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Comments |
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 | Friday, August 15, 2008 at 11:58:40 mst
Comment ID: #1
Name: Paul Hsieh
E-mail: paul(at)geekpress(dot)com
URL: http://www.geekpress.com
James Duane, the law professor who made the "Don't Talk To The Police" video posted earlier here by Greg Perkins, has also written a detailed essay on the appropriate scope of a juror's power to question whether a law is just (and not merely whether a criminal defendant broke the law).
I haven't read the whole thing yet, so I can't comment on it any more.
But *if* our current system of government does in fact empower jurors to judge both the law as well as the defendant, then the standard claims by the anti-nullification people that jury nullification represents a disregard for the rule of law would obviously have to be re-examined:
http://www.fija.org/docs/jurors_handbook_a_citizens_guide_to_jury_d ... |
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| Friday, August 15, 2008 at 11:59:08 mst
Comment ID: #2
Name: Mark Jones
E-mail: sinanju(at)pacifier.com
I've been participating in that discussion. I say no--you should not send someone to jail for an action you don't believe is or should be a crime. Of course, in order to do that you may have to promise not to engage in nullification or you'll never get on the jury. So I guess the next question is, are you willing to lie to the judge by promising that when you have such reservations? I'd rather not, but the cops are allowed to lie to suspects to obtain confessions, and the judges are (in my opinion) lying to jurors when they tell them they can't nullify--so I'll follow their lead. :D
In practice, I've served on juries twice. One was a civil case. One was a criminal case involving a home invasion robbery in search of drugs. (It was also a comedy of errors proving beyond all doubt that criminals really are stupid. Fortunately, I didn't have to address the question of whether to refuse to convict on drug charges--the jury all agreed that the prosecution didn't prove that case anyhow.)
Good luck with jury duty! |
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| Friday, August 15, 2008 at 12:13:46 mst
Comment ID: #3
Name: Jeff Montgomery
E-mail: jamontgom(at)hotmail.com
Personally, if I could find a legal way to avoid convicting someone on drug charges, I would do so. Drug laws are an unjust, massively destructive, exhorbitantly expensive crock. However, I might be required to declare my opinion during jury selection, depending on the context and questioning, and might therefore be ruled out as a juror. |
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| Friday, August 15, 2008 at 12:28:41 mst
Comment ID: #4
Name: Fast Eddie
E-mail: thunder.rolled(at)gmail.com
URL: http://thundertales.blogspot.com
You make a compelling argument, although linking police extremism to jury nullification is a stretch and staring from the assertion that America is not a more substantially free country than most nations in the world seems a bit of hyperbole.
Regardless, I'd like you to a a moment or two to visit thundertales.blogspot.com where I'll expound on the topic in a bit more detail than here.
The essence of the argument is that if we subscribe to the Constitution, then there is process for enacting and repealing laws as well as overturning them judicially. While conviction for a "crime" that an individual deems not criminal might be perceived as unjust, how do you distinguish who is rational enough to make those distinctions from someone who is simply an anarchist? Political process isn't perfect, but it tends to temper the extremes in life. |
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| Friday, August 15, 2008 at 12:39:57 mst
Comment ID: #5
Name: Minroad
If you speak your mind, I will be suprised if you aren't dismissed during vior dire. |
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| Friday, August 15, 2008 at 12:57:40 mst
Comment ID: #6
Name: rrlv_frsh
Diana,
If the situation in your community is anything like mine, you and the other propsective jurors will probably be told:
1. If you serve on the jury panel, you are required by law to uphold the law as explained to you by the judge.
2. You must agree, under oath and penalty of perjury, to do so.
3. If you refuse to agree, you can be subject to willfull failure to perform your legally require service as a juror, which is a crime.
As a practical matter, judges and attorneys generally don't like to threaten jurors with the prospect of becoming criminals themselves (in the eyes of the legal system) for failing to do their "duty" without "mental reservations" of any kind.
On the other hand, the questioning of prospective jurors often does seek to find out what the jurors are honestly and sincerely thinking. You then have an opportunity to say something like the following in open court, duly recorded for permanent future reference by the court reporter: "Speaking as a private citizen and property owner and taxpayer in this community, I strongly favor repeal of all laws against drug possession and use by adults. Philosophically speaking, I cannot, in good conscience, endorse sending anyone to jail or seizing his property if his only alleged 'crime' is simple possession, use or sale of drugs -- except in cases where sale of drugs to minors is involved."
The "waters" can get a little "muddier" if sale to minors *was* involved. Then you get into the legal definition of a "minor," which will probably be a specific age. Then the question arises, why that particular age for separating an adult from a minor? What if the minor was less than 4 months away from reaching that age? What if the "minor" was already a runnaway living on his or own for two years or longer before being caught up in the police drug "sting"?
Some points to think about before going into the courthouse. |
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| Friday, August 15, 2008 at 13:20:49 mst
Comment ID: #7
Name: Qwertz
E-mail: qwertz(at)wopsr.net
URL: http://wopsr.net
If you tell the truth during voir dire, you should be dismissed for cause. The prosecution will ask you during voir dire whether you have any personal experiences or issues that would prevent you from finding the defendant guilty if you are convinced of his guilt. It is the very very shoddy prosecutor who does not ask this question. And even worse if he does ask it, and then doesn't boot you when you tell him that you could not convict someone of a drug offense. Then again, I've seen a lot of shoddy prosecutors in action. There may also be a portion of voir dire where one or the other attorney asks if anyone has anything else they think might be relevant to their ability to serve as a juror on the case. You can ask to speak with the judge and counsel in chambers if you like, and the judge will appreciate it if you do. If you talk about your moral objection to drug laws in open court, you might taint the entire jury pool. Which might be a good thing. I don't know. But judges don't like it.
The most moral course of action, I think, is to do exactly this. Tell the judge, in chambers if you can, that you cannot convict for moral reasons. You will be dismissed. This way, you avoid the rule of law vs. sanction of injustice conflict altogether, and still voice your opposition to the state of the law in a firm but respectful manner.
If you *do* somehow get empanelled, you won't discuss the case with your fellow jurors until the case gets submitted to you for deliberation. More often than not, this never happens. The case gets dismissed after the state's evidence, or after both sides have presented evidence. Or sometimes they reach a plea agreement. So you don't have to worry about the nullification issue until deliberation.
The criminal jury is a black box at law. The U.S. Constitution guarantees criminal defendants protection against double jeopardy, which means that once a jury fails to unanimously convict, *nothing* can change their verdict. Even if it comes out after the verdict that the jury acquitted on the basis of a coin toss, the verdict cannot be challenged. And it only takes one of twelve to hang a jury.
In a sense, jury nullification does not exist as a separate legal phenomenon. But it isn't. To call something "jury nullification" requires the observer, outside the black box, to judge the evidence for himself and decide that it fits the law. Supplanting his judgment for that of the jury. Which may be appropriate from a moral approach, but is not appropriate from a legal perspective. Jury nullification is a phenomenon of ethics, not of law. To treat it as one of law would require stripping the jury of its black box status. The two are incompatible.
Which is why I find Judge Young's 30-page memorandum of law to be so strange. There is and by its nature can be no *law* on jury nullification.
(Jury nullification in the civil context is an entirely different kind of flying altogether, vastly more complex, and thoroughly beyond the scope.)
So it sounds like you've been summoned for next Tuesday. I am a bit envious. As a lawyer-to-be, I will almost certainly never have the opportunity to sit on a jury.
~Q |
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| Friday, August 15, 2008 at 13:25:40 mst
Comment ID: #8
Name: Qwertz
E-mail: qwertz(at)wopsr.net
URL: http://wopsr.net
Erm. Sorry for double post. There is a random "But it isn't" in there, 5th paragraph, that shouldn't be there. Please ignore it.
