Sure fire way to avoid serving on a Jury?

[Dave_Stewart]

*Originally posted by Spavined Gelding *
**

As I understand the British (maybe only English) system, the presiding judge instructs the jury not only on the law and the procedure but also on the judge’s opinion of the evidence and the result the jury should reach. If the jury does not come back with the recommended finding there can be hell to play. This is based on observing a couple of trials at the Old Bailey some 30 years ago. A Canadian or British practioner may want to correct me on this.
**

In Australia, the judge can make guiding comments. The judge has to be very careful not to misdirect the jury. It is not supposed to be a “recommended finding”, but a judge can over-ride a perverse decision and call a new trial. Its rare but I’ve heard of it happening.

**

In the US, however, the jury is told what the law is and told what their options are for a decision, e.g., you may find the defendant guilty of murder I, murder II, voluntary manslaughter, negligent manslaughter, assault causing serious injury, or you may find the defendant not guilty. The jury is the sole finder of the facts. The jury is told that it can accept or reject any and all of the evidence. The jury can reject evidence no matter how authoritative or uncontradicted it might be (this is just what happened in the O.J. Simpson case from my point of view). A jury that doesn’t want to convict and doesn’t have the mother wit to realize that all they have to do is reject a critical piece of evidence is a jury that is made up of morons.

If there is sufficient public sentiment to legalize drugs or the bombing of abortion clinics it is certain that laws criminalizing those things will be repealed. In the meantime, unless a jury is unanimous in the matter (unlikely), all nullification does is hang the jury and pretty well guarantee that the whole thing will be done again at the same expenditure of time and money as the first time. In effect, the jury nullification type says: " I am better equiped to decide public policy than the legislature, and better suited to know the law than judges and lawyers." A pretty arrogant view, don’t you think. **

Yes, its one of the reasons I don’t like the jury system: I would better appreciate the certainty provided by a judge.

bare

I was disapointed to learn that while some of them thought the evidence was compelling, they thought that if I was serious about my case, I would have hired an attorney to represent me.

That is just so disappointing…I have a lot of respect for litigants in person. It takes a lot of courage.

And gives me another good reason to question the jury system.

My final thoughts on Freedom’s conduct:

“The only thing necessary for the triumph of evil is for good men to do nothing.” - Edmund Burke

Freedom may have kept his reason or motivations to himself, or lied, in order to accomplish his means. I’m still impressed, though, by what he did. I’m a big fan of the rule of law, but you have to temper that with your conscience. He thought what was happening was wrong, and he did something about it. I can’t fault anyone for that.

[Typo_Negative]

*Originally posted by Freedom *

I think it would have made a lot larger impact if I stood up in court, in front of all the potential jurors, the prosecutor and the judge and said: “There is no way I would be fair and impartial juror, because these laws are unjust. The enslavement of a race of people is deplorable, and I am offended, as is any person with a conscience, that these laws exist. I hope everyone joins me in my statement and we make it impossible for the State to even swear in a jury.”

And then everyone ignores you and the person helping the slave gets executed.

It’s very big of you to stand on principle when it’s someone else’s head on the block.
**

The obvious implication of your statements is that you believe that jury nullification is tool to used for the greater good. And in some instances, it might be. But is it wise or foolish to believe that it would always be used for the greater good?

Examples(maybe far out, maybe not):
A man is on trial for killing a doctor said to perform abortions. Say I’m a rabid fundie who believes abortion is so very wrong and it’s high time for drastic measures to save the little helpless…you see where I’m going. If I lie to get on that jury just to hang it, is justice served? And is that my decision to make?

Two men are on trial for the torture and murder of a gay man. Say I believe that God hates fags and these boys were only doing what God wanted and it was a righteous…and I lie to get on that jury to hang it. Is justice served? And is that my decision to make?

Surely in both examples I would be convinced that I was doing the right thing and serving the greater good. But that wouldn’t make what I was doing right. All I would really be doing is forcing the state to go to the expense of another trial, commiting perjury, and IMHO perverting the cause of justice.

