along racial lines. This last is partially inspired by the O.J. Simpson
case.>>That is assuming that is what happened in the OJ case. I don't think it is.
Black jurors view the evidence through their experience, which may be
different than the experience of white jurors. That is why white and black
jurors often come to different conclusions - black jurors are less likely to
trust the police and the prosecution, and are more likely to believe cops
would lie (especially when the defendant is black), because that is what
their experience often teaches them is true.
That is not nullification. That is reasonable doubt.
Clay
Subject: Re: Justice And FIJ's -- some doubts
Date: 10/9/97 3:21 AM Eastern Daylight Time
From: BriGuy301
Message-id: <19971009072101.DAA03002@ladder02.news.aol.com>
<< Although the concept of fully informed juries and jury nullification
(judgment)
of bad law as well as case facts seem obviously good to me, some
libertarians have reservations. >>> -- ChrisToto
And as Chris knows, I'm one of them. Chris and I struck up an online
friendship
a couple of months ago, which I initiated out of admiration for his tireless
-- and
outstanding -- efforts in the "Critique the Libertarians" folder on AOL's
general
politics message board (Anyone who hasn't visited that site should treat
themselves
to Chris's contributions). We exchanged quite a few e-mails, and found we
agreed
on most everything. But I wrote to Chris of my reservations on this issue,
and
flirted with the idea of posting that letter to the "Critique" board. I
decided not to,
but now that our LP board has been revived, I'm much more interested in the
reactions of actual commited Libertarians, as opposed to casual visitors who
were
often just "sampling" the "Critique" folder. Perhaps I should edit it, but I
don't have
much time, so I'm just going to reproduce it (almost) in its entirety:
<< Okay -- jury nullification.
BTW, I am at a loss as to why I have yet to hear any Libertarians raise the
following objections ( I haven't heard any non-Libs raise them, either -- but
that's
probably because they don't take us seriously enough to feel a need to
respond). I consider this concept to be incompatible with Libertarianism.
Can I be the only one?
The "fully informed jury" concept blurs the distinction between
Libertarianism and
Anarchism, and opens us up to the charge of EXTREMISM. Now this is a charge
that we live with constantly anyway (most notably with respect to such issues
as
drug legalization), and were it my only objection, you could attribute my
aversion to it
as simple political cowardice. Tain't so. Anyone who knows me knows that
I'm
usually ready, willing, and chomping at the bit to face the extremism charge
head on,
but I'm NOT ready to do so over a notion which I myself find fundamentally
flawed
in the first place. Here's why:
The notion that every time twelve jurors hear a case, their standard for
determining
guilt rests not only on objective conclusions drawn from the evidence, but
also upon
their own personal APPROVAL of the statute at issue, is a brazen violation of
the legitimate separation of powers. After all, Libertarians, like many
conservatives, decry
the "activism" of judges who fancy themselves legislators in black robes.
(As in many cases, Libs happen to be a helluva lot more consistent than
conservatives, who often
look the other way when the activism gibes with their own social agenda.)
But we too
are open to the charge of inconsitency here, for jury nullification is just a
mutated form
of judicial activism, with the jury, rather than the judge, usurping the
legislative role.
Now I suspect that someone like LAWECON may at this point want to dismiss me
as some Burkeian conservative, which I think would be unfair. Let's clarify:
as Libertarians, we do believe in the rule of law, do we not? We just happen
to believe
that Law is something properly understood to apply only to a very narrow and
delimited sphere of affairs. And that laws are a proper means, not to the
FULFILLMENT of citizens, but to their protection. I.e., laws are properly
intended to protect the individual from force or fraud, and NOTHING MORE. So
why should
THOSE legitimate laws be subject to spontaneous repeal, suspension, and/or
(in effect) possible re-passage, all depending on the capricious whims of
THIS
particular jury as opposed to THAT one?
The notion of a jury so empowered also clashes with one of the most precious
elements of our national Constitution, namely, the prohibition against ex
post facto
law. Allow me to digress momentarily and state that this prohibition is one
of the
grandest achievements of the Founders. Most Americans take it for granted,
for it
seems so fundamentally fair, while the concept of retroactive law seems so
fundamen-
tally unfair. But it SHOULDN'T be taken for granted, because for thousands
of years governments in even the relatively fairer societies usually reserved
to themselves the
right to enact a new law and then prosecute those who had "violated" it, even
though
their actions had been perfectly lawful AT THE TIME THEY'D COMMITTED THEM --
for there had BEEN no such law prohibiting them at the time they'd committed
them.
So how does the fully-informed jury concept clash with this principle? Well,
think
about it -- the abolition of ex post facto law springs from an even more
fundamental principle held by this republic's founders, to wit: the notion
that in a truly free society,
an individual has the right to an objective legal EXPECTATION as to the
consequences
of his actions. In other words, a man has a right to know IN ADVANCE whether
an
action --or course of action -- which he is considering to undertake is
licit or illicit, whether it is allowable by law or punishable by law.
FIJ's throw us back to a time when
no such expectation is possible, for IT ALL DEPENDS, doesn't it? And it
depends on factors insufferably subjective -- will I get a jury that happens
to LIKE this law -- or one
that happens to DISLIKE it ? Will this particular jury be the lady or the
tiger? As
juries expand their own subjective criteria, I fear that Lady Justice will
quite regularly
be peeking from behind her blindfold. Deciding whether they do or don't like
this LAW
will lead, I'm afraid, to deciding whether they like this DEFENDANT or that
PROSECUTOR. (Maybe the first one seems "nice" -- and the other one,
abrasive.
Or vice versa.) Or that cute PLAINTIFF. Now you might wish to object,
Chris, that
such is a problem with ANY system involving humans -- including our current
system -- but my point is that by formally INSTITUTIONALIZING the subjective
element, the more you enhance it and compound the problem. In other words,
the more subjective the process becomes, the more subjective the process WILL
become.
Also -- by subjectivizing the process thus, so also do you POLITICIZE it.
It's become
bad enough already, but with so-called FIJ's the jury selection process is
going to be
a travesty of percentage-based statistics that will be disgracefully
color-conscious,
among other things. You won't be tried by a jury of your peers, twelve men
and
women good and true -- you'll be tried by twelve one-man voting "blocs",
carefully determined by sophisticated "market research". (Again, on this
point you might well raise the same objection as above, and I would respond
the same.) In this sense, the judicial process will not only have crossed
over into the legislative realm, but in many
ways will resemble the electoral process also . (Come to think of it, since
one would
be giving juries, in effect, a veto power, one could make the point that the
judicial
process would be encroaching into the EXECUTIVE realm as well . . .)
I want to go off on a bit of a tangent here. Many proponents of FIJ's like
to invoke
the fact that the notion springs from English common law, and quite often I
get the impression that some of them wistfully consider that fact to be
something of an argu-
ment in itself. What exactly is THAT all about? Here's the problem I have
with that:
we Libertarians pride ourselves in being the Party of PRINCIPLE. But that is
exactly
why I prefer a system of statutory law over one of so-called common law, for
the
attempt to codify law reflects an attempt to codify principle. Without such
codification, what many people call "principle" isn't anything of the kind --
more often than not,
sadly, it's nothing more than a loose, undefined, unexamined, unscrutinized
subjective impression of "fairness". Which quite often contradicts the NEXT
person's undefined, unexamined, unscrutinized subjective impression of
fairness. Moral hand-me-downs,
in other words. It is just such an uncodified approach that allows liberals
to state that
their positions are based on the "principle" of compassion. You're one of
the last
people in the world, Chris, whom I would presume to lecture on the inherent
contra-
dictions of that claim, but my point is that to refute it requires
objectively demonstrable principles to which to refer. And our calling
ourselves the party of Principle necessarily entails a commitment to
CONSISTENCY. What's consistent about a system in
which one man is allowed to commit an act and go unpunished while another man
is punished -- because these twelve people think it's okay and those twelve
people don't ?
(And by the way, I'd also like to point out that English common law, about
which some
people wax so rhapsodic, also happens to be the source of legal principles
that have
given rise to such outrages as civil asset forfeiture.)
But now we come to my MAIN objection: While proponents of FIJ's like to think
that
it is a legal notion serving only to further enhance individual rights and
freedoms, it
seems self-evident to me that it is a TWO-WAY STREET, and there's nothing
stopping
it from running in the other direction as well. If a jury has the right to
override SOME aspects of the law to reach its self-anointed Solomon-like
subjective notions of
"justice", then it can claim the right to override OTHER aspects of the law
as well.
Like those aspects that objectively CODIFY the rights of the defendant.
Against
improper search and siezure. Against self-incrimination. Etc., etc. Let's
imagine a
scenario in which the prosecution offers a particularly damning piece of
evidence, downright PIVOTAL, and the defense strenuously argues that the
evidence was
obtained illegally. Let's further imagine a situation in which this tainted
evidence
removes all doubt as to the defendant's guilt. The judge may very well go
ahead and sustain Defense's objection, but this is a FULLY INFORMED JURY,
which is content
not merely with DOING its job -- but with IDENTIFYING and DEFINING its job as
it
goes along. Since it may very well see its job as dispensing justice (and
who could
argue with that?), it may deem that its job now involves WEIGHING the rights
of the defendant against what they see as his indisputable guilt. Currently,
that is NOT
their job, and I for one am glad ( for otherwise, police would have no
particular
disincentive for abusing the rights of defendants).
I will concede that I'm not perhaps up on the latest counter-arguments to
this point.
But in the past I've actually heard some pro-FIJ'ers come up with the
following (and I
think it's painfully lame): "But you see, juries are to be INSTRUCTED that
the concept
is only to be applied 'one-way', that it's only to be added to a presumption
of inno-
cence, not of guilt." Oh, I see. So the judge gives them a lecture about
how it's
better to let twenty guilty men go free than to convict one innocent man.
So what?
I submit that this is absurd, for the entire concept itself rests upon the
principle that
there is, after all, nothing objectively BINDING upon them en route to their
decision --
other than their own (sometimes muddled) consciences. So how "binding" are a
judge's instructions -- when even the law itself isn't binding ? Indeed,
since the
judge's instruction is itself a PART OF the legal process, it is therefore a
part of
LAW, and they've already been given veto power over the law.
In closing, although I haven't yet given it much thought, I suspect that
FIJ's would
also create a number of unwieldy probems for the appeals process.
So now it's your turn. Convince me otherwise.
Brian [BriGuy301] >>>
Subject: Re: Justice And FIJ's -- some doubts
Date: 10/9/97 7:52 PM Eastern Daylight Time
From: Presbyte
Message-id: <19971009235200.TAA19691@ladder01.news.aol.com>
>>>in a truly free society, an individual has the right to an objective legal
EXPECTATION as to the consequences of his actions. In other words, a man has
a right to know IN ADVANCE whether an action --or course of action -- which
he is considering to undertake is licit or illicit, whether it is allowable
by law or punishable by law<< -BriGuy
I think you may be confusing the concept of "freedom" with that of "justice"
or, perhaps, "fairness." In a "free" society, someone basically calls his
own shots, without external coercion on his choices or behavior. In a "just"
society, you reap what you sow. In a "fair" society, people don't cheat, and
they strive to use all reasonable and appropriate grounds for their
decisions. (I know these thumbnail sketches are crude approximations, but I
hope I've touched on the essence of each quality.)
Getting back to Bri's point, here are some thoughts:
I think that while the expected punishment for an illegal act should be
predictable, everyone should also understand that the consequences will only
be realized if 1) the perpetrator is caught; 2) guilt can be shown to a jury
beyond their reasonable doubt; and 3) the jury agrees that the law involved
is just, and that violation of it engenders proper guilt. Conviction and
punishment entail the abridgement or negation of rights, and given a legal
system like ours, everyone should expect that their rights will never be
infringed without certainty of guilt under a rigorous standard of proof.
Jury-nullification doesn't necessarily negate the expectation of someone that
he will be punished for an illegal act under a failure of condition #3. For
one thing, the jury trial system itself cannot work unless juries make a
good-faith attempt to be fair and just. So, if we have the reasonable
expectation that most juries will decide conscientiously, in an effort to be
fair and just, and we expect that most laws are fair and just, then cases
where jury nullification is likely will be rare. Another guard against
abuse of jury nullification is the requirement of relatively large juries.
As long as juries are free to debate the justice of the law involved, those
who believe in the rightness of the law can convince those who don't, and
vice versa. Smaller groups might deadlock or otherwise become compromised
more easily.
IMHO, the only way that juries would fail to convict often enough to give
perpetrators fair reason to wonder what the consequences of their acts might
be, would be if the laws involved were so arbitrary and oppressive that
nobody could in good conscience base a conviction on them. But in the cases
where bad laws need to be overridden by the people's common sense, the right
of jury-nullification is an important safety valve. The point of the jury is
not to determine the facts in the case and rubberstamp the prescribed
verdict and punishment based on those findings. The point of the jury ("of
one's peers") is REALLY to answer the question: "do the proven actions of
the accused justify depriving him or her of life, liberty, or property as
prescribed by law?" It doesn't make sense to put a group of
randomly-selected people together to determine fact (except, perhaps, to
force the advocates to
present cases that the average person can understand). Judges and other
experts (detectives, e.g.) could probably do a better job. The point of the
jury is to bring common sense, heart, and morality into the equation; to
determine GUILT, as opposed to simple responsibility. Assuming the defense
advocate does a proper job, the jury walks a mile in the shoes of the
accused. If, after having done that, and considering proven facts of
behavior as
well as the justice of the law itself, the jury can unanimously conclude
guilt, that's about as close as we can come to real conviction on ALL levels.
And even then, we've seen numerous times that our system can err, convicting
an innocent defendant.
-J
Subject: Re: Justice And FIJ's -- some doubts
Date: 10/9/97 11:24 PM Eastern Daylight Time
From: LAWECON
Message-id: <19971010032400.XAA08764@ladder01.news.aol.com>
I have asked Presbyte to remove my last post as "the system" ate about 2/3rds
of it. In any case, Weaselaw has said most of what I had to say better than I
said it, and I thank him for the correction re the Judge's power to NOV a
criminal case.[Needless to say I do entirely civil matters .]
I would like to add one point that was in the uneaten post but doesn't seem
to be in Weaselaw's post:
The present day broadened scope of voir dire has effectively eliminated the
possibility of knowledgeable jury nullification except in those few states
where the state constitution requires an instruction to the jury as to their
power to nullify. The reason is simple. Whereas voir dire was traditionally
limited to eliminating those persons who were "personally connected" to the
parties [by, e.g., blood, friendship, business relationship etc], voir
dire now ROUTINELY includes questions about the juror's attitude toward
the charged offense and similar laws and ROUTINELY includes a question from
the judge, often repeated by the prosecutor, as to whether the prospective
juror will "apply the law as the judge has instructed you in it". That is,
the jury is intended to "act as a computer," using the judge's instruction as
the program and applying it to the facts [as limited by the evidentiary
rulings of the Court].
The jury is NOT to rely on its own interpretation of the law, the parties'
attorneys are NOT allowed to present different interpretations of the law to
the jury or argue to the jury that the law was never intended to cover this
sort of situation and it would thus be unjust to convict, and the jury is not
to find that the law is not applicable to the facts on the basis of abstract
or general conceptions of justice - if "its the law" then "its the law"
and that is that. Hence, the only way that you are going to get on, e.g., a
jury hearing a "drug crime," with your attitudes about "drug crimes" and your
knowledge about jury nullification is to perjure yourself during voire dire.
Hence, the ONLY solution to the problem of an imperial judiciary is
unequivocal legislation requiring the judge to instruct the jury in their
power and right to nullifiy should the facts so justify. Such legislation is
best put in the form of amendments to the state and federal constitutions so
that it won't be found to be unconstitutional or simply ignored.
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Justice And FIJ's -- some doubts
Date: 10/10/97 12:26 AM Eastern Daylight Time
From: Weaselaw
Message-id: <19971010042600.AAA19387@ladder02.news.aol.com>
LawEcon wrote:
possibility of knowledgeable jury nullification except in those few states
where the state constitution requires an instruction to the jury as to their
power to nullify.>>Juries still do occasionally nullify outside of those states, though.
However, jurors need to learn about their powers outside of the courtroom,
and unfortunately they don't have the advantage of a balanced presentation
between two competing advocates.
There are also several things a good crim def att'y can do to inform the
jurors - but he has to know how and be prepared to use them, introducing
nullification into the trial surreptitiously. Just ending the closing
argument with "Just remember, ladies and gentlemen, you just don't have to
convict Joe Doakes" works wonders, especially if the client's name is Joe
Doakes.
unequivocal legislation requiring the judge to instruct the jury in their
power and right to nullifiy should the facts so justify. >>I would leave it up to the defense whether these issues should be introduced.
They don't need to be introduced in rape, murder, etc., cases where
nullification has almost no role to play, except in very rare cases (like the
17 yr old who is charged for "rape" of his 16-yr old fiancee..., or
euthanasia murder cases.)
Also, leaving it up to the defense precludes "reverse nullification" cases,
where the jury convicts not because the defendant is proven guilty, but
because he is scum.
