Unacceptable: Judge nullifies juror nullification

[De Selby]

This is an internet legal phenomenon similar to the income tax deals-take this "nullification is law!" business to any Court in America, and see how many let you give the instruction.  That is pretty good evidence right there that it isn't, in fact, the law.

Oh, well if the government says so, then it must be right.  That's a recipe for the success in a free country!

(And perhaps you should reread your first paragraph in that post.  You know, the part where you indicate that courts have been known to say and do the wrong thing...? That might kinda maybe have some relevance to your notion that jury nullification is wrong because courts today say it is.)

You keep confusing "wrong" in a moral sense with "legal."

It is not the law, and was never intended to be.  That is my point.  It is entirely legal for a judge to toss a juror who refuses to deliberate because he doesn't like the law, just like it is legal for the United States to enforce validly enacted laws.

And I realize that the government makes mistakes-there's a mechanism for dealing with that, called the ballot box.

Just because you don't want to go through the hassle of convincing the rest of the Country that your personal beliefs should be the law, doesn't give you the right to break the laws everyone else agreed should be in effect. 

Chris's example is a perfect illustration: Just because one person believes that criminal laws unfairly target minorities, that doesn't give her the right to refuse to enforce the laws that the rest of us have enacted to punish theft.

A country where no one obeys any laws except those that they find convenient is not free.

Indeed, on reflection, it's fairly easy to see what a disaster nullification can be in a country where large numbers of people are convinced that socialist type values are correct....can you imagine trying to enforce a contract or collect a debt when the jury always has one or two members who don't believe that "the working man" or the public in general should have to pay anything to greedy corporations?

[Headless Thompson Gunner]

You brought up the difference between "wrong" and "legal" and yet still managed to miss the big point.  You're absolutely correct that legal and moral are not the same thing.  That's what we've been trying to tell you all along!

What the founders set up was a system where "right" could supersede "legal" whenever the two conflicted.  This is a good thing! 

Pragmatically, in real world court cases someone must be empowered to make the final decision on whether the letter of the law is right or not.  Who better to make that decision than the people themselves?

[De Selby]

What the founders set up was a system where "right" could supersede "legal" whenever the two conflicted.  This is a good thing! 

Pragmatically, in real world court cases someone must be empowered to make the final decision on whether the letter of the law is right or not.  Who better to make that decision than the people themselves?

I'm confused-you seem to be saying that the founding fathers set up the government so that individuals could just ignore the law if they didn't agree. 

I don't think you'll find any support for the view that the laws of the United States only have so much force as one person allows them to have.  It would be odd, considering that they immediately started enforcing the law, and threw people in jail specifically for violations of the law based on their personal beliefs.

What they did was set up basic guarantees of liberty, and then a mechanism to enact and enforce laws based on representation.  They certainly were not of the view that following the Constitution and other laws of the United States was optional.

[Headless Thompson Gunner]

Please quit with your "if you don't like the law the only thing you should do is work to change the law" nonsense.

There are laws that are wrong.  On that we all agree, right? 

When an innocent man is charged with breaking one of those laws, something must be done for him right now.  Changing a bad law after people have already been punished is a miscarriage of justice.  Besides, if you're in jail under a bad law, how are you going to go about changing that law? 

Tell me, how many decades did it take to give black people real rights?  How many black people were charged, jailed, or even executed under bad laws during those decades?  Do you think it's fair to have imprisoned and executed people based on the bad laws on the books at the time? 

"Oh, well, all those black people should have just worked to change the law, that's the only way to respond to a bad law."  Umm, no, sorry.  That isn't justice no matter how you slice it.

It's good to repeal bad laws.  But repealing laws takes time.  It also requires an accountable and responsive legislature, which has been conspicuously absent from time to time. 

Please, don't pretend that changing bad laws is sufficient remedy for people who are already being charged with a bad law.  It isn't.  The people need a more immediate remedy.  Fortunately the people were given such a remedy in the form of independent juries who judge both fact and law.

[Headless Thompson Gunner]

What the founders set up was a system where "right" could supersede "legal" whenever the two conflicted.  This is a good thing! 

Pragmatically, in real world court cases someone must be empowered to make the final decision on whether the letter of the law is right or not.  Who better to make that decision than the people themselves?

I'm confused-you seem to be saying that the founding fathers set up the government so that individuals could just ignore the law if they didn't agree. 

You misunderstand jury nullification.

