Jury nullification, anyone?

Great Debates
121

No doubt, just as there are situations where the factual situation behind a maze of incomplete and contradictory testimony is difficult enough to discern that such discernment requires a significant outlay of time. Juries are nevertheless expected to accomplish that feat. If your objection is fatal to the one, then it is equally fatal to the other, and there is no point pestering people with jury duty summons in the first place.

In any case, proper instruction (the law is to be given the benefit of the doubt unless the Constitutional violation is clear on its face) would avoid the problem.

122

The numbers behind my example are beside the point, that’s why I said X and Y. However, I’ll continue using drug laws as an example. Surely the possibility of thousands of otherwise innocent, non-violent people going to prison should be enough of an undesirable consequence for this thread.

It seems that each time the American public is polled about the War on Drugs, they’re opposed to it even more than the last time. Certainly, most Dopers agree that the WOD should be ended, whenever the time rolls around to start another legalization thread.

The question isn’t whether one would be able to convince a majority of the legislature or voters to change the law, but when. And when, upon convincing them, the law would actually be changed. When your only choice in the poll booth is between the guy who favors harsher penalties for drug possession and the guy who wants to keep the same penalties, it can take quite a long time for your voice to be heard.

Even if you can guarantee that the law will be changed as soon as the next election is over, you still have to deal with the negative consequences of unjust laws until then. Four years is enough time to elect a new President, House, and 2/3 of the Senate, but by then you’ll have 4X thousand innocent drug users in prison.

I just can’t imagine facing one of those people and saying, “Yeah, I voted to convict. I sent you to be raped in prison, took you away from your job and your family. The police seized your house and your car, and now you can’t even vote or buy a gun – but you know what? A law that was passed in a frenzy of racism and yellow journalism is still the law. You should have waited five years, then it would have been legal.”

123

mr. 2001, the numbers are not beside the point–hypothetical numbers are just as “made up” as flat fradulent numbers when the hypotheticals lack a basis in fact. We are not talking about the best rifle to use to knock down a T-rex. This is a real problem which becomes increasingly more vexing as people who hold that there particular pet cause ought to be exempt from criminal sanction become more bold and imaginative. There is a way to change the law and jury nullification is not the way. To respond to your post, I say again:

124

There you go again (and the rest of your crew) deciding that everybody who disagrees with you is childish and should be playing with Fisher-Price toys. A vast improvement I might add. And we have been downgraded from liar to deceptive.

Look, if we were going to play the word parsing game and concede that the courts are right on the issue of whether and should jury nullification exist, we would have a long time ago. But for those of us who wish to point out that it is an everyday occurrance, and that it is a right that may be used, we try to describe the world as it actually is, not as some prosecutors want because they have poor prosecutorial discretion.

But perhaps I can offer an analogy: There is no federal constitutional power/right of judicial review, which is no damn different than jury nullification. Courts just do it. It is among constitutional scholars two hundred years later still considered a coup d’etat of stunning proportions.

Yet another example of judges doing this in individual cases is where a judge makes a ruling in a case that is unsupported by facts and evidence and without opinion. It happens on a daily basis. The aggreived party is then required to appeal the matter under the presumption that every fact and nuance and law was construed in favor of the party prevailing in the lower court. When in reality it is either lazy judging or old fashioned bias.

Almost every time a lower court order is overturned on appeal, there is a possibility that it is a result of the judge’s version of jury nullification. Judges sometimes do this proudly, sometimes they do a good thing with it and sometimes not.

There is in fact such a thing as seeing things from a very different perspective. That doesn’t make us incomprehensible, stupid or liars. It makes a difference of opinion.

125

I agree, jury nullification isn’t the way to change the law.

It is, however, a way to minimize the harm of unjust laws while the slow, expensive process of changing the law is underway.

126

Due Process Clause. Or are you convinced that the guarantee of “due process” is a meaningless phrase because the Constitution doesn’t explain exactly what it means? You’re just being ridiculous.