~Q |
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| Friday, August 15, 2008 at 13:37:53 mst
Comment ID: #9
Name: z
E-mail: shekfu(at)hotmail.com
If they google you, you'll probably be dismissed. |
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| Friday, August 15, 2008 at 14:24:19 mst
Comment ID: #10
Name: Rachel
E-mail: raemeg(at)gmail.com
Diana
I think the options are these: either comply with the law, or break it openly and prepare to suffer the consequences (a la Roark), or else go into full rebellion. In the same way that it is not right to fail to pay taxes, unjust though they be, and it is not right to become a vigilante, deserving as someone like OJ may be, it is wrong to fail to uphold the legal obligations of being a juror.
Similarly, a man may be plenty guilty and yet he still deserves to have competent representation in a criminal case, even if that means he gets off on a technicality. The technicalities exist because the law is complex and the science of justice demands certain procedures.
In a society organized to separate the powers of the gorvernment, one branch to enact the laws, another to enforce them, and the last to interpret the laws, it is beyond the scope and moral authority of the Judicial branch to fail to uphold a law, however unjust that law is. In the same way, if California votes to change its constitution this fall to preclude gay marriage, a judge is morally bound to interpret any laws that conflict with the revised constitution appropriately and invalidate them (or whatever judges do to such laws). True, such a revision to the constitution would be grossly unjust, but it is not a judge's place to change it. That power belongs to the Legislature and to the voters. I hate to be cliche (I really do), but it pertains: "If you don't like the law, change it through the established means."
A juror may not morally stand against any law, including unjust laws. It is no more his place than it is the place of a private citizen to act on certain knowledge of guilt (e.g. by attacking a mugger, rapist or murderer) - objective justice would demand his arrest for acting against what is rightly the judgment of the rest of us in society (based, though it may be, on incomplete knowledge).
If you want to stand up and declare that you will not act in a manner proscribed by law (as a juror), then I think you put yourself in the position of Howard Roark when he demolished his building. You must then answer for your alleged crime. Perhaps your own jury will fail to convict on some grounds I cannot conceive of. If I understand Roark's case, he was found not guilty because the plans that were used to construct his building were obtained fraudulently. I don't know how you could challenge the jury laws this way (even though it's obviously a farce to compel you to engage in deliberations without mental reservations if such reservations obviously exist). Rather, I think the law should be changed. By the Legislature.
But if America is still free, if we can still use peaceful means to change our laws, if we have, essentially, freedom of the press, freedom to congregate, freedom to bear arms, free elections (multi-party), etc. Then America is free enough not to rebel. And breaking the law without openly declaring such is an act of rebellion. That is how you would act against Soviet Russia or Islamic Iran, or Anarchist Somalia.
No, I think that unless you are willing to suffer the penalty of the law for openly refusing to do what it requires a juror to do then you must, if necessary, convict on drug charges, tax evasion, operating without a business license, and other similarly unjust laws.
Rachel |
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| Friday, August 15, 2008 at 14:47:46 mst
Comment ID: #11
Name: Jeff Montgomery
E-mail: jamontgom(at)hotmail.com
Fast Eddie says:
>if we subscribe to the Constitution, then there is process for enacting and repealing laws as well as overturning them judicially
>how do you distinguish who is rational enough to make those distinctions from someone who is simply an anarchist?
The fact that there is a Constitution and a legal process by which to change bad laws does not morally restrict us to using only that process. Obviously legality does not equal morality. That would toss civil disobedience out the window, not to mention the type of actions that formed this nation.
Also I'm not sure it's even been established that jury nullification is illegal, or if it is, whether it is enforced, or whether it would entail puhishment. That's something I'd take up with a lawyer.
We are not recommending a general principle of government (anarchy vs. rule of law), we are attempting to establish a principle of personal conduct according to conscience (i.e. obedience vs. pushing the moral envelope a bit using an obscure legal precedent). How each person arrives at and applies such a principle for themself is: reason, applied to the unique facts of their actual lives at this point in time. i.e. what are the costs and benefits to them personally. |
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| Friday, August 15, 2008 at 15:02:53 mst
Comment ID: #12
Name: Qwertz
E-mail: qwertz(at)wopsr.net
URL: http://wopsr.net
To those who assert that it is illegal for a juror to express a moral objection to serving on a jury *in a particular case*:
Please cite the statute. Preferably from Colorado.
It is one thing to say "I refuse to follow the law." It is quite another to say "I refuse to follow *this* law."
~Q |
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| Friday, August 15, 2008 at 15:12:16 mst
Comment ID: #13
Name: Adam Reed
E-mail: adamreedatalumdotmitdotedu
URL: http://www.calstatela.edu/faculty/areed2
The law differs from state to state, and I don't know how it goes in Colorado, but here in California the courts recognize the need for "wholesome discretion" on the part of prosecutors and juries. On the other hand, if you are empaneled on the same jury as a literalist (or several) he/she/they may report your qualms about the law to the judge, who could decide to dismiss you. If that resulted in a mistrial, _you_ may be prosecuted in turn. So you, too, will be under the gun. Given this implicit threat, you are in an emergency situation in which it may be necessary for you to bend the literal rules so as to spare some objectively innocent person an extremely violent, life threatening outcome. If I did anything that contributed to the incarceration of an objectively innocent person, and that person were raped, tortured or murdered in prison - things that happen in American prisons rather frequently - I would consider myself responsible for contributing to that outcome.
As an Objectivist, I would apply the judge's instructions on the law - in the full context of my own knowledge of all the relevant facts. |
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| Friday, August 15, 2008 at 15:12:42 mst
Comment ID: #14
Name: adross
E-mail: adross(at)amerion.com
I was called for federal duty on a drug dealer's trial. During the jury selection, the prosecutor asked if anyone thought drugs should be legalized. I was the only one who said yes. He asked me why I thought that drugs should be legal. I told him the war on drugs was a violation of individual rights. He asked if I could still find the defendent guilty. I said that since it was the law, if they convinced me he was quilty I would find the defendent quilty. Needless to say, I was not selected and was never called back during the six months that I was eligible for jury duty. |
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| Friday, August 15, 2008 at 15:24:41 mst
Comment ID: #15
Name: Galileo Blogs
E-mail: rayniles(at)rcniles.com
URL: http://galileoblogs.blogspot.com
I could never convict someone on a drug charge, or similar laws. I was dismissed from a jury pool once on a drug case when I told the prosecutor that I thought drug laws were immoral.
I do not think that my position is inconsistent with upholding a society based on the rule of law. In fact, the prosecutor simply found another juror to stand in my place. Nevertheless, *I* did not have to sanction putting an innocent person in jail.
In general, I do think prospective jurors should be honest when they are questioned about their beliefs. They should not get on a jury through dishonesty and then exercise jury nullification. An exception would be if our society had become a dictatorship or near-dictatorship. At that point, such action of nullification is an act of rebellion against an entire government that must be overthrown. We are nowhere near that yet.
In our current society, drug convictions will happen because there is an abundant supply of jurors willing to convict under current laws. Nevertheless, if everyone who believes drug laws are immoral gets excused from juries, the magnitude of that prospective juror rebellion will serve as a message that some (hopefully many) among the populace refuse to sanction immoral laws. |
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| Friday, August 15, 2008 at 15:38:52 mst
Comment ID: #16
Name: William H. Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/
Here's how I dealt with this a number of years back:
I was called up for jury duty, and the case was one involving sale of controlled substances. I had the same concerns that you did. So when they asked me the standard questions, I ended with "and I have serious doubts as to my ability to make an impartial decision."