That’s what I think about lying to hang a jury. It’s not a good idea, it’s a crime, and the perjurer goes in with a closed mind. Now if 12 people, after hearing the evidence and hearing about the law and talking amongst themselves, feel a law may be unjust or that a person who broke the law should not be found guilty, well that’s another matter entirely. The point is that in a jury trial, the decision is too big and too important for one person to make, especially if that one person is a perjurer.

[jazzmark]

It seems as if this thread is in the tail-chasing stages already, but I just wanted to let you know, Freedom, that I think you did the right thing.

[Typo_Negative]

Where the heck is {b]Minty Green**???

[Typo_Negative]

And where is my brain???

[sub]preview, dammit, preview[/sub]

[Dave_Stewart]

*Originally posted by spooje *

That’s what I think about lying to hang a jury. It’s not a good idea, it’s a crime, and the perjurer goes in with a closed mind. Now if 12 people, after hearing the evidence and hearing about the law and talking amongst themselves, feel a law may be unjust or that a person who broke the law should not be found guilty, well that’s another matter entirely. The point is that in a jury trial, the decision is too big and too important for one person to make, especially if that one person is a perjurer. **

I think you’ve got a valid point. I think your examples are flawless. I also know that sometimes you don’t think of these things until after the event, and Freedom was under a lot of pressure from his fellow jurors. I can’t disagree with your logic, but I still think that Freedom still did the right thing.

[Spavined_Gelding]

Dave Stewart, Your comment that you prefer a “judge alone” system is understandable in view of the popular notion that juries can be mislead by silver tongued advocates and jury members with their own private agenda. The problem with this is the incestuous relationship between the bench and the prosecution bar. While there are some judges of whom it is said that any defendant that asks for a jury in Judge BLANK’S courtroom doesn’t understand what is going on, there are far more judges before whom that no one who understands the system would waive a jury in a seriously contested case. Some judges do instinctively come down for the State on any contested issue. The elimination of the jury in criminal cases simply operates to render decisions in close cases a foregone conclusion. In it’s own way mandatory judge only trials are as corrosive of the perception of fairness as is a nullification jury.

[seawitch]

Leave for a few days, and look at all the reading I had to do. You folks don’t mess around, do you?

Now then. Since more learned types than I have shown up to debate the effects of jury nullification, I’d like to ask for thoughts and/or advice. In my jury selection experience, I was specifically asked whether I could follow the instructions given by the Court regardless of my own knowledge or of my own beliefs on whether the law was right or wrong.

Given that phrasing, how could I say anything other than “No, I can’t do that”? I was asked to abandon my opinions, morals, and personal convictions. My own sense of right and wrong. So I said, “Nope. Gotta do what I think is right”. Got sent home right away. Effect on laws: none. Value to either prosecution or defense: zip. Amount of change from within the system: zero.

Sure, I was honest. Who benefitted from that? Honesty got me kicked out of jury duty. What would you guys have done?

[bare]

Exactly my point seawitch, I would like to be able to serve on a jury but it is very unlikely when the courts discourage a fully informed juror. If everyone was in the same boat, where would we be? It still seems to me the only fair way to solve the dilemma is for the courts to recognize our rights to a fully informed jury system.

[Hamlet]

Bare

I’d love to learn more about the old lady’s case. I can look it up if you can give me her name, or the jurisdiction, or even the police department. I’m actually amazed it went to trial, and would love to see the facts of the case. Please let me know.

Also as a matter of curiosity. Why did you ask for a jury trial on a petty offense? I can’t imagine the buckshot case was anything but fine only, so why waste a couple days of your time, the courts time, 36 potential jurors time, and money when you could’ve easily took 10 minutes to explain it to the judge, and he probably would’ve agreed with you that you didn’t knowingly violate the law. he also would told you you wouldn’t have lost your license. Also on petty offenses you can get supervision, which means there is no conviction for you to worry about. One more question germane to this OP, did you try to argue jury nullification? Did you think the lead shot law was unfair?

