are feared and therefore the targets of resentment and pique, but for Pete’s sake, at least try to know what you are talking about before you come barging in here with some broad statement on the order of this:
Or this:
I want my legislatures passing general laws, the executive branch carrying them out, and when there is a dispute about some fact in an individual case, then I want citizens applying the law to other citizens, not some butt munch political hack has been who dresses in a black night gown.
If the purpose of this message board is to fight ignorance we sure have our work cut out for us here.
Hi Cole. Before I offer my welcome to the SDMB, would you care to explain your user name? I really hope it doesn’t have to do with the USS Cole.
In reviewing this thread, this (fictitious) example comes to mind:
In The Verdict, Paul Newman, struggling underdog lawyer, is representing the family of a woman who went into the a hospital. Due to one doctor’s screw-up, the woman went under anaesthesia improperly and is now in a coma. The family is suing for malpractice and assorted mopery-n-dopery. At one point in the trial, one of the hospital workers testifies and produces evidence that the doctor did screw up and the woman would not have been in a coma if he had not. Opposing Counsel of the Hospital, big-shot lawyer James Mason, pulls some legal precedent out of his butt and moves to have the worker’s evidence and testimony declared invalid. The judge (who has previously been intransigent towards Newman and even practically ordered him to simply settle out-of-court) agrees with Mason and instructs the jury to completely disregard the worker’s evidence and testimony.
The jury comes back from deliberations and finds for Newman’s clients, giving them a substantial award. The viewer can only deduce (without having seen the jurors’ deliberations) that they basically said, “Screw the judge, she was right, Dr. Whatsiname screwed up and the hospital is going to have to pay for it.”
I do not offer this as justification for jury nullification or ignoring the law in favor of conscience. Yes, it’s only a movie, blah blah, dramatic license, blah blah. Like I said, it just came to me as I read this thread.
I do not offer this as any criticism of Capt Murdoch, who clearly sees the difference between reality and fantasy, but I suspect that many of our problems in this and other thread is that there is a fair hunk of our fellow citizens, and (horrors) even participants on this message board, who get their information from movies and movies that appear on cable television. In my own life there has been an ongoing wrangle with my other wise intelligent adult daughter over the assassination of President Kennedy–her source is Oliver Stone’s movie, mine is having lived through it. So too, we have had Jury Nullification defended by people who seem to have been no closer to a jury trial than watching Twelve Angry Men on late night TV. This may be no more than a codger’s belly aching over the abysmal ignorance of youth–but not really since our friend December is about my age.
It’s time to put this thread to bed unless some one who actually knows something about the topic wants to actually offer something that advances the debate.
Can’t you save your shots for threads where we disagree?
I’ve been reading this thread and participating in it for a while, and while the level of debate is above that of the Pit, it is only marginally so.
Minty Green is apparently a lawyer and has chosen to personally attack the intelligence of many of the pro nullification posters, incluing yours truly. Good for him/her as long as moderators don’t join in.
Then there are a bunch of arguments that say to the non-lawyers, read the cases, and cite the cases correctly. Way to go. Actually, every citizen is entitled to opinion, law license or no.
Jury nullification, if it exists at all, is not about whether lawyers and judges agree it should exist and define it in case law. It is a right that is seized by jurors and exercized in defiance of lawyers, judges and case law. It is a hearty FU to a corrupt system. I don’t need no steenking lawyers to tell me what freedom of speech, or the right to bear arms, or the right to confront witnesses or a jury trial are. I have my own opinion and this is a thread on what should be, not what courts think their own powers should be. If ya all want to eliminate those who don’t wish to bother to interpret case law from participating in this thread, I have no objection, except I don’t see anyone analyzing any cases. Now if somone were to go steal some of the reasoning from case law, that would be useful for us all to chew on. But to simply pull the “I’m a lawyer” card is silly. It isn’t persuasive. I would also inquire as to whether Minty Green is or was a professional prosecutor, because the thread should disclose a position professionally required of the poster, or is Minty Green free to publicly change his/her mind if persuaded in this thread, however unlikely that may be? However unlikely that may be, I think that most of us here are in persuasion mode (as I am), and if there are some in education/advocate mode (as a prosecutor would be) that other posters would like to know so as to not waste their time. Its fine that we have trained minds, but let’s have something more sophisticated than: “I’m a lawyer and it’s my opinion that…”
Those opposed to jury nullification have correctly pointed out that it was used wrongly to excuse lynchings of black Americans. Do those incidents make jury nullification wrong in non lynching type cases and so dangerous that it should be eliminated in all cases? Is the danger ameloriated by the second prosecution under federal civil rights laws, an argument I have raised earlier, but which no one has addressed.