Subject: Re: Justice And FIJ's -- some doubts
Date: 10/10/97 11:19 PM Eastern Daylight Time
From: LAWECON
Message-id: <19971011031900.XAA10196@ladder02.news.aol.com>
unequivocal legislation requiring the judge to instruct the jury in their
power and right to nullifiy should the facts so justify. >>introduced. They don't need to be introduced in rape, murder, etc., cases
where nullification has almost no role to play, except in very rare cases
(like the 17 yr old who is charged for "rape" of his 16-yr old fiancee..., or
euthanasia murder cases.)>
where the jury convicts not because the defendant is proven guilty, but
because he is scum.>Better and better I like this Weaselaw.
As to your first point, I agree in principle, and, indeed, some of the
fija-style provisions, simply allow the defense to ask for a jury
nullification instruction. My hesitancy about fully agreeing is that all too
often if legislative directions to a judge aren't wooden, simple and
virtually impossible to interpret out of existence, they will be interpreted
out of existence.
As to your second point, I'm not too concerned. For reasons we've already
discussed, the judge can effectively set the defendant free if he is clearly
innocent, regardless of what the jury would do. If it's a "close call," I'm
not certain that the generally retrobate character of the defendant shouldn't
come into play. Unlike many defense attorneys my goal is not per se for the
defendant to go free, but for the jury to have enough discretion that it
can reflect "community standards" when the law is clearly oppressive.
Needless to say, both the above are close calls. And I may well feel
differently after a good night's sleep.
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: LAWECON's response interruptus
Date: 10/10/97 1:46 AM Eastern Daylight Time
From: BriGuy301
Message-id: <19971010054601.BAA19151@ladder01.news.aol.com>
<< I have asked Presbyte to remove my last post . . . In any case,
Weaselaw
has said most of what I had to say better than I said it . . . >>>
I doubt it. I have read dozens and dozens of your posts, Craig, concurring
passion-
ately in many instances and disagreeing in others -- but even regarding the
latter
I've been generally impressed with the POWER of your analyses. As your
ersatz
mouthpiece, Weaselaw falters. And his hubris in the critique of my
reservations
somewhat belies his paean to "democracy." If you were impressed with it,
I've a
feeling you're under the weather . . .
<< Hence, the only way that you are going to get on, e.g., a jury
hearing a
"drug crime," with your attitudes about drug crimes and your knowledge about
jury nullification is to perjure yourself during voir dire. >>>
Interesting point, and one I was secretly hoping someone would bring up.
Because --
given that jury duty is a form of conscription -- this leads to some
interesting
questions for Libertarians. Alas, these questions are a bit too tangential
at the
moment -- but it might be worth going down that path sometime soon . . .
BriGuy301
Subject: Re: LAWECON's response interruptus
Date: 10/10/97 11:27 PM Eastern Daylight Time
From: LAWECON
Message-id: <19971011032701.XAA05426@ladder01.news.aol.com>
<[An]Interesting point, and one I was secretly hoping someone would bring up.
Because --
given that jury duty is a form of conscription -- this leads to some
interesting
questions for Libertarians. Alas, these questions are a bit too tangential
at the
moment -- but it might be worth going down that path sometime soon . . .
BriGuy301>
Ya, and here's the shocking answer from the lawecon corner - I'm not at all
sure that some degree of "conscription" [in the broad sense in which you're
using the term] isn't required for a "free society".
I don't know if you read the thread on militias awhile back. But one curious
feature of historical militias is that [while they were universally favored
over standing armies by all classical liberals] training for them was
compulsory [and still is compulsory in places like Switzerland]. I would also
make the wholly fallacious argument but suggestive observation that one of
the greatest classical liberals - Ludwig von Mises - made a similar argument.
As another example: presuming we live in a Type 2 Libertarian world [and not
a Type 1 world] it may be that the "best form of government" is one staffed
through a "reverse lottery" where if you "win" [loose] you get to be a
congressman or president or whatever for X number of months or years.
It is, as Mr. Spock once said, "not logical, but often true".
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: LAWECON's response interruptus
Date: 10/11/97 2:57 AM Eastern Daylight Time
From: BriGuy301
Message-id: <19971011065701.CAA24901@ladder02.news.aol.com>
<< Ya, and here's the shocking answer from the lawecon corner - I'm not
at all
sure that some degree of "conscription" [in the broad sense in which you're
using
the term] isn't required for a "free society". >>>
Wow. I'm floored. Without making any judgment as to the merit of what you
just
said, you're the last person in the world I'd have expected to say it.
<< I would also make the wholly fallacious argument . . . that . . .
>>>
Why would you knowingly make a wholly fallacious argument?
<< It is, as Mr. Spock once said, "not logical, but often true". >>>
Do you know where I can order some of those blank checks? Do they come with
different logos ? I think I'd prefer that split-fingered Vulcan hand
greeting to the
pointey ears. Seriously, Craig, I'd, um, use that quote as sparingly as
possible
(like about once every 5 years), lest it fall into the same disrepute as
Emerson's "Consistency is the hobgoblin of dull minds" which in the last few
years has been
dragged out with insufferable frequency by everybody and his brother who
happened
to be engaged in losing an argument about anything.
And of course, you KNOW that the next time I find myself losing an argument
to you,
I'm going to blurt out, in defense of some point of mine, "It is not
logical, but often
true."
Live long and prosper, man.
BriGuy301
Subject: Re: LAWECON's response interruptus
Date: 10/11/97 12:00 PM Eastern Daylight Time
From: LAWECON
Message-id: <19971011160000.MAA11023@ladder01.news.aol.com>
to you,
I'm going to blurt out, in defense of some point of mine, "It is not
logical, but often
true."Live long and prosper, man.
BriGuy301>>
Ya, ya, as I said the observation about Mises' beliefs, is a fallacious
argument [but an interesting observation]. [And I trust you recall the
episode of S.T. from which the Spock quotation originates.]
But how about the substantive points? Do "pure collective goods" [e.g.,
"collective defense"] require a degree of "conscription" in a "free society".
Are "public offices" best staffed by lot rather than by vote or inheritance?
Of course, all of this makes no difference in a Type 1 libertarian world,
where you choose the degree and types of collective goods and of
"compulsion," and can change your mind with some facility if you aren't in
the middle of a violation of rules ajudication. But we've got some time
before that world arises, and a lot of you are advocates of Type 2 rather
than Type 1 libertarianism.
Now in the abstract [and as a Type 1 libertarian] I would add that this
discussion is like the discussion about what is the best curriculum for the
public schools, i.e., there is no "best libertarian answer" because the
context is nonlibertarian. But some of you guys don't believe that public
offices and nations are nonlibertarian, so you have to deal seriously with
these questions as if they are legitimate questions. So what's your
answer[s]?
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Justice And FIJ's -- some doubts
Date: 10/10/97 12:21 AM Eastern Daylight Time
From: Weaselaw
Message-id: <19971010042101.AAA19012@ladder02.news.aol.com>
Presbyte wrote:
< So, if we have the reasonable expectation that most juries will decide
conscientiously, in an effort to be fair and just, and we expect that most
laws are fair and just, then cases where jury nullification is likely will be
rare.>>
Very true. I think Bri's problem is that he does not think most juries will
decide conscientiously. However, if that is what he believes, then he has to
abandon all faith in democracy. Democracy is founded in the understanding
that average Americans, given the authority to make informed decisions, will
do so fairly, conscientiously, justly. If jurors can't be trusted to do
that, how can we ever trust voters at elections? If jurors can't be
trusted (after hearing all the facts, all the arguments, both sides, under a
trustworthy set of procedures) how can voters be trusted (after hearing
campaign rhetoric, mudslinging, pollsters, and all the other BS that goes
with political campaigns?)
Subject: To Weaselaw
Date: 10/10/97 2:47 AM Eastern Daylight Time
From: BriGuy301
Message-id: <19971010064701.CAA27536@ladder02.news.aol.com>
<< I think Bri's problem is that he does not think most juries will
decide con- scientiously. However, if that is what he believes, then he has
to abandon all faith
in democracy. Democracy is founded in the understanding that average
Americans,
given the authority to make informed decisions, will do so fairly,
conscientiously,
justly. >>> -- Weaselaw
If the informed decisions in the above pertain to their own individual lives
and affairs,
then it is liberty -- NOT democracy -- that is founded on that understanding.
Your statement IS accurate, however, if said informed decisions are imposed
upon other
people. But you must be careful here. We Libertarians are hardly democrats;
we're
not majoritarians. We recognize that this republic was founded on the
principles of inalienable INDIVIDUAL rights, with democracy as such being
largely a mere
procedural matter -- pertaining to an extremely narrow and delimited sphere
of affairs.
I am struggling to make the point that where people ARE given the authority
to
make decisions that so dramatically affect OTHER people's lives -- as is the
case
with a jury, that this authority should be strictly bound to objectively
demonstrable principles, as opposed to subjective fiat. This seems to strike
many as "inflexible"--
and that's exactly the idea. But I'll get back to that later.
<< If jurors can't be trusted to do that, how can we ever trust voters at
elections?
If jurors can't be trusted (after hearing all the facts, all the arguments,
both sides,
under a trustworthy set of procedures) how can voters be trusted (after
hearing
campaign rhetoric, mudslinging, pollsters, and all the other BS that goes
with political campaigns?) >>>
You're making my case for me. Or is it your contention that the election
results
of the last sixty years can lead anyone to the conclusion that the voters
have
"done themselves proud" ?
BriGuy301
Subject: Re: To Weaselaw
Date: 10/10/97 7:14 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971010231400.TAA18854@ladder02.news.aol.com>
BriGuy is starting to see why jury nullification is so valuable:
lives and affairs,
then it is liberty -- NOT democracy -- that is founded on that understanding.
Your statement IS accurate, however, if said informed decisions are imposed
upon other
people. But you must be careful here. We Libertarians are hardly democrats;
we're
not majoritarians. >>Democracy does not necessarily mean unbridled majority rule. That is a
popular myth, but it is not so. For instance, look at all the different
things that require supermajorities: impeachments, Constitutional amendments,
etc. Jury nullification imposes that same sort of guarantee of minority veto
power, it is an essential limitation on unbridled majority rule.
And of all the areas where such a veto is important, criminal convictions are
probably the most important. The level of consensus required to send a
person to prison, or to take away his life, should be the highest known to
law.
to
make decisions that so dramatically affect OTHER people's lives -- as is the
case
with a jury, that this authority should be strictly bound to objectively
demonstrable principles, as opposed to subjective fiat.>>
As I stated before, police and prosecutors have discretion, which is far less
objectively exercised than that of jurors. Jurors get to hear BOTH SIDES
before making a decision, unlike prosecutors and cops. They also work in a
deliberative body, which is a great advantage for both accountability and
rationality.
So far as "inflexibility," forget it. Reality provides an infinite variation
of circumstances and personalities. If you believe a relatively small number
of general rules can encompass all of those, you certainly have more faith in
the legislature than I do!
Flexibility is preservative, because if the discretion is properly used, it
prevents the system from falling into ridicule. Jurors aware of their powers
have preserved, improved and furthered the rule of law for over 700 years,
until they started to be deprived of instructions and information on their
role.
results
of the last sixty years can lead anyone to the conclusion that the voters
have
"done themselves proud" ?>>No, on the other hand, you have just perfected MINE. Democracy is not
perfect, but it is better than any known alternatives. I hardly think a
Platonic king is the Libertarian ideal. Most LPers seem to prefer a
democracy, limited by respect for individual rights. Juries are the best
institution yet divised for melding those two concepts.
Subject: Re: Justice And FIJ's -- some doubts
Date: 10/10/97 12:16 AM Eastern Daylight Time
From: Weaselaw
Message-id: <19971010041600.AAA18655@ladder02.news.aol.com>
briguy301 wrote:
me
as some Burkeian conservative, which I think would be unfair. Let's clarify:
as Libertarians, we do believe in the rule of law, do we not? >>Jury nullification is perfectly compatible with the rule of law. It is
preservative of the rule of law, as many lawyers and law professors have
noted for decades.
The written law and justice will inevitably come into conflict from time to
time. This is inevitable because the law is a general rule, and even the
best general rules are bound to occasionally be inapplicable to certain fact
situations. Everyone knows this. The problem is the law, the general rule,
can't admit of it.
Cops know this, and often choose to drop investigations in such situations.
Prosecutors know this, and often choose to drop charges in such situations.
Jurors know this, and often choose to acquit in such situations.
Nobody questions that prosecutors and cops need discretion to do their jobs
properly. I see no reason that jurors should not be empowered to use THEIR
discretion as well.
Like the tree that needs to bend to survive, the rule of law also needs
discretion in order to survive. Without it, the law would become odious and
would not be sustainable. If the law is to be respected, it must remain
respectable. Jury nullification helps keep the law respectable, and thus is
preservative of the rule of law.
THOSE legitimate laws be subject to spontaneous repeal, suspension, and/or
(in effect) possible re-passage, all depending on the capricious whims of
THIS
particular jury as opposed to THAT one?>>"Whim" is a pejorative and inaccurate term to use in this context. Juries
are perhaps the most reasonable, the most conscientious, and the most
justice-centered actors in the criminal justice system. By characterizing
their judgments as "whim" you presume your answer, but you presume the wrong
answer.
precious
elements of our national Constitution, namely, the prohibition against ex
post facto>>No acquittal can EVER violate the ex post facto clause.
Quite frankly, BRIGUY rambles on too much for me. I haven't seen any
powerful or original arguments, and I have seen a lot of bad history and
fictitious law, in the rest of what I have read of his post. Perhaps if he
posts something more concise it will be more practical to refute point by
point.
Subject: Elitism
Date: 10/10/97 12:33 AM Eastern Daylight Time
From: Weaselaw
Message-id: <19971010043300.AAA14374@ladder01.news.aol.com>
One point not raised yet:
Jury nullification is essentially anti-elitist. Some people think lawyers
and judges, cops and prosecutors are the only ones with valid ideas of what
is just, what is right.
Others think the "conscience of the community" is a better judge of right and
wrong.
The two groups will have opposed views on nullification.
Let me just say this: Law school gives no special insight or training into
questions of justice. Legal professionals and cops often become quite jaded,
and probably blinded to a fair view of what is just, and what is not.
In this society we scapegoat juries, quite often, for problems elsewhere in
the legal system. It is part of the elitism: this doesn't make sense, so
blame the JURY, not the judge, not the law, not the prosecutor, not the cops.
The scapegoating is usually wrong, but who cares? the jury can't stand up to
defend itself. It no longer exists. It is an easy, safe target, and by
blaming the jury, we avoid having to examine the hard, systemic problems that
persist in our criminal justice system.
Subject: To Weaselaw (cont.)
Date: 10/10/97 4:21 AM Eastern Daylight Time
From: BriGuy301
Message-id: <19971010082101.EAA24755@ladder01.news.aol.com>
<< Like the tree that needs to bend to survive, the rule of law also
needs
discretion in order to survive. >>>
Well said, Grasshopper. And I'm not being sarcastic. Nor am I deaf to where
you
go from there:
<< Without it, the law would become odious and would not be
sustainable.
If the law is to be respected, it must remain respectable. >>>
That is a graceful thought, gracefully expressed. But you end your paragraph
with:
<< Jury nullification helps keep the law respectable, and thus is
preservative
of the rule of law. >>>
The trouble with your conclusion is that you haven't proved or demonstrated
it --
you've merely asserted it. You have "faith", I suppose, that nullification
is the
deus ex machina that will solve the ills that you legitimately cite -- and
appear
to view my reservations as indicative that I must not share the same concerns
as you regarding the importance of "keeping the law respectable". Thus
you dismiss my concerns that there might be a down side to this approach
as well. To wit:
<< Why should legitimate laws be subject to spontaneous repeal,
suspension,
and/or (in effect) re-passage, all depending on the capricious whims of THIS
par-
ticular jury as opposed to THAT one ? >>> BriGuy (me)
<< "Whim" is a pejorative and inaccurate term to use in this context.
>>> (you)
Really? I mean, c'mon , do you really think that? I'll concede that it may
be such in
some INSTANCES of that context, but in others, I think it's plain that "whim"
would be
a downright euphemism. You're free to disagree, of course, but where your
credibility
slips away is here:
<< Juries are perhaps the most reasonable, the most conscientious, and
the
most justice-centered actors in the criminal justice system. >>>
Could you POSSIBLY utter a more arbitrary statement? Juries are made up of
the most reasonable, the least reasonable, the most conscientious, the most
indifferent, the most fastidious, the laziest, the brightest, the dimmest,
the most
discerning, the most credulous, the most industrious, slothful, incisive,
neurotic,
honest, thieving, noble, lofty, generous, inconsiderate, despairing, lying,
wonderful, inattentive people to be found anywhere.
What was amusing, though, was that you didn't even have the courage of your
own
platitude -- hence, the qualifying "perhaps".
