The Wire's War on the Drug War

[griffin1977]

[QUOTE=Richard Parker]
Yes. US common law is considered to be a continuation of English common law.
[/QUOTE]

I know the basic principles(habeas corpus, etc.) are, but would individual judgements count as well ? Would a judgement from an British court count, prior to 1776 ?

[Hamlet]

[QUOTE=Richard Parker]
Yes. US common law is considered to be a continuation of English common law.
[/QUOTE]
Unless, of course there are other subsequent Supreme Court rulings on the issue. Say like Sparf v. United States.

“t is the duty of the court to instruct the jury as to the law, and it is the duty of the jury to follow the law, as it is laid down by the court.”

“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 instrumentalities 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.”

“Notwithstanding the declarations of eminent jurists and of numerous courts, as disclosed in the authorities cited, it is sometimes confindently asserted that they all erred when adjudging that the rule at common law was that the jury, in criminal cases, could not properly disregard the law as given by the court. We are of opinion that the law in England at the date of our separation from that country was as declared in the authorities we have cited. The contrary view rests, as we think, in large part, upon expressions of certain judges and writers, enforcing the principle that when the question is compounded of law and fact a general verdict, ex necessitate, disposes of the case in hand, both as to law and fact. That is what Lord Somers meant when he said in his essay on ‘The Security of Englishmen’s Lives, or the Trust, Power, and Duty of the Grand Juries of England,’ that jurors only ‘are the judges from whose sentence the indicted are to expect life or death,’ and that, ‘by finding guilty or not guilty, they do complicately resolve both law and fact.’ In the speeches of many statesmen and in the utterances of many jurists will be found the general observation that when law and fact are ‘blended’ their combined consideration is for the jury, and a verdict of guilty or not guilty will determine both for the particular case in hand. But this falls far short of the contention that jury, in applying the law to the facts, may rightfully refuse to act upon the principles of law announced by the court.”

Sparf also has a long recitation of cases from England and the US, holding the opposite of the rhetoric in Zenger. Although the dissent has many also. But Sparf did pretty much decide the issue.

[Richard_Parker]

[QUOTE=Hamlet]
Unless, of course there are other subsequent Supreme Court rulings on the issue. Say like Sparf v. United States.
[/QUOTE]

Of course. But I don’t think Sparf settles the issue as it is relevant to this thread. For one, it doesn’t (or hasn’t) applied to the several states that instruct their juries on their power to decide the law. As noted, The Wire takes place in one of those states. But even outside those states, it seems that all Sparf really settled is whether a federal judge can instruct a jury on its power of nullification. That doesn’t answer the question of what kinds of arguments a defense attorney can make or whether a juror’s decision to nullify is itself unlawful.

It would be strange indeed for several state bar associations to allow defenses with the intentional collateral effect of nullification if the matter were as thoroughly settled as you suggest.

I think the following law review articles present a fair view of the state of the law:

The federal court’s recognition of the jury’s nullification power is bluntly expressed by the United States Court of Appeals for the Fourth Circuit in United States v. Moylan: “We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence… If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.” It is precisely because of the courts’ acceptance and recognition of the jury’s power to reach a verdict in contravention to the law and the evidence that the debate has focused, in practical terms, on whether the jury has the right to be instructed on its nullification power, and not on whether the court should act against the use of this power.

Ran Zev Schijanovich, The Second Circuit’s Attack on Jury Nullification in United States v. Thomas: In Disregard of the Law and the Evidence, 20 CARDOZO L. REV. 1275, 1275-76 (1999).

The Second Circuit’s rationale did not take sufficient account of the unique position that jury nullification has traditionally occupied in American jurisprudence. The court relied on the conventional wisdom that jury nullification is a “power,” not a “right,” to conclude that it is a lawless act that must be prevented whenever possible. This characterization appears to mean only that nullification is something juries have the ability to do because they can render unreviewable general verdicts of acquittal and because it is often impossible to tell whether nullification has taken place. The Second Circuit failed to realize that, even if jury nullification is not a “right” whose exercise is encouraged and protected, it is still something more than a power. Indeed, it is not true that nullification is a completely lawless act: it is neither punished nor controlled in the American legal system, despite the possibility of control through devices such as special verdicts and nonunanimous verdicts in criminal trials.