Naturally, they asked me to explain. And what I said was that I understood that it was my legal duty to decide the case based on the laws that are actually in force, and not on my personal beliefs about what the laws should be. (This is commonly asserted in connection with jury nullification claims, and I have heard that some judges consider jury nullification to be a punishable violation of the jurors' oath or affirmation. It's not something I want to test.) However, I went on, I personally did not believe that the state had any legitimate reason to control the use, sale, or production of drugs, and so I was being asked to aid in the enforcement of an improper law. This put me in a state of personal conflict, in which I was not confident of my ability to judge impartially; for example, I said, I might fail to give proper credence to the statements of the arresting officers, or overestimate the extent of reasonable doubt. (I used the phrase "cognitive dissonance" in discussing this�"and saw the prosecuting attorney strugglng to suppress a smile.)
They let us step outside to wait, and a few minutes later the bailiff came out and told me to go home; my jury service was complete. |
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| Friday, August 15, 2008 at 15:58:40 mst
Comment ID: #17
Name: Nicholas Provenzo
E-mail: nprovenzo(at)capitalismcenter.org
URL: http://www.capitalismcenter.org
I agree with the replies of those who have stated that they would not sanction the incarceration of someone accused of violating a patiently immoral law by sitting on a jury convened for that purpose and who would indicate as much during the jury selection phase.
If individual rights are to be violated, let it be done without our assistance or consent. |
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| Friday, August 15, 2008 at 16:09:05 mst
Comment ID: #18
Name: Qwertz
E-mail: qwertz(at)wopsr.net
URL: http://wopsr.net
Prof. Reed said:
"On the other hand, if you are empaneled on the same jury as a literalist (or several) he/she/they may report your qualms about the law to the judge, who could decide to dismiss you. If that resulted in a mistrial, _you_ may be prosecuted in turn. So you, too, will be under the gun."
That's not the case at all. With what crime would you be charged? Even in the cited case, the dismissed juror was not charged with anything. He couldn't be. There is no statute under which to charge him. Jurors in deliberation are allowed to use any argument they like to try to convince their fellow jurors, so long as they don't bring in any outside evidence.
*If* one is empanelled and *if* the case goes to deliberation, a juror has no *right* as such to nullify, and nullifying is a violation of the oath, and such a juror is subject to dismissal under Federal Rule of Criminal Procedure 23(B). Colorado has adopted the Federal Rules. But under no circumstances may a judge remove a deliberating juror in order to break a deadlock. Even if a deliberating juror is threatening nullificiation, it is still very hard for the judge to dismiss him. U.S. v. Thomas, 116 F.3d 606, 612-25 (2d Cir. 1997).
If you don't want to break the oath, then do not take it. The best way to avoid taking the oath is to tell the judge, in chambers, that you have a strong moral objection to granting sanction to the drug laws by participating in their prosecution. You will be dismissed. You have taken no oath, and have violated no duty. You may (depending on the judge) be required to report the next day to go through the pool again. In practice, this rarely happens.
Judges can hold veniremen (members of the venire pool) in contempt if they refuse to fulfill their statutory obligation to meaningfully report for jury duty. Someone who objects to serving on *any* jury, or expresses an intent to decide *any* case on legally inappropriate grounds, are not substantially complying with their statutory obligation. A person who has a *specific* objection, even if it is an objection to the law, to serving on a jury in a *specific* case, is not in breach of the statutory obligation. The statute requires summoned veniremen to report and be ready to serve. It does not require them to serve on a jury. And it does not and cannot require them to serve against their conscience. That is precisely what voir dire is for.
~Q |
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| Friday, August 15, 2008 at 16:33:05 mst
Comment ID: #19
Name: BrianS
E-mail: blspro (at) gmail
"If I'm picked for a jury, should I send a person to jail for an action that ought not be a crime at all -- on the grounds that I ought to respect the rule of law, even when I disagree with the particular law in question?"
A juror is a (temporary) agent of the government. Would you ask if any other agent of the government - say, a police officer - should be bound to enforce the law, even if he disagrees with a particular law? In other words, is it proper for an agent of the government to act upon standards OTHER than the law? If not the rule of law, then what standard are you proposing be used here for *government* action? |
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| Friday, August 15, 2008 at 17:09:01 mst
Comment ID: #20
Name: Cogito
"A juror is a (temporary) agent of the government."
Does this apply when the only reason you're a juror in a particular case is because you are required by law? |
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| Friday, August 15, 2008 at 17:46:51 mst
Comment ID: #21
Name: BrianS
E-mail: blspro (at) gmail
Cogito - being required by law to serve *as* a juror doesn't change the definition *of* 'juror'. |
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| Friday, August 15, 2008 at 18:07:50 mst
Comment ID: #22
Name: tjw
E-mail: sourcevive at comcast dot net
In my home state of Georgia, the Constitution enshrines the concept of jury nullification, as per Article I, Section I:
Paragraph XI. Right to trial by jury; number of jurors; selection and compensation of jurors. (a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.
As I have heard it, being a judge of the law and the facts enshrines the right to find someone not guilty on the grounds that the law is unjust, even when you find by the facts of the case that he violated the law in question--not that you'll ever hear a judge actually inform the jury of this provision.
I did not see a similar provision in the Colorado Constitution except in Article II, Section 10, which restricts the application specifically to civil and criminal cases involving libel. |
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| Friday, August 15, 2008 at 20:17:52 mst
Comment ID: #23
Name: Luke
BrianS, rationalize much? Jesus Christ. Think for a second: the law could say *anything.* No standard higher than the law comes to your mind at all? You'd be a happy little agent of the government no matter what they wanted you to do? |
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| Friday, August 15, 2008 at 20:51:31 mst
Comment ID: #24
Name: Mike Dial
E-mail: mikedialjatnetscapedotnet
The judge must think that he is trying the defendant and that the jury is at his beck and call. Actually, when we go on trial, we are on trial by a jury of pur peers. The judge and attorneys are there only to make sure that the government does not overstep the limits on its powers. If I were on the jury in 1852 in the trial of a person who helped a slave escape, I wouldn't have an obligation to help enforce the law that says the slave must be returned. |
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| Friday, August 15, 2008 at 21:13:02 mst
Comment ID: #25
Name: BrianS
E-mail: blspro (at) gmail
Luke said: "rationalize much? Jesus Christ." If you are interested in a rational discussion, I would suggest you dispense with the insults.
Given the nature of your criticism, I take it your position is that an individual - in his capacity AS an agent of the government - is free to choose *whatever* standard of action he so desires. That the law is neither a restriction on his actions or a proscription for his actions AS an agent of the government if he happens to disagrees with a particular law of that government.
So much for the rule of law.
"You'd be a happy little agent of the government no matter what they wanted you to do?" I am curious what facts in my statement lead you to jump to this spurious conclusion. Suffice to say, I neither made this claim, nor is it a premise I hold.
I suggest you check the premises which led you to this conclusion. |
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| Friday, August 15, 2008 at 21:20:49 mst
Comment ID: #26
Name: Tony Donadio
E-mail: tdonadio(at)optonline.net
The difference between a juror and a police officer is that a police officer serves in that capacity voluntarily. A juror does not. The fundamental problem with mandatory jury service is that it's an attempt to coerce a mind. It's a demand for you to use your judgement, backed by a gun aimed at you if you don't comply and don't use it in the manner demanded. In my view that difference voids any analogy between jurors and civil servants, and negates any ethical responsibilities attendant on such service. Morality ends where a gun begins. |
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| Friday, August 15, 2008 at 22:07:01 mst
Comment ID: #27
Name: BrianS
E-mail: blspro (at) gmail
Tony - as far as I understand it, Diana's premise is NOT that she objects to being a temporary agent of the government. As such, the issue here is NOT one of voluntary vs. involuntary service. The issue here is: when she does serve as a temporary agent, if she ends up with a case dependent upon a law she doesn't like, should she be bound by the law or not? Given that context, my argument stands.
