Supporting any point with “just like a defense attorney who advocates vigorously for a client he knows is factually guilty” is asinine, as that is the reason that most people have such a low opinion of lawyers. A moral lawyer should recuse himself from such a case.
Let’s say that guy gets set free because of you. And then he commits another crime. Seeing as the guy would not have been able to commit that crime if you had not set him free, that makes you partly to blame for it.
Seeing as I consider this self-evident, I therefore must believe that jury nullification is a good thing. It overrides my requirement to keep my word. In a system where I can’t even depend on the defense to be presenting an honest case, I have to have a way to correct the immorality. Or else I’m condoning it.
This argument is asinine. Consider a case where circumstantial evidence indicates to a lawyer his client is probably guilty. However, there is no hard proof. You say that lawyers should recuse himself from that case. So, under that idea, the person has to serve as his own lawyer since no real lawyer will defend him. Which means the quality of his defense will most likely be very poor, the accused isn’t trained for years for court after all. It wouldn’t be hard to imagine that he’ll be found guilty while with a competent defense lawyer he may not be. It also isn’t hard to imagine a situation like this where the guy is actually innocent. So, basically, with your idea the LAWYER decided who was guilty and who was innocent, not the jury. Everything after the lawyer walked away was just a guy getting boned by the system because he has no adequate defense.
Alternatively, think of it this way. The rich will always have a lawyer to defend them no matter what. Even if 99% of all lawyers agreed with your idea, that 1% would still be around and in it for the cash. Poor people are screwed though, 99% of the lawyers won’t touch their case and the 1% that would are unaffordable. The rich guy may go free because of his expensive defense team. The poor guy goes to jail. So this idea has effectively just made the old complaint that the rich can get away with anything even more true than it already was.
Everyone deserves a defense. EVERYONE. I don’t care if you stabbed a boy scout to death live on the national news, you have a right to demand a trial and you deserve a lawyer to argue you aren’t guilty at that trial. Anything else leads to worse consequences than we already have.
Realistically, a good defense would recommend plea bargaining instead of claiming innocence and demanding a trial. This is generally done in cases where the lawyer believes the jury will find his client guilty rather than the lawyers own opinion though. Which leads to the astonishing amount of wrongful convictions, but that’s a different argument.
None of which has anything to do with jury nullification. Personally, I support it. I’m one of those let 100 guilty free rather than jail one innocent type of people. If jury nullification is the only tool available to prevent jailing that one innocent, then at least there is that one tool.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
You mean like OJ? What you are describing is not jury nullification in the sense it is usually meant. OJ didn’t get off because the jury thought the law against murder unjust. He got off because the jury refused to convict a member of their own race. He also got off because of pre-held prejudices against the local police force. That is a different sort of nullification altogether and cannot be prevented no matter what you feel about juries judging the law. You also have to remember that the majority of crimes these days quite arguably have no victims. So not only are there not “hundreds of thousands” of victims running around out there there are none whatsoever. In such cases jury nullification merely insures there will not be a victim.
At any rate, you really can’t expect a person to act in opposition to their conscience. I could never send someone to jail for drug consumption or for failure to pay the fine for not buying the government mandated insurance or whatever totalitarian nonsense is in vogue that particular month. It is not in me. I may be odd that way but I just can’t punish someone who has done nothing wrong and hasn’t directly harmed someone else. I don’t really give a fig if every single other person in the whole of the country feels the law is just and necessary. I am not responsible for their actions, only my own.
Besides we already have widespread judicial nullification at every level. In Kelo the Supreme Court nullified an explicit provision of the Constitution by fiat and they have only now gotten around to restoring the 2nd amendment after its long sentence in political exile. While ignoring the plain language and intent of the law in these cases they have invented other laws out of whole cloth.
If we can live with these outrages then we can live with the little guy having a say in whether his neighbor has to pay a big fine for not sorting his recyclables or not trimming his hedges to the local bureaucratic standards. I doubt you will find much if any nullification of the murder laws. It is all part of the checks and balances. It’s not perfect but it is the best mankind has come up with thus far. Surely if we can let a few go free because we cannot prove beyond a reasonable doubt they took a certain action then we can let a few go if we can’t even agree beyond a reasonable doubt that they should be punished at all for taking that same action.