Jury nullification doesn't allow individuals to break the law with impunity.  What it does is allow jurors, not the defendant, to decide whether or not the law should be applied to the defendant.

You can't break a law and then nullify that law yourself.  You don't get to pick and choose which laws you want to obey.  If you've broken a law, all you can do is hope that another member of the community agrees that you were right to break the law.  If other members of the community agree that you were right to break the law, then it's probably just that you shouldn't be convicted.

[HankB]

. . . I'm confused-you seem to be saying that the founding fathers set up the government so that individuals could just ignore the law if they didn't agree. 

I don't think you'll find any support for the view that the laws of the United States only have so much force as one person allows them to have. . . .

"The jury has the right to judge both the law as well as the fact in controversy."

In case you're unaware of it, John Jay was the first Chief Justice of the US Supreme Court, and author of Federalist Papers #2, #3, #4, #5 and #64. As an actual contemporary of the men who actually wrote the Constitution, I consider his legal opinions to be far more definitive than those of anyone alive today, as he had first-hand knowledge of original intent.

[The Annoyed Man]

This is an internet legal phenomenon similar to the income tax deals-take this "nullification is law!" business to any Court in America, and see how many let you give the instruction.  That is pretty good evidence right there that it isn't, in fact, the law.

Oh, well if the government says so, then it must be right.  That's a recipe for the success in a free country!

(And perhaps you should reread your first paragraph in that post.  You know, the part where you indicate that courts have been known to say and do the wrong thing...? That might kinda maybe have some relevance to your notion that jury nullification is wrong because courts today say it is.)

You keep confusing "wrong" in a moral sense with "legal."

It is not the law, and was never intended to be.  That is my point.  It is entirely legal for a judge to toss a juror who refuses to deliberate because he doesn't like the law, just like it is legal for the United States to enforce validly enacted laws.

And I realize that the government makes mistakes-there's a mechanism for dealing with that, called the ballot box.

There are laws in this country that trump the laws of its legislature. These laws are found in the articles and amendments of [the] Constitution.

It seems as though you would have us change something that isn't broken. Congress doesn't have a blank check to make any law it sees fit (and if we don't abide by them, well too bad, go to jail, do not pass go). Congress only has the power to make laws which the people have granted it the authority to make. Telling the people to wait and vote for someone who will actually follow the Constitution does not make it right that the Constitution is being ignored now. The power of jury nullification is instant. It puts the brakes on the government when it has stepped out of bounds. On the contrary, it is YOU who should use the 'mechanism of the ballot box' and vote in someone who will amend the Constitution before attempting to enforce the (currently unconstitutional) laws on drugs (if you so desire to give the government that power - - - but, also keep in mind that you'd have to convince roughly two-thirds of the people to also vote for representatives who will amend the Constitution. That is why amending the Constitution is so difficult, as it is supposed to be.)

All it would take to be able to make these laws on illegal substances 'valid' is to amend the Constitution in the same fashion we did with alcohol prohibition. I present:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. [My comment: This is the part that you would like to see, I understand. Consequently, this is the right way to do things. The legal and moral way.]

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

From here, I'll leave the responsibility of learning your history to yourself.

[richyoung]

Legal Ethics
Opinion 320
Jury Nullification Arguments by Criminal Defense Counsel

(The August 2003 Washington Lawyer Speaking of Ethics column addressed the issue of jury nullification and its advocacy by criminal defense attorneys. Opinion 320 was the focus of the column and this opinion makes recourse to diverse jurisprudence and legal history, in addition to Rules 1.3 (Diligence and zeal),3.1 (Meritorious Claims and Contentions),3.3 (Candor Toward the Tribunal), and 8.4 (Misconduct). )

...Good-faith arguments with incidental nullification effects do not violate the Rules of Professional Conduct. Despite its disfavor, the law permits a jury to acquit in disregard of the evidence, and . . . such an acquittal is unreviewable. Watts, 362 A.2d at 710. That power is a necessary consequence inherent in the right to trial by jury. So long as the power to acquit in disregard of the evidence exists, we do not believe that the Rules of Professional Conduct prohibit zealous advocacy by a criminal defense lawyer that appeals indirectly to that power. &

[richyoung]

From the Arizona Supreme Court web page...

'41. Do not Instruct Juries on Jury Nullification; However, the Rules of Evidence Ought to be Expanded in Recognition of the Jury's Power to Nullify

Except in extraordinary situations or where required by the Arizona Constitution, juries should not be instructed on the subject of jury nullification. However, relevancy rules should be amended or interpreted to permit greater latitude in evidence in recognition of the jury's undoubted power to nullify the law. For example, evidence of the defendant's intent and motive ought to be received.'