Of course, if Diana's true objection here is *not* being a willing juror who then happens to get assigned to a case with a law she considers immoral, but is, instead, about even *having* to serve as a temporary agent of the government, then that's a completely different argument than the one she actually presented. |
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| Saturday, August 16, 2008 at 0:25:23 mst
Comment ID: #28
Name: infidel91
E-mail: infidel91(at)yahoo.com
Bottom line:
You should be honest during jury selection, just as in all your dealings with others. If you are, and the case involves drug charges, you will probably state that you have issues with drug laws, and describe whatever effect that may have on your ability to make a judgment that is based on the facts as presented and the law as stated to you by the judge.
You will then be struck for cause and sent on your merry way. In Colorado, based on my prior experience as an attorney in criminal trials, it is my understanding (and not legal advice to you!) that there is no penalty under our law for such an approach.
You will thus never be placed in the position of choosing between nullification and incarceration of another under an unjust law.
Parenthetically, doesn't one have a moral obligation, out of concern for one's own well-being, not to deal in controlled substances and thus risk imprisonment? If so, does that shift responsibility away from the juror for a conviction under an unjust law, and place it squarely upon the defendant? In the more extreme case of a defendant charged with a crime for some act of rebellion in a dictatorship (say, prohibited radio broadcasts advocating freedom), the analysis of his moral obligation changes, does it not? He is no longer risking imprisonment for the sake of a drug high or a drug sale; he's doing it because he has decided that his rational self-interest in a free country outweighs the risk of punishment. |
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| Saturday, August 16, 2008 at 0:26:01 mst
Comment ID: #29
Name: William H. Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/
BrianS wrote, "Of course, if Diana's true objection here is *not* being a willing juror who then happens to get assigned to a case with a law she considers immoral, but is, instead, about even *having* to serve as a temporary agent of the government, then that's a completely different argument than the one she actually presented."
I think those two are not actually separable.
If you volunteer to perform a task for the government, whether on a one-time basis or as a career, you can generally find out what laws you will be required to operate under, and decide if you agree with them; if you don't, you don't have to take the job. Or if you find out after the fact that you are expected to carry out bad laws, or if the laws change, then you can resign. The decision to be an agent of the government reflects your judgment that the laws you are expected to carry out are acceptable.
But for compulsory service, those two questions are separated. You don't get to decide whether the laws are acceptable before taking the job. So compulsory service, as such, poses the question of how you are going to deal with being assigned to carry out laws you consider improper. And an objection to being required to carry out improper laws implies an objection to compulsory service as such. |
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| Saturday, August 16, 2008 at 0:33:21 mst
Comment ID: #30
Name: John
E-mail: ukoa(at)hotmail.com
The problem is, many US laws passed over the last century have been highly unconstitutional both in the substance and the spirit of the law - so how can you uphold unconstitutional laws and maintain a clear conscience?
Tom Paine once observed that a nation's constitution, ultimately, is its people - it is the people who must uphold the written constitution, exercise vigilance, identify tyranny, make their judgements and put their lives and estates under jeopardy in defence of their rights; without the people the written constitution would be little more than a useless scrap of paper.
Sending an innocent man to jail would be tantamount to jailing the very thing that gives the constitution its meaning and purpose, you may as well bury the Bill of Rights.
So there are 2 questions that I would have to answer before I could find a guilty verdict - firstly, has the accused violated a legal or fundamental liberty?
Secondly, is the likely punishment proportionate to the alleged crime?
If the answer to either question is 'no' then a guilty verdict would be unconstitutional, a fact which has been repeatly reaffirmed in English and US law ever since John Lilburne wrote 'The Legall Fundamentall [sic] Liberties of the People of England Revived, Asserted, and Vindicated' in 1649. |
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| Saturday, August 16, 2008 at 0:40:03 mst
Comment ID: #31
Name: Grant Williams
E-mail: Grant.D.Williams at Gmail
Unlike a police officer, who chooses to enforce incorrect laws for the sake of the ability to enforce correct ones, a juror faced with the enforcement or non-enforcement of an incorrect law, in virtually all circumstances, has no positive gain to consider. In only the most unusual of circumstances could a positive gain be at stake. For example, if the case one is assigned to has a high chance of being land mark. Or, if the defendant happens to be a loved one (in which case, you'd likely never make it onto his jury anyways). Or, perhaps, you suffer from a terminal illness and expect to be dead soon after you nullify the jury. Silly situations indeed.
If the average juror - asked to decide a routine drug case - was put in a position to go on to uphold correct laws as a result of his upholding an incorrect law, he would have to consider the personal value of such a decision. Is the maintenance of law and order the most fulfilling line of work for him? Is the pay commensurate with what he needs to maintain a comfortable, happy personal life?
But these considerations are not relevant to a temporary agent of the government; and so they are not worth considering. The only positive gain even remotely relevant to him would be a reaffirmation of the principle of law and order. However, upon deeper consideration, one quickly realizes that such a reaffirmation cannot be achieved through the sanction (ie: mere participation, let alone the intentional withholding of personal opinions which would be grounds for dismissal) of a law which contradicts the principle of law and order. Drug prohibition laws act directly against the embodiment of law and order in this country: The Federal Constitution. The laws contradict one another. There is simply no way to maintain law and order by condoning at the judicial level laws which exist because of a lack of it at the legislative level.
Furthermore, even if one did consider all of the above issues, and still decided that biting one's tounge was worth it to at least have the possibility to change the law (or the minds of 11 fellow citizens); or if one decided that - regardless of his opposition to jury duty as such - the maintenance of law and order through his participation was worth the inconvenience, there's a chance that an acquittal would occur merely as a result of evidence. |
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| Saturday, August 16, 2008 at 1:34:05 mst
Comment ID: #32
Name: BrianS
E-mail: blspro (at) gmail
William said: "If you volunteer to perform a task for the government, whether on a one-time basis or as a career, you can generally find out what laws you will be required to operate under, and decide if you agree with them; if you don't, you don't have to take the job." I disagree that this would necessarily be the case under a non-mandatory jury system - ie that one would be able to know ahead of time exactly what laws one would be serving. As such, it does not serve as an objection to the current system.
"Or if you find out after the fact that you are expected to carry out bad laws, or if the laws change, then you can resign." As many posters have pointed out here, there are multiple ways to get oneself recused from cases if one has a serious moral qualm with the law it. The fact that one is selected for jury duty does not mean one has no choices in that service (just as the fact that one enters law enforcement does not mean one has no choice but to join the DEA).
I agree with Nicholas' post entirely. We should not sanction the violation of an individual's rights. But MY point is that NEITHER should we sanction government agents acting outside the law (ie neither should we sanction abandoning the rule of law itself - which is, by far, the worse of the two positions).
Put simply, BOTH forms of sanctions are wrong. And it is a false alternative to suggest one must choose between them in the United States today. |
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| Saturday, August 16, 2008 at 4:39:07 mst
Comment ID: #33
Name: h-man
E-mail: h_blend(at)hotmail.com
Assume a society based on objectivism with only just laws, but a potential juror who thru subterfuge wants to "nullify" that objectivist consensus. If Diana feels that potential juror should be allowed to undermine those just laws, then fine. She should lie and proceed to nullify all she wants. Otherwise she should tell the truth about her unwillingness to commit herself to enforcing some laws.
