Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktI’m sure everyone here is familiar with the saying regarding the “four boxes” of liberty: soap, ballot, jury and ammo. I’ve been thinking a lot about number 3 and how it’s an under-utilized way to check government power. In fact, I think it might even be the best way. I’m specifically talking about the idea of jury nullification. The refusal of one’s peers to convict a fellow citizen if the law is unjust or the government abused its powers.
Obviously, the government doesn’t like this and is going everything it can to keep the idea from spreading, including dismissing from jury duty those who would question the law and arresting those who would distribute leaflets on jury rights. (I’ll edit this later with links).
I’m curious as to what others would do. If advocacy is ineffective and you’ve failed at the ballot box, to what extent should the jury box be used? Personally, absent violence, I’m not voting to convict someone on a drug possession charge. You can go beyond the war on drugs too. Prosecutors are bringing wire-tapping and related charges against those who record police officers. The only way around that, as I see it, is a string of acquittals, as no politician is going to run on a platform that is perceived to be “soft” on crime.
See more at Fully Informed Jury Association.
Filed under: Uncategorized | Tagged: Jury rights |
All Things in Moderation 
Hmmmmmm. Interesting thought experiment, NoVA!If advocacy is ineffective and you've failed at the ballot box, to what extent should the jury box be used?Wouldn't this be kind of like the filibuster in the Senate, imposing the will of a minority on the rule by the majority? I'm not saying you're not right and that jury nullification is sometimes necessary for actual justice. . . but if starts becoming commonplace that creates anarchy rather than the rule of law.That's just flying by the seat of my pants, though, as I'd never thought about it that way. I may get back to you with a completely different take on it as I mull it over!
LikeLike
This is probably going to sound sort of weird but while I theoretically agree with your proposal, I'm not sure I could actually do it. I haven't served on a jury in years, I always get bumped, but I'd probably still go with the evidence and vote according to current law. I must be too programmed. I'll have to think about it and see what my better half thinks, he always gets picked for the jury. I'm certainly not happy with the drug laws, our current prison over-population or some of the police tactics I've seen over the last decade so maybe it's worth considering.
LikeLike
Here is the oath a juror swears in Michigan after being selected to sit on a jury, “Do you solemnly swear or affirm that, in this case now before the court, you will justly decide the questions submitted to you, that, unless you are discharged by the court from further deliberation, you will render a true verdict, and that you will render your verdict only on the evidence introduced and in accordance with the instructions of the court, so help you God?” I'm not sure how NoVa could fulfill that oath if he were to be selected as a juror on a drug possession case.
LikeLike
My husband said he could never go against the instructions of the court, although he did get bumped from a capital case because of his attitude re the death penalty. Most citizens, when they find out later that in all probability jury nullification occurred, don't seem too happy about it.
LikeLike
Damned interesting!Never thought about it before either. I vaguely remember reading something about arrests and pamphlets in this context.Why not? If you are against drugs being illegal, why wouldn't you vote against the conviction? In your mind, your morals, your ethics, your philosophy, that person shouldn't even be sitting there. Of course, you are actually being asked to vote according to the current law, but if you are against that law, how could you act to support it, which is what you would be doing if you vote to convict that person.OTOH, in regards to a murder trial, you may be against the death penalty with every atom of your being, but you also know that the person is guilty. How will you vote then?But then, not every situation is quite the same, is it? There is no one-size-fits-all.But to stick with the situations that you posted: I couldn't convict anyone on drug charges except in case of violence. I don't believe in it. (Not too happy about drug testing when looking for a job, either. Vio of the 4th).I couldn't convict anyone that recorded a police officer, either. I would indeed nullify that jury, quickly. All of the articles that I have read indicate that these were all out in public. Police are to uphold the law, not take into their own hands. They are not THE law, and they are not above it.The prosecutions regarding those recordings have always smacked as something fishy to me. Also, if I record john doe beating someone, that could be used in court just fine, couldn't it?So why one way for the gander, and something else for the goose?If there is no other way, then I would indeed vote the jury box.
LikeLike
That said, if people who agree with NoVa are eliminated from the jury pool do we really have a cross-section of the community sitting in the jurybox?The last time a sat through a jury selection, there were 2 younger women on the jury who had young children. They were both dismissed by the judge because of child care issues. While I sympathize with their dilema, we can't just eliminate young, stay at home moms, or single moms or single dads etc from the jury people without beginning to undermine our judicial system (that may be overstating it a bit, but you all get my point).
LikeLike
I don't understand the prosecutions of people recording police officers–are they trying to say that it's a national security issue (*cough, cough, bullpuckies, cough*). Heck, in Utah (or, at least the UHP and SLC police) usually have their own cameras running to record the action for later presentation in court if need be. I know that there were a couple of trials recently, but that's news I haven't been following.I'm still falling into the "too much nullification would lead to anarchy" bin out here.
LikeLike
Have there ever been any cases where the jury came back and said "We can't convict, because none of us agree with the law"? Or something like that?
LikeLike
Totally OT, but I just wanted folks to know that I started a Bits & Pieces for tonight for you to drop nuggets of info into.
LikeLike
""too much nullification would lead to anarchy" any power can be abused. but i don't think it would lead to anarchy — just a defacto repeal of certain cases. if enough people walk on drug charges, maybe they'll stop bringing the charges. i think as jurors we're obligated to review and judge both the facts of the case and the law. and ash made the other point i was thinking about. how it that fair for someone like me, if i'm truthful during the selection process, to get bounced immediately. that's the state stacking the deck.