[De Selby]

. . . I'm confused-you seem to be saying that the founding fathers set up the government so that individuals could just ignore the law if they didn't agree. 

I don't think you'll find any support for the view that the laws of the United States only have so much force as one person allows them to have. . . .

"The jury has the right to judge both the law as well as the fact in controversy."

In case you're unaware of it, John Jay was the first Chief Justice of the US Supreme Court, and author of Federalist Papers #2, #3, #4, #5 and #64. As an actual contemporary of the men who actually wrote the Constitution, I consider his legal opinions to be far more definitive than those of anyone alive today, as he had first-hand knowledge of original intent.

Yeah, this is typical of the "jury nullification!" types: you just cited a case where John Jay was saying that juries have the power to interpret the law and decide what it actually requires, not whether the law itself should be on the books.

That is not jury nullification-that's leaving specific interpretation of the language up to the jury.

Nullification is when the jury says "we realize that this is the law, but we don't think it should be the law, so we aren't going to enforce it."

"Judge the law" in early constitutional and modern jurisprudence means simply that the Jury gets to read the statute for itself and decide what the legal requirements actually are, not what they should be.

[De Selby]

From the Arizona Supreme Court web page...

'41. Do not Instruct Juries on Jury Nullification; However, the Rules of Evidence Ought to be Expanded in Recognition of the Jury's Power to Nullify

Except in extraordinary situations or where required by the Arizona Constitution, juries should not be instructed on the subject of jury nullification. However, relevancy rules should be amended or interpreted to permit greater latitude in evidence in recognition of the jury's undoubted power to nullify the law. For example, evidence of the defendant's intent and motive ought to be received.'

Yeah, Rich, ya gotta read the whole thing:

The committee agrees with the traditional view that while juries in criminal cases have the unreviewable power to acquit despite the law, there is no "right" to jury nullification on the part of the jury or either party and that the jury ought not be instructed on the subject. At the same time, however, the committee also feels that evidence rules ought to be expanded somewhat in recognition of the jury's power to nullify.

http://www.supreme.state.az.us/jury/Jury/jury1k3.htm

Also, you might be interested in reading the legal authorities cited on this page, and what they have to say:   

18See e.g., Sparf v. United States, 156 U.S. 51 (1895); United States v. Powell, 936 F.2d 1056 (9th Cir. 1991).

Note the acknowledgment as to the consensus position here: 

Most authorities state that this is a power of the jury outside the law about which they should not be told in the instructions

Like I said, this is basically the same as the "income tax doesn't exist!" argument-you cherry pick legal authorities for sentences that, to someone who's read the material, plainly do not mean what they are purported to mean on the various websites that mean them. 

[Headless Thompson Gunner]

I wonder if you actually read the whole thing, shootinstudent.  They clearly recognize that juries can nullify.  They simply conclude that juries shouldn't be told of this ability.

[cassandra and sara's daddy]

nor should they soapbox from the jury box

[De Selby]

I wonder if you actually read the whole thing, shootinstudent.  They clearly recognize that juries can nullify.  They simply conclude that juries shouldn't be told of this ability.

It's a bit more nuanced than that-a jury can do anything it wants.  Juries don't have to explain themselves to anyone or justify their actions.

However, if one juror is refusing to participate or annoying the others with political preaching, the other jurors often complain that they can't do their jobs, and he'll be kicked if his actions are without legal basis.

Which is what happened in this case.

Unless the other jurors complain, the judge won't even know that there's an argument.

[Hawkmoon]

If you don't plan on violating a statute that is fairly clear in its terms, it won't ever be a problem.

In this case, though, neither your belief nor mine settles the matter.  There is actually a public record of the laws of the United States, and on this issue, they're fairly clear, which is why folks who clamor for jury nullification instructions routinely lose, and jurors who engage in it get tossed.

You weren't paying attention in class. Since I already knew that John Jay (the first Chief Justice of the U.S. Supreme Court, that John Jay) said it, it took me all of about 15 seconds to find this through Google:

At the time of the American Revolution, the jury was known to have the power to be the judge of both law and fact. In a case involving the civil forfeiture of private property by the state of Georgia, first Supreme Court Justice John Jay, instructed jurors that the jury has "a right to determine the law as well as the fact in controversy." (Georgia vs. Brailsford, 1794:4)

[Regolith]

It was the refusal of juries to convict newspaper editors of slander or libel when they criticized government officials in the early 1700s that entrenched our current notion of freedom of the speech and the press. Jury nullification is not only an important check on the power of the government, it was fundamental to the founding of this nation.