Rubbish. Absolute rubbish. Show me constitutional scholars–not just more FIJA armchair pontificator, but real, live people who make a career out of the study of constitutional law–who think that’s some sort of “coup.” Bloody ridiculous, especially since the right to judicial review was quite well enshrined in Anglo-American law even before the Constitution was adopted.

By the way, your good grammar is showing. What happened to the semi-literate persona we’ve all come to know?

127

Naturally, the hamster’s been out of pellets since I inserted that unduly snotty final line. In fact, I was mixing up Sparticus with one of the earlier posters to this thread. My apologies.

128

I post this not for you Spartacus, but for everybody who may read your posts and think that you may be making a coherent point. The misinformation and willful ignorance you display make it necessary to rebut.

  1. It is NOT word parsing to say that jury nullification is a power not a right. Nearly every court in the United States has ruled as such, and your repeated refusal to acknowledge the legal precedent which refutes your earlier deception regarding the allowance of jury nullification is astounding.

  2. Jury Nullification is NOT an everyday occurance, it happens (thankfully) somewhat rarely, but it does happen.

  3. Judicial review is well established in the Constitution.

  4. Judges generally make their decisions based on the law. If they don’t they get overturned on appeal. Arguing that judges sometimes ignore the law and evidence does not make jury nullification any better. Those judges are just as wrong. And, once again, it doesn’t happen “on a daily basis.” I’d love to see your cites for these kinds of blatantly false accusations.

  5. It is not a difference of opinion when you lie (yeah, I’ve rethought it, you are a liar, consider yourself upgraded.) and say that constitutions and legal precedent support the notion of jury nullification. That is a fact, which has been disproven over and over. You can have your opinion that jury nullification is a good thing, but don’t go spreading ignorance about what the law is, how it applies, and how the justice system works.

129

**
I take the position that what is “clear on its face” to one person, is not “clear” to another person. Laws can’t be that subjective.

Enjoy,
Steven

130

By the way, the following is also a blatant falsehood:

No, no, no, no, no. Also, nein and nyet.

The only thing even remotely resembling this filthy lie is that disputed questions of fact–i.e., issues on which the parties parties have presented conflicting evidence–are, in some jurisdictions and in some procedural contexts, resolved by an appellate court in favor of the party who won the ruling or judgment below. If a ruling dependent on a fact question is actually “unsupported by facts and evidence,” it will NOT be affirmed on appeal.

131

Why do I keep trying, in this thread? Heaven only knows

To add another nail to the coffin that minty green has built above, there are procedural situations in which the reviewing court must assume the party which failed to prevail below has its facts correct, and must accept all the losing party’s factual allegations (and reasonable inferences from those facts) to be true.

Not that you care, IaS, I know. But someone else reading the thread might.

  • Rick
132

Judicial Review of statutes for constitutionality, as in Marbury v. Madison, has little to do with due process directly. It is about the ability of the Courts to declare laws of the legislature unconstitutional, and thus null and void. It is still controversial, and in fact is a major underpinning of the “original intent” crowd and the Federalist Society that feel that it is at the root of much of what is wrong in our judiciary. It is not contained in the constitution. It was a coup d’etat of the most extraordinary order when CJ Marshall revealed it to an infuriated President Jefferson.

While everyone now relies on it, it was and is the central legal struggle in this country in much the same way that race is the central social struggle. “Judicial Activism” charges are the way that the power of judicial review for constitutionalism is currently nomenclatured. It’s opponents are the Federalist Society members who espouse the “original intent” of their favorite founding fathers, ignoring the founding fathers they disagree with.

Remember Roosevelt’s court packing plan? That was in direct response to what FDR thought was abuse of judicial review. The whining about the Warren Court was and remains a complaint about supposed abuse of judicial review. As a way of a side note, I like to ask “conservatives” who complain about the Warren court which decisions they believe were wrong and should be reversed, and they inevitably come up with Roe v. Wade (Burger Court) or school busing. Of course, the Warren court did not devise the remedy of busing, but rather overturned Plessy v. Ferguson in finding separate is inherently unequal in Brown I and II, but I digress.