(my view is that we shouldn't have juries, but instead allow judges to decide questions of law and facts) |
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| Saturday, August 16, 2008 at 11:20:55 mst
Comment ID: #34
Name: Lemuel
E-mail: synthesist(at)ymail.com
Tony Donadio: "The fundamental problem with mandatory jury service is that it's an attempt to coerce a mind."
Shouldn't jury service be just as voluntary as police service? If the city in which I live passes a law I find to be unjust, and someone challenges that law in court, I *want* to be on that jury! Nullifying an unjust law seems a powerful way to get legislators rethinking the law, and could be more effective than any written or verbal persuasion to overturn the law.
Granted, the system in which jurors are selected and serve is a mess. I don't want my fate decided by sleepy folk content with $50 a day and a bologna sandwich; I want intelligent, thinking, ALERT people on my jury, people who think what they're doing is important and vital. That system can and must be changed, as can and must the laws they convict on or acquit against. |
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| Saturday, August 16, 2008 at 14:43:21 mst
Comment ID: #35
Name: Charles Henrikson
E-mail: cah()inorbit.com
Diana,
My thoughts on this are that one should behave honestly, unless one thinks that they are acting against one's enemy. If you find that the Judicial System (a.k.a. the U.S.A.'s government) is your enemy, then you could behave in an underhanded an decietful manner.
If this is the case and you are acting against your enemy, then lying to get on the jury and nullify it is an acceptable course of action given the circumstances.
However, if the United States of America is not your enemy, then you should be honest and fully truthful when answering the lawyer's and court's questions. If in doing so you are still seated in the Jury, then you should act in accordance with your accepted philosophy in the confines of the law. |
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| Saturday, August 16, 2008 at 15:17:29 mst
Comment ID: #36
Name: Burgess Laughlin
E-mail: burgesslaughlin(at)macforcego.com
URL: http://www.aristotleadventure.blogspot.com
> "Nullifying an unjust law seems a powerful way to get legislators rethinking the law, and ..."
Perhaps someone familiar with US legal history can answer a question: Has there ever been an instance in which legislators revised or abolished a particular law, in its essentials, because of jury "nullification" or other jury reactions? If so, what was the issue involved--e.g., conscription, alcohol prohibition, an especially onerous tax, etc.? |
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| Saturday, August 16, 2008 at 16:13:29 mst
Comment ID: #37
Name: Patrick Reynolds
E-mail: preynol(at)twmi.rr.com
According to Wikipedia jury nullification is "the process whereby a jury in a criminal case effectively nullifies a law by acquitting a defendant regardless of the weight of evidence against him or her". A single juror's decision, by itself, is not going to result in a jury nullification. You need to get the other 11 juror's to go along with you.
If you decide that you should hold out and vote not guilty for any drug offense (without all remaining jurors going along with you) the best you can hope for is a hung jury in which case the defendant will be tried again by a new jury. |
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| Saturday, August 16, 2008 at 16:24:07 mst
Comment ID: #38
Name: William H. Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/
Brian, in commenting to me, you write, "Put simply, BOTH forms of sanctions are wrong. And it is a false alternative to suggest one must choose between them in the United States today."
Please note that in my initial comment, I described my course of action�"which was neither to vote to find someone guilty of a "crime" that I think should not be a crime, nor to conceal my objections to the law and vote to acquit, but to reveal my objections to the law and explain that they were an obstacle to my carrying out my duty as the court defined it. As a result, I was excused from serving. I think this course of action is not equivalent to either of those you object to; in any case, I'm not sure what other third choice exists.
While I object to compulsory jury service, had I been reassigned to a jury for a legitimate case, I would have served, just as I pay my taxes even though I object to compulsory taxation. (For example, some years ago, I voted to find a young man guilty of assault with a deadly skateboard�"because assault and battery is a legitimate category of crime.) Up to a point, it's better to obey a bad law than to have no law. |
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| Saturday, August 16, 2008 at 16:41:00 mst
Comment ID: #39
Name: Larry Balint
E-mail: individualist1(at)mac.com
Diana,
I've been called to jury service in California at least twenty times over the years, and served on 8 criminal trials. Each time I received my notice to appear, I had the same apprehensions you’re experiencing, yet I was was never once empaneled on a drug case. I was, however, in the courtroom when a potential juror on a drug case expressed opposition to drug laws, and remember the event vividly. The judge became irate and used the occasion to berate and humiliate that person, including threatening him with immediate incarceration if he made any attempt to respond in defense of his position.
After that, I decided that if I was ever called on a drug case, I would request a private conversation with the judge and the attorneys to express my reservations. The result would be the same - dismissal from the case - but I would deny any judge the opportunity to use my dissent to publicly express his support for the “War on Drugs” at my expense.
Later, as a result of some really nasty experiences in the jury deliberation room, I discovered an even better way to be excluded from a case I didn’t like. I let it be known in voir dire that “yes” - I could render an impartial verdict based on the evidence; but that my decision would be so carefully reasoned as to be final and not subject to any further negotiation. I was, in effect, threatening to be a holdout who might prevent a resolution to the case. While I was once labeled by a defense attorney in court as “a non-believer in the jury system” (not true, but I didn’t argue the point), I have always been excused in such instances.
The reality is that, if you find yourself on a case, you will have the opportunity to bring some sanity (an Objectivist approach) into the jury room - something sorely needed in our justice system. But if you are faced with a drug case, I would urge you not to become confrontational over the issue in the courtroom. In their domain, judges have power to make you pay dearly for such “disruptions.” |
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| Saturday, August 16, 2008 at 18:05:12 mst
Comment ID: #40
Name: BrianS
E-mail: blspro (at) gmail
William said "I described my course of action "which was neither to vote to find someone guilty of a "crime" that I think should not be a crime, nor to conceal my objections to the law and vote to acquit, but to reveal my objections to the law and explain that they were an obstacle to my carrying out my duty as the court defined it. As a result, I was excused from serving. I think this course of action is not equivalent to either of those you object to; in any case, I'm not sure what other third choice exists."
I must point out in the above that there are three, not two, alternatives presented:
A - find someone guilty of an act which one objects to being considered a crime [sanction a violation of rights]
B - conceal one's objection to a law and simply refuse to uphold it [sanction abandonment of the rule of law]
C - reveal one's objections to the law and be excused from serving on the case [sanction neither wrong act - ie neither A or B]
Put simply, C *is* the third choice. It is the additional choice to the false alternative of A or B which had been presented here by some. |
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| Saturday, August 16, 2008 at 18:47:07 mst
Comment ID: #41
Name: Katelynn
You should definitely be more than happy to use jury nullification. Jury nullification is appropriate even in a totally free society. While drug laws are silly and should not exist, even in a free society there will be laws that when violated should not necessarily result in punishment for every person. A good example of this kind of law is laws that prohibit a previous offender from engaging in a specific kind of act. Laws exist prohibiting those convicted of violent crimes from possessing a gun, for example. It is not terribly difficult to imagine a scenario where we would not want such a person to be punished for possessing a gun yet we still would want the law that prohibits them from possessing the gun to exist. The way to get around this problem is jury nullification.
The reason jury nullification should exist is the same reason juries should exist. Peers from one's community evaluate the crime and apply the law to the facts of the case. The jurors can consider the unique facts of each case and decide whether applying the law is appropriate in each case. If an impressionable young teenager is convicted of armed robbery because his bully friends convince him to drive the getaway car and later in life, his friends asks for his help because an ex-boyfriend is stalking her, most people would commend him for buying a gun and protecting her. This scenario is not likely to come up often, however, in the event it does occur, jurors could exercise jury nullification and this man would not have to be punished.