[The Annoyed Man]

nor should they soapbox from the jury box

How is questioning the legitimacy of a law when a man is about to go to prison for it "soapboxing?" I think HTG already explained that things couldn't be put on hold for the fellow on trial.

So what happens if you go to jail for breaking some firearms law? You are typically a reasonable, law abiding citizen. (For example, in Georgia, you can be arrested for carrying into "public gatherings." The discretion of what constitututes a "public gathering" is completely subjective. So, you'd better believe that if I ever get to serve on a jury for a guy arrested for carrying his sidearm to his son's little league game, I'm gonna be one of those "Jury nullification!" types.) Wouldn't you want someone to question the validity of the laws you're about to be put away for?

I know I'm starting to speak in hypotheticals, but I figured I needed an example that gun owners might relate to.

There was no "political preaching" in this case. Unless someone can point me to the part of the Constitution where the government has the right to fight a war on drugs (especially since we needed an amendment to fight the 'war on alcohol'), I'd say the juror asked a damned good question.

Edited: proofreading is more effective following the second cup of coffee

[The Annoyed Man]

I wonder if you actually read the whole thing, shootinstudent.  They clearly recognize that juries can nullify.  They simply conclude that juries shouldn't be told of this ability.

It's a bit more nuanced than that-a jury can do anything it wants.  Juries don't have to explain themselves to anyone or justify their actions.

However, if one juror is refusing to participate or annoying the others with political preaching, the other jurors often complain that they can't do their jobs, and he'll be kicked if his actions are without legal basis.

Which is what happened in this case.

Unless the other jurors complain, the judge won't even know that there's an argument.

The juror's actions were with legal basis. The juror did do what he wanted. The other jurors didn't do their jobs, because they didn't know they have the power to question the laws as well. The fact that they were "annoyed" doesn't give the judge the authority to strip the justice system of one of its tools.

What happened in this case?

There was one man on the jury who actually had a layman's knowledge of how the Constitution works, and because of that, he was kicked off the jury and replaced with just another dumbass who would vote "guilty." It appears the judge got the team he wanted, at the expense of a fair trial.

Do we get to "kick" the government when its actions are without legal basis? I get the sense from some people here that there is a particular time for protest, and every other time is inappropriate. The planets have to be in a certain alignment, or the weather must be just right, it must not occur on the Sabbath, etc. To paraphrase HTG, jury nullification is a way to do something for the accused now. Going to the ballot box 4 years later is not going to help a guy facing time now.

[HankB]

. . . I'm confused-you seem to be saying that the founding fathers set up the government so that individuals could just ignore the law if they didn't agree. 

I don't think you'll find any support for the view that the laws of the United States only have so much force as one person allows them to have. . . .

"The jury has the right to judge both the law as well as the fact in controversy."

In case you're unaware of it, John Jay was the first Chief Justice of the US Supreme Court, and author of Federalist Papers #2, #3, #4, #5 and #64. As an actual contemporary of the men who actually wrote the Constitution, I consider his legal opinions to be far more definitive than those of anyone alive today, as he had first-hand knowledge of original intent.

Yeah, this is typical of the "jury nullification!" types: you just cited a case where John Jay was saying that juries have the power to interpret the law and decide what it actually requires, not whether the law itself should be on the books.

That is not jury nullification-that's leaving specific interpretation of the language up to the jury.

Nullification is when the jury says "we realize that this is the law, but we don't think it should be the law, so we aren't going to enforce it."

"Judge the law" in early constitutional and modern jurisprudence means simply that the Jury gets to read the statute for itself and decide what the legal requirements actually are, not what they should be.

No.

In the Zenger case, the jury found the law itself to be unjust, and refused to convict. So it wasn't just an interpretation of the law, it was outright rejection of the law.

As for the subject quote . . . I'll go with what John Jay actually said, not what you wish he said.

[richyoung]

. . . I'm confused-you seem to be saying that the founding fathers set up the government so that individuals could just ignore the law if they didn't agree. 

I don't think you'll find any support for the view that the laws of the United States only have so much force as one person allows them to have. . . .

"The jury has the right to judge both the law as well as the fact in controversy."