Another poster mentioned how he/she would love to be on a Georgia jury and nullify a marijuana arrest. FTR, I am not a marijuana user, but if I were on a marijuana usage jury where the accused even admitted having a small amount of marijuana for personal recreational use, I would refuse to find guilty even if they expelled me from the jury, although I would try to avoid that. The war on drugs is stupid when applied to individual users (good topic for a debate.)
I would like to reply to the post that suggested that a jury was obliged to follow the laws of the legislature because they are duly elected. I would respectfully disagree. The American system is filled with checks and balances. The empanelling of a jury is as time honored as voting and which has existed in various forms for thousands of years as the appropriate forum for communities applying law in individual cases. It is in fact a check and balance on the powers of the legislature, a far more appropriate one than those used for Barbara, Jenna and Noelle Bush.
IaS:
No one has pulled the “I’m a lawyer” card. What Minty and I, among others, have said is that if you’re going to quote a case in support of your position, read the case to make sure that it supports your position first. That’s certainly not an unreasonable requirement for debate, is it?
Yes, every citizen is entitled to an opinion, law license or no. But not all opinions are of equal value. I am more inclined to value a cardiac surgeon’s over a plumber if the issue is whether or not I shjould undergo bypass surgery; I am inclined to value the plumber’s opinion if the issue is solving a leaky water faucet. Of course, the surgeon is entitled to his opinion on the faucet problem, just as the plumber is.
If this thread is, as you suggest, about what should be, rather than what is, I agree that extant case law is not terribly persuasive.
You obviously feel that a jury ignoring the law in favor of what they wish is fine - you’re ready to acquit a pot user no matter the evidence. But then how can you condemn the pro-life jury that releases an abortion protestor who blockaded a clinic? They are, after all, doing just what you did: exercising theit own “check and balance” on the power of the legislature.
- Rick
Oh, I’ve said somewhat more than that, Rick. I’ve also taken the position that if someone continues to spout the same demonstrably incorrect nonsense about those cases even after being corrected, that person is a liar and/or a loony.
I stand by that position.
I would also point out that there’s been no small amount of case law analysis (as opposed to mere recitation of quotes collected on web pages run by liars and loonies), and that next to none of that analysis has been conducted by the nullification fans. Don’t go whining about lawyers describing the case law when you haven’t even bothered to read it yourself, Sparticus. It’s not like it’s written in Latin, you know.
Moreover, how can you condemn a jury that convicted a defendant because they thought he was a bad person, even if he didn’t commit the crime he was on trial for?
Why do the lawyers posting in this thread assume that I haven’t read the case law? (Or others?) I never said one way or the other, did I? Has it occurred to you that I may be just as technically informed on the subject as you are? No, I don’t read Latin, but cases aren’t written in Latin. Nor do I think that cases are at all relevant here: some jurisdictions allow nullification, most don’t. That doesn’t speak to whether it is a right of natural law.
The history of juries, going back to the ancient Greeks and through the common law is far more telling of the rights of people to act through juries. I commend to your reading The Constitution of Athens by Aristotle. There has been a long struggle between the sides that favor juries and those that wish to reduce their power. I would urge those that really want to understand jury nullification to examine the various arguments in light of the power struggle between a legal elite and jury (citizen) rights. Any jury decision is an example of representative citizens resolving the everyday disputes that arise in a civilization like ours. Any reduction in jury power or increase in the procedural mumbo jumbo used to intimidate juries affects how the citizens hold power. So far, the argument against jury nullification is that it is possible for juries to horribly abuse that power, an argument that I will concede has more than mere theoretical weight. But to suggest that judges, lawyers and legislators don’t abuse power is hopelessly naive. The answer is to have some kind of check on the abuse of power, such as a federal retrial.