Thus, the Thomas decision is inconsistent with relevant precedent. The court did not recognize the longstanding distinction between permitting jury nullification and officially sanctioning it, a distinction that explains the seemingly self-contradictory tradition that both rejects nullification as a dereliction of the jurors’ duty and protects jurors’ ability to acquit in disregard of the law. Courts have upheld trial judges’ refusals to sanction nullification but have been unwilling to go any further, so as not to invade the secrecy of jury deliberations. Indeed, one circuit has arguably held that jury nullification itself is acceptable, and only its “explicit avowal” is not.

Criminal Law - Jury Nullification - Second Circuit Holds That Juror’s Intent To Nullify Is Just Cause for Dismissal, 111 HARV. L. REV. 1347, 1347-48 (1998).

[slaphead]

[QUOTE=Miller]
The question is, is your word more important than preventing a gross and ruinous injustice on another person?
[/QUOTE]

Or, to play devils advocate.

Which is more important to you:[ul]
[li]Your sworn word[/li][li]Preventing a dumbass from suffering the consequences of deliberately and knowingly breaking some ludricrously harsh laws for no reason other than personal gratification or profit[/li][/ul]
It’s not as if anybody in the US is a stranger to the idea that drugs=>Hassles From The Authorities. And drugs aren’t like being black, gay or a woman, where you can claim that you are being oppressed just because of who or what you are. If the drug laws are The Stoopid, everyone has the same four options:
[ol]
[li]Get them changed[/li][li]Emigrate[/li][li]Avoid Drugs[/li][li]Go ahead and face the consequences if you get caught[/li][/ol]
Trying to game the legal system so people escape the law based on your personal definition of what is a ‘victimless crime’ seems like a cop-out.

[E-Sabbath]

Slaphead, it’s not just about drug laws. Consider it the legal equivalent of the 2nd Amendment. I may not want to overthrow the government, I may not want to overturn a drug conviction.

But, for the dignity of mankind, it’s a good thing we have the power to do so.

[slaphead]

[QUOTE=E-Sabbath]
Slaphead, it’s not just about drug laws. Consider it the legal equivalent of the 2nd Amendment. I may not want to overthrow the government, I may not want to overturn a drug conviction.

But, for the dignity of mankind, it’s a good thing we have the power to do so.
[/QUOTE]

Who said this was just about drug laws? Explain to me how you prevent a jury of Stormfront members from using this technique to allow someone walk on a charge of murdering a black man. Or to tear huge holes in the rape laws, or civil rights generally, or any other law which some segment of the population would prefer not to have enforced.

[E-Sabbath]

Well, there’s always challenging of jury members. I’d like to see the defense allow Stormfront members in a trial like that.

Sorry. Legal system is biased in favor of letting the guilty go free rather than the innocent be hanged. I know, I know, you want perfect justice.

Ain’t any such thing. Any tool of need can be used wrongly.

[slaphead]

[QUOTE=E-Sabbath]
Well, there’s always challenging of jury members. I’d like to see the defense allow Stormfront members in a trial like that.
[/QUOTE]

:rolleyes: Fine. They’re not Stormfront members, they’re a bunch of seemingly upstanding local citizens who believe that the murder of a black is just fine and dandy, and who go into the trial with no intention to do anything other than aquit. Or they’re a bunch of old geezers who go into a rape trial convinced that anyone wearing an above-the-knee skirt deserves to get raped, no matter what the law says. Or any other hypothetical you care to dream up. You say it’s fine for a juror to go into the courtroom with no intention of applying the law, and lie when asked about such an intention. I’m curious as to how you would feel about getting strung up on this particular petard yourself? What happens if the guy who mugs you for your underwear walks because the jury think that anyone with eyebrows like E-Sabbath must secretly enjoy having their undies taken away?