As far as misinformation about the laws, it is up to the prossecution not only to prove the guilt of the accused, but it is up to them to fully explain the laws in question and clear up any misinformation any juror has.

This is not true. The job of informing the jury about the law is the judge’s job. That’s why the jury gets instructions from the judge.
Back to the OP. The reason the judge doesn’t instruct the jury as to their right to nullify is for the reasons I outlined earlier. The entire goal is to have 12 people who decide the case based on the evidence and not based on their own personal bias or prejudices.

As to FIJA. They have gotten into a fair amount of hot water with different courts over their attempts to “fully inform” juries of their “rights.” In the past three years, jury nullification supporters have been charged with obstructing justice or with contempt after passing out literature advocating jury nullification at state and federal courthouses in several cities, including Billings, Montana; Los Angeles; Las Vegas; Milwaukee; and Wichita, Kansas. An example is in Fairbanks, Alaska, Frank Turney is being prosecuted for his successful attempts in 1994 to persuade jurors not to convict Merle Hall, who was charged with being a felon in possession of a concealed firearm after he used a shotgun to blast his own television and fish bowl.Before and during Hall’s trial, Turney approached persons wearing juror badges inside and outside the courthouse, and urged them to call the phone number 1800-TEL-JURY to listen to a recording that informed each caller, as one juror summarized, “that I have more rights than what was read to me by the judge.” At least two of the jurors called the number and changed their votes to “not guilty,” causing a mistrial. Despite protests by the Alaska Civil Liberties Union as amicus, the Alaska Supreme Court refused to dismiss the resulting tampering and trespass charges that were filed against Turney. As I understand, Turney has been convicted of the crime, appealed again, and lost. I couldn’t find his sentence.

The Turney case, to me, is indicative of all the times I’ve seen FIJA at work. Every time I’ve seen them, they always have a specific agenda for their distribution of flyers. That agenda is to get a specific person they know found not guilty. Just as Turney did (fyi, turney had a prior weapons conviction). There have also been court orders upheld on appeal that restrict their ability to come within 50 yards of the courthouse and from having any contact with potential jurors.

These judges are not trying to have non-thinking juries or juries made up of sheep. They want 12 IMPARTIAL jurors to decide a case, nothing more.

[seawitch]

*Originally posted by Hamlet *
They want 12 IMPARTIAL jurors to decide a case, nothing more.

Then what do you do with my example? How does agreeing to abandon my principles and morals make me any more impartial? If I don’t have the backbone to stand up for what I believe in, why on earth would you place your faith in me as a juror?

The attorneys didn’t ask me whether I could be fair in spite of personal convictions. That, I might have been able to answer “yes” to. They asked me if I could ignore those convictions. Not at all the same thing.

[Hamlet]

seawitch

The judge asked you if you could follow the instructions. The instructions are what law is applicable to the case. Basically the judge said, do you think you could follow the law in the case, you said no, I don’t think I can. I don’t know what the defendant was charged with in your case, but if you thought the law itself was unfair, and you couldn’t follow the instructions, then you had already made up your mind prior to ever hearing an ounce of evidence. The judge never asked you to give up your convictions on whether the defendant is guilty or not, or give up your convictions regarding your life experience, he asked you if you could follow the law. You said no. That’s why you weren’t selected.

By the by, I very much admire your convictions, and the fact you didn’t lie, or break a solemn oath to try and sit on a jury when you knew you couldn’t be impartial.

[Stuffy]

By the by, I very much admire your convictions, and the fact you didn’t lie, or break a solemn oath to try and sit on a jury when you knew you couldn’t be impartial.

The problem I have with your reasoning Hamlet is that by your logic only sheep will serve on a jury. Period. If you see the exception there, point it out to me.

Btw, as for that case you guys refered earier in the thread, many drug laws are covered by mandatory minimums either at the state or federal level.

[Hamlet]

stuffinb

Calling impartial, non-prejudiced jurors sheep doesn’t make your argument any stronger.