<< The notion of a jury so empowered also clashes with one of the most
precious elements of our national Constitution, namely, the prohibition
against
ex post facto law. >>> (Me)
<< No acquittal can EVER violate the ex post facto clause. >>> (You)
No kidding. Who said otherwise? Pay ATTENTION, for heaven's sake. I may
not be as concise as you'd like, but I guarantee you I'm one of the most
PRECISE
people you'll ever know. The above statement (mine, that is) does not
contend
that an ACT of nullification can violate that clause -- if you think that it
does, I'm
curious as to how someone who can't read got to be a lawyer. My statement
clearly indicates that the "notion" , or concept, of a jury empowered to
nullify
"clashes with" ( NOT: "utterly contradicts"; NOT "violates"; NOT "rapes", but
CLASHES WITH) the prohibition against ex post facto. I then go on clearly to
point out that the clash is indirect, the conflict being with another, more
fundamen-
tal concept underlying it -- namely, the notion that in an objective, free
society,
a person has the right to know in advance which actions are allowable and
which
punishable -- by LAW. But in a society in which we all use the word "law",
but we
all sorta know that it's really just a "guideline" , and that what's REALLY
binding
upon you is not an objective LAW, but whatever the twelve people you end up
with
via the luck of the draw happen to feel about it, irrespective of what twelve
OTHER
people might happen to think, ooops, I mean, feel, -- that such expectation
is
sorely compromised, and life becomes more labyrinthine.
Oh, but I forgot -- Weaselaw didn't read my WHOLE post, as he admitted when
he continued to criticize the rest of "what I have read of his post." Which
in no
way restrained him from "analyzing" it.
BriGuy301
Subject: Re: To Weaselaw (cont.)
Date: 10/10/97 7:23 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971010232301.TAA19578@ladder02.news.aol.com>
Briguy wrote:
it --
you've merely asserted it. >>Let me prove it, then:
The roots of the First Amendment are planted deep in jury nullification, in
the Zenger and Penn cases, where juries recognized freedom of the press and
religion, respectively, long before the formal law or the courts had done so.
Jury nullification helped bring about the end of the Alien and Sedition Acts
in this country, as juries refused to convict many defendants of sedition for
criticizing first Adams, and then Jefferson, respectively.
Jury nullification helped bring about the end of slavery, as juries as far
south as Georgia refused to convict people who aided escaping slaves.
Juries helped end the labor injunction and the crime of "interfering with
commerce" for organizing workers, as juries refused to recognize them.
Juries helped end prohibition, as up to 60% of Volstead Act prosecutions
ended in acquittals.
deus ex machina that will solve the ills that you legitimately cite -- and
appear
to view my reservations as indicative that I must not share the same concerns
as you regarding the importance of "keeping the law respectable".>>Not faith. Respect and understanding of the history of this subject.
Don't misunderstand me: I don't claim juries are always perfect. I do claim,
however, that juries apprised of their nullification perogative will give
better verdicts, more often, and will help reduce the lag time between social
change and legal change.
I also claim that juries can help limit the role of the criminal sanction to
punishing those acts, and only those acts, that are condemned by a broad
consensus of society. That certainly is an appropriate goal as well.
Finally, I claim that where the criminal law punishes victimless crimes that
many in society approve of, the end result is social divisiveness and an
intolerant society. Few acts can be more intolerant than placing a neighbor
in a cage for doing something you just don't think is right.
Subject: Re: To Weaselaw (cont.)
Date: 10/10/97 7:33 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971010233400.TAA20474@ladder02.news.aol.com>
briguy wrote:
empowered to nullify "clashes with" ( NOT: "utterly contradicts"; NOT
"violates"; NOT "rapes", but CLASHES WITH) the prohibition against ex post
facto. >>If that was what you meant, then the statement was nonsensical - so I gave
you the benefit of the doubt, and did not interpret it in that manner.
Jury nullification no more "clashes" with the ex post facto clause than
repealing a law does, or than a cop deciding to give a speeder a warning
instead of a ticket does, or a prosecutor deciding to plea bargain, or charge
a lesser included offense, does. For that matter, it no more clashes with
the ex post facto clause than the failure of the cops to find the evidence
necessary to convict does!
The criminal law is not and need not be symmetrical. Defendants have rights,
the gov't has powers. If there is no requirement for symmetry, there is no
clash whatsoever.
The founders thought that it was better for ten guilty men to go free, than
for one innocent one to go to prison. (Except for Franklin and a few other
radicals like Theo. Parsons, who would argue for 100-1) Perhaps that will
help you understand why I think there is no "clash" here.
Subject: Re: To Weaselaw (cont.)
Date: 10/10/97 7:51 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971010235100.TAA21865@ladder02.news.aol.com>
Briguy asserts:
the most reasonable, the least reasonable, the most conscientious, the most
indifferent, the most fastidious, the laziest, the brightest, the dimmest,
the most
discerning, the most credulous, the most industrious, slothful, incisive,
neurotic,
honest, thieving, noble, lofty, generous, inconsiderate, despairing, lying,
wonderful, inattentive people to be found anywhere. >>Jury duty tends to heighten the integrity and sense of responsibility of
people. Few trial lawyers would disagree (and those would probably be ones
who regularly lose... and wish to scapegoat the jurors for their failures.)
That was also one of the conclusions of Kalven and Zeisel in "The American
Jury," which is the largest study ever conducted of how jurors behave.
Jurors are also very rarely corrupted, because they only hold power for a
brief time, they hold it in common and not personally, and they do not have
to worry about re-election, ambition,etc., on the jury. There are no
built-in incentives to become corrupt in jury duty, the way there is in
political office, and there is no fiefdom building as there is with lifetime
tenure.
Thus, my statement that "Juries are perhaps the most reasonable, the most
conscientious, and the most justice-centered actors in the criminal justice
system" tends to be true, has been empirically shown to be true, and should
logically be true due to the built-in incentives within the system.
Subject: To Weaselaw
Date: 10/10/97 4:49 AM Eastern Daylight Time
From: BriGuy301
Message-id: <19971010084901.EAA00883@ladder02.news.aol.com>
Okay, so now we're off on the wrong foot, and that's a shame. But it's
pretty understandable, given the following:
<< Quite frankly, BRIGUY rambles on too much for me. I haven't seen any
powerful or original arguments, and I have seen a lot of bad history and
fictitious
law, in the rest of what I have read of his post. Perhaps if he posts
something more
concise it will be more practical to refute point by point. >>>
You're raising hauteur to new heights. As to the charge that I posited all
this bad
history and ficticious law, I guess that such is your principled devotion to
concision
that you wouldn't want to burden us with any examples, huh? And take a good
look at that last sentence. That was penned by the same guy who admonished
me
for choosing the term "whim" by writing:
<< By characterizing their judgments as "whim" you presume your answer .
. .>>>
Yet here you are presuming that my future posts are to be "refuted point by
point"
before you've even read them, or for that matter, before I've written them.
Talk about
imperious.
BriGuy301
Subject: Re: To Weaselaw
Date: 10/10/97 6:25 PM Eastern Daylight Time
From: PMill32182
Message-id: <19971010222500.SAA09228@ladder01.news.aol.com>
If I may break in on the rancor for a moment--- let me add one small but
useful point.
Insofar as democracy is a less harmful system of government than others,
and as long as we have a government, we will wish to provide for separation
and balancing of power to reduce the amount of usurpation and tyranny in the
system. This separating and balancing must occur within the system--"power
must be opposed to power", as Montesquieu argued-- in order to protect people
against their government. Jury power to nullify is such a power and
it is a balance against the powers of other elements of the system. It is
therefore, IMHO, something worth developing.
Jerry
Subject: Re: To Weaselaw
Date: 10/10/97 7:55 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971010235500.TAA16641@ladder01.news.aol.com>
Briguy continues:
point"
before you've even read them, or for that matter, before I've written them.
Talk about imperious.>>The position you have staked out is built on a faulty foundation, so it seems
my assumption was a logical one.
You "tipped your hand" with the word "whim." Jurors are less affected by
whim than legislators are, because juries are a deliberative body instead of
merely a play of competing interests seeking to outmaneuver each other.
Seeing the "rule of law" you are so beholden to, if applied without the
discretion of the actors in the system, becomes the "rule of whim," your
position is largely self defeating.
Subject: Re: Justice And FIJ's -- some doubts
Date: 10/10/97 7:42 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971010234200.TAA21177@ladder02.news.aol.com>
Briguy misstates both the positions of FIJA and the facts of jury selection:
It's become bad enough already, but with so-called FIJ's the jury selection
process is going to be a travesty of percentage-based statistics that will be
disgracefully color-conscious, among other things. You won't be tried by a
jury of your peers, twelve men and women good and true -- you'll be tried by
twelve one-man voting "blocs", carefully determined by sophisticated
"market research". >>Curious, because FIJA is in favor of limiting or eliminating the peremptory
challenge. Besides, the "jury of your peers" concept is not included in the
Constitution or in law at all. The concept is a jury "fairly representative
of the community," which we believe is best obtained by selecting juries at
semi-random: semi only in that those with a relationship or a stake in the
outcome should be eliminated.
< (Again, on this point you might well raise the same objection as above,
and I would respond the same.) In this sense, the judicial process will not
only have crossed over into the legislative realm, but in many ways will
resemble the electoral process also . (Come to think of it, since one would
be giving juries, in effect, a veto power, one could make the point that the
judicial process would be encroaching into the EXECUTIVE realm as well .
. .)>>
Juries are part of the Judicial branch of gov't (of not just one of a kind, a
fourth branch entirely): it is the prosecutor who is part of the executive
branch.
And of course juries do not legislate. Juries only decide whether a
particular piece of legislation can be fairly and justly applied to the case
before them. If they do not unanimously agree that it should be, then the
accused should go home.
Juries are the final check and balance. That is what the founders understood
and intended. I have personally checked into Jacob's Law Dictionary, which
was the dictionary James Madison (author of the Bill of Rights) used. It
describes trial juries in criminal cases as having the power to judge both
law and fact, specifically citing Bushell's Case.
Subject: Juries, Justice and History (VERY long post... you've been warned!)
Date: 10/11/97 3:24 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971011192401.PAA01913@ladder02.news.aol.com>
The American criminal trial jury can trace its roots back at least to 11th
Century. This extraordinarily ancient lineage should have given ample
opportunity for any questions concerning its use or purpose to be completely
resolved. It is pretty clear that has not been the case, although a review
of the history is the starting point towards gaining a real understanding of
the institution. Honestly reviewing
this history may upset the preconceived notions of many people, especially
trial lawyers and judges, who have too frequently developed an ahistorical,
vocational understanding of trial by jury beginning with their first
experiences in law school.
It is possible that the last truly important legal decision attempting to
define the legitimate range of juror discretion was Bushells Case in 1670.
The legal powers and independence of jurors were understood and well
articulated by Chief Justice Vaughan, writing for the humble Court of Common
Pleas more than three centuries ago. In all the cases and all the years that
have passed since then, there is
no reason to believe the rules have changed. In fact, the intervening years
have clearly proven the wisdom of Justice Vaughans decision.
Even at the time Justice Vaughan wrote his opinion in Bushell, it was
believed by many judges, lawyers and legal scholars that jurors had the
power, but not the right, to judge the law. That was the view of Chief
Justice Delancey in the seditious libel trial of John Peter Zenger, and that
view was reiterated by the United States Supreme Court in Sparf et al. v.
United States. This view has not
been modified by that Court since. The Sparf court recognized that the
power of jurors to deliver a general verdict gives jurors the raw power to
deliver a verdict contrary to law and facts, veiled within the general
verdict of Not Guilty. Sparf also established that the officially condoned
power of jurors to judge the law was limited to issues where the law was so
intertwined with fact as to be inseparable. And finally,
Sparf reaffirmed that the judge could not direct a conviction, because he
had no power to legally decide the facts of the case, even where none of the
facts of the case were in question. In a very real sense, nothing has
materially changed since Bushells Case. Although in a very different
context, Sparf et al. could be read as merely reaffirming the opinion of
Justice Vaughan. Nothing in Justice Vaughans opinion required
trial judges to inform jurors of their nullification powers in fact,
Vaughan studiously a any discussion of those powers at all.
American courts have long recognized the folly of attempting to make
judicial resolution of political questions. The role of the criminal trial
jury is primarily a political question, as Justice Vaughan well understood.
It is a question that was raised in 1215, when the political power of the
King to punish his subjects at whim was limited by the guarantee of trial by
jury in the Magna Charta. It is a
question that was raised by the Levellers, led by John Lilburn (perhaps
historys first radical jury rights advocate), when the Levellers had to
repeatedly fight for their political and religious freedoms. After the
Levellers the question was raised by the Quakers, who were repressed and
denied any religious freedom whatsoever by the Conventicles Act.
The doctrine of jury independence was subsequently embraced by rebels in the
young American Colonies, in their struggles for political autonomy from the
Crown. Jury independence became an important political check on the power of
the fledgling government of the United States, and it saw massive resurgence
as an essentially political protest against early American libel laws and
against the Fugitive Slave Acts
of 1793 and 1850. Labor activists adopted jury independence in order to
gain their political and economic freedoms, and opponents of alcohol
Prohibition turned to the jury in order to protect their personal civil
liberty. Political opponents of the Vietnam War advocated jury independence
openly and often, and today, serious citizens of all political stripes still
occasionally turn to a jury of their peers as the last bulwark of liberty,
when they
are in danger of being jailed for acts they believed are justified. All of
these are political protests, urging the quintessentially American right that
author Jessica Mitford described as the most basic of all, the right not to
be tried for dissent.
Some of these dissidents were successful and changed the course of history.
Some of them were infamous and their trials demonstrated the lack of social
consensus supporting a particular group or groups of dissidents. But all of
these dissidents were raising issues that were fundamentally political or
moral in nature, and not strictly or merely legal.
Because the extent to which jurors should feel entitled to vote their
conscience is a political and not a legal question, it is not a question that
can be answered, either legally or definitively, by the courts. Because the
Fifth, Sixth and Fourteenth Amendments gives this question a constitutional
dimension, it is not one that can be addressed through any routine act of
legislation. In order to limit the
power of jurors to render an independent verdict, nothing less than a series
of Constitutional amendments would be required. Given the Fifth and Sixth
Amendments as they currently exist, the exercise of juror independence is a
question that each juror must legally and ethically address within the
confines of his or her own conscience.
We must face the reality that some degree of jury independence is inevitable
in our current criminal justice system. There is nothing to prevent a juror
from voting his or her own conscience except that selfsame jurors
conscience. If the jurors feel more strongly about what they consider to be
a just verdict than they do about following the instructions of the judge,
their verdict will reflect that. Jurors
are increasingly likely to be aware of their power to judge the law, and
informed jurors may be increasingly likely to exercise their powers when they
believe it is appropriate.
Courts should be willing to come to grips with the fact that jury
independence is not a problem, as too many case decisions and law journal
opinions naively describe it. Instead, it is one of the most important
sources of resilience within our judicial system. A rigid, unyielding system
can not survive, just as a tree would crack and splinter if it could not bend
in the wind. Laws written by the
legislature may not always be just. And even when a given law is just, the
law, by its nature, has to be written for general application. It would be
impossible and undesirable to have a specific law for every possible set of
circumstances. As a result, some circumstances that could make enforcement
of a given general law unjust or even absurd will inevitably occur.
As a society, we hope that legislatures will repeal or modify laws that are
unjust or unfair. Experience shows that such change, however necessary, does
not always happen quickly or painlessly. The Fugitive Slave Act of 1850
remained valid law in the United States until Abraham Lincoln signed the
Emancipation Proclamation. How many morally innocent people should be
punished, while we wait for the legislature
to correct its mistakes? And how are the legislators to know what laws are
mistaken, if they are denied feedback from the conscience of the community
itself?
We also hope that police will choose not to make arrests, and that
prosecutors will not press charges, when the circumstances would make it
unconscionable to enforce the law in a particular case. We give police and
prosecutors a great portion of discretion, in order that they can filter such
cases out of the system. However, in practice, this system does not always
work perfectly. Sometimes, police,
prosecutors and judges believe they are just doing their job, when in fact
they are ignoring the realization that the reason they are given discretion
in so that they may do their job justly, not mechanically or reflexively.
Sometimes, their particular idea of what would be a just outcome may not be
one supported by the community at large. And that is where the jury must
intervene in order not only to protect the defendant, but to protect the
system itself, giving it the flexibility it needs in order to be just, fair,
and equitable. Without this bulwark of liberty in place, public discontent
and distrust of the law may lead to a growing and dangerous sense of
discontent and alienation. It may not be surprising that discontent and
alienation are often blamed for the violence and despair in some of the very
same communities where non-violent citizens have all too often come into
contact with the criminal justice system, in courts where the powers of
juries to see justice done are denied, ridiculed and disparaged. The safety
valve Judge Leventhal spoke of with approval in U S. v. Dougherty has been
officially eliminated. A system with no safety valves can be a very
dangerous thing.
This political protest on the part of the juror should be recognized for
exactly what it is: proof that either the nullified law lacks adequate social
support to be consistently enforced, or that the law is being misapplied by
the prosecutor. Laws which are regularly nullified are laws that must
change. Juries should be understood as an essential feedback loop in the
legislative process. When laws cease to
be accepted by jurors, they should be either stricken or modified by
responsive legislation. In this way, independent juries can help reduce the
lag time between social change and legal change, a problem that has always
proven intractable.
