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Jan. 30th, 2008 @ 07:01 am closed systems always fail for some class of problems
For those people who are satisfied that the judge can and should provide juries with any information they need: what do you think the answer would be if during a trial I asked the judge about jury nullification?
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From:loser_variable
Date:January 30th, 2008 03:14 pm (UTC)
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AHHHHHHH! I'M NOT DOING ANYTHING WRONG! DUDE, DON'T TASE ME!

BZZZZZZZZZZZZZZZZZZZZZZZZZZZTTTTTTT!
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From:allknight
Date:January 30th, 2008 03:28 pm (UTC)
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Intersting question, I would think this would depend a lot on the judge but if they are being unpartial and unbiased as they are paid to be I would love to hear their definition.
From:howardtreesong
Date:January 30th, 2008 04:23 pm (UTC)
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My guess is that most trial judges would refuse to answer the question and say that it's inappropriate. If I were the trial judge I would say "Jury nullificiation is the idea that you, the jury, should simply ignore the law and decide what you think is right based on your views of what the law should be. That happens from time to time, but I can't and don't condone it here."

I hereby offer you $100 cash money if you actually get seated on a jury, ask the judge this question at some point during trial, and post the outcome.
From:salixquercusii
Date:January 30th, 2008 04:55 pm (UTC)
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Civil Judge: "Google JNOV at the next break, smartass."
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From:extempore
Date:January 30th, 2008 05:48 pm (UTC)
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Fortunately that's not the context where jury nullification is most important. According to wikipedia, a comparable concept of "directed verdict" exists for criminal trials, but can only be used to acquit - a jury must convict. As you might guess, I'm not terribly interested in convicting people for actions I think ought to be crimes; I'm interested in acquitting people for actions that ought not to be.
From:salixquercusii
Date:January 30th, 2008 06:40 pm (UTC)

ok, enough smartassery

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I got seated on a jury in 1996 where the defendant was charged with distribution of cocaine. I'm a zealot about drug legalization, and we got into that a little in voir dire, but the DA simply asked me if I could apply the law of the state without personal bias.

What could I say? It was a question straight from the foundations of western democracy. I actually right there in the box recalled my Plato. Forget the Nazarene, an innocent man was executed 400 years before Christ, and, for me at least, the execution of Socrates is the true foundation of the West.

Crito urges Socrates to escape from the Athenian prison, but he demurs. Socrates notes he was free to leave Athens at any time if he could not abide by her laws, but he didn't:

"Socrates: Then consider the matter in this way: Imagine that I am about to play truant (you may call the proceeding by any name which you like), and the laws and the government come and interrogate me: "Tell us, Socrates," they say; "what are you about? are you going by an act of yours to overturn us- the laws and the whole State, as far as in you lies? Do you imagine that a State can subsist and not be overthrown, in which the decisions of law have no power, but are set aside and overthrown by individuals?" What will be our answer, Crito, to these and the like words?"

If I was emperor I'd legalize drugs before lunch, but as a citizen and a juror I was going to convict this guy if the state proved he was distributing cocaine beyond a reasonable doubt. (It didn't).

I'm hip to hypothets where jury nullification is the order of the day, but, when you throw the law out, sometimes justice goes with it, e.g., Bush's commutation (soon to be pardon) of Lewis Libby is jury nullification at it most sickening.




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From:extempore
Date:January 30th, 2008 07:06 pm (UTC)

Re: ok, enough smartassery

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I'm hip to hypothets where jury nullification is the order of the day, but, when you throw the law out, sometimes justice goes with it, e.g., Bush's commutation (soon to be pardon) of Lewis Libby is jury nullification at it most sickening.

But punishing everyone who has done wrong is much, much less important than NOT punishing people who have done no wrong. Better 1000 men, etc. Or perhaps I would put it: maximizing justice is several orders of magnitude less important than minimizing injustice.

I'd never vote to convict anyone on a drug charge. If there were too many guys like me, maybe the rule of law would evaporate and it'd be anarchy... or maybe it would effectively end the war on drugs. All I know is my conscience is way more important to me than any appeal to what might happen if everyone thought the way I do.
From:salixquercusii
Date:January 30th, 2008 07:22 pm (UTC)

grok your point, but no dice:

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If there were too many guys like you, Ron Paul would have more pulled more than 3% of the vote last night. The country likes its drugs illegal. Stupid country.

I value