Another interesting fact about jury nullification is that most jurors have no clue the power exists. I can't recall a case where a judge allowed the defense attorney to tell the jury about the power and if defense attorneys every tried to educate the jury about it, they would very likely be subject to strict sanctions by the court. An interesting question is to ask yourself how your feelings about jury nullification would change if defense attorneys could tell the jury about it. This would almost definitely increase the frequency of jury nullification since juries tend to nullify not knowing if what they are doing is acceptable. If they knew it was ok, jurors may do it all the time. One legal scholar says that all black jurors should feel obligated to exercise jury nullification every time the defendant is black because black people are mis-treated by the judicial system. When arguing in favor of jury nullification, I do so cautiously, acknowledging that there are problems to work out.
Have fun at jury duty! |
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| Saturday, August 16, 2008 at 18:54:50 mst
Comment ID: #42
Name: William H. Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/
Brian,
Note the added complication that in our current corrupt legal/political culture, stating one's objections to the law is not necessarily safe. As I understand it, you have a legal duty to serve as a juror, and in some jurisdictions, that service includes making a decision based on what the law states, and not on your personal convictions. Refusing to set your personal convictions aside could be treated as a refusal to do your legal duty, and perhaps thus as a punishable act. I didn't want to take the risk; I wasn't seeking martyrdom. But explaining that I would find it difficult to carry out my legal duty because it conflicted with my personal convictions seemed less likely to give offense; and in my case, it worked. (After all, people get out of capital cases regularly on comparable grounds.)
For similar reasons, should I ever be called in for an income tax audit, I will make a point of not saying that the income tax should be abolished, or that I object to paying it at all, or that I have any intention of evading my legal tax liabilities.
I think that we are actually in agreement on the fundamental principle here. But I was less sure that this was so before your latest reply to me; that's why I stated the third course in such detail, so that you could confirm or deny that you recognized it as valid. |
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| Saturday, August 16, 2008 at 19:35:20 mst
Comment ID: #43
Name: Wells
Several things.
It's my understanding that Jurors have Absolute Power with regards to how they are able to vote on verdicts during trials. It doesn't mean that a person should vote based on pure whim, but that they can.
I would advise that you simply tell the truth if asked about your legal beliefs, and if selected vote not guilty, since you believe that drug laws are unconstitutional.
Also
The real difference between a police officer and a juror is that a police officer is a member of the executive branch and a juror is a member of the judicial branch. What this means is that a police officer has no power to try anyone or convict anyone of any crime. Whereas a juror has the power to convict or acquit people; but has no power to arrest people for, or accuse people of, anything. Also the police officer has the responsibility to apply the laws equally regardless of what they might think of them because he is being asked to enforce laws. A juror is being asked to judge whether a person is guilty. Which means in part whether being 'guilty' of violating a certain law is the same as being guilty of similar noncontroversial laws. |
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| Saturday, August 16, 2008 at 20:42:58 mst
Comment ID: #44
Name: BrianS
E-mail: blspro (at) gmail
William said "that's why I stated the third course in such detail, so that you could confirm or deny that you recognized it as valid." Well, I'm glad I could clear that up then. :)
"Note the added complication that in our current corrupt legal/political culture, stating one's objections to the law is not necessarily safe." I must disagree with this statement. In fact that is why I indicated that A and B are a false alternative "in the United States today". The US is *not* a dictatorship. Even when it comes to other, more severe forms of mandatory service, such as the military draft, the US government includes the category of 'conscientious objector'. While not excused from service, an individual who objects for reasons of ethics can opt for non-combat service. The posters here are evidence that a similar practice can be found in the jury system. |
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| Saturday, August 16, 2008 at 21:27:06 mst
Comment ID: #45
Name: William H. Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/
Brian wrote, "Even when it comes to other, more severe forms of mandatory service, such as the military draft, the US government includes the category of 'conscientious objector'. While not excused from service, an individual who objects for reasons of ethics can opt for non-combat service."
That's true; but on the other hand, the US government, when the draft was in force, reserved to itself the right to decide who counted as a conscientious objector (that is, who had valid objections). If your draft board didn't accept your objections, but you still refused to serve, you could face prison. Fortunately, that particular form of involuntary servitude is in abeyance now. |
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| Saturday, August 16, 2008 at 23:20:14 mst
Comment ID: #46
Name: Richard Watts
E-mail: rw1963(at)earthlink.net
Rachel,
Why is it not right to fail to pay taxes? How is not paying taxes like becoming a vigilante? If I act as a vigilante, I use force against someone. He might be someone who initiated force against me, or he might not. My action might in some way be self-defense, but I might be initiating force myself. As I see it, if I didn't pay taxes I would not be initiating force against anyone -- I would simply be not complying with someone who initiates force against me: someone who demands that I hand over my money, threatens me with damage, and backs up their demand with a gun. If someone on the street pulls a gun on me and demands money, and if I won't give it to him, I haven't initiated force against him. Is it morally different in some way if I choose not to pay taxes? Who have I wronged if I don't pay? I have a moral right to my money. If someone passes a law that I have to hand it over, does that make it right for government to take it? Does that law make it, morally, no longer my money, make it morally wrong for me to keep it? (It's not in my best interest to stop paying taxes, because of the harm the government would do me -- but I assume that, in saying it's not right to fail to pay taxes, you're referring to a moral principle).
If I comply with an unjust law, am I not helping to perpetrate an injustice on someone? I fail to see how doing an injustice to anyone (including oneself) becomes right if some law is passed commanding it. How can one have a moral obligation to do wrong? Is the law the creator of morality, and therefore above morality, or does the law have to answer to morality? If being moral is doing what is in one's self interest, then there can't be a moral obligation to break an unjust law, if one would harm oneself by doing so. However, if the proper purpose of government is the protection of individual rights, a law whose purpose is to violate individual rights cannot be justified.
How is breaking a law without openly declaring one is breaking it an act of rebellion? I would have thought that openly defying a law would be closer to an act of rebellion, but that someone who is silently not cooperating with coercion might only be going about his own life. |
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| Saturday, August 16, 2008 at 23:49:58 mst
Comment ID: #47
Name: William H. Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/
Richard: Saying that the law as a whole has to answer to morality is not the same as saying that each individual law has to answer to morality. That would only be the case if morality could prescribe specific actions to each of us that we were duty-bound to carry out, so that in any given context there was only one right action. That's an excessively concrete-bound understanding of morality, and one that fits better with a Kantian deontological ethical system than with an Aristotelian virtue ethics.
Ethics can tell us that we need rights to lead a human life. But law, the institution of law, is what makes those rights real. If there is no legal system, then we have no rights; we have only what we can defend by force. And that's an inferior position. A legal system does not have to be a Platonic ideal to be better than lawlessness, any more than a steam engine had to be a Galt motor to be better than relying on human muscles for all physical labor. Cooperating with an imperfect legal system is still a virtue.
Up to a point, of course. A really bad legal system can do much greater harm than simple lawlessness. If you think that the legal system we live under is worse than lawlessness, it's reasonable to resist it. But there's a lot of ground in between "an ideal legal code for a perfectly free society" and "a legal code that is worse than having no law at all." And if we're in that middle ground, the virtuous course is to comply with the flawed laws we have, while trying to improve them. |
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| Saturday, August 16, 2008 at 23:50:45 mst
Comment ID: #48
Name: BrianS
E-mail: blspro (at) gmail
William:
I can't tell - is your post presented as a fundamental objection to my point in post #44 (ie that the government recognizes moral objections to *particular* service), or is it presented simply as a generally related historical note? |
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| Sunday, August 17, 2008 at 0:44:35 mst
Comment ID: #49
Name: John
Re the drugs issue - I think it is a mistake to assume that the ruling class are simply incompetent. They know their legislation is harmful and counterproductive. They support oppressive legislation not through political naiveté, nor economic ignorance. They support draconian laws because they have a lone-wolf mentality and are intoxicated with power lust, vices which they assume to be common to all mankind.