Jurors should also be viewed as a feedback loop by the prosecutors office.
When a given law is frequently nullified with regard to a particular class of
defendants, be it medical users of marijuana, doctors assisting terminally
ill patients to commit suicide, or battered spouses who kill their abusers
after years of torment, then prosecutors should reconsider how they handle
those cases. Perhaps they may
decide to quit prosecuting the Sam Skippers and Dr. Jack Kevorkians of the
world. Perhaps they will decide that the community is wrong, and that for
ethical or practical reasons the criminal justice system needs to keep
sending a message that certain socially accepted crimes are taken
seriously. One thing they should not do, however, is to ignore the message
by denying that the messenger ever had a right to speak.
Screening out conviction qualified jurors for all criminal cases threatens
to raise the time, cost and difficulty of voir dire immensely. More
importantly, such a process would reduce respect and support for the criminal
law, and arguably deprives the defendant of an impartial jury. The
credibility given to juries grows out of their image of the conscience of
the community. Discriminating against
a sizable percentage of the population who question the wisdom of unpopular
legislation is likely to result in an unfavorable and unpredictable backlash,
as venire members who feel strongly about the injustice of a particular law
are likely to lie during voir dire, in order to obtain a seat on the jury.
Charging such jurors with perjury will only further erode respect for the
system, and subject the prosecution to reasonable charges of jury
tampering.#
I0
lêe public exc#
êd from jury duty for their views will no longer see the system as
representing the judgment of the community, and will cease to trust or
respect the system. Many will fail to respond to a jury summons, because
they will reasonably believe that they are sure to be stricken from the panel
for their views. Without citizens who believe in the system and are ready to
answer a summons for jury duty, the criminal justice system can not be
expected to
operate. The right to a trial by jury is the right to a trial by a jury
fairly selected from a random cross section of the population: attempting to
circumvent the decisions of independent minded jurors is likely to result
only in a cure much worse than the disease.
The artificial distinction between jury rights and jury powers is
nonsensical, and should be discarded. A legal power that can be exercised
with legal impunity is a legal right. Pennsylvania Chief Justice Sharswood
stated it with absolute clarity in 1879:
[I]t has been strongly contended that though the jury have the power they
have not the right to give a verdict contrary to the instruction of the court
upon the law; in other words that to do so would be a breach of their duty
and a violation of their oath. The distinction between power and right,
whatever may be its value in ethics, in law is very shadowy and
insubstantial. He who has legal power to do anything has the legal right.
No court
should give a binding instruction to a jury which they are powerless to
enforce by granting a new trial if it should be disregarded. They may
present to them the obvious considerations which should induce them to
receive and follow their instruction, but beyond this they have no right to
go.
The idea that jurors have the power but not the right to deliver an
independent verdict does not blend well with other areas where powers and
rights are set in opposition to each other. A person may have the legal
power to breach a contract, but not the legal right and for that reason
he may be sued for damages should he in fact breach the contract. Similarly,
a person may have the raw physical power to
punch his neighbor in the nose, shout fire in a crowded theatre, or to
drive his care in the left-hand lane. None of these things are his legal
right to do, however - and as a result he may be enjoined from committing
them, and arrested, jailed, fined, or sued if he does them. There is simply
no parallel recourse available to the State against a juror who votes for an
independent verdict.
Potential jurors are increasingly likely to learn about their powers from
pamphlets, pulpits, protesters, newspaper articles, books, television,
computer networks, talk radio or friends. Some of these sources may tend to
be well informed and strictly accurate. Others may be less scrupulous, or
less knowledgeable. Some of these sources may be completely misleading.
Jurors will naturally look to the judge for
clarifying information. If jurors do not get accurate or honest information
from the judge, they may not trust his instructions on other points of law;
further, they may go into deliberations with wildly inaccurate or misinformed
views concerning the doctrine of jury independence itself. In an effort to
prevent jurors from nullifying, courts have simply abdicated their role with
regards to supplying jurors with reliable, uniform and unimpassioned
guidance concerning their unquestionable power to see that justice is done.
This, not jury independence, encourages anarchy.
Too often, we think of the jury simplisticly, as merely the trier of facts.
But the jury also has a political function; an educational function; and a
social function. Today, with jury independence minimized by controlling
courts and procedural rules, juries are prevented or discouraged from
performing many of their essential functions. The political role of juries
is minimized, as few responsible jurors
feel themselves empowered to nullify bad laws or misguided prosecutions. We
are not listening to our jurors; even worse, we are not allowing them to
speak. Jurors are the citizen link most intimately involved in the criminal
justice system. If the opinions of jurors are not worth listening to, then
we can quit wondering if citizen input has any impact on our laws. We can be
assured it does not.
The educational function of juries is thwarted by treating jurors like
errant schoolchildren who must be kept under the strict control of the judge
at all times. Jurors are dealt with as though they are too ignorant,
emotional, malevolent or misguided to benefit from the training jury duty has
historically provided American citizens. Judges and lawyers have forgotten
that they are not the only members of
society capable of forming valid opinions about abstractions like justice,
rights, or liberty. There is no evidence that modern citizens do not
possess the same capacity for civic responsibility and awareness as citizens
of the eighteenth and nineteenth centuries.
The social function of criminal trial juries can not coexist with a regime
of jury servility. When jurors leave courtrooms in tears after delivering
convictions against their most deeply held conscientious beliefs, the trial
by jury is not performing the function Madison, Adams, Jay, Jefferson and
Hamilton intended it to perform. How much of our often declaimed social
breakdown can be traced to a lack of
trust in the criminal justice systems ability to dispense justice? When
citizen jurors are not allowed any meaningful opportunity to participate in
the execution of laws, it is not surprising that they lose confidence in the
ability of the system to protect them or treat them fairly if accused.
Supreme Court Justice Louis D. Brandeis reportedly said that If we wish to
have the law respected, we must first make the law respectable. Our courts
must recognize that the best way for them to have their instructions
respected is to make their instructions and their rulings thorough, honest
and even handed particularly with reference to the power, rights and
discretion of the jurors themselves. Our courts should be allowing
defendants and
their counsel to tell jurors about the various points of view concerning the
doctrine, and what purposes the doctrine serves. Judges should make clear to
jurors the gravity and responsibility inherent in a decision to veto the
written law, but they should also make it clear that this is a responsibility
the legal system places in their hands. While it is not a responsibility to
be exercised lightly, neither is it a responsibility which can be
denied or ignored.
Subject: Coming Around
Date: 10/11/97 7:26 PM Eastern Daylight Time
From: BriGuy301
Message-id: <19971011232701.TAA14071@ladder01.news.aol.com>
<< Democracy does not necessarily mean unbridled majority rule. That is
a popular myth, but it is not so. >>> -- Weaselaw
Well, that depends on your perspective -- and on your definitions. What the
vast
majority of Americans would categorize as "bridled" majority rule is
nevertheless
far too unbridled for most Libertarians to stomach.
But I don't want to start splitting hairs. For although some of your latest
batch of
rebuttals were less convincing than others, the truth is that OVERALL you're
turning
me around on this -- and I'm actually quite excited about it.
This, BTW, shouldn't be too surprising. After all, my critique was in the
form of
a letter to my friend ChrisToto in which I was playing devil's advocate.
(And Chris
and I RAMBLE all the time, which is perfectly natural in the context of
personal
correspondence). If you recall, that letter ended with my saying, "There.
Your turn.
Convince me otherwise." And when I decided to reprint it for more general
consum-
ption, that remained the goal -- to solicit lucid responses challenging my
reservations.
I was offended initially by your dismissive assessment of my concerns, but
that was partially my fault -- for allowing you to assume that those concerns
were the finished product of my thinking on this subject. But the one thing
I left out from my original
letter to Chris was a preamble disclaiming that my views were still somewhat
uncongealed. In fact, I told Chris that my writing him on this subject had
as much to
do with attempting to sort out and organize my OWN views, as it did with
conveying
those views to him. In other words, I was thinking out loud.
<< There are no built-in incentives to become corrupt in jury duty, the
way there is
in political office . . . >>>
This is one of your points that I still don't quite buy (I'm SOMEWHAT
persuaded,
but by no means entirely). The problem I have is this: I don't see that it's
all that
relevant whether they BECOME corrupt, or whether they bring it with them.
Your
typical human being, after all, carries around a certain amount of venality,
certain
prejudices, and many carry around a certain intellectual laziness, or
passivity,
if you will. In some people -- I won't say most -- these inner habits are
quite
pronounced. And given that fact, it would seem your point could be turned
right back around at you: precisely because they DON'T have to worry about
re-election, or any other form of REVIEW, there's no built-in incentive for
them to SHED their prejudices,
or to rigorously perform their job -- when sloppily performing it would be
much easier.
<< Jury nullification no more "clashes" with the ex post facto clause
than
repealing a law does, or than a cop deciding to give a speeder a warning
instead of
a ticket does . . . For that matter, it no more clashes with the ex post
facto clause
than the failure of the cops to find the evidence necessary to convict does !
>>>
Two words spring to mind : "You're right." You don't have to hit ME over the
head
for me to know when an argument of mine has been completely blown out of the
water ! In fact, after you put it that way, I'd have to say that was
probably the
shoddiest, least-well-thought-out argument I've ever advanced in public. I
can only
again plead that it was a "work in progress." (It's times like these that
make me so thankful for the Internet -- when meaningful dialogue between
total strangers is at
one's fingertips. This is the future -- and it is good!)
<< BriGuy wrote:
< The trouble with your conclusion is that
you haven't proved
or demonstrated it -- you've merely
asserted it. >
Let me prove it then: . . . . >>>
There's no reason to address what followed point by point. Suffice to say
that the
ENTIRE POST was extremely persuasive. Especially these last two sentences:
<< Finally, I claim that where the criminal law punishes victimless
crimes that
many in society approve of, the end result is social divisiveness
and an
intolerant society. Few acts can be more intolerant than placing a
neighbor
in a cage for doing something you just don't think is right. >>>
Of course, THAT'S a sentiment I hardly needed to be convinced of. My
question
was simply whether or not nullification as such was the appropriate legal
mechanism.
<< Briguy misstates both the positions of FIJA and the facts of jury
selection:
[You then quote something I said about the process becoming
politicized]
. . . Curious, because FIJA is in favor of limiting or eliminating the
peremptory
challenge. >>>
Well, that's good to know. Here my ignorance about certain aspects of FIJ's
distorted
my view of them. (Likewise, LAWECON pointed out in an earlier post that the
concept
is not meant to apply to matters of contract, tort, or civil trials of any
kind. And THAT
goes a LONG way to my being more open to this idea.)
But I'm curious about something. I employ the acronym "FIJ's" for the
obvious reason --
it saves on typing. But when you refer to FIJA, as in the quote above, you
seem to
imply that there is one, indivisible, "official" spokes-entity for this
movement, united
on all aspects of it. I'm curious -- is that really the case? I just assumed
that "fully-informed-jury-ISM", like any movement, would have various
factions that had
at least some significant disagreements about how nullification should be
defined,
where it should apply and where it shouldn't, etc.
Loose Ends Dept.:
<< Besides, the "jury of your peers" concept is not included in the
Constitution
or in law at all. The concept is a jury "fairly representative of the
community . . ." >>>
Not that I saw where you were going with this anyway, but now that you HAVE
mentioned it, what on earth is the meaningful distinction between a "peer"
and a "community representative"? Please elaborate. I'd just like to know.
Penultimately, I do want to thank you, Weaselaw, for taking the time to
respond to
me as comprehensively as you now have. This was exactly what I had been
looking (hoping) for when I posted my initial objections.
But finally, my devil's advocacy is going to die hard on root matters like
the following:
<< . . . juries do not legislate. Juries only decide whether a
particular piece of
legislation can be fairly and justly applied to the case before
them. >>>
"Decide" . . . how? By reference to . . . what? In the absence of a rigidly
defined principle, I want to know what it is -- exactly -- that will inform
such decisions.
Because whether it's politically correct or not, whether you think the word
is pejorative
or not, the word "whim" is still hanging around in the wings. If you can
fill that gap with something firm and solid, I'll hear it happily. And I
will soon be posting some real-life experience that may make clear my
inclination for resistance on this.
BriGuy301
Subject: Re: Coming Around
Date: 10/12/97 2:40 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971012184001.OAA21396@ladder01.news.aol.com>
BriGuy wrote:
persuaded,
but by no means entirely). The problem I have is this: I don't see that it's
all that
relevant whether they BECOME corrupt, or whether they bring it with them.
Your
typical human being, after all, carries around a certain amount of venality,
certain
prejudices, and many carry around a certain intellectual laziness, or
passivity,
if you will.>>Power tends to corrupt, and absolute power corrupts absolutely, or so Lord
Acton wrote. Of course, the longer power is held, the more we should expect
corruption to sink in. Jurors hold power for a limited time. They also hold
it jointly with others.
Also, voir dire should serve to weed out the inherently corrupt. Worst case
scenario: jurors would only be marginally better than prosecutors, judges,
legislators and cops. Best case scenario: much better.
Is absolute freedom from corruption possible? Of course not.
obvious reason --it saves on typing. But when you refer to FIJA, as in the
quote above, you seem to imply that there is one, indivisible, "official"
spokes-entity for this movement, united on all aspects of it. I'm curious --
is that really the case? >>Yes, the Fully Informed Jury Association, 1-800-TEL-JURY. On the web,
www.fija.org
mentioned it, what on earth is the meaningful distinction between a "peer"
and a "community representative"? Please elaborate. I'd just like
tresentative of the community is a jury that includes ALL sorts of community
members, those that have everything in common with the defendant, and those
that have nothing in common with him.<"Decide" . . . how? By reference to . . . what? In the absence of a
rigidly defined principle, I want to know what it is -- exactly -- that will
inform such decisions.>>
They decide through deliberation, by reference to their sense of justice and
conscience.
Perhaps this is a good time to quote the old Supreme Court case, Georgia v.
Brailsford:
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 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 the best
judges of fact; it is, on the other hand, presumable, that the court are the
best judges of the law. But still both objects are lawfully within your
power of decision.
This was one of the rare cases where the Supreme Court sat with a jury, and
this is part of the instruction John Jay gave them for the unanimous court.
I think this instruction is carefully crafted to give the jury authority to
find the case according to conscience, while impressing upon them the heavy
responsibility involved in such a decision. I think this sort of instruction
adequately suppresses "whim," while freeing the jurors to refuse to
participate in injustice.
Subject: Re: Coming Around
Date: 10/14/97 9:00 AM Eastern Daylight Time
From: LAWECON
Message-id: <19971014130001.JAA05592@ladder01.news.aol.com>
An interesting aspect of this discussion is to pose the question: What should
voir dire accomplish?
As I understand it [and I DO NOT claim to have the depth of knowledge on this
subject that Weaselaw has been demonstrating] the pre-Conquest Anglo-Saxon
jury was chosen BECAUSE THE MEMBERS WERE WITNESSES TO THE CHARGED OFFENSE, on
the theory that they were in the best position to know the facts. The trial
was then devoted to an explanation of the known facts. Quite a change from
our present conception.
At a later period, authors such as Spooner would have us believe that the
jury was intended as a check on the independence of the legislature from the
people, and, thus, should be as nearly representative of the community as a
whole as possible. The typical historical method to "assure" such
representative status was entirely random selection from the mature
citizenry. Presumably, Spooner would have excluded from service witnesses to
the charged
crime and those with personal connections with any of the litigants
[although I do not recall his discussion [if any] of that point] as well as
the obviously incompetent .
Today voir dire is INTENDED to exclude anyone who personally or through
friends or relatives has had any experience with the operation of the law on
which the charged offense is based, anyone with any legal knowledge of or
opinions about how such law operates or the likely consequences to the
defendant of a conviction, anyone with any personal connnection to the
litigants or who was a witness to the defense, in short, anyone who has any
independent
basis for judgment as to the matter presented. It most certainly is intended
to exclude anyone who holds that the jury has an independent duty to judge
the rightness of the application of the law to the facts presented. This is
in accord with the contemporary theory that the jury is to judge only the
facts but never the law.
To me it is obvious that the present scope of voir dire is tyrannical and is
intended to be tyrannical. Despite Weaselaw's reassuring words about how a
good defense attorney can "slip in" a hint about jury nullification [wink,
wink, secret handshake], I sincerely doubt that such hints do much good in
the face of the explicit and often repeated instruction from the Court that
the judge will give the jury the law, that it is the duty of each juror to
apply the law as instructed despite their "personal opinions" as to the
rightness of the law, etc. In fact, in some jurisdictions there is such
language in a standardized written oath that jurors must swear to under
penalty of perjury before they are seated. Hence, I continue to believe that
overly broad voir dire is a VERY SIGNIFICANT PROBLEM that libertarians and
fija sorts ought to more carefully consider.