In case you're unaware of it, John Jay was the first Chief Justice of the US Supreme Court, and author of Federalist Papers #2, #3, #4, #5 and #64. As an actual contemporary of the men who actually wrote the Constitution, I consider his legal opinions to be far more definitive than those of anyone alive today, as he had first-hand knowledge of original intent.

Yeah, this is typical of the "jury nullification!" types: you just cited a case where John Jay was saying that juries have the power to interpret the law and decide what it actually requires, not whether the law itself should be on the books.

That is not jury nullification-that's leaving specific interpretation of the language up to the jury.

Nullification is when the jury says "we realize that this is the law, but we don't think it should be the law, so we aren't going to enforce it."

"Judge the law" in early constitutional and modern jurisprudence means simply that the Jury gets to read the statute for itself and decide what the legal requirements actually are, not what they should be.

Not familiar with the Penn and Zenger trials, I see...

[richyoung]

From the Arizona Supreme Court web page...

'41. Do not Instruct Juries on Jury Nullification; However, the Rules of Evidence Ought to be Expanded in Recognition of the Jury's Power to Nullify

Except in extraordinary situations or where required by the Arizona Constitution, juries should not be instructed on the subject of jury nullification. However, relevancy rules should be amended or interpreted to permit greater latitude in evidence in recognition of the jury's undoubted power to nullify the law. For example, evidence of the defendant's intent and motive ought to be received.'

Yeah, Rich, ya gotta read the whole thing:

The committee agrees with the traditional view that while juries in criminal cases have the unreviewable power to acquit despite the law, there is no "right" to jury nullification on the part of the jury or either party and that the jury ought not be instructed on the subject. At the same time, however, the committee also feels that evidence rules ought to be expanded somewhat in recognition of the jury's power to nullify.

http://www.supreme.state.az.us/jury/Jury/jury1k3.htm

Also, you might be interested in reading the legal authorities cited on this page, and what they have to say:   

18See e.g., Sparf v. United States, 156 U.S. 51 (1895); United States v. Powell, 936 F.2d 1056 (9th Cir. 1991).

Note the acknowledgment as to the consensus position here: 

Most authorities state that this is a power of the jury outside the law about which they should not be told in the instructions

Like I said, this is basically the same as the "income tax doesn't exist!" argument-you cherry pick legal authorities for sentences that, to someone who's read the material, plainly do not mean what they are purported to mean on the various websites that mean them. 

The jury has the power to nullify, but not the right.  Only a lawyer could explain such twisted logic.

[richyoung]

Yeah, this is typical of the "jury nullification!" types: you just cited a case where John Jay was saying that juries have the power to interpret the law and decide what it actually requires, not whether the law itself should be on the books.

That is not jury nullification-that's leaving specific interpretation of the language up to the jury.

Nullification is when the jury says "we realize that this is the law, but we don't think it should be the law, so we aren't going to enforce it."

"Judge the law" in early constitutional and modern jurisprudence means simply that the Jury gets to read the statute for itself and decide what the legal requirements actually are, not what they should be.

Even under YOUR interpretation, that's what the juror did.  Any law in conflict with the Constituion - isn't a law.  The Constitution is the supreme law of the land.  Since Prohibition required an ammendmant, why doesn't hte War on Some Drugs?  If it does, then the "laws" are null and viod.  Kinda like almost gun laws.  And you know what?  If the Supreme's had ruled against us in Heller, the gun laws would STILL be unconstitutional.  That's the beauty of the system the Founders set up - the people are the FINAL arbiters of how the governmental contract shall be executed - whether thats in a voting booth, or a jury box, or behind the sights of a weapon.

[roo_ster]

That's the beauty of the system the Founders set up - the people are the FINAL arbiters of how the governmental contract shall be executed - whether thats in a voting booth, or a jury box, or behind the sights of a weapon.

True, but hte technocrats wish it were otherwise and that lawyers had the final say.

[Werewolf]

 
I never knew just how many statists we have here. After reading and re-reading this thread twice I'm still shocked. The numbers of folks here who believe that the people exist to serve the almighty state and it's infallible laws is - well - simply amazing.

For some reason I've always believed that the overwhelming majority here were of a mind that the state existed to serve the people. Guess not.

Quite enlightening - explains a lot...

ASIDE: Go ahead C&S Daddy and make sure to roll out your ubiquitous, inane references to Heroes of the Revolution - it'll just help make my point for me.

[LAK]

What Headless Thompson Gunner has said.