See ‘Britain's policy of being tough on drugs is "pointless", says a former civil servant who once ran the Cabinet's anti-drugs unit.’
http://news.bbc.co.uk/1/hi/uk/7557708.stm
"The idea that many people are holding back [from taking drugs] solely because of a law which they know is already unenforceable is simply ridiculous," he said.
He also said the "overwhelming majority of professionals" he met, including those from the police, the health service, government and voluntary sectors, held the same view.
"Yet publicly, all those intelligent, knowledgeable people were forced to repeat the nonsensical mantra that the government would be 'tough on drugs', even though they all knew that the government's policy was actually causing harm." |
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| Sunday, August 17, 2008 at 1:30:02 mst
Comment ID: #50
Name: Diana Hsieh
E-mail: diana(at)dianahsieh.com
URL: http://www.dianahsieh.com/blog
Just to clarify: I'm not lying to the judge or anyone else. That was never, never, never on the table. |
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| Sunday, August 17, 2008 at 9:21:18 mst
Comment ID: #51
Name: William H. Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/
Brian: It's a little more than just a general historical note. You seemed to be arguing
(Major premise) The government will exempt you from compulsory services if you have conscientious objections to the actions they require.
(Minor premise) Jury duty is compulsory service.
(Conclusion) The government will exempt you from jury duty. . . .
I was saying that your major premise is not generally true, though it's true in special cases and within limits; and that therefore your reasoning did not establish your conclusion. That's not to say that your conclusion is necessarily untrue, but that your proposed ground for holding it does not appear strong enough.
I did a bit of Web searching to see what I could find out about the legal treatment of jury nullification. I found that in most American states, accepted legal doctrine is that jurors do not have the right to refuse to convict because they disagree with a law, and if this seems likely to be an issue, the judge may explicitly instruct them that they must rule according to the law as it is. However, it's an old point of law that jurors may not be punished or called to account for their verdicts; in fact this goes back to well before American independence. So a juror who in fact chooses not to convict can get away with it. And the standard penalty a judge can impose if you say that you believe you have the right to nullify the law is to excuse you from jury duty, which is a penalty we can live with. But there are two caveats:
1. If you have given oath or affirmation to serve as a juror in one of the states that don't allow nullification, and you then refuse to convict because you disagree with the law, you're breaking your word, which may be ethically problematic.
2. Judges mostly dislike jury nullification, and judges have considerable arbitrary power within their own courtrooms; explicitly affirming that you intend to nullify because you believe the law is wrong may be risky. I haven't been able to find any sources that discuss how in actual fact judges behave when dealing with this issue. I believe it's prudent to be cautious.
It appears, though, that my statement to the judge I had to deal with (that I did not count on my ability to be impartial in reaching a verdict under a law I didn't believe in) was a reinvention of an old historical precedent; one of the usual forms that jury nullification took in the past, in such cases as runaway slave verdicts, was jurors stating that they felt there was "reasonable doubt" in certain cases. |
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| Sunday, August 17, 2008 at 12:26:06 mst
Comment ID: #52
Name: BrianS
E-mail: blspro (at) gmail
William said: "You seemed to be arguing
(Major premise) The government will exempt you from compulsory services if you have conscientious objections to the actions they require.
(Minor premise) Jury duty is compulsory service.
(Conclusion) The government will exempt you from jury duty."
No. That was *not* my argument. If you review my statements, you will find I said they will exempt you from *particular* service, not from having to serve at all. That is a BIG difference.
"Judges mostly dislike jury nullification, and judges have considerable arbitrary power within their own courtrooms; explicitly affirming that you intend to nullify because you believe the law is wrong may be risky. ... I believe it's prudent to be cautious." Except I am NOT suggesting I say to a judge I am going to engage in jury nullification. I would never suggest informing a judge that I refuse to abide by the rule of law. That is one of the false alternatives I have *explicitly* REJECTED.
As such, I am at a loss to understand why you claim I would tell a judge I accept it *despite* my emphatic rejection of it.
To repeat my position: I reject sanctioning a violation of rights [convicting under a bad law] -AND- I reject sanctioning the abandonment of the rule of law ['jury nullification']. I reject BOTH actions.
This means I would politely and rationally present to the judge (or whomever it is appropriate) the fact that I have a moral problem with the particular law in question. I would further explain that this problem causes a conflict with my moral acceptance of the rule of law. And that, therefore, I am faced with an unresolvable contradiction which leaves me unable to render a verdict in the case one way or the other.
In other words, I reject the false alternative of having to choose guilt (sanction bad law) OR innocence (sanction abandoning law). The third alternative is not being able to render a verdict at all (sanction neither).
Again, BIG difference. |
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| Sunday, August 17, 2008 at 12:56:13 mst
Comment ID: #53
Name: Larry Balint
E-mail: individualist1(at)mac.com
Here are some additional thoughts that occurred to me on the subject:
Jury nullification, especially in drug cases, is a BIG issue for libertarians because its fits so well with their anarchistic motives. For that reason alone, Objectivists need to exercise some caution here. Unlike libertarians, we accept the power of the state to administer a system of justice that protects individual rights.
The jury is a defendant’s only hope for an impartial decision based on the facts of the case. He may be innocent and need someone on that jury to objectively and carefully examine the evidence to find any flaws that might exonerate him. If the only one on the jury panel capable of doing that chooses be excused because of opposition to the drug laws, justice is not served. Aren’t you called to jury service to protect the rights of an individual from the power of the state? Isn’t that the first order of business?
If you think that defense attorneys adequately represent their clients, think again. I've been witness to too may incompetent or disinterested (usually pro bono) public defenders.
Or, consider a drug case in which the defendant is not a user, but a major drug dealer. Is that dealer just another entrepreneur being victimized by the state? Does he have a right to a livelihood in drug-trafficking? Would anyone other than a libertarian find justice served by exonerating him and putting him back on the street simply on the grounds of opposition to the drug laws?
Objectivists oppose taxation, but do not deliberately obstruct its implementation. What would be the proper course of conduct for a juror if the case involved tax evasion, or anti-trust laws? Would the moral course be to ask to be excused in those cases because you intended to judge the law as well as the defendant? If not, why not? Why the focus on drug laws and not tax laws?
I’ve served on 8 criminal juries, and in every case there was at least one juror, usually more, who openly included some personal prejudice in their decision. Often it was an anti-police attitude, or the defendant’s appearance or manner (“he looks guilty,” “he has a bad aura,” “he’s a gang-banger. If he didn’t do this, he did something else and got away with it.” etc.). Then, take the most obvious and famous instance - the OJ Simpson jury that “sent a message” by exonerating a murderer because he was black. Whether jurors oppose and therefore ignore the law in the case, introduce extraneous “gut-feelings,” or send messages, the result is the same - a decision that includes something more than the facts of the case. Is that supposed to be the way justice is achieved? It’s certainly tolerated...except for open opposition to the law (i.e., nullification). |
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| Sunday, August 17, 2008 at 21:16:09 mst
Comment ID: #54
Name: Mike Hardy
E-mail: hardy(at)math.umn.edu
Well, Howard Roark was acquitted.