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Coming Around
Date: 10/14/97 6:44 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971014224501.SAA15936@ladder02.news.aol.com>
Lawecon wrote:
friends or relatives has had any experience with the operation of the law on
which the charged offense is based, anyone with any legal knowledge of or
opinions about how such law operates or the likely consequences to the
defendant of a conviction, anyone with any personal connnection to the
litigants or who was a witness to the defense, in short, anyone who has any
independent
basis for judgment as to the matter presented. It most certainly is intended
to exclude anyone who holds that the jury has an independent duty to judge
the rightness of the application of the law to the facts presented. This is
in accord with the contemporary theory that the jury is to judge only the
facts but never the law. >>I certainly don't disagree that VD is usually abused. Both sides use it to
stack the jury - the only way a fair jury ever gets impanelled is that both
sides are usually inept at jury stacking, and don't have the resources to
investigate the venire members well enough to know who to challenge.
Thurgood Marshall wrote in Batson v. Kentucky that the only way to eliminate
racially based peremptory challenges was to eliminate the peremptory
challenge. Personally, I tend to agree. I think it helps the state more
than the defense in a criminal case (the defense only needs ONE conscientious
objector on there...) but it seems that it is here to stay, paradoxically
because the defense bar insists on it. Perhaps that is because, as a rule,
defense lawyers are more experienced, and delude themselves into thinking
they are better jury stackers, than the prosecution. Perhaps it is also
because jury consultants are more often associated with the defense than with
the prosecution, and the top 1% of defense lawyers who can afford to use them
are the ones most likely to be politically involved with the defense bar.
is intended to be tyrannical. Despite Weaselaw's reassuring words about how a
good defense attorney can "slip in" a hint about jury nullification [wink,
wink, secret handshake], I sincerely doubt that such hints do much good in
the face of the explicit and often repeated instruction from the Court that
the judge will give the jury the law, that it is the duty of each juror to
apply the law as instructed despite their "personal opinions" as to the
rightness of the law, etc. In fact, in some jurisdictions there is such
language in a standardized written oath that jurors must swear to under
penalty of perjury before they are seated. Hence, I continue to believe that
overly broad voir dire is a VERY SIGNIFICANT PROBLEM that libertarians and
fija sorts ought to more carefully consider.>>I think you are combining the voir dire with the juror's oath and the courts
instructions to the jury. They are different issues.
I think it is legitimate to remove people with a personal stake in the case
from the jury. Beyond that, the only real purpose I see to VD is jury
stacking, and I think that in the long run it benefits the state more than
the defense.
The juror's oath is rather a myth. As one law prof. wrote, nobody knows what
a "true deliverance" means anymore. For a juror to promise to make a true
deliverance between the State and the defendant is pretty vague. Very few
juror's oaths actually require them to pledge to follow the judge's
instructions (which courts have determined are NOT orders, BTW.)
I do not think the juror who chooses to nullify IS violating his oath,
although courts will try to tell him that he is.
As for the court's instructions: I think jurors do, and should, take them
very seriously. It is just that those instructions are not ALL a juror
should take very seriously. When the instructions can not be conscientiously
followed, conscience has to have the upper hand.
Subject: Re: Coming Around
Date: 10/14/97 9:55 PM Eastern Daylight Time
From: LAWECON
Message-id: <19971015015500.VAA03534@ladder01.news.aol.com>
courts instructions to the jury. They are different issues.>>
I don't think so. Indeed, in some jurisdictions there is a "juror's oath"
written out to which all jurors are required to subscribe [I believe this is
the case, for instance, in the Texas state courts, for instance.].
However, in our state/district courts and many others the Judge conducts the
opening stages of voir dire and specifically asks the panel "Now well any of
you have any problem with applying the law as I instruct you in it,
regardless of your preconceptions or own views on the rightness of the law?
If you think you might, raise your hand." Presumably the oath merely
substitutes for this additional step in voir dire.
Indeed, at the close of evidence it is typical for the Judge to instruct the
jury in the law before deliberations begin, and to repeat the principal that
the jurors are to apply the law as he has instructed them in it, but that
isn't what I have in mind.
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Coming Around
Date: 10/15/97 11:41 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971016034100.XAA16286@ladder01.news.aol.com>
Lawecon wrote:
written out to which all jurors are required to subscribe [I believe this is
the case, for instance, in the Texas state courts, for instance.]. >>
Some states have the oath written out in statute. Most states and the fed
system have common law oaths that have just grown randomly from tradition,
and each judge makes up their own.
the opening stages of voir dire and specifically asks the panel "Now well any
of you have any problem with applying the law as I instruct you in it,
regardless of your preconceptions or own views on the rightness of the law?
If you think you might, raise your hand." Presumably the oath merely
substitutes for this additional step in voir dire. >>When a person makes that promise, they have the right to assume the law will
be fair and fairly applied. If this is not true, then the premises for the
promise are not valid, and the promise should not be binding.
<
Subject: Re: Coming Around
Date: 10/16/97 8:33 AM Eastern Daylight Time
From: LAWECON
Message-id: <19971016123300.IAA09150@ladder02.news.aol.com>
the opening stages of voir dire and specifically asks the panel "Now well any
of you have any problem with applying the law as I instruct you in it,
regardless of your preconceptions or own views on the rightness of the law?
If you think you might, raise your hand." Presumably, the oath merely
substitutes for this additional step in voir dire. >>be fair and fairly applied. If this is not true, then the premises for the
promise are not valid, and the promise should not be binding.>Well, the only thing I can say in response is that I don't see any such
conditions in the question from the Court, and I am unaware of any case law
that imputes such conditions. Even if such conditions were imputed, I would
think that any appellate court would find that a complaint or information
that was not dismissed by the Judge on pretrial motions involved law that was
"fair and fairly applied." Do you have citations to the contrary?
At least one recent state court case - Gilpin - involved a prosecution which,
when properly interpreted [rather than interpreted as defense counsel was
attempting to make out, but that Gilpin herself has now apparently abandoned
in a recent Liberty Magazine article] apparently involved exactly this issue,
and the former juror was convicted [at least at the trial level]. To be
percise, the prosecution claimed in that case that Gilpin had been asked
[as a part of the collective voir dire process I'm referring to above] about
her willingness to follow the judge's instruction in the law and about her or
her families' involvement with drug crimes. She was also instructed not to
discuss possible sentences if conviction occurred. When the jury got to
deliberations she passed out a fija pamphlet and made it quite clear that she
was well familiar with jury nullification, researched the possible
sentences for the charged offense and informed other jurors of her
conclusions and, it was later discovered, that she had previously been
charged with a drug offense and was connected with a local NORMAL-type
group. The Public Prosecutor and the Court were not happy.
All and all I have noticed a rather disturbing tendency in fija to try to
downplay this situation and wish away the seemingly rather clear choice
between perjury and knowledge [e.g., if you're knowledgeable about the
charged offense or jury nullification or if you have a generally negative
view of offenses of the type charged you're not going to survive voir dire,
unless you perjure yourself]. Whether you call it jury stacking or not, the
effect is
that the jury's power to nullify is stripped down to those cases situations
where intially unknowledgeable jurors are so offended by the injustice of the
situation that they will ignore or rationalize away their previous oaths. Me
thinks that this is somewhat narrower than the proper scope of nullification.
The only way around this situation is to return to fija's original program of
legislative/constitutional reform, which they now seem to have abandoned
after a few initial defeats. While I am not one to disparage "direct action,"
I can think of better contexts for its application.
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Coming Around
Date: 10/16/97 8:47 AM Eastern Daylight Time
From: LAWECON
Message-id: <19971016124700.IAA08735@ladder01.news.aol.com>
Opps. I just caught myself in a really bad error. The defendant's correct
name in the below referenced case was [is] Laura Kriho. The case occurred in
Gilpin County, Colorado. [There is alot of material on the web if anyone is
interested. Don't bother trying to deal with the Gilpin County Clerk's office
- they are a mess and they want 50 cents a page for any court records.]
Mea culpa, and I plead that it is 4 a.m. as a mitigating circumstance.
which, when properly interpreted [rather than interpreted as defense counsel
was attempting to make out, but that Gilpin herself has now apparently
abandoned in a recent Liberty Magazine article] apparently involved exactly
this issue, and the former juror was convicted [at least at the trial level].
To be percise, the prosecution claimed in that case that Gilpin had been
asked
[as a part of the collective voir dire process I'm referring to above] about
her willingness to follow the judge's instruction in the law and about her or
her families' involvement with drug crimes. She was also instructed not to
discuss possible sentences if conviction occurred. When the jury got to
deliberations she passed out a fija pamphlet and made it quite clear that she
was well familiar with jury nullification, researched the possible
sentences for the charged offense and informed other jurors of her
conclusions and, it was later discovered, that she had previously been
charged with a drug offense and was connected with a local NORMAL-type
group. The Public Prosecutor and the Court were not happy.>> Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Coming Around
Date: 10/19/97 2:46 AM Eastern Daylight Time
From: Weaselaw
Message-id: <19971019064601.CAA24373@ladder01.news.aol.com>
Lawecon noted:
conditions in the question from the Court, and I am unaware of any case law
that imputes such conditions. Even if such conditions were imputed, I would
think that any appellate court would find that a complaint or information
that was not dismissed by the Judge on pretrial motions involved law that was
"fair and fairly applied." Do you have citations to the contrary? >>The citations that are out there all claim jurors are violating their oaths
when they nullify, but note that jurors are perfectly entitled to do so if
they choose to. The oath is not an order from the court, and neither are
jury instructions: there are no penalties for violating the oath or refusing
to follow instructions. If there could be, then courts could direct verdicts
in crim cases when there was no reasonable dispute about the facts, the
same way they can in civil cases.
Courts have also held that it is ethical for an attorney to pursue a
nullification defense.
which, when properly interpreted [rather than interpreted as defense counsel
was attempting to make out, but that Gilpin herself has now apparently
abandoned in a recent Liberty Magazine article] apparently involved exactly
this issue, and the former juror was convicted [at least at the trial level].
To be percise, the prosecution claimed in that case that Gilpin had been
asked
[as a part of the collective voir dire process I'm referring to above] about
her willingness to follow the judge's instruction in the law and about her or
her families' involvement with drug crimes. >>It sounds like you are talking about the Laura Kriho case in Gilpin Co.
Colorado. The Kriho case is pretty weak; they are prosecuting her for
allegedly concealing information during VD, not because she didn't answer
questions but because she ONLY answered questions and did not volunteer any
info. She was convicted and given a low fine in order to discourage her from
appealing, but Paul Grant, her Att'y, is handling her appeal for expenses.
He has
a pretty good chance; the only case that supports the conviction is not on
point.
The judge in that case specifically said Kriho could not be prosecuted for
her verdict, or for nullifying, or for discussing penalties. She can only be
prosecuted for refusing to tell the ct. that she intended on doing those
things. Of course, it is not really clear that she DID intend on doing
those things before she heard the facts and the courts instructions. How can
anyone swear to follow an instruction that they have not yet heard? It is
absurd, like signing a blank contract.
Subject: Re: Coming Around
Date: 10/14/97 10:15 PM Eastern Daylight Time
From: LAWECON
Message-id: <19971015021500.WAA06693@ladder02.news.aol.com>
what a "true deliverance" means anymore. For a juror to promise to make a
true deliverance between the State and the defendant is pretty vague. Very
few juror's oaths actually require them to pledge to follow the judge's
instructions (which courts have determined are NOT orders, BTW.) I do not
think the juror who chooses to nullify IS violating his oath, although courts
will
try to tell him that he is.>>I have been on juries in two jurisdictions and almost on juries [up to my
little speech in response to the judge's questioning] in another
jurisdiction. While I've heard the term "true deliverance" it wasn't in the
context of being on a jury panel. Do you practice East of the Mississippi?
In those jurisdictions where I am familiar with the oath, it very explicitly
requires the juror to apply the law as instructed by the Court. Do you have
data indicating that this is atypical where such an oath exists? Given such a
provision, I can't see just how you avoid the rather strong implication of
perjury if the juror either swears to such an oath while knowing about and
believing in jury nullification or answers affirmatively or by his
silence a similar question put by the court. Of course, the juror doesn't
necessarily know he will nullify [unless the charged offense is one that he
believes is inherently and always unjust], but the question is not phrased
conditionally when I've heard it put.
very seriously. It is just that those instructions are not ALL a juror
should take very seriously. When the instructions can not be conscientiously
followed, conscience has to have the upper hand. >>Ya, and I do not contend that the jurors should not take the Court's
"instruction" in the law seriously. The Court is presumed to be learned and
its "instruction" will usually be accorded considerable respect by the jury.
I do contend, however, that jurors should know about their right [as well as
their power] to nullify in an appropriate case, rather than being told they
have no such right or asked to pledge it away under oath.
I also believe that it would be desirable in a more ideal jury system, for
the parties' representatives [counsel] to be allowed to argue the law to the
jury if there are reasoned opinions [albeit only presuasive opinions] or even
"policy arguments" that come out differently than the Court's instruction.
Yes, I know, that is all purportedly hashed out in the submission of proposed
instructions, but there again, the court has the final say as to what
will and will not be allowed.
To put the matter tersely, the whole contemporary tone of court proceedings
involving a jury is to avoid "confusing the jury" by requiring the jurors to
do no more than nod their heads in agreement with the urging of the
prosecution that they find that John Doe is guilty of violating 18 U.S.C.
Sections 1111-1800 and should be "sent up the river" for 100 years, plus or
minus a decade. That neither they nor John Doe finds any moral culpability in
such
violations is something they should not consider, after all IT'S THE LAW.
Another varient of my signiture line below is that "If you persistently treat
people like childern who are incapable of making their own decisions or their
own assessments of right or wrong, they will act accordingly."
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Coming Around
Date: 10/15/97 11:46 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971016034600.XAA17739@ladder02.news.aol.com>
Lawecon wrote:
explicitly requires the juror to apply the law as instructed by the Court. Do
you have data indicating that this is atypical where such an oath exists?
Given such a provision, I can't see just how you avoid the rather strong
implication of perjury if the juror either swears to such an oath while
knowing about and believing in jury nullification or answers affirmatively or
by his
silence a similar question put by the court.>>It can't be perjury if the juror did not decide to nullify until after the
trial was over, any more than it is fraud to not pay a bill, if you planned
on paying it when you incurred the debt.
"instruction" in the law seriously. The Court is presumed to be learned and
its "instruction" will usually be accorded considerable respect by the jury.
I do contend, however, that jurors should know about their right [as well as
their power] to nullify in an appropriate case, rather than being told they
have no such right or asked to pledge it away under oath. >>We are in agreement here.
the parties' representatives [counsel] to be allowed to argue the law to the
jury if there are reasoned opinions [albeit only presuasive opinions] or even
"policy arguments" that come out differently than the Court's instruction.
Yes, I know, that is all purportedly hashed out in the submission of proposed
instructions, but there again, the court has the final say as to what
will and will not be allowed. >>
Supreme Ct. Justice Samuel Chase was impeached for trying to keep lawyers for
arguing the law to the jury.
Subject: Re: Coming Around
Date: 10/16/97 8:35 AM Eastern Daylight Time
From: LAWECON
Message-id: <19971016123601.IAA08229@ladder01.news.aol.com>
for arguing the law to the jury.>>But that was, as they say, "in a land long ago and far far away".
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Coming Around
Date: 10/19/97 2:47 AM Eastern Daylight Time
From: Weaselaw
Message-id: <19971019064700.CAA25356@ladder02.news.aol.com>
Lawecon wrote:
>Well, the land was pretty close...
Subject: Re: Coming Around
Date: 10/19/97 11:18 AM Eastern Daylight Time
From: LAWECON
Message-id: <19971019151800.LAA13439@ladder02.news.aol.com>
>I don't know about that. From my reading of American history it would appear
that [down to the 1830s] the events purportedly occurring in what was
recorded as mid-continental N. America may have, in fact, occurred in some
parallel dimension in another universe. At least I haven't seen any T.
Paines, P. Henrys or even T. Jeffersons wandering around politics these days,
and I dare say that their views would be generallly evaluated as "absurd and
outlandish" if there were such. The notion of a judge being impeached for
attempting to restrain defense counsel from presenting a nullification
defense would be "laughed out of court" in this society.
Incidentally, I just ran across a fairly new volume on which I'd like your
evaluation: Godfrey D. Lehman, We The Jury: The Impact of Jurors On Our Basic
Freedoms [Prometheus Books 1997]
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Coming Around
Date: 10/19/97 2:18 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971019181801.OAA27446@ladder02.news.aol.com>
Lawecon noted:
evaluation: Godfrey D. Lehman, We The Jury: The Impact of Jurors On Our Basic
Freedoms [Prometheus Books 1997] >>I have Godfrey's book. It is very good. His book and mine should complement
each other well; he deals mainly with legal issues from a historical
perspective; mine deals with the development and present state of the jury
nullification doctrine, also from a historical perspective.
Personally, and this concept is not really reflected much in the book, my
belief is that the way law is taught is mainly responsible for the decline in
the nullification doctrine. Law students learn to apply law vocationally,
mechanically, and receive the "revealed wisdom" from their professors that
their job is to use law to shape society, that it is their role to determine
what "good public policy" is. Actually, society should shape the law, not
the other way around, but that is rarely communicated in ahistorical,
vocational law school training.