I simply don’t think that the lawyers posting in this thread add the slightest bit of weight to their arguments by stating that they are lawyers. Has any lawyer posting in this thread ever written in a brief or oral argument that their argument is stronger because they have a law license or went to law school? Of course not. The reason Mr. Justice Potter Stewart was mocked for saying saying that “he knew obscenity when he saw it” was because he isn’t a legal authority all by himself. While his opinion (not that one!) may be legal authority for a later case, ya just can’t be Vishnu and Shiva in the same aspect.
There is a big difference between a surgeon telling people how to conduct open heart surgery and having an opinion on it and a lawyer who has tried criminal cases having an opinion on jury nullification. A lawyer is a mere advocate, someone with expertise to respresent another. Their own statements are explicitly neither evidence nor law. The surgeon is performing the actual task and is licensed to perform it. Having an opinion on a matter of public debate doesn’t require a license, and neither does trying a criminal case. Most criminal cases are handled in pro per in this country, and even an idiot like Colin Ferguson can try a murder case in pro per. It’s just not a valid analogy. Same with a plumber. Need a license to do it for someone else for money, but you can mess up yer own pipes for free. But you can’t perform heart surgery without a license.
I do think that a marijuana case is similar to blockading an abortion clinic, and worthy of jury nullification. But not shooting at abortion doctors. FWIW, my recollection is that there is a busload of caselaw on how to picket in various labor cases, and this caselaw was in the minds of the legislators drafting the abortion clinic access laws.
I will agree that not all opinions are of equal value, nor all arguments and all reasoning. That’s why we call 'em debates, and why some folks are better informed afterwards.
The right to a trial by a jury of one’s peers is fundamental. It was one of the things (IIRC) that the barons forced down King John’s throat at Runnymead in the form of the Magna Carta. They were tired of John trumping up charges.
Because you repeatedly misstate the law. Observe:
This is patently false. American jurisdictions are 100% unaninmous when it comes to “jury nullification,” and there is no substantive variation whatsoever.
BUt that does not change the fact that they have no particular personal interest in the vast majority of cases that come across their collective desk. They have seen hundredds like it; they have less bias.
A jury, on the other hand, is more intimately tied to this one case. In other words, Judges have no tie to a given case. Even if their natural or political inclinations tend them to one side or another in a case, they are not likely to do anything special to change the outcome, a fact reinforced by training, experience, and familiarity of the law. One can argue all day long that there are bad judges; it changes nothing. There will be more bad jurors, should this measure be passed.
I am honestly torn on this issue. On the one hand, it seems that a formal system of jury nullification would have some deeply troubling implications for any effort to maintain the rule of law, and equality under the law. For example:
These are legitimate concerns. The law must be applied equally to all people, and I can easily see how jury nullification can lead to this practice being broken down.
On the other hand, I feel strongly that there need to be institutional checks on the power of the state to make and enforce laws. It has been pointed out that laws in this country originate via the democratic process, and that the appropriate way to deal with laws we dislike is via that process. But the democratic process is far from perfect. In fact, pure democracy is nothing more than the tyranny of the majority. Our system has other limitations on the power of the majority to enforce its will on a minority via laws and the democratic process. Is jury nullification fundamentally different from such checks that already exist? For example:
When I read that, I literally pumped my fist in agreement.
I could never, in good conscience, vote to convict an individual of drug posession, even given a defendant that is clearly guilty. It matters not to me that the law is a result of a democratic process, created by legislators democratically elected by The People, expressing their will in a Free Election, etc etc. To call this law an ass is to insult the asses of the world.
Thinking this through, I would imagine that the prosecution would elicit this information from me during jury selection, and would move to have me dismissed for cause, to which the judge would consent. Thinking it through further, suppose that the pool from which the jury is to be selected has a sizable number of people, perhaps even a majority, who feel as I do, and all such people are likewise dismissed. Would trying the defendant in front of the jury that resulted from this process violate his right to a “jury of his peers”?
I suggest that it might. If a randomly selected jury of your peers would be likely to contain several people who believe that the law under which you are being tried is wrong, then it seems to me that giving the state the ability to exclude those people be tantamount to giving it a right to have a biased jury.
So where does this leave us? Well, according to Minty Green:
It is a very curious situation indeed to have something universally acknowledged as a right, but held that it is dangerous for people to be too informed about this right. Something has just got to be wrong with that formulation. If juries really can “do whatever they want”, then we essentially already don’t have equality under the law, and the only reason we have not descended into lawless anarchy is via the fact that people are intentionally kept ignorant.