[Robb]

bare, I’m still working on whether the fully informed juror is mumbo jumbo, but I suspect it is merely selectively quoting out of context. For example, the handbook refers to ca case, Sparf v. U.S., that quotes from another referred case, Georgia v. Brailsford. I’d like to selectively quote from Sparf:

In State v. Brailsford, 3 Dall. 1, 4, a case in f the court, to decide. But it must be amicable issue, Chief Justice Jay is reported to have said: ‘It may not be amiss here, gentlemen, to remind you of the good old rule that on questions of fact it is the province of the jury, on questions of law it is the province of the court, to decide. But it must be observed that, by the same law which recognizes this reasonable distribution of jurisdiction, you have, nevertheless, a right to take [156 U.S. 51, 65] upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other, occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are best judges of facts, it is, on the other hand, presumable that the courts are the best judges of the law. But still both objects are lawfully within your power of decision.’ Of the correctness of this report, Mr. Justice Curtis in U. S. v. Morris, 1 Curt. 23, 58, Fed. Cas. No. 15,815, expressed much doubt, for the reason that the chief justice is reported as saying that, in civil cases,-and that was a civil case,-the jury had the right to decide the law, and because, also, the different parts of the charge conflict with each other; the chief justice, according to the report, saying at the outset that it is the province of the jury to decide questions of fact, and of the court to decide questions of law, and in the succeeding sentence informing the jury that they had the
right to take upon themselves the determination of both law and fact. If the chief justice said that it was the province of the court to decide questions of law, and the province of the jury to decide questions of fact, he could not have said that the jury had the right, in a civil case, to judge of and determine both law and fact. ‘The whole case,’ Mr. Justice Curtis said, 'was an anomaly. It purports to be a trial by jury in the supreme court of the United States of certain issues out of chancery; and the chief justice
begins by telling the jury that the facts are all agreed, and the only question is a matter of law, and upon that the whole court were agreed. If it be correctly reported, I can only say it is not in accordance with the views of any other court, so far as I know, in this country or in England, and is certainly not in accordance with the course of the supreme court for many years.'

The first part of this quote lends support for the fully informed people, but they aren’t getting the whole story. Instead, we end with another Supreme Court justice doubting that this rule has applied in any other court in the US or England. Things that fully informed should mention, are that a case in chancery isn’t of great general applicability and that the US Supreme Court rarely sits as a trial court.

Another snippet from the same case, refers to the trial of Burr, which at the time was being used to support the notion that a jury was a trier of law.

This language is supposed to justify the contention that the jury in a criminal case are entitled, of right, to determine questions of pure law adversely to the direction of the court. But that no such thought was in the mind of the chief justice is manifest from his written charge to the jury at a subsequent stage of the trial,-the accuracy of the report of which has never been disputed,-in which he discussed, in the light of the authorities, the question as to what constituted treason.

In between, is quite a review of this question throughout federal and state cases.

We move towards a conclusion.

The cases just cited were, it is true, of a civil nature; but the rules they announce are, with few exceptions, applicable to criminal causes, and indicate the true test for determining the respective functions of court and jury. Who can doubt, for instance, that the court has the right, even in a capital case, to instruct the jury as matter of law to return a verdict of acquittal on the evidence adduced by the prosecution? Could it be said, in view of the established principles of criminal law, that such an instruction intrenched upon the province of the jury to determine from the evidence whether the accused was guilty or not guilty of the offense charaged, or of some lesser offense included in the one charged? Under a given state of facts, outlined in an instruction to the jury, certain legal presumptions may arise. May not the court tell the jury what those presumptions are, and should not the jury assume that they are told truly? If the court excludes evidence given in the hearing of the jury, and instructs them to disregard it altogether, is it not their duty to obey that instruction, whatever may be their view of the admissibilty of such evidence? In Smith v. U. S., 151 U.S. 50, 55 , 14 S. Sup. Ct. 234, which was an indictment for the murder, in the Indian Territory, of one Gentry, ‘a white man, and not an Indian,’ we said: ‘That Gentry was a white man, and not an Indian, was a fact which the government was bound to establish, and, if it failed to introduce any evidence upon that point, defendant was entitled to an instruction to that effect. Without expressing any opinion as to the correctness of the legal propositions embodied in this charge, we think there was no testimony which authorized the court to submit to the jury the question whether Gentry was a white man and not an Indian. [156 U.S. 51, 101] The objection went to the jurisdiction of the court, and, if no other reasonable inference could have been drawn from the evidence that Gentry was an Indian, defendant, was entitled, as matter of law, to an acquittal,’- citing Pleasants v. Fant, 22 Wall. 116; Commissioners v. Clark. 94 U.S. 278 ; and Marshall v. Hubbard, 117 U.S. 415 , 6 Sup. Ct. 806. So, in this case, it was competent for the court to say to the jury that, on account of the absence of all evidence tending to show that the defendants were guilty of manslaughter, they could not, consistently with law, return a verdict of guilty of that crime.