[QUOTE=E-Sabbath]
Sorry. Legal system is biased in favor of letting the guilty go free rather than the innocent be hanged. I know, I know, you want perfect justice.
[/QUOTE]

No, I’m not that stupid. I’d just appreciate it if people would make at least a token effort to pretend to be members of a civilised society. I.e. abide by the rules that have been agreed, rather than simply ignoring anything that they find personally inconvenient. You think people should be free to ignore the drug laws, my amateur DJ neighbour thinks that the noise regulations are a total downer and he has an inalienable human right to pop pills and play ear-splitting techno for 72 hours at a time, some teenage oiks think anyone with a few piercings deserve a kicking. Personally, I think you’re all suffering from the same sense of entitlement, namely that you should get to dictate exactly what rules are applied to the rest of your fellow citizens.

[FoieGrasIsEvil]

I don’t agree with the OP’s premise as civil disobediance, it’s lying to accomplish something contrary to a set of laws that you personally do not agree with.

However, I am also in favor of treatment programs (drug courts) for users and possibly low-level dealers, but you can’t let high-level cocaine dealers off the hook.

Marijuana should be decriminalized, though. It is arguably less harmful than alcohol, which of course is (and should remain) legal.

[slaphead]

[QUOTE=FoieGrasIsEvil]
It is arguably less harmful than alcohol, which of course is (and should remain) legal.
[/QUOTE]

Interesting you should say this. Alcohol causes massive social, pysical and economic harm in every country where it is widespread. Together with tobaco it is the poster child for how legalisation does not eliminate the damage done by drugs. So if tobacco and alcohol are legal, then why not cocaine, heroin, marijuana or anything else? Conversely, if it’s fine and dandy to be British-American Tobacco or SAB Miller, making billions from these products, then why not legalise being a high-level cocaine dealer?

[Gozu]

[QUOTE=slaphead]
You think people should be free to ignore the drug laws, my amateur DJ neighbour thinks that the noise regulations are a total downer and he has an inalienable human right to pop pills and play ear-splitting techno for 72 hours at a time,some teenage foiks think anyone with a few piercings deserve a kicking…
[/QUOTE]

I just want to say that if your examples were meant to alienate me, they failed miserably. I completely side with the criminals in each case*

*Can we add people with generic tattoos to to the beatlist?

[EllisDee]

[QUOTE=slaphead]
So if tobacco and alcohol are legal, then why not cocaine, heroin, marijuana or anything else? Conversely, if it’s fine and dandy to be British-American Tobacco or SAB Miller, making billions from these products, then why not legalise being a high-level cocaine dealer?
[/QUOTE]
Exactly. I would vote for that in a heartbeat.

[Richard_Parker]

A very relevant judicial opinion out today: http://www.nyed.uscourts.gov/pub/rulings/cr/2006/6cr22moj040108.pdf

Perhaps the issue is as well summed up as it need be by quoting briefly from Professor Roscoe Pound and Judge Learned Hand. Pound referred to jury nullification as “the great corrective of law in its actual administration.” Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12, 18 (1910). And Learned Hand declared that nullification supplies the necessary “slack into the enforcement of law.” United States ex rel McCann v. Adams, 126 F.2d 774, 776 (2d Cir. 1942). It allows the jury to temper the law’s rigor “by the mollifying influence of current ethical conventions.” Id.; see, e.g., Andrew J. Parmenter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L. J. 379, 426 (2007) (providing other supporting citations); Appendix A, infra.
In Harry Kalven, Jr. and Hans Zeisel’s comprehensive and still valid study, The American Jury (1966), the authors concluded that in the relatively rare cases where the jury reaches a “different conclusion from the judge on the same evidence, it does so not because it is a sloppy or inaccurate finder of the facts, but because it gives recognition to values which fall outside the official rules.” Id. at 495. “It . . . will move where the equities are. And where the equities are at any given time will depend on both the state of the law and the climate of public opinion.” Id. See also, e.g., Valerie P. Hans, Judges, Juries, and Scientific Evidence, 16 J.L. & Pol’y 19, 23 (2007) (“[M]any disagreements [between judges and juries] are explained by the fact that compared to judges, juries appear to require a stronger case by the prosecution to convict the defendant; or by the fact that juries infuse community notions of justice into their verdicts.” (citing, inter alia, Kalven and Zeisel, supra)). Above all, the experience of trial judges is that the jury is among our most conservative institutions. When in doubt we should trust its judgment, as did those who adopted the Sixth Amendment.