What we do not have in this country (to my knowledge) is a formalized system like that proposed in SD, whereby which a defendant could concede guilt under the law, but argue for acquittal because the law itself is wrong. How would a system like that work? For one thing, perhaps a “formal” system of jury nullification would be better than the haphazard one we have now. Defendants would have to admit guilt, juries would have to admit to nullifying. There might be a greater level of honesty, if nothing else.
The best known recent bit of jury nullification was the OJ case. If there had been a formal system like the one proposed in SD, one one hand, maybe OJ would have pled guilty but asked for jury nullification because of…I don’t know…the history of oppression of black people or some such. Assuming he had 1-gone this route and 2-it worked, the outcome would have been the same, except everyone would have been more honest about it.
On the other hand, if he had still tried to maintain his innocence (as I assume he would have done because of the impending civil trial), then perhaps the jury would have been less inclined to acquit him, on the theory that he had had the opportunity to go for the nullification if he wanted it, but deliberately did not. Perhaps then, in spite of what I assume was the desire on the part of the jury to acquit him, they would have made a more honest evaluation of the facts and found him guilty.
Thus it seems to me that having this system in place might well prevent obvious miscarriages of justice, such as the OJ case. A wealthy defendant wouldn’t want to admit guilt, because it would be tantamount to conceding defeat in a wrongful death civil trial. And it is the wealthy defendants that are able to hire the lawyers who know how to manipulate juries the way Johnny Cochran did to get them to de facto nullify the law
So…if a law like the one proposed in SD were enacted, perhaps juries would make less use of their already existing power to de facto nullify the law in cases the defendant does not take advantage of this system and still tries to assert his innocence. On the other hand, what will happen in cases where they do?
I don’t know the answer. However, John Zahn makes an excellent point here:
I admit I am ignorant of the facts here. What states have a requirement that judges notify juries of their right to nullify, and what empirical evidence is there, if any, to suggest that that the quality of justice has deteriorated in those states because of it?
Given my gut feeling that there is no such evidence (at least nothing recent, discounting obvious examples of racist juries decades ago), and my belief that the states should be “laboratories of democracy”, I think I would be inclined to vote for the proposition if I were a citizen of SD. If it does get passed, it will be interesting to come back here and discuss the results after some time has passed.
I realize of course that I might not like the results. But perhaps there are some ways we can take the idea and improve upon it. It’s been suggested, for example, that jury nullification could only be applied to victimless crimes. So the guy who was convicted of marijuana posession in the OP could still use it, but not a murderer.
It’s also been suggested that an instance of jury nullification could be held to nullify the law itself, for everyone, which gets us around the “equality under the law” issue. This has some frightening implications. If the OJ jurors vote to nullify, murder becomes legal in California. But I honestly can’t see even a “dumb as rocks” jury doing this, knowing full well that people pissed off about the verdict will be able to kill them…and get away with it.
On the other hand, if it were a case of marijuana posession, I for one would welcome the law being nullified with brass bands and a parade.
A few random things:
Just to answer your question, in the US I don’t think the prosecution can ever appeal an acquittal, due to the constitutional injunction against double jeopardy. About the other question, I don’t know. It may vary from state to stat.
Well this is problematic. I have the power to go buy a gun, go to my neighbor’s house, break in, and shoot him dead. I don’t have the right to do that. The difference is that if I do this I will be subject to a penalty under the law. There is no penalty of which I am aware for engaging in jury nullification. Do you think there should be?
Leaving aside the fact that you are “keeping them in a room” which implies that you have kidnapped these people, which in turn implies that you are using force or the threat of force on them, if you can convince 11 of 20 randomly selected people that it is ok to rob a bank, then there is something deeply wrong with the society from which those people were drawn. This is a poor analogy.
Jury nullification is not universally acknowledged as a right, as the second extract from your post set out above, in which you quote Bricker makes clear.
The fact that no penalty attaches to a particular act doesn’t mean that a juror has a right to do it. There is no penalty for a juror who votes to acquit (or convict) because the defendant went to the same school as him, or is black, or is an Episcopalian, or is physically attractive, or a fellow Mason, or whatever. Does this mean that a juror has a “right” to vote on the basis of these factors? And that he should be advised by the judge that this is his “right”?