Any other rule than that indicated in the above observations would bring confusion and uncertainty in the administration of the criminal law. Indeed, if a jury may rightfully disregard the direction of the court in matter of law, and determine for themselves what the law is in the particular case before them, it is difficult to perceive any legal ground upon which a verdict of conviction can be set aside by the court as being against law. If it be the function of the jury to decide the law as well the facts,-if the function of the court be only advisory as to the law,- why should the court interfere for the protection of the accused against what it deems an error of the jury in matter of law?

Further down

We cannot give our sanction to any rule that
will lead to such a result. We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence. Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying the law so declared to the facts as they, upon their conscience, believe them to be. Under any other system, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumen- [156 U.S. 51, 103] talities devised for the protection equally of society and of individuals in their essential rights. When that occurs our government will cease to be a government of laws, and become a government of men. Liberty regulated by law is the underlying principle of our
institutions.

And, finally:

The main reason ordinarily assigned for a recognition of the right of the jury, in a criminal case, to take the law into their own hands, and to disregard the directions of the court in matters of law, is that the safety and liberty of the citizen will be thereby more certainly secured. That view was urged upon Mr. Justice Curtis. After stating that, if he conceived the reason assigned to be well founded, he would pause long before denying the existence of the power claimed, he said that a good deal of reflection had convinced him that the [156 U.S. 51, 107] argument was the other way. He wisely observed that: 'As long as the judges of the United States are obliged to express their opinions publicly, to give their reasons for them when called upon in the usual mode, and to stand responsible for them, not only to public opinion, but to a court of impeachment, I can apprehend very little danger of the laws being wrested to purposes of injustice. But, on the other hand, I do consider that this power and corresponding duty of the court authoritatively to declare the law is one of the highest safeguards of the citizen. The sole end of courts of justice is to enforce the laws uniformly and impartially, without respect of persons or times or the opinions of men. To enforce popular laws is easy. But when an unpopular cause is a just cause; when a law, unpopular in some locality, is to be enforced,-there then comes the strain upon the administration of justice; and few unprejudiced men would hesitate as to where that strain would be most firmly borne.’ U. S. v. Morris, 1 Curt. 62, 63, Fed. Cas. No. 15,815.

OK, why would I quote so much. This case doesn’t appear to stand for the proposition asserted by the fully informed people. It seems to quite forcefully say that the jury must be bound by the law given to them by the court - that such adherence is “one of the highest safeguards of the citizen.”

What I suspect has happened is that the fully informed people selected sections where a court summarized a defendant’s arguments, then they mischaracterize that passage by describing it as the decision of the court. If I had more time to check the other cases they cite, I suspect we would find the same happened to those case.

A jury is bound to follow the law given them to a judge. They take an oath to that affect. But, in the US system, juries are not prosecuted for breaking their oath. Unless we create a system to do that, jury nullification will happen. It seems more accurate to describe nullification as something a jury can do, not a “right” of theirs. When a jury nullifies, it can get away with it. Its that simple.