[Hamlet]

[QUOTE=Richard Parker]
A very relevant judicial opinion out today: http://www.nyed.uscourts.gov/pub/rulings/cr/2006/6cr22moj040108.pdf
[/QUOTE]
i would be quite surprised if Weinstein’s… intriguing new theory that jury’s MUST be told about mandatory minimimum sentences, is held up on appeal.

I’ll defer to Orin Kerr on the opinion: “Polizzi reads less like a judicial decision than a 266-page book of opinion essays.” And “The most obvious difficulty with Judge Weinstein’s decsion is that the perceived spirit of the Supreme Court’s latest decisions doesn’t trump otherwise binding precedents simply because older precedents may be in some conceptual tension with new cases.”

[The_Them]

There is a reason that the whole “jury” idea came about…

Perjury is not a good idea, if for nothing else, your word should be worth something. So I would not lie in order to get empaneled. On the other hand, if the prosecutor doesn’t ask certain questions, I see no reason to answer them.

Something I resent a lot is the notion that you HAVE to do what the judge tells you. Poppycock. My vote is my vote. If I’m just buttcrack wrong, the judge can overturn (if that’s within his/her purview), or the case can go into appeals. But if, at some point during the trial, I decide that prosecuting this person is out of line, then it is my legal right and moral duty to express my displeasure in the way one does when in a democracy: I vote.

Please. Pointing out that jury nullification can be misused? Find me something that can’t be misused. And that’s a strawman; nullification is not something that most people will do without some serious misgivings. There hasn’t been any rash of JN because most people try to work within the standard courtroom instructions. The jury is (in theory) the final bulwark against tyrannical imposition by the state (such as jailing somebody for something that shouldn’t be a crime).

I’ll get down off my high-horse now

[Hamlet]

[QUOTE=The Them]
Something I resent a lot is the notion that you HAVE to do what the judge tells you. Poppycock. My vote is my vote. If I’m just buttcrack wrong, the judge can overturn (if that’s within his/her purview), or the case can go into appeals.
[/quote]
Another thing is, there is no appeal from a finding of not guilty. So, if you happen to convince the other 11 people to go along with you, it can’t be appealed.

[Bricker]

[QUOTE=Richard Parker]
A very relevant judicial opinion out today: http://www.nyed.uscourts.gov/pub/rulings/cr/2006/6cr22moj040108.pdf
[/QUOTE]

Hmph. In Shannon v. US, the Supreme Court said:

@SCOTUS

The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury. The jury’s function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged. The judge, by contrast, imposes sentence on the defendant after the jury has arrived at a guilty verdict. Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task.

An accused has no right to a jury instruction on the sentencing consequences of a guilty verdict. Judge Weinstein’s opinion runs directly counter to binding precedent, and I will be very surprised if it’s upheld.

[Bricker]

I’m reading Judge Weinstein’s opinion now.

Holy crap. He accepts the verdict and then sua sponte starts making a appellate record for nullification. I’m amazed the prosecution was able to hold itself to one objection.

[Richard_Parker]

[QUOTE=Bricker]
I’m reading Judge Weinstein’s opinion now.
[/QUOTE]

You’re a better man than me. That sucker’s a novel. I stole the quote from Volokh Conspiracy. Maybe it will get upheld because the court of appeals is too lazy to read it.

I agree that its unlikely to be upheld, but I think his argument at least is that the most recent precedent is moving away from the late 19th/early 20th century opinions toward a more old-school idea of the jury.

[Hamlet]

[QUOTE=Bricker]
I’m reading Judge Weinstein’s opinion now.

Holy crap. He accepts the verdict and then sua sponte starts making a appellate record for nullification. I’m amazed the prosecution was able to hold itself to one objection.
[/QUOTE]
I’m assuming that they’ve been in front of Weinstein more than a few times and have realized the fruitlessness of arguing. You can only bang your head against a judicial brick wall for so long.