Bricker, Minty. Your repeated insults towards me and others in this thread (and towards december in other threads as far as Minty goes) don’t advance your arguments. They make you look immature. At least when december does it, he does it with a mature irony that comes off looking funny. Ya ain’t got that yet. I assure you that every view I have put forth in this thread is based on my good faith opinion informed by enormous amounts of reading about American and Greek political history and law and general political philosophy. I will certainly concede that your opinions are informed, but I respectfully disagree that yours is the only way to interpret the data. Nor is it the most useful way to interpret the data in my opinion. I’ve seen a lot of the world, and it is in my opinion the opposite of they way you are seeing it.

Alright, fine, my posts have spelling and grammar errors. I even leave out some words. Gasp! But at least it provides you with amusement. I only hope that someday that someone will go over your posts (and briefs) with such a fine toothed and burr pulling comb.

You have at every opportunity to discuss the social, political, historical or philosophical merits or demerits of jury nullification, simply resorted to pointing out that all judges hate jury nullification, which nobody in this thread has ever disputed. The fact that judges hate it (except in abuse instances) only points out to me, once again, that to have a successful political institution a member of it must seek to preserve and expand the institutions perogatives. It is for this reason that I believe the “original intent” crowd will fall upon the scrapheap of history. But hey, the commies thought capitalists were doomed by inherent contradictions too, so what do I know.

Hamlet, you have also taken the opportunity to call me deceptive, etc. Where in the constitution is the power to overturn statutes because they are unconstitutional set forth? It simply isn’t there. It is a power the court seized in the above mentioned Marbury v. Madison. Go on, cite please? You were aware I was talking about Marbury v. Madison? Perhaps I was not plain enough. Judicial review is a seized power.

Hamlet, please explain to me the difference between a power and a right. Years of studying political and legal philosophy, and I don’t know the damn difference. Educate me. Abolish my genuine ignorance on this point. Please. Politically, I see the terms power and right as almost 100% synonymous. I suppose a right can be a subset of power, but really mister, ya have me stumped. I honestly have no idea what you might mean. I am aware that legalese prefers the use of the word right and virtually never uses power as a synonym. But it seems to me to be very useful to understand from a political point of view that having a right without the power to exercise it is meaningless.

No, judges do not generally make their decisions based on the law. They make their decisions based on what they would like to do with a case, and then justify it with law if they can or create new law if they see the opportunity. The number of judges who fairly find the facts and apply the law without concern to their own political beliefs is in my opinion a small minority. There is a major school of jurisprudence call Critical Legal Studies that agrees with me on this point 100%. (I am not a “Crit” as they call themselves, as they are a bit too cynical even for me.) But to think that judges are saintly people who do not inject their own views, both consciously and unconsciously is in my view ludicrous and hopelessly naive. I like to refer to Bush v. Gore as the most stark and pristine example of what judges really do in controversial cases: what they damn well please.

133

First off, Sparticus, I already apologized for the mistaken grammer comment, so no need to apologize for your writing when it was entirely my mistake to attribute that to you in the first place. It was poor form and factually incorrect, and I apologize.

Second, you are once again speading falsehoods about the power of judicial purportedly being “controversial.” Oh, sure, nobody likes it when the judiciary strikes down their favorite statute, but nobody but a handful of Internet malcontents seriously questions the Marbury principle that the courts, not the legislature, get final say on what’s constitutional and what ain’t. If you continue to assert otherwise, you darn well better come up with some cites showing contemporary elected officials (and not just the local loon on the city council), judges, and professors saying that courts should not have the power of judicial review. Otherwise, you’re doing something that could most charitably be described as “making stuff up.”

Third, you have been treated less than respectfully in this thread because you have repeatedly posted lies, distortions, and wholly unsupported assertions of fact. When your statements are shown to be false or you are challenged to provide authority for a proposition, you retreat into complaining about how mean we’re being without ever addressing the substantive points that we’ve just torn to shreds.

We’re fighting ignorance around here, not coddling it.

134

I have to agree. Many of the arguments made to this point on both sides of the issue make sense in their own context. Certainly some persons escape justice because a jury doesn’t want to convict, whether by reason of prejudice against a victim or a feeling of association with the accused. The O.J. Simpson case comes to mind. Nevertheless, jurors should be told what their rights are in regard to the law.