I am not saying that disagreeing with the law is the same thing as naked prejudice. But I am saying that the duty of a juror is to return a verdict in accordance with the law and with the evidence, and he has no “right” to do otherwise.
No.
For many reasons, the jury’s deliberations should be sacrosant. If we were permitted, after the fact, to inquire into the process of jury deliberations, a convicted person might well seek to overturn his verdict based upon alleging improper motives that cam eto light in the jury room. Because there is a strong social interest in finality of convictions, the jury’s verdict should only be open to examination of improper external influences - if someone threatened or bribed a jury, for instance, into convicting when they otherwise wouldn’t or acquitting when they otherwise wouldn’t, then there should certainly be a penalty.
But in the end, we simply have to accept a juror’s oath that he will follow the instructions given to him by the judge, and will decide the case based on the evidence and the law, as opposed to his version of what he thinks the law should be.
Any other “cure” would be worse than the disease.
We should not, however, encourag the “disease” by telling jurors they can acquit or convict regardless of the law. It’s true that they can, just as it’s true I can commit a murder in the middle of ALaska, bury the body miles from civilization, and never get caught. But just because I am in a position to do wrong and get away with it does not mean I should do the wrong – nor does it mean that I should be informed by a judge that I have the power to do this murder as long as I don’t get caught.
- Rick
John Zahn wrote:
I don’t think there has ever been a witch trial in Winston-Salem.
For the record, I agree with Apos.
That’s an interesting example to cite, because the judge was exactly wrong in his ruling. My evidence professor in law school actually used this as an example of the Best Evidence rule and its exceptions.
In the movie, a patient has died because the hospital performed surgery on him (IIRC) 2 hours after he had eaten. They doctored the records to show 12 hours. The nurse who doctored the records made a copy of the original before she doctored it.
Under the Best Evidence Rule, an original is considered superior to a copy to prove the contents of a writing. This is what the hospital’s lawyers objected over – they were saying that because they had the original record in evidence, the defense could not submit the copy.
But there’s an exception to the BER when the authenticity of the original is in question. Thus, a copy may be entered into evidence to show tampering with the original.
(Any litigators out there please kindly correct any errors in the above – I’m a poor humble transactional lawyer who never sees the courtroom.)
I only bring it up because a lot of the things that people think are wrong with the court system aren’t really wrong at all – they’re figments of a Hollywood writer’s imagination, which in part contributes to calls for things like nullification instructions. That’s not to say there aren’t problems, of course, but I do think a lot of people think it’s worse than it is because they take Hollywood at face value (not you of course CaptMurdock).
(Don’t get me started on how Body Heat screws up virtually everything one can screw up regarding inheritance laws, or how Miracle on 34th Street botches the hearsay rule. Suffice it to say, Santa should’ve gone to the loony bin) 
John Zahn, I’ve noticed that Minty Green will never admit that he/she is even slightly mistaken, so it is a waste of time. In my two months on the board, I haven’t ever seen Minty Green correct in an argument about any disputed point IMHO. But I will say, that Minty Green is very certain about anything he/she says.
There are four states that provide for jury nullification in their constitutions (hamsters ate post with cites, sorry, I’m not going to re-do the research, but they are Georgia, Indiana, Oregon and I forgot the last one.) No state has statutes codifying the right, no judge will let a party argue it directly or indirectly. Every state allows the jury to acquit over and above a judge’s instructions. As long as the jurors follow the defense argument, they can acquit. They just can’t say out loud it is because they think the law is bunk, the technical term being jury nullification. There is a long history of it dating back to the Magna Carta. There are some horrible abuses, notably in lynching cases. Those are retired under federal civil rights statutes and usually convicted. We can expect the same with the other fine example provided by a con arguer, abortion clinic protests: retrial on federal laws in federal courts, with a wider jury pool.
If I were on a jury, I would not convict for minor marijuana possession, and I would arrange for the other jurors to acquit without mentioning jury nullification. There may possibly be other laws I think are bs that I would seek to nullify.
But I personally operate under the assumption that all the lawyers and the judges are bums, and that the cops are probably lying. This is based on my extensive life experience. Jury nullification is a basic human right as far as I am concerned. It protects against stupid and oppressive government action.