Related question: Can there be a perfectly legitimate law that you are justified in violating? Suppose no one but yourself will know. That's pretty similar to juries disregarding the law and acquitting. In some ways. |
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| Sunday, August 17, 2008 at 22:06:35 mst
Comment ID: #55
Name: William H. Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/
Brian,
You say,
""Judges mostly dislike jury nullification, and judges have considerable arbitrary power within their own courtrooms; explicitly affirming that you intend to nullify because you believe the law is wrong may be risky. ... I believe it's prudent to be cautious." Except I am NOT suggesting I say to a judge I am going to engage in jury nullification. I would never suggest informing a judge that I refuse to abide by the rule of law. That is one of the false alternatives I have *explicitly* REJECTED.
As such, I am at a loss to understand why you claim I would tell a judge I accept it *despite* my emphatic rejection of it."
It appears we have been talking past each other in some measure. What I thought were the two choices you were rejecting were (a) lying about your problems with the law in order to get onto the jury and refuse to convict, and (b) getting onto the jury and voting to convict in accordance with the law. It was not clear to me that you also rejected telling the judge you would refuse to vote for a conviction because you didn't agree with the law. And your talk of rejecting two bad choices led me to think that I had already identified the two that you DID reject.
I think we agree that the ethical course is to tell the judge that you recognize that you are required, as a juror, to rule according to the law even if you disagree with it, but that your ethical objections to the law are strong enough so that you cannot be sure of being impartial. Is that an accurate statement of your view, and do we in fact agree on it? |
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| Sunday, August 17, 2008 at 23:24:30 mst
Comment ID: #56
Name: BrianS
E-mail: blspro (at) gmail
William said: "What I thought were the two choices you were rejecting were (a) lying about your problems with the law in order to get onto the jury and refuse to convict, and (b) getting onto the jury and voting to convict in accordance with the law. It was not clear to me that you also rejected telling the judge you would refuse to vote for a conviction because you didn't agree with the law."
As Diana pointed out, lying was not an issue that she raised or even considered. Nor is lying central to the question she raises. As such, not once did I either address or even consider the issue of 'lying' in any of my posts. I addressed the issue as it has been presented: the choice between sanctioning a violation of individual rights or sanctioning the abandonment of the rule of law.
"...you cannot be sure of being impartial"
The term 'impartial' identifies the nature OF a judgement. However, my whole point is that one would NOT be able to make a judgement *at all* because of the conflict between two valid principles - the rule of law and the protection of individual rights. This conflict means one cannot even *begin* to rationally judge the case, because the *standards* of such judgement are in conflict. And if one cannot begin to judge, then one has nothing to identify AS biased or impartial.
Put simply, making a judgement one way or the other would be accepting the false alternative. The third alternative is NOT judging at all.
If these are your premises as well, then I would indeed say we're in agreement. :) |
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| Sunday, August 17, 2008 at 23:39:58 mst
Comment ID: #57
Name: BrianS
E-mail: blspro (at) gmail
Mike said: "Well, Howard Roark was acquitted." Is the suggestion here that jurors in that fictional trial engaged in 'jury nullification'? If so, I would be interested in learning what law the book indicates they ignored in order to acquit Roark. |
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| Monday, August 18, 2008 at 3:54:28 mst
Comment ID: #58
Name: h-man
E-mail: h_blend(at)hotmail.com
1. "Judges mostly dislike jury nullification" doh
2. Jury nullification is the same as any other act of civil disobedience. You are in effect a partner with the defendent in breaking the law.
3. Willingness to deceive (also called lying) is central to jury nullification, since the judge will intruct you as to what your duties are as a decider of facts, not law. You can only accomplish the nullifying of the law (civil or criminal) by ignoring the ground rules he has laid out.
4. It's fun rationalizing the act of ignoring unjust laws, but the primary laws being undermined are those procedures that guarantee fair trials. I see it as no different than declaring yourself not bound by the law. |
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| Monday, August 18, 2008 at 5:11:54 mst
Comment ID: #59
Name: Travis
Diana,
I don't know with certainty whether or not the law allows jury nullification -- there seems to be a divergence of opinion on this. However, you are likely to be told implicitly or explicitly by the judge that jury nullification is not permitted.
That being said, I think there's a pretty good reason to be opposed to the idea of jury nullification: Objectivists are a tiny minority of the population and would be the first to suffer under such a principle. Jury nullification, if practiced often, would harm Objectivists much more than it would harm other groups. Imagine the following crimes and think about what the principle of jury nullification would mean in each case: theft against businessmen, violence against oil company executives, drug company executives, and scientific animal researchers. For each person an Objectivist "saves" from the legal system, 100 more would get unjustly punished (or not punished) as a result of wide-spread jury nullification. Jury nullification is, in short, a principle that allows individual members of society to apply their own ad hoc opinions to the law. I don't see how one can say that they should be permitted by law to engage in jury nullification but that those they disagree with should not be allowed.
If jury nullification is commonly practiced, then obviously it should be engaged in, but if it is against the law, is against the stated rules of the judge, and is rarely engaged in, should you practice it? I would say no.
Furthermore, consider that while the drug laws are unjust, they are reasonably objective. An individual arrested for drug possession or sale couldn't help but know that he was acting contrary to the law. There were clear, objective standards for the laws that such an individual violated. However, if your example were something different, like a case involving the Sherman-Antitrust Act, it might be different. Such laws are non-objective and can be interpreted multiple ways. In such a situation, it could be argued, you might be justified in interpreting the law in favor of the businessman (i.e. you could reasonably come to the conclusion that the behavior of Microsoft was not "anti-competitive"). |
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| Monday, August 18, 2008 at 15:40:44 mst
Comment ID: #60
Name: Diana Hsieh
E-mail: diana(at)dianahsieh.com
URL: http://www.dianahsieh.com/blog
Much thanks to everyone who contributed to the discussion.
I just checked the juror web site as per the instructions on my summons. I'm not required to report tomorrow: my juror number is too high. That's unfortunate, as it's as good a time as possible for me to serve on a jury, given that I'm not working regular hours. And I actually would like to serve on a jury -- so long as the charges concern activity that ought to be illegal. Once I get my Ph.D, that's probably pretty unlikely.
Anyway, thanks again. These comments have been interesting reading! |
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| Monday, August 18, 2008 at 20:56:11 mst
Comment ID: #61
Name: Mike Hardy
E-mail: hardy(at)math.umn.edu
> I just checked the juror web
> site as per the instructions
> on my summons. I'm not required
> to report tomorrow: my juror
> number is too high. That's
> unfortunate, as it's as good
> a time as possible for me to
> serve on a jury, given that
> I'm not working regular hours.
> And I actually would like to
> serve on a jury
So show up when you're not required to and ask if they can use you on that day. Like airline tickets. |
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| Tuesday, August 19, 2008 at 7:32:43 mst
Comment ID: #62
Name: Larry Balint
E-mail: individualist1(at)mac.com
Not to worry. My wife has her doctorate, is called regularly, and has served on several juries. |
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| Saturday, July 11, 2009 at 0:21:59 mst
Comment ID: #63
Name: Proud American
E-mail: k.mayes86(at)gmail.com
It was the great minds of our fore fathers, the ingenius founders of the great country we live in, to install a system that would ensure that no one branch or person had inordinate power. Here in the 21st century checks and balances and the power of the people is all but forgotten. I believe that it is the civil responsibility of every citizen to not only obey the law but to also think for ourselves and challenge the law when it becomes too powerful or unethical in its nature. We should all remember that our country was made for the people and by the people. As this is so, when used properly by good people, jury nullification can be a tool for individuals to voice the opinions that are supposed to dictate the actions of law makers. Our true power lies in our ability to decide. We have been graciously granted this power, not by our government but by our will and the courage of those who sacrificed everything for it. Long live freedom and long live our wonderful ability to choose! |
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