Well, known guilt isn’t proven until the trial. Before that, there is only probable guilt. So how could a lawyer recuse himself from a case before the trail based on known guilt?
Well, if the client told him, or if based on the unedited facts he encounters, there really is no reasonable doubt. OTOH, Clarence Darrow considered it a victory if he managed to get his client off death row - not because he thought his clients innocent typically, but because he did not believe in the death penalty.
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My impression was that guilty though he was, OJ was just shit-lucky that there was no real evidence that he did it. Just circumstantial evidence that anyone can argue - “could be someone else’s shoes”, “could be someone else’s glove”, “could have been planted by ambitious or racist cops”, etc. Nobody testified that they saw him at or near the scene, nobody put the knife in his hand… Basically he had the money to tear the sloppy forensics to shreds; if that is the standard of evidence for most of the criminal prosecutions, no wonder money can buy justice. Much as I think he did it, I would want some pretty serious evidence before convicting a man for life in prison - Let’s say, it would be convenient to have a room full of guys identifying him as the one with the gun and a recording of his vioce threatening people.
As for jury nullification - as I understand it, the crime of “manslaughter” was invented in Olde Englande when juries repeatedly refused to convict someone for murder for what was not an act of muderious intent but just a tragically unfortunate outcome to somewhat typical violence. That is the intent of the jury - to put some social balance into what is otherwise a mechanical and easily misguided process.
No, it’s that piously claiming that The Law is The Law, when everyone from the Supremes on down twists the law to suit their own ends, is childishly fatuous.
I think it’s childishly fatuous to conclude that because you disagree with some of their decisions that they are “twist[ing] the law to suit their own ends.” In both of the cases you mentioned, there were solid, reasonable, perfectly sound arguments on both sides, but you hold to the pretense that the only way that a decision could be reached that you disagree with is that the courts are corrupt, manipulative, or dishonest.
Basically, when contemorary morality is seriously at odds with the law as written or precendents, the higher courts (judges) will often find some way to interpret the law that renders a more “fair” verdict. (Roe v Wade, Little Rock, Prop 8) Occasionally, they will rule to the letter of the law and let politicians deal with the mess (Dredd Scott).
Like schoolboys doing math homework, they will work out the answer and think “that can’t be right” and try to figure out how to get the right answer. The question is how badly we want the judges to exercise creativity verus literality(?). We certainly seem to blame judges when the decision makes no sense in terms of “fairness” too. However, we have judges because there is always some though required to solve most cases.
So is it “corrupt, manipulative, or dishonest” for a judge to want to what seems fair as well as right? Or only when we disagree, or only when we think they stray too far from the letter of the law?
And if the judge can do so, the jury should also. The jury is the final “sanity check” in a very incestuously inbred closed legal system.
Again, simple disagreement with a reasoned conclusion simply cannot be because more than one reasoned conclusion is possible. To some extent, I blame this degree of contempt on Scalia, whose own opinions often feature this kind of intellectual libel against his fellow jurists.
As an example, substitute “black and white” for “male and female”. Is it legal to have separate but equal toilets for A and B? One has been rejected since 1954, one is the on-going law of the land. OTOH, in most other aspects of society, separate but equal - job oppportunities, sports teams, pay scales, etc. - both sexual and racial equality are required.
I’m sure somewhere some judge has jumped through intellectual hoops to explain why separate but equal toilet facilities for women are OK even though the law obviously says otherwise. Similarly - sometimes separate men’s and women’s athletic teams are OK, sometimes not.
The average judge, like the average jury, is torn between what the law says and what they pereiev as right or just. I guess the whole “Great Debate” is how far the law should be stretched to render a verdict at odds with a literal reading of the law. Fortunately for jury nullification, juries unlike judges do not have to explain their decisions.
I don’t think he’s saying that it’s unjust. Simply that “Seperate but equal” has been decided as unjust and having 2 bathrooms for the genders seems to be the very definition of seperate but equal