Thus, I try to use legal journal-type writing in my book, complete with lots
of footnotes (just under 1000), lots of case studies, to show lawyers (and
other interested people, of course), how the accepted role of the jury has
degenerated, and why this has not been "good public policy." I also
concentrate an entire chapter to showing lawyers how to use the nullification
defense under present law, and another chapter to show why nullifying jurors
are
not violating their oaths.
My book should be out in the spring; it is being jointly published by the
Cato Institute and Carolina Academic Press. The working title is "Jury
Nullification: The Evolution of a Doctrine." My hope is that it will be
acquired by a large number of law school libraries, and that they will be
able to find it through any catalog search on the words "jury nullification."
That alone will prove useful, I believe, as many future lawyers will be
exposed to
an alternative thesis from the one their professors are likely to share with
them.
Godfrey's book is good, I think, especially because he breaks out of the
England/USA mode and studies the behavior of juries in France and Russia.
The Zasulich case is truly an amazing one; to think that the attempted
assassination of a Czarist official would go unpunished because of the action
of jurors truly shows that jurors can reduce oppression.
One problem I think we have in this country is that so many people presume
the law is just, that no innocent people are in prison, that "where there is
smoke there is fire," etc. The fact is that crime statistics are NOT
skyrocketing (actually, they are down) is just not believed by the vast
majority of Americans. They fear a small number of wrongs supposedly being
done by "criminals," and ignore the vast number of wrongs being done by
"their
protectors," the government.
I had a third year law student tell me once, concerning Waco, that "we have
to trust the people who protect us." I found the idea that a law student
would say that horrific. After all, if the Founders of this country thought
that way, we would all be drinking tea today.
Subject: Re: Coming Around
Date: 10/20/97 12:35 AM Eastern Daylight Time
From: LAWECON
Message-id: <19971020043501.AAA22991@ladder02.news.aol.com>
to trust the people who protect us." I found the idea that a law student
would say that horrific. After all, if the Founders of this country thought
that way, we would all be drinking tea today.>>
Yes, it is disgusting that the profession that was historically the guardian
of liberty in this country and which bred so many of our revolutionary heros
has fallen so far.
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Coming Around
Date: 10/20/97 12:43 AM Eastern Daylight Time
From: LAWECON
Message-id: <19971020044300.AAA23557@ladder02.news.aol.com>
the other way around, but that is rarely communicated in ahistorical,
vocational law school training.>>I've never thought of this before, but it sounds right. Could you contrast
this with the historical method of "reading the law" before being examined by
members of the bar [that is, in the period when there was a bar].
lots of footnotes (just under 1000), lots of case studies, to show lawyers
(and other interested people, of course), how the accepted role of the jury
has degenerated, and why this has not been "good public policy." I also
concentrate an entire chapter to showing lawyers how to use the nullification
defense under present law, and another chapter to show why nullifying jurors
are
not violating their oaths.>>Sounds like it will have a wide audience. I would particularly be interested
in the issues in the last sentence.
Cato Institute and Carolina Academic Press. The working title is "Jury
Nullification: The Evolution of a Doctrine." My hope is that it will be
acquired by a large number of law school libraries, and that they will be
able to find it through any catalog search on the words "jury nullification."
That alone will prove useful, I believe, as many future lawyers will be
exposed
to
an alternative thesis from the one their professors are likely to share with
them.>>Personally, I would hope that it also finds a significant readership among
libertarians. This is a key issue with which most libertarians have too
little familiarity, and the ways you approach the issues would seem to be
particularly helpful to libertarians.
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Coming Around
Date: 10/20/97 10:22 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971021022201.WAA09516@ladder01.news.aol.com>
Lawecon noted:
this with the historical method of "reading the law" before being examined by
members of the bar [that is, in the period when there was a bar].>>Actually, I can't! However, I do think law school has bred a lesser breed of
lawyers, as paradoxical as that sounds.
libertarians. This is a key issue with which most libertarians have too
little familiarity, and the ways you approach the issues would seem to be
particularly helpful to libertarians. >>I hope so! I have met with Andrea Rich of Laissez-Faire and she is going to
carry it, maybe even plug it a little.
Subject: Re: Coming Around
Date: 10/28/97 9:03 PM Eastern Daylight Time
From: Weaselaw
Message-id: <19971029010301.UAA06051@ladder01.news.aol.com>
This folder was humming... but it seems shut down... anyone else in here?
Subject: Re: Justice And Fully Informed Juries
Date: 10/13/97 9:29 PM Eastern Daylight Time
From: BRANKOE1
Message-id: <19971014012901.VAA05641@ladder02.news.aol.com>
Jury nullification as exemplified by the O.J. Simpson trial was purely race
motivated. My understanding that similiar nullifications for the same reason
has been fairly common recently. Should this trend continue or increase it
will have dire consequences that will not result in joyeous rampages.
The jury, nullifications or no, is the foundation of our justice system.
Throw it out and out goes centuries of slow and painful progress toward an
equitable balance between prosecution and defense, judge and jury.
The fairly recent developments in jury selection should be curbed. The jury
should be selected in the course of a single day to preclude psychological
profiling by either prosecution or defense.
Subject: Re: Justice And Fully Informed Juries
Date: 10/14/97 2:57 AM Eastern Daylight Time
From: Weaselaw
Message-id: <19971014065701.CAA26540@ladder01.news.aol.com>
brankoe1 wrote:
motivated. My understanding that similiar nullifications for the same reason
has been fairly common recently. Should this trend continue or increase it
will have dire consequences that will not result in joyeous rampages.>>The OJ case was almost certainly not a case of jury nullification. It was a
case of reasonable doubts, the result of inept prosecution. What you are
doing is scapegoating the jurors for chris and marcia's screwups.
And the stories of racial nullification may make good "national enquirer"
type press - but none of the serious researchers believe this is widespread.
And the fact that conviction rates are not dropping pretty much proves that.
Where there is a black/white difference in jury verdicts, it is usually
because black jurors have different life experiences. They are less likely
to trust the police, so they are less likely to believe them in court.
However, they are less likely to believe the cops even when it is a white
defendant, so it is hardly racially motivated.
Subject: Re: Justice And Fully Informed Juries
Date: 10/19/97 4:55 PM Eastern Daylight Time
From: ChrisToto
Message-id: <19971019205501.QAA10313@ladder02.news.aol.com>
brankoe1 wrote:
motivated. My understanding that similiar nullifications for the same reason
has been fairly common recently. Should this trend continue or increase it
will have dire consequences that will not result in joyeous rampages.>>Weaselaw: >>The OJ case was almost certainly not a case of jury
nullification. It was a case of reasonable doubts, the result of inept
prosecution. What you are doing is scapegoating the jurors for chris and
marcia's screwups.
And the stories of racial nullification may make good "national enquirer"
type press - but none of the serious researchers believe this is widespread.
And the fact that conviction rates are not dropping pretty much proves that.
Where there is a black/white difference in jury verdicts, it is usually
because black jurors have different life experiences. They are less likely
to trust the police, so they are less likely to believe them in court.
However, they are less likely to believe the cops even when it is a white
defendant, so it is hardly racially motivated.<
I agree that much of this trial's results were a result of prosecutorial
ineptitude. Although this is pure speculation, I also think that the jury
"smelled a rat." The idea that one man could have done what the prosecution
proposed without someone calling for help probably didn't make sense to the
jury. In lieu of this major gap in the prosecutions story-board / time-line,
they probably did find a reasonable doubt.
I think the jury felt the prosecution and the police were "holding something
out" from the jury. Possibly the jury believed that an accomplice was
involved.
Personally, I have my own suspicions of who it may have been but we'll never
know.
Interestingly, my wife served on a jury for a similar case although it was
not a capital case but with very different results.
A young black man (a Haitian immigrant who could barely speak English) was on
trial for breaking and entry, assault and battery with a knife against a
white woman in a fairly exclusive residential area. This was a "black on
white crime." There were 3 black men, a Latino, and 5 black women on the
jury. The rest of the jury including my wife were white.
After the trial, almost immediately only my wife and one of the black men
were unsatisfied that this man was completely guilty. My wife described her
comrade holdout as a very thoughtful, polite 50ish black fellow who worked as
a security gaurd on a college campus. The police had done a crappy job on the
evidence, both my wife and the other hold out pointed out numerous
inconsistencies and logical gaps in both the evidence and the presentation of
the case. They also surmised that there probably had been an accomplice in
order for everything to be done that the prosecution alleged. My wife
constatnly harped to the other jurors "that something is being witheld from
us." And man, she CAN harp, be extremely stubborn and her scientific
background lends her a healthy scepticism.
Unfortunately, she had no knowledge of FIJ concepts then. She was shocked and
stunned that all the black women were convinced of guilt without even
discussing the evidence / trial proceedings. My wife felt that these ladies
were unjustly prejudiced against this young man of their own complexion. And
my wife said that prior to going into deliberation that she got along great
with these ladies when going out to lunch together etc. Some of their
comments in deliberation amounted to," well, if he didn't do exactly what
the cops say, he was probably involved somehow, OR, he probably has committed
some crime for which he was never caught anyhow (!). He looks shifty and
guilty(!)."
She and her comrade couldn't even get most of the others to discuss it. They
turned into a brick wall, they napped, knitted and crocheted, or played cards
while the 3 or 4 open minded people tried to draw the others into discussion.
After a couple of weeks and her comrade hold-out relented, my wife finally
gave in. But she feels bad about it to this day and had an upset stomach for
about a week afterward. She said that right after the verdict was
given, a whole bunch of evidence was brought to light (which apparently had
been compromised by the police to the defendant's disadvantage) which
vindicated my wife's suspicion of an accomplice, missing evidence, impossible
time lines, etc. Many of the other jurors told my wife soon after,"You were
right honey, but if only we had known everything before."
I guess the moral of the story is, just because jurors are black doesn't mean
they're going to "vote black." And vice versa. The only thing my wife could
figure was perhaps these black ladies had been brutalized by domestic
violence earlier in their lives. Or perhaps they were just in a hurry to
convict to get back to their lives. We also wonder if there had been a few
more whites on that jury if that fellow would have been set free. But we'll
never
know now.
BUT IMO, if my wife had known about FIJ ten years ago, that man probably
would not have been sent to jail.
Chris Toto (ChrisToto@aol.com)
Subject: Fully informed jury+nullification
Date: 11/12/97 8:58 PM Eastern Daylight Time
From: ALLCOPSUK
Message-id: <19971113005800.TAA08064@ladder02.news.aol.com>
Never mind what else has been said about fully informed juries. The
State Constitution contains a Declaration of Rights, "The Rights of the
People shall not be violated." and the courts hand down rulings saying, "The
Rights of the People MAY be violated IF..."
Jurors have a right to go by what the State Constitution actually says,
despite the judge's instructions to process data and evidence and not think
about it a different way.
The right "to be secure against unreasonable searches and seizures"
includes the right to waste any cop that tries. It's not sufficient that the
partner testifies that the driver made an illegal left turn, since cops are
nothing but a bunch of liars. PROVE there was a valid excuse for stopping
the car in the first place, or the defendant is presumably innocent, having
only secured his person against an unreasonable seizure. If the enemy can't
prove it had a valid excuse for stopping the car, the cop-killer should go
free.
Subject: Judicial system opinion poll
Date: 7/27/98 1:07 PM Eastern Daylight Time
From: Zanaa
Message-id: <1998072717074800.NAA15069@ladder03.news.aol.com>
Does it seem ridiculous to anyone that a jury is used to discover whether a
person actually DID something?
Seems to me that the purpose of a jury is to see that the consequences of a
person's actions in a society come from the ideals of that society. Right? So
then...wouldn't it logically be the jury's job to sentence a person? Who
decided that the jury chooses whether or not anything actually *happened*?
The jury, a group of the defendent's peers, doesn't get to decide whether the
law this person has broken should even be a law. They don't get to decide
whether he should be punished, or how much. I think they're doing a police
detective's job...except a detective is educated and experienced. A detective
has firsthand knowledge of the crime scene, the attitude and statements of
the witnesses -- of all the evidence. A jury makes their decision based on
the way two salesmen present this information.
Anyone?
Sara
Subject: Re: Judicial system opinion poll
Date: 7/27/98 8:22 PM Eastern Daylight Time
From: BASTIATLAW
Message-id: <1998072800225800.UAA11133@ladder03.news.aol.com>
Zanaa, If a jury isn't Conscience, it is worse than nothing. The judicial
tyrants prefer to dispense with the jury since it is an impediment to income
for the members of the judicial industry. The Declaration of Independence is
the fundamental source of American jurisprudence.
For depriving us in many cases, of the benefits of Trial by Jury / Those
arrested are at the mercy of the judicial industry, which, by virtue of its
usurped control of grand juries and its exclusive license to inflict
consequences for the violation of good and bad laws, has monopolistic control
over justice. Since the jury is an impediment to profit, the judicial
industry dispenses with it whenever possible. Even if an accused has the
financial power to defy the threat/bribe of a plea bargain, he will face a
jury that has been deceived by the judge.
3. The Trial of all crimes, except in cases of impeachment, shall be by jury
/ Trial by jury is guaranteed three times in the Constitution, yet jury
trials are rare. With our legal system corrupted by judicial tyranny, this is
proof enough that something is dreadfully wrong.
Sec. 1. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States, nor deny any
person within its jurisdiction the equal protection of the laws / This is a
command to obey conscience. Not only does it forbid any state to make any
laws that violate the principles of constitutional American liberty, it
forbids any state to enforce existing laws that violate those principles.
This is
America's fundamental writ of mandamus, which is an enforceable order for an
agent of government to obey the law by enforcing the law. Mandamus writs have
great potential for use against those who obstruct justice. Those who break
the uncorrupted Law of the Land to enforce bad laws can, and should, go to
prison.
Nor shall any state deprive any person of life, liberty or property, without
due process of law / Regrettably, the Federal Government itself now leads the
army of violators. The Supreme Court employs the reserved powers clause of
the Tenth Amendment to weasel out of decisions that might be inimical to a
states morally illegitimate position.
The phrase, due process of law, evolved from the Magna Carta of 1215, which
forced the King to obey contract. The Magna Carta is a quantum leap in man's
ascent toward self-sovereignty.
Sixth Amendment rights are incorporated into the due process clause of the
Fourteenth Amendment. The Sixth Amendment specifies seven rights applicable
in all criminal prosecutions: speedy trial / public trial / trial by jury /
notice of the accusation / confrontation of opposing witnesses / compulsory
process for obtaining favorable witnesses / and assistance of counsel.
The accused shall enjoy the right to a speedy and public trial, by an
impartial jury. . . . and to be informed of the nature and cause of the
accusation / With the Supreme Court's acceptance of Klopfer's arguments in
Klopfer v. North Carolina, the states were required to respect the same
"speedy trial" standard imposed on the federal government. The right to a
speedy trial accomplishes three demands: the prevention of unduly oppressive
incarceration prior to trial / the minimizing of the anxiety and concern that
accompanies a public accusation / and the limiting of the possibility that a
long delay might impair the ability of an accused to defend himself.
In defiance of government power, courageous juries have thwarted unjust
prosecution, but today's prohibitive legal costs enable judicial liars to
deprive us of our right to an informed jury. We are subject to a multitude of
bad laws left unchallenged by lied-to jurors who leave the courtroom burdened
by guilt because they know that the person they have convicted is harmless.
Jurors may acquit if there is conscientious reason for them to do so, but
judges deceive jurors by telling them that they must accept the law as given
and consider only the facts. By any common sense standard, this is tampering.
Louisiana and Oregon have deviated from the unanimous requirement except in
capital cases. They require a vote of only ten to two for a conviction. This
is like saying, "We find the defendant sort of guilty." If every case went
before a fully informed jury, as any case worthy of an arrest should, it
would be the beginning of the end of bad law.
From: The Destruction of Constitutional American Liberty
Sam
Subject: Lawyers, Once Again
Date: 7/28/98 2:46 PM Eastern Daylight Time
From: LAWECON
Message-id: <1998072818463300.OAA25810@ladder01.news.aol.com>
The "lawyers are the cause of our woes" line has popped up again in this
forum, and, once again [since the system eats all previous posts], we have
to thrash it out from ground zero.
There are several varients on the "lawyers are the cause of our woes"
theme, each of which I will try to address in turn in the following:
(1) Varient 1: Lawyers benefit from more laws, and, hence, are always eager
to pass more laws. Since most legislators have a law degree, this is the
reason for bigger government.
There are a variety of problems with this set of contentions.
First and foremost, it rests upon a demonstrably false assumption, which,
in turn, is based upon ignorance as to how markets work. Assume a
simplified society with 3 lawyers and 100 laws. The legislature doubles the
number of laws. Presume that the new laws are not merely codifications of
past practices, but entirely new laws, which require the services of
lawyers to adjudicate or evade. What happens? In the short run, the incomes
of the 3 lawyers go up. Those finishing college and trying to decide what
to do next note that lawyers are making a lot of money. Some of those who
are at the "edge of indifference" between choosing law and some other
profession, go for law. In a few years you have many more lawyers -
typically, you initially have more than are required to drive the wage rate
down to its pre-new law level, over the long run you have less but enough
such that there is no marginal advantage to going into law.