[Hamlet]

robb

Thank you! Very well put.

[Stuffy]

*Originally posted by Hamlet *
**stuffinb

Calling impartial, non-prejudiced jurors sheep doesn’t make your argument any stronger. **

Impartial and non-prejudiced? Ha! Our laws don’t even meet that criterion. That those could exist on a jury, I find highly suspect. No one with a decent knowledge of history could purport to believe that ALL laws are written with the best intentions in mind. Maybe it’s me, or the fact that I’m black, but I just don’t trust in the system.

I want a thinking jury if I’m ever on trial, not a bunch of yes men.

[Spavined_Gelding]

Snuffinb, just which system are we talking about here.

If your position is “I am a member of a down trodden group and I can not get a fair show” then jury nullification would seem to simply exacerbate the unfairness of the jury trial system by empowering jurors to go off on a frolic of their own for any reason they might wish, rational or irrational. That wish might be to tread you down a little more.

If on the other hand you are saying that the jury trial system would be rendered more random and less predictable by encouraging jurors to occasionally throw a wrench in the gears, you are absolutely right. There can’t be a much more exciting trial than one where no one knows from one moment to the next what the applicable rules are. Are you really willing to stake your freedom, property and, in the right circumstances, your life on what amounts to a big game of Calvin Ball?

If all of you jury nullification people are serious, let me suggest that you are wasting your time hanging around the courthouse. If you want results, go mount a major nation wide PR campaign along the lines of the one run over the past 30 years by insurance companies and their running dogs to poison the jury pool against adequate verdicts for products liability and medical malpractice. If you spend enough money you might be able to concoct a catch phrase on the order of “tort reform” and maybe you can buy a national political party while you are at it.

[Kaitlyn]

If I understand it correctly, the basis for the jury nullification advocates is that a person serving on a jury should be able to ignore a law he/she believes to be unjust, and vote to aquit notwithstanding the law.

Using this reasoning, wouldn’t the converse also be true? Suppose my moral convictions told me that a law was unjustly lenient, would I be justified in voting to convict notwithstanding a law that said I should aquit?

Hypothetical case: Bob Smith is on trial for vehicular homicide, specifically of hitting and killing Mary Connor while driving drunk. I hold a particular disgust for drunk drivers and believe that drunk driving laws are much too lenient (this part is true). Would I be justified in concealing this belief, by lies of ommission or commission, from the judge and lawyers so as to get myself seated on the jury?

The prosecution establishes without a doubt that Bob was driving drunk on the day in question, but fails to prove that he was the one who hit and killed Mary. Would I be justified in voting to convict, even though I beleived that the prosecution had failed its burden of proof? I would be basing my verdict not on the law and facts as presented to me, but on my own moral conviction that the law in question is too lenient, and thus unjust.

How would this be different from voting to aquit when the law and facts indicate that a defendant is guilty?

[Dave_Stewart]

*Originally posted by Spavined Gelding *
**Dave Stewart, Your comment that you prefer a “judge alone” system is understandable in view of the popular notion that juries can be mislead by silver tongued advocates and jury members with their own private agenda. The problem with this is the incestuous relationship between the bench and the prosecution bar. While there are some judges of whom it is said that any defendant that asks for a jury in Judge BLANK’S courtroom doesn’t understand what is going on, there are far more judges before whom that no one who understands the system would waive a jury in a seriously contested case. Some judges do instinctively come down for the State on any contested issue. The elimination of the jury in criminal cases simply operates to render decisions in close cases a foregone conclusion. In it’s own way mandatory judge only trials are as corrosive of the perception of fairness as is a nullification jury. **

Actually, its a “popular” notion in the sense that lawyers in my respective jurisdictions (Australia and Hong Kong) would be horrified to place the burden of technical decisions upon a lay jury. See my earlier post.

I know that a lot of judges come from prosecution backgrounds. But I trust a judge to be more impartial than a jury. And I was speaking in respect of civil matters only: I don’t disagree too much if at all with what you’re saying in the context of criminal matters.