LikeLike
My driveby – no time today, sorry.I tried my last jury trial the January after my 65th birthday, having sworn to myself to stop trying cases and so I could have a life for the rest of my life. The following observation comes from trying cases from 1967-2008.1] I have only once experienced jury nullification in a civil case. 2] I have seen it in MJ criminal cases a few times, but otherwise haven't even heard a rumor of it.As for #1, I represented a CPA in a malpractice case. The simple facts were that he was a co-investor in property his client had chosen and during the S&L crisis they both lost big bucks on the property.Client said she relied on him, her CPA, b/c he did not advise her NOT to buy the properties. As was par for the course, I could not obtain summary judgment to cut her off before trial, although the Judge at the SJ hearing remarked "You are sure to win". Somehow the opposing counsel did not strike a CPA and a lawyer. I pitched my defense to them. I lost, 10-2.What happened? Well, my client, Daryl, was [and remains, he will admit it] the most arrogant know-it-all in the history of the accounting profession in Austin, TX. I could not rein him in.The 10 jurors told the lawyer and the CPA that they really hated Daryl and were going to bring him down a notch. 250000 notches, actually. I count that as jury nullification and I don't like it.OTOH, I won my last jury trial, ever, quite easily partly because the Plaintiff was lying and I demonstrated it, but partly because he thought he was God's gift to the real estate sales industry. Personality is always a factor.In Daryl's case, my MFNT was strong enough that he was actually able to settle for $30K on the verdict before the trial judge heard the Motion. That was still unjust. A CPA should not bear professional liability for a non-accounting decision and he should not bear liability as a joint venturer because he did not stop his partner from investing her money and his in a market that went bust through no fault of his. The notion that a CPA has real estate prescience, and that coupled with an existing fiduciary relationship to a client the CPA is liable to the client when they both take a haircut is intolerable. Even the $30K was insulting, but cheaper than a new trial, which I [and opposing counsel] thought would have been granted.
LikeLike
I truly love War stories, so thanks, Mark. The only jury nullification example I can come up with is the somewhat recent federal trial of Geoffrey Fieger. To those who are unfamiliar with that name, he represented Dr. Death, Jack Kavorkian, among other pseudo-celebs. He also tried to run for Governor but was destroyed by John Engler. He is a relatively famous and extremely wealthy personal injury lawyer. Think John Edwards but ugly and with a terrible haircut. *full disclosure I worked at the firm in law school* Anyway, he was charged with violating federal elections laws after he allegedly reimbursed his employees after they contributed to, John Edwards' Presidential campaign (that's illegal by the way). He made a half-hearted argument that the reimbursement was merely a holiday bonus, but the crux of the case that the Republican Bush administration was using the US attorneys to pick on personal injury attorney who worked for the little man and supported democrats. The jury acquitted in 4 hours and a few hung outside to hug Fieger afterwards. http://www.freep.com/article/20080602/NEWS06/80602036/Thank-you-jurors-cleared-Fieger-saysAs to "personality is always a factor" I agree. My first summer working at Fieger's firm, the first week I watched a trial where the jury ruled in favor of a defendant car insurance company despite the fact that the only medical evidence presented in the case was by plaintiff. But the father of the young man injured in the accident came of as a lying jerk on the stand, while the claims adjuster came off as a sympathetic witness. It was great work by the defense lawyer who didn't touch the boy's mom, but went hard after the dad. The plaintiff's lawyer was a brilliant lawyer who won far more cases than he lost, but he really screwed up on the cross of the adjuster, who was probably in her late 50s, by bullying her on the stand.
LikeLike
And it's not just the personality of the parties that matter, obviously attorneys matters as well. My professor in my trial advocacy class in law school told a story about a case he tried for 6 weeks and lost. When some of the jurors came back to answer and ask questions, the first thing that happened was a juror asked my professor if he had worn the same suit twice at any point in the trial (interestingly my professor didn't deny that he hadn't). So now he has 2-3 "trial suits" that are a few years old but now only worn at trial and he puts a flag pin on his lapel.
LikeLike
I would imagine that if one could get a string of acquittals by jury nullification, there would be enough popular support at the ballot box to alter the law. Unless there is a way of specifically stacking juries that hear cases involving the statute one finds unjust.
LikeLike
To go into jury duty with the agenda of jury nullification would often require you to face an ethical (and legal) dilemma, and not merely the one of ignoring your instructions. You would typically be asked in voire dire (either collectively or individually) questions like whether you could find the defendant guilty if the evidence proves guilt, whether you think drugs should be legal and whether you could put that opinion aside. So you would more than likely have to lie to the judge in order not to be struck for cause. I was called for jury duty in big drug case once and heard all these types of questions. I was struck as soon as the defense lawyer learned I was a lawyer at a big firm. (One old guy tried to get out of serving by saying he was a child in Nazi Germany and believed that if the defendant was charged he must be guilty. The judge said, no way, you tried too hard.)
LikeLike
qb, I just don't think I could lie like that. I'm not pure as the driven snow or anything and I've screwed up a few things in my life that I regret, but I don't think I could intentionally lie to a judge like that.
LikeLike
lms,I'm quite confident your conscience would not let you do it. Even for some people who think they should or could in the abstract, sitting in a courtroom and giving an untrue answer to a direct question from a judge would take some nerve. (Of course, this reality coexists with the reality that party witnesses routinely lie in trials and depositions.)
LikeLike