Second, the above presumes that lawyers have some "unique" sort of interest
in trying to monopolize their profession that other occupation/professional
groups do not, and that there is some special advantage to being within the
legislature. These points are obviously false.
The groups that have benefitted most from legislative action are those who
have been most successful in limiting or eliminating the "supply response"
described above. That is done through strong regulatory bodies that simply
prohibit new entrants into the market and that "allocate" present suppliers
through either price regulation or localized regulation. Lawyers have been
very bad at this sort of regulation - primarily because the new entrants
keep suing those who attempt such regulation. In Arizona, for instance, the
legislature abolished the "no practice of law without a license" statutes a
decade ago, and won't even take up the topic of re-enacting some such
similar legislation. [The Supreme Court has been trying to effectively pass
laws of its own regarding litigation practice, but that is a somewhat
different topic.]
Similarly, the advantage of being in the legislature is unclear. Do you
make your own shoes and grow your own food? Are groups seeking special
interest legislation more successful if they are "in the legislature" or if
they simply buy the legislature? How many physicians are "in the
legislature"? How successful, traditionally, have physicians been in
regulating their market? [Very, until medicare.]
Third, the principal problem with this "lawyers' conspiracy" theory is that
it presumes "class interest" on the part of lawyers that libertarians
presume does not exist on the part of any other group. If, for instance,
Congress "strengthens the anti-trust laws" lawyers specialized in
anti-trust litigation may "win" [temporarily], but lawyers as a whole are
made worse off with the rest of the population. If Congressmen a through x
pass laws, and Congressmen a through x have law degrees, do Congressmen a
through x pass the laws because they expect more demand for their legal
services? Why should Congressmen a through x, whether or not they have law
degrees, want to pass laws simply because the laws purportedly "benefit
lawyers" [other than themselves]? If the legislature were filled with
CAPITALISTS would the CAPITALISTS pass only pro-capitalist laws, regardless
of whether the legislators were making their money as capitalists at the
time? [Note any similarity between those questions?]
Why, then, are most legislators lawyers today? Simply because the laws
being passed are so arcane and complex that one needs a law degree to begin
to get some sort of grasp on what is going on.
Varient 2: Lawyers believe that the solution for everything is to pass a law.
This varient has an element of truth to it, but it is a truth connected
with the society as a whole, not with lawyers per se. MOST PEOPLE today
believe that the solution to everything is to pass a law. The attitude of
most lawyers is simply a reflection of this population wide phenomenon.
Indeed, many lawyers [probably a larger percentage than the population as a
whole] are very skeptical about this solution in their particular field of
practice, and some [definitely a larger percentage than the population as a
whole] realize exactly what is going on. It is no historical accident that
Patrick Henry was one of the leading trial lawyer of his day. It is no
mistake that Jefferson and Madison had law degrees.
Varient 3: Law is a public good, and it is indecent to charge for legal
services.
This varient is seldom openly pronounced, although it is always lurking in
the background. Frankly, I believe that this is the conclusion that the
anti-lawyer propaganda circulating today is meant to promote. The State
well recognizes the potential harm to itself if enough lawyers begin to
catch on, and, therefore, wants to nationalize the legal profession before
this can happen.
But, my paranoia aside, what is wrong with the above? What is wrong is that
it misconceives the entire process of law. "Law" is a process much like
science or the market. It is a process where general rules are profferred
and modified in the light of particular tests. In the legal process the
"test" of the rule and the way in which truth is disclosed is to have the
parties present their own "best case". The jury then decides whose case is
better. Now most individuals don't go through their lives thinking about
how to "tell their story" or "construct an argument". Of those few who do,
many feel uncomfortable about "speaking on their feet" before a "crowd."
And then there are the customs of the forum [the so-called "procedural
rules"] with which one must be familiar. For all these reasons, many people
choose to hire a "private advocate" to tell their story and make their
arguments for them. Obviously, however, such an advocate is only a private
agent for his client, and only has a duty to serve his client's interests
and no one else's, so long as he is paid and instructed by his client, not
by the state or any other third party. So, although the above varient may
make some case for public law libraries, it doesn't make much of a case for
"public attorneys".
[Please note: the above commentary on the last varient is central to much
of what is going on in real libertarianism. If you believe that "TRUTH" is
something that is intuitively discernable and that it "exists objectively"
then you should feel quite comfortable with a trial by inquisition, e.g.,
you simply threaten or torture the witnesses until you are sure that they
are "telling you the truth". If, however, you believe that truth is
something more subtle than this - that it is a mixture of "bare facts" and
context or interpretation of those facts - then you should prefer a
"discovery process" that brings out all the shadings of the truth by
allowing those with sharply different interests to present their versions
of the truth. I would contend that the latter view is inherently
libertarian and that the inquisitorial view is inherently totalitarian.]
Varient 4: There is a conspiracy between the lawyers and the courts to keep
adjudication to official channels [government courts].
Like 2, there is an element of truth in the above, but it is a half truth.
There is no doubt that there is a "conspiracy" among the courts to keep
themselves in a monopoly position with regard to litigation. Without such a
position, judges would not be able to exercise such imperial powers.
However, the appearance of unity in the legal profession regarding these
matters is merely an appearance. If one wants to know why the appearance
exists, take a look at the professional rules of practice for attorneys
that govern what may be said about the judiciary, when, and under what
circumstances - on pain of disbarment. There would be a lot of much more
frank comment on particular judges and the state of the judiciary as a
whole were it not for these rules.
The other problem with this theory is that the government courts are no
longer in a monopoly position with respect to many actions. 60% of the
civil actions in California are now adjudicated by arbitrators hired by the
parties. Of course, the same will never be true of criminal actions, since
the state would never submit itself to adjudication of such matters by
anyone other than a government judge.
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Judicial system opinion poll
Date: 7/29/98 9:35 AM Eastern Daylight Time
From: Presbyte
Message-id: <1998072913350100.JAA02604@ladder03.news.aol.com>
Sara-
I don't think that the jury's only job (in a criminal case) is to determine
the winner between the two "salesmen" (i.e., defense and prosecution
attorneys).
It is the prosecution's job to establish guilt beyond reasonable doubt. And
it is the jury's job to agree unanimously on the issue of guilt (or
non-guilt). That means they have to agree that an act was committed, that
the act was criminal, that the defendant did it, and (typically) that the act
was deliberate and malicious. The second responsibility, agreeing to the
criminality of an act, is often called "judging the law as well as the
facts," and
is often usurped by judges in their instructions to the jury. But even if we
cede this function to judges (which I am NOT prepared to do, except for sake
of argument :-), the jury still has a big and essential job.
One of the most important questions for the jury is, "did the prosecutor make
his case?"
-J
Subject: Re: Judicial system opinion poll
Date: 8/4/98 2:30 AM Eastern Daylight Time
From: BINX1983
Message-id: <1998080406302100.CAA26356@ladder03.news.aol.com>
SARA-
I dont quiet grasp what your trying to decide? Are you in favor
of the jury sentencing also or do you beleive that there shouldn't be a jury
trial at all? Your wording in this statement was rather misleading. I belevie
that the jury should remain because this gives the trial a fair perspective.
You see if the courts just decided yes your guilty or no your not it would
only be looked at in one persons point of veiw. Also denieing the
rights of those who are on trial. I also beleive that it should be decided
amogst the jury for a suitable sentencing that then can be brought to the
judge allowing his approval or disapproval and re - statement of a
punishment. But I do beleive our judicial system is working rather well.
Please respond with any thoughts.... @ binx1983
Subject: Re: Judicial system opinion poll
Date: 8/4/98 7:08 AM Eastern Daylight Time
From: BASTIATLAW
Message-id: <1998080411080300.HAA29194@ladder01.news.aol.com>
And now the jury . . . . Obviously the legalizards don't want jurors to know
they have a right to conscience. Excluding a jury nullification person from a
jury would make an interesting class action lawsuit. When are We, the People
going to get smart and go on the offensive?
Sam
Oral Arguments Scheduled in Juror Contempt Appeal
Monday, August 10, 1998
1:30 pm
State Judicial Building - Court of Appeals Court Room - Fifth Floor
2 E. 14th Avenue, Denver, Colorado
(The State Judicial Building is located on the corner of 14th Avenue and
Broadway in Downtown Denver. From I-25 South, exit Speer South, take Speer
to 14th Avenue, make a left. Parking is available across the street at the
Denver Public Library.)
PROTEST DEMONSTRATION: 12:30 pm in front of court building.
BRING FRIENDS and SIGNS!!!
[Call 303-448-5640 on Aug. 10 to make sure the hearing has not been
rescheduled.]
[Denver] -- Oral arguments will be heard in the appeal of the conviction of
Laura Kriho, a 34-year-old Gilpin County resident whose case attracted
national attention. Legal experts say it is the first time in over 300
years that a juror has been prosecuted based on evidence of how they voted
and deliberated in the jury room.
Kriho was convicted in February 1997 for contempt of court for failing to
volunteer information during jury selection about her political beliefs and
background, even though she wasn't asked any questions about those matters.
Kriho was investigated after she was the lone holdout on the jury against
conviction in the case of a nineteen year old girl charged with possession
of methamphetamine in Gilpin County. Kriho had made arguments in the jury
room about jury nullification, the power of a jury to acquit a defendant if
they think the law is unjust.
Kriho was convicted of contempt of court for obstructing the administration
of justice by failing to volunteer during jury selection that she knew
about the doctrine of jury nullification, that she was an activist for the
reform of cannabis and hemp laws, and that she had been arrested (but not
convicted) 12 years previous on the charge of possession of LSD. Because
she was not asked any specific questions about these issues, she was
cleared of the perjury aspect of the contempt charge. However, the judge
ruled that Kriho should have known that her knowledge of jury nullification
and her background were important to the selection of a fair and impartial
jury and that she should have spontaneously volunteered this information to
the court. She was fined $1200.
Kriho says, "I answered all the questions they asked me truthfully. I
didn't lie or try to hide anything. I feel I was prosecuted because I
voted not guilty."
Paul Grant, Kriho's attorney, says prosecuting jurors sets a dangerous
precedent. "Laura's conviction creates a new legal duty in which a juror is
obliged to volunteer confessions of any beliefs or experiences they have
any thought the court might want to know. The jury system was created as a
means for citizens to check the power of their government," he says.
"Punishing jurors for their beliefs and speech will destroy the jury
system, as will purging juries of all independent-minded jurors. Laura
Kriho's conviction must be overturned to protect the jury system."
Oral arguments are scheduled for 40 minutes. The Court of Appeals is a
three-judge panel and may take several months after the oral arguments to
issue their ruling. We will keep you informed.
For more information, contact the:
Jury Rights Project
P.O. Box 729, Nederland, CO 80466
Vmail: (303) 448-5640
Email: jrights@levellers.org
"Protecting the jury as the last line of non-violent defense against a
repressive government."
Background information and copies of some of the briefs filed in the appeal
can be found on the Web: http://www.lrt.org/jrp.krihotoc.htm
Case citation: The People of the State of Colorado v. Laura Kriho, Court
of Appeals Case No. 97 CA 700
Appeal from the District Court of Gilpin County, Case # 96 CR 91, Honorable
Henry R. Nieto, Judge
------------------------------------------------------------------------
Note to Media on Expanded Media Coverage:
Requests for expanded media coverage (cameras or audio recordings) should
be made to the chief judge of the appellate court, Judge Klaus Hume, at
least 24 hours in advance. Copies of the request should be given to
counsel for each party participating in the proceeding. Specific
requirements for expanded media coverage can be found in Canon 3 of the
Colorado Rules of Civil Procedure. Search the Colorado Court Rules on the
Web [http://web.intellinetusa.com/stat97/search.htm] for the words
"expanded media."
Judge Klaus Hume
Chief Judge - Colorado Court of Appeals
2 E. 14th Avenue - Suite 300
Denver, Colorado 80203
Phone: (303) 837-3785
Paul Grant
Counsel for Laura Kriho (Defendant - Appellant)
19039 E. Plaza Drive, #260E
Parker, Colorado 80134
Phone: (303) 841-9649
Fax: (303) 841-9671
Assistant Attorney General Roger G. Billote
Counsel for the State (Plaintiff - Apellee)
Criminal Enforcement Division
1525 Sherman Street, 5th Floor
Denver, Colorado 80203
Phone: (303) 866-5785
Fax: (303) 866-3955
Subject: Re: Judicial system opinion poll
Date: 8/6/98 5:43 PM Eastern Daylight Time
From: Presbyte
Message-id: <1998080621431000.RAA03985@ladder01.news.aol.com>
This is a rather amazing case. It was clearly up to the advocates and judge
in the case to ask the questions they needed to ask, in order to get a jury
they could all accept. It is silly to think that jurors must now "come
clean" with whatever they think might be relevant. If, as prospective juror,
Kriho answered all questions truthfully, and voted her conscience and best
judgment once empaneled, then she did her job, and the contempt
conviction is spurious.
I was once interviewed for jury duty, including questions such as, "Here is
the law applicable to this case. Do you have any philosophical or moral
problems with upholding the law as written?" It is hard for me to believe
that any competent team of court officers WOULDN'T ask a question like that
in Kriho's case, and that she could have honestly answered "no," given her
history of drug legalization activism. But assuming that she is telling the
truth (which doesn't seem to be at issue here), then we must conclude that
the team of court officers dropped the ball. Going after the juror to cover
judicial ineptitude seems like a pretty slimy thing to do. This conviction
must be overturned. I wish I could go to Colorado for this rally. But since
I cannot, I can only hope that others who can do so, will read what Sam and I
have posted here and feel a little righteous indignation.
-J
Subject: Re: Judicial system opinion poll
Date: 8/6/98 7:12 PM Eastern Daylight Time
From: BASTIATLAW
Message-id: <1998080623121300.TAA22536@ladder03.news.aol.com>
Do you have any philosophical or moral problems with upholding the law as
written?"
Dang Jim, isn't this a fundamental reason for having a jury in the first
place? Why should at least 30 million adult Americans be excluded from
serving on a jury in a case involving prohibition. Would we exclude alcohol
users from a drug trial?
About the only legitimate reason I can think of to exclude a juror would be a
known personal relationship. Can you imagine such a question in an armed
robbery or a murder trial. "Do you have any philosophical problems with
upholding the law against murder?" I've never met anyone who approves of
murder. Spare me O.J. please, since that was a product of wealth.
I say that a jury without conscience is no jury at all. I'll even go a step
further and say that it is okay to lie to known liars, if that is what it
takes to see that justice is done.
No quarrel here Jim. I think you're doing a damned good job.
Sam
Anybody have Woody Harrelson's address?
Subject: Re: Judicial system opinion poll
Date: 8/8/98 1:27 PM Eastern Daylight Time
From: Presbyte
Message-id: <1998080817274200.NAA25316@ladder01.news.aol.com>
>>>Can you imagine such a question in an armed robbery or a murder trial. "Do
you have any philosophical problems with upholding the law against
murder?"<< -BASTIATLAW
Ironically, the case in which I was actually asked that question as a
prospective juror, involved a knifing at a night-club in a rough part of
town. The court team asked jurors questions about whether or not the venue
of the crime (a place where boozers, drug users, and other people of
questionable morals were known to hanf out) would prejudice their verdict (as
in, "he's a lowlife scum, he was probably guilty and deserves to have the
book thrown at
him"). They (including me) were also asked whether we had any moral or
ethical problems with enforcing the assault and battery law ("like many would
have problems enforcing a drug possession law," if I remember the prosecutor
correctly). Now, had this been a drug case, I would have had to come clean
on my opposition to prohibition. But who doesn't support assault and battery
laws? I could and did voice my sincere agreement with the applicable law
in the case without hesitation.
I had served on a local jury once before this particular voir dire, and still
do not know why they didn't choose me the second time. The first time, it
was on a DUI case, where I DID have problems with the law (not to mention the
mechanistic and bureaucratic way it was being applied in that case). But
they didn't ask, so I didn't tell.
-J
Subject: Re: Judicial system opinion poll
Date: 8/9/98 7:30 AM Eastern Daylight Time
From: BASTIATLAW
Message-id: <1998080911304601.HAA12132@ladder03.news.aol.com>
>>I had served on a local jury once before this particular voir dire, and
still do not know why they didn't choose me the second time. The first time,
it was on a DUI case, where I DID have problems with the law (not to mention
the mechanistic and bureaucratic way it was being applied in that case). But
they didn't ask, so I didn't tell.-J<
I stopped in N.W. Florida for coffee a couple of years ago and purchased a
newspaper with a feature article on DUI. The article stressed the point that
there are fewer convictions now because the severity of the punishment has
caused folks to be willing to spend much more for a defense. *Sigh,* the
Judicial Industry wins again.