A number of years ago I served on a jury in Los Angeles in the case of a woman who was charged with hit and run. It was not a simple case of a driver injuring a pedestrian and fleeing the scene. The “hit” was nothing more than a bump, which was an accident in the first place. The defendant and the “victim” had been arguing, and the “victim” brandished a brick. The defendant got into her car and started the engine, intending to just get away from there, but she was flustered and accidentally put the car in neutral instead of forward gear. She realized her mistake immediately as the car rolled backward, and she hit the brake. The car had essentially “pushed” the brick-wielding woman, but hadn’t knocked her off her feet. When she saw that the “victim” was still on her feet, uninjured, but now madder than ever and screaming at the defendant and bashing her car with the brick, the defendant threw the car into forward gear and got out of there.

It was clear to the jury that no crime had been committed (except perhaps by the so-called “victim”), but we were instructed by the judge that the law made no exceptions for such circumstances. We felt that the defendant should not have been charged with a crime in the first place, and that she was only facing charges because the bitch she “hit” wanted her pound of flesh. We were given the option of finding the defendant guilty of hit and run (I believe a misdemeanor in this case) and finding her guilty of leaving the scene of an accident (a lesser misdemeanor). We chose the lesser, but none of us felt right about it. If we had known that we had the right to just throw the damned case out that is what we would have done. Justice was in no way served by convicting that poor woman of any crime at all.

Then, once the verdict was rendered, we were just dismissed without knowing what penalty, if any, the judge imposed. The whole experience left a bitter taste. I still believe in the duty of jury service, but I know more now than I did then. In similar circumstances I’ll inform my fellow jurors that they don’t have to follow the judge’s instructions.

135

Speaking of ignorance . . . I misspelled “grammar”? Sheesh.

136

The judge told you you had to convict the woman of at least the lesser offense?

I find that extremely hard to believe. Under the facts you describe, you’d have been entitled to believe the woman’s testimony in its entirety and find her guilty of no crime at all. That’s not nullification. That’s the jury’s role: to weigh evidence. If you believed her, you could have found her not guilty through a greater-harms defense, or by the fact that no accident ocurred.

If a judge really did give such a coercive instruction to a jury, which, again, I doubt, it would be overturned on appeal.

  • Rick
137

My old memory isn’t what it used to be. I don’t remember all the details now, it was probably at least fifteen years ago. Now that I think of it, the defendant was charged with assault with her car and leaving the scene. We didn’t believe an assault had occurred but she did leave the scene. We didn’t want to find the defendant guilty of anything, but we didn’t know, and were not told, that we had a choice. We were instructed that if we found that either of the charges was true we must bring a verdict of “guilty.” I have never felt right about it. Sorry for the confusion.

138

This makes much more sense.

I take it you felt that, even though she was technically guilty of the charge, the circumstances were such that she was justified in what she did. But when the judge gave you instructions, he didn’t mention any sort of justification as a possible defense?

Given the facts you’ve described, this was error. But it’s the kind of error that’s more common, and much more credible, than the first version.

Her lawyer should have asked for, and received, a jury instruction on justification, since all that’s required to support the giving of such an instruction is the merest scintilla of supporting evidence. In this case, the woman’s own testimony about her fear for her own safety supported the affirmative justification defense.

The cure for this problem, in other words, is not a jury nullification instruction, but the correct instruction of the jury that accurately and completely describes the law. That your jury didn’t get it is unfortunate.

When each side has a zealous advocate, such errors are rare. But in your case, one side fell down on the job.

  • Rick
139

I asked the federal district court judge that I clerk for what his opinions were about jury nullification, and much to my surprise he was not only all for it, he had even written a law review article on the matter. I don’t think he entirely changed my mind on the matter, but I definitely don’t think the issue is a black and white no-brainer. I’ll try to summarize his views but I don’t think a paragraph or two will do the article justice. I’d especially like to hear Bricker and minty’s views on it. If you have time to read it (12 pages) let me know and I’ll email you the cite.