Quite frankly, I don't know what can be done about DUI and the horror it
often causes. I can only say that I am sober eight years now and feel damned
lucky that I never wasted anyone in a blackout. It's really scary to wake up
and not know how you got home -- especially on a Kawasaki 900. I beat myself
up pretty bad a couple of times, but that's okay. / Sam
Subject: Re: Judicial system opinion poll
Date: 8/11/98 10:57 AM Eastern Daylight Time
From: LAWECON
Message-id: <1998081114572400.KAA08769@ladder01.news.aol.com>
newspaper with a feature article on DUI. The article stressed the point that
there are fewer convictions now because the severity of the punishment has
caused folks to be willing to spend much more for a defense. *Sigh,* the
Judicial Industry wins again.<
Ya, Sam, and I personally think that "there ought to be a law". We ought to
prevent people from spending money to defend themselves. After all they ought
to just be convicted. They've been arrested, they must be guilty.How dare
them try to prove their innocence!!!
Or maybe we could put price controls on the rates charged by defense lawyers
[oops, shortage of lawyers].
Or maybe we could just nationalize the legal profession and have lawyers all
become state employees and supply their services for free or for a below cost
flat fee. [Just like the post office.]
Or, ah, excuse me, what was your point, EXACTLY?
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Judicial system opinion poll
Date: 8/11/98 5:54 PM Eastern Daylight Time
From: BASTIATLAW
Message-id: <1998081121545000.RAA08581@ladder03.news.aol.com>
>>Or, ah, excuse me, what was your point, EXACTLY?<
I think you missed it.
Subject: Re: Judicial system opinion poll
Date: 8/7/98 12:11 AM Eastern Daylight Time
From: LAWECON
Message-id: <1998080704112100.AAA11092@ladder03.news.aol.com>
voted her conscience and best judgment once empaneled, then she did her job,
and the contempt
conviction is spurious.>>the law applicable to this case. Do you have any philosophical or moral
problems with upholding the law as written?" It is hard for me to believe
that any competent team of court officers WOULDN'T ask a question like that
in Kriho's case, and that she could have honestly answered "no," given her
history of drug legalization activism. But assuming that she is telling the
truth (which doesn't seem to be at issue here), then we must conclude that
the team of court officers dropped the ball. Going after the juror to cover
judicial ineptitude seems like a pretty slimy thing to do. This conviction
must be overturned. I wish I could go to Colorado for this rally. But since
I cannot, I can only hope that others who can do so, will read what Sam and I
have posted here and feel a little righteous indignation.
-J>>
I really don't know what to think of this case. After the original trial
level opinion came out, I posted remarks similar to the ones you've made
above to several libertarian newsgroups. The reaction was amazing. Apparently
the view in some libertarian circles is that one shouldn't mention the
ordinary way that voir dire proceeds and the fact that you are not going to
seated on the jury if you don't perjure yourself. This is a forbidden topic
that
only bad people bring up in public. I have no way of knowing what actually
happened in this case, since I wasn't there and those who were there
apparently tell considerably different stories. I do know, however, that, as
Presbyte implies, this is an odd fact pattern. As someone once said, bad
facts make bad law.
What I think we should be focusing on is that in 99 of 100 drug cases all
prospective jurors are going to be asked varients of several questions: (1)
"Have you ever been accused of a drug offense or do you have a family member
or friend who has?" [Answer "yes" you're out.] (2) "Are you a member of any
group that advocates a repeal or significant change in the drug laws?"
[Answer "yes" you're out.] (3) By the Judge: "Will you agree to apply the law
as I instruct you in it, despite your personal beliefs about whether it is a
good law or a bad law or despite the fact that you may have another
interpretation of what the law is or should be?" [Answer "no" you're out.]
Given these facts, and these are facts, Presbyte is quite right in observing
that the only way that Kriho could have been seated is through incompetence
of the prosecutor and judge in conducting voire dire and/or committing
perjury.
Now there are some people who call this procedure jury stacking or judicial
imperialism. I believe that they are quite right. But the fact that it is
tyranny in action doesn't mean that we can wish away the fact of its
existence. If you are called for jury duty, you'd better be prepared to
either answer questions like these honestly [in which case you will not be
seated in a criminal prosecution] or be prepared to perjure yourself. If you
perjure
yourself, you'd better not act stupidly and contradict what you said in voir
dire during deliberations, or you'll be the next Kriho prosecution. I say
this not to scare people or to disparage jury nullification [something that I
am all in favor of] but to prepare you in advance for the true depravity of
the world in which you live.
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Judicial system opinion poll
Date: 8/7/98 7:44 AM Eastern Daylight Time
From: BASTIATLAW
Message-id: <1998080711442900.HAA09568@ladder03.news.aol.com>
>>(1) "Have you ever been accused of a drug offense or do you have a family
member or friend who has?" [Answer "yes" you're out.] (2) "Are you a member
of any group that advocates a repeal or significant change in the drug laws?"
[Answer "yes" you're out.] (3) By the Judge: "Will you agree to apply the law
as I instruct you in it, despite your personal beliefs about whether it is a
good law or a bad law or despite the fact that you may have another
interpretation of what the law is or should be?" [Answer "no" you're out.] <
This is a perfect example of an opportunity for a Constitutional Action
Association to "kick ass." Isn't it time for We, the Individuals to go over
to the offensive? Here is a grand opportunity for JDs to prove that there are
some "good guys" among them.
Politics be damned. America's fundamental problems are legal problems.
Sam
Subject: Re: Judicial system opinion poll
Date: 8/11/98 10:46 AM Eastern Daylight Time
From: LAWECON
Message-id: <1998081114465200.KAA16045@ladder03.news.aol.com>
>>This is a perfect example of an opportunity for a Constitutional Action
Association to "kick ass." Isn't it time for We, the Individuals to go over
to the offensive? Here is a grand opportunity for JDs to prove that there are
some "good guys" among them.
Politics be damned. America's fundamental problems are legal problems.
Sam
<
Sam, I don't know what you're talking about, and I'm beginning to wonder if
you do. FIJA tried for sometime to get "jury nullification" statutes passed
in the various states. As far as I know, they didn't have one success. [There
are several states that have jury nullification written into the state
constitution, but those constitutions have been around for quite some time.]
The "People," Sam, are the problem. The People in the U.S. are about as
ignorant on these topics as they have ever been in the last 200+ years. They
have been deliberately dumbed down through 100 years of "public school" and
through a post-CiviI War society that promotes the attitude that the
discussion of "politics" and history is either boring or bad manners. lf you
asked the average 20 year old today to read Paine's Common Sense he wouldn't
be
able to make heads or tails of it.
There are some of us that would like to do something about this, but the rest
of us seem to be too busy running that next candidate for public office who
may, this time, get 3% of the vote rather than the traditional 1/2% [i.e.,
they are as power mad as the rest of the idiots, and not at all in contact
with reality].
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Judicial system opinion poll
Date: 8/11/98 6:17 PM Eastern Daylight Time
From: BASTIATLAW
Message-id: <1998081122175200.SAA11558@ladder03.news.aol.com>
Subject: Re: Judicial system opinion poll
Date: Tue, Aug 11, 1998 10:46 EDT
From: LAWECON
Message-id: <1998081114465200.KAA16045@ladder03.news.aol.com>
>>This is a perfect example of an opportunity for a Constitutional Action
Association to "kick ass." Isn't it time for We, the Individuals to go over
to the offensive? Here is a grand opportunity for JDs to prove that there are
some "good guys" among them.
Politics be damned. America's fundamental problems are legal problems.
Sam
<
>>Sam, I don't know what you're talking about, and I'm beginning to wonder if
you do. FIJA tried for sometime to get "jury nullification" statutes passed
in the various states.<
Why not simply give the jurors a brochure, and when the great judicial hydra
objects, file suit. Why do we need lawyer infested legislatures to "make
legal" something that has been an Anglo-American tradition for nearly 400
years? There is absolutely nothing stopping jurors from judging the law, save
their own ignorance and intimidation by judges. Why haven't the attorneys
done some filing against those judges who misinform juries?
>>The "People," Sam, are the problem.<
And legal professionals aren't?
>>The People in the U.S. are about as ignorant on these topics as they have
ever been in the last 200+ years.<
Then why don't the "professionals" who are affirmed to uphold the
Constitution, enlighten them. I'll tell you why. They don't know themselves.
Furthermore, the People's ignorance makes them easy prey.
>>They have been deliberately dumbed down through 100 years of "public
school" and through a post-CiviI War society that promotes the attitude that
the discussion of "politics" and history is either boring or bad manners. lf
you asked the average 20 year old today to read Paine's Common Sense he
wouldn't be able to make heads or tails of it.<
And why is that? Is that a moral justification for educated persons to extort
and plunder? Could it be that a separation of government and education is in
order?
Apparently judges can't either. If they could there would be no problem.
There would certainly be no drug war.
>>There are some of us that would like to do something about this, but the
rest of us seem to be too busy running that next candidate for public
office<
And what does an election have to do with the uncorrupted Law of the Land? /
Sam
Subject: Re: Judicial system opinion poll
Date: 8/12/98 10:36 AM Eastern Daylight Time
From: LAWECON
Message-id: <1998081214364600.KAA06111@ladder01.news.aol.com>
>>Sam, I don't know what you're talking about, and I'm beginning to wonder if
you do. FIJA tried for sometime to get "jury nullification" statutes passed
in the various states.<
objects, file suit. Why do we need lawyer infested legislatures to "make
legal" something that has been an Anglo-American tradition for nearly 400
years? There is absolutely nothing stopping jurors from judging the law, save
their own ignorance and intimidation by judges. Why haven't the attorneys
done some filing against those judges who misinform juries?>As I said, Sam, your views don't reflect reality. If you've been reading the
posts on this topic the past week or so you'd know a bit more about how the
process works. The judges instruct the juries that they are the authority on
the law and that the jurors must apply the law as they instruct. Your
recourse as a lawyer? You can: (1) Ask for a contrary instruction - which is
routinely done and never granted. (2) You can take the matter up ultimately
to the supreme court of your jurisdiction - which is the one who wrote the
opinions rejecting jury nullification or (3) you can instruct the jury
yourself - state's motion for mistrial granted, you get thrown in jail for
contempt and you are ultimately disbarred after you do this a few times. Get
it? The legislature is the only recourse.
>>The "People," Sam, are the problem.<
Sam, as I've pointed out about a dozen times now, there is no such thing as a
"legal profesional". There are private attorneys that represent a wide
spectrum of clients. There are public attorneys. There are judges. There are
those with law degrees who may or may not have once practiced law but are now
making their living doing something else. As I've mentioned before your
"analysis" lumping all of these types of people together as if they all had
the same interests and acted accordingly is much like Marxist analysis that
talks abou the "capitalist class" and the "working class".
>>The People in the U.S. are about as ignorant on these topics as they have
ever been in the last 200+ years.<
Constitution, enlighten them. I'll tell you why. They don't know themselves.
Furthermore, the People's ignorance makes them easy prey.>The first observation I agree with. Lawyers, judges, etc. are no better
educated about these things than anyone else. In that sense they are part of
"the People" that are the problem. The second observation is just more of
your drivel and paranoia.
>>They have been deliberately dumbed down through 100 years of "public
school" and through a post-CiviI War society that promotes the attitude that
the discussion of "politics" and history is either boring or bad manners. lf
you asked the average 20 year old today to read Paine's Common Sense he
wouldn't be able to make heads or tails of it.<
extort and plunder? Could it be that a separation of government and education
is in order?>(1) No, that is the way things are. Morality has nothing to do with it. You
must know where you are to know how to get from there to where you want to
be. (2) Yes, if I believed that the constitution meant squat I'd be out
circulating that petition to amend the constitution accordingly.
There would certainly be no drug war.>Now this is odd. Despite your ranting and raving about the legal conspiracy
you seem to still have this odd belief that judges are objective, above
reproach, etc. Get in touch with reality. Judges are state employees. The
state favors the drug war [in fact the drug war is one of its favorite means
for increasing its power and resources]. The judges haven't limited the drug
war, they have totally gutted the bill of rights and every other liberty we
use to have to promote it. Get it?
>>There are some of us that would like to do something about this, but the
rest of us seem to be too busy running that next candidate for public
office<
Sam>I give up, Sam. You've convinced me. You either don't read anything anybody
else says or you simply don't pay any attention to what you are reading.
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Judicial system opinion poll
Date: 8/7/98 8:14 AM Eastern Daylight Time
From: BASTIATLAW
Message-id: <1998080712141801.IAA04961@ladder01.news.aol.com>
>>(3) By the Judge: "Will you agree to apply the law
as I instruct you in it, despite your personal beliefs about whether it is a
good law or a bad law or despite the fact that you may have another
interpretation of what the law is or should be?" [Answer "no" you're out.]<
Here the judge comes right out and tells the juror that he must offend his
own conscience in support of bad law.
S.
Subject: Re: Judicial system opinion poll
Date: 8/8/98 1:42 PM Eastern Daylight Time
From: Presbyte
Message-id: <1998080817422500.NAA03655@ladder03.news.aol.com>
>>Here the judge comes right out and tells the juror that he must offend his
own conscience in support of bad law.
<< -bastiatlaw
I have heard actual judges ask this actual question of prospective jurors.
It sounds bad here, but it is even more sickening when it is happening right
in front of you.
A similar question was asked of me in that same voir dire, regarding
translation. Apparently the defendant spoke Spanish better than English, and
so was having the questions to him and his answers (not to mention testimony
of many witnesses) translated from Spanish to English and back. The judge
asked us if any of us knew Spanish. I was one of the few who had more than a
smattering of the language. Some were quite fluent, I less so. The judge
asked us if we would restrict our deliberations to consider only the official
translation of Spanish remarks, disregarding any discrepancies between that
and our own translations of what we heard. I answered that, not having true
fluency, I would certainly rely on the official version for the most part.
But if I heard something completely different from (and contradicting or
shading) what the official translated transcription said, I reserved the
right to get clarification to my own satisfaction.
The judge said that sounded fair to him. Of course, one of the advocates (I
don't remember whether it was defense or prosecution) later excused me on
that case. (I was the very last prospective juror bumped.) Perhaps it was
for that remark. Perhaps for some other reason. Regardless, I wasn't about
to disregard the evidence of my own ears and brain, and if that meant I
couldn't serve on a jury in that case, then so be it.
-J
Subject: Re: Judicial system opinion poll
Date: 8/11/98 10:50 AM Eastern Daylight Time
From: LAWECON
Message-id: <1998081114504000.KAA16498@ladder03.news.aol.com>
>> Regardless, I wasn't about to disregard the evidence of my own ears and
brain, and if that meant I couldn't serve on a jury in that case, then so be
it.
-J
<
Now, now. Mustn't rely on ones own sense [or conscience] in judging these
things. After all, IT'S THE LAW, and that's that. [Or is it?]
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Judicial system opinion poll
Date: 8/11/98 10:48 AM Eastern Daylight Time
From: LAWECON
Message-id: <1998081114483100.KAA07822@ladder01.news.aol.com>
>>(3) By the Judge: "Will you agree to apply the law
as I instruct you in it, despite your personal beliefs about whether it is a
good law or a bad law or despite the fact that you may have another
interpretation of what the law is or should be?" [Answer "no" you're out.]<
own conscience in support of bad law.S.>
Yes, exactly. And everyone nods their head and blesses god that we have a
judge to take care of us and tell us the truth. [Disgusting, isn't it?]
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Judicial system opinion poll
Date: 8/11/98 6:23 PM Eastern Daylight Time
From: BASTIATLAW
Message-id: <1998081122230400.SAA03482@ladder01.news.aol.com>
own conscience in support of bad law. / Sam<S.>
>>Yes, exactly. And everyone nods their head and blesses god that we have a
judge to take care of us and tell us the truth. [Disgusting, isn't it?]<
Utterly! But what does this make the judge. Who, by the way is also a lawyer,
a lawyer with a sinecure. / Sam
Subject: Re: Judicial system opinion poll
Date: 8/12/98 10:38 AM Eastern Daylight Time
From: LAWECON
Message-id: <1998081214382900.KAA15530@ladder03.news.aol.com>
>Utterly! But what does this make the judge. Who, by the way is also a
lawyer, a lawyer with a sinecure. / Sam
<
Right, Sam. And you are either a member of the working class or the
capitalist class, who shouldn't be listened to because everything you say is
merely a reflection of your class interest. Deny it, please.
Craig Bolton
"The ultimate consequence of protecting men from the results of their own
follies is to fill the world with fools."
Herbert Spencer
Subject: Re: Judicial system opinion poll
Date: 8/8/98 1:32 PM Eastern Daylight Time
From: Presbyte
Message-id: <1998080817322200.NAA25816@ladder01.news.aol.com>
>>>Given these facts, and these are facts<< -LAWECON
I completely agree with Craig on this one. The voir dire questions he cited
are almost word-for-word what I have heard the court team ask, in the two
cases where I have been actually interviewed for jury duty.
It is hard to imagine how ANY court team could not cover those bases, whether
or not we as libertarians believe those bases to be legitimate.
-J
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