He feels that the widespread belief that a jury’s role is simply to apply the law to the facts is a misconception, and if blindly applied it amounts to a relenquishment of our inalienable rights. What’s more, it’s a view of recent manufacture designed to limit a jury’s power. Traditionally, juries have been the judge of not only the facts, but in some instances the law as well. He quotes an opinion of John Jay (first justice of SCOTUS for the uninitiated) stating as much, and another from Chief Justice of the Massachusetts Supreme Court Theophilus Parson. While speaking at the Massachusetts Constitutional convention, Parson said:

“But Sir, the people have it in thier power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man be justified in it’s resistance. Let him be considered as a criminal by the general government, yet only his fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation. American juries are truly the check and balance against governmnt tyranny. They wield more power than judges or Congress in that the citizenry from which the jury is drawn is author and keeper of the Constitution. However, when juries act as the creator of government instead of the created, they cause a stir in the media. This stir is merely sensationalism aimed at dismantling jury independence. This fact is proven by the truth that the number of instances that a jury has exercised independence is inconsequential when compared to the innumerable instances where a verdict mirrors the thinking of the public, or a judge.”

In the Judge’s view, Justice=Law+fact+Conscience. Conscience must be included to permit the justice system to permit acts of mercy by a jury where the facts dictate morally and ethically that mercy is appropriate, even where contrary to the law. This may be an idealized view of the role of the jury, but the opposite view tends to idealize the legislative process as a reflection of the will of a democratic society.

A concrete example may help. Now, the following part is mine, not the Judge’s, and are the words and views not of a member of the Judge’s staff or an employee of the judiciary, but of pravnik the private citizen.

In the 80’s, every congressman on the Hill was trying to outdo the next one with tougher and tougher zero-tolerance drug legislation. One consequence of that period were some very harsh federal conspiracy charges with some outrageous mandatory minimum sentences.

Here’s how it works: your buddy calls you up and asks you to drive him to the next state to pick up several kilos of cocaine, and he’ll pay you 10,000 dollars. You say, “Wow, that’s a lot of money. Okay, I’ll do it”. Five minutes later you come to your senses and call him back to say no way.

You’re too late. You are now guilty of conspiracy to distibute over so and so many kilos, conspiracy involving telephone transmissions, conspiracy to cross state lines with contraband, etc. etc, and you by law have to go to the federal pen for a very long time.

That’s what happened to this one kid, a black college football player who was approached by some shady accquaintences to go to the next state and pick up a few kilos of cocaine. It was a dumb thing to agree to, but he was 19 or 20 or so, and you do some dumb things. One of them was busted on an unrelated charge, and rolled over on his buddies, who rolled over all the way down the line to the kid. The cocaine may never have even existed, and may have even have been a fabrication by someone wishing to “narc” on someone else to a beat a lesser charge. That technically wouldn’t have mattered; he’d still have been guilty of conspiracy.

The jury, by law, could not be told of the potential range of sentence. The charges had a mandatory sentence of over 25 years to do. When questioned afterward, the jury said they figure he’d get two years, maybe three. When they learned his actual sentence, they were horrified, and said had they known that, they never would have convicted him. He was undeniably guilty of conspiracy under the letter of the law, so if they had failed to convict it would have been jury nullification. What would you have done?

140

[sub]Hmmm, which judge is it? If only I still had student access to Lexis and Westlaw, I’d have you pegged in a few minutes![/sub]

My immediate reaction is a question: Does your judge believe a jury instruction on nullification would be appropriate?

I’ll tell ya, though, as an appellate lawyer, I make my living on the integrity and predictability of the law. When a judge or a jury ignores the proper application of the law, I work my ass off to make sure the appeals court corrects the errors. I take it personally when they get it wrong.

And I’ll also tell ya, when a case comes to me where the judge applied the law correctly and the jury came back with a verdict that is arguably correct under one version of the facts presented to it . . . I tell my superiors and my client that the jig is up and they’d be better off settling the case for whatever discount they can get.

So basically, I like the rule of law, even if I don’t like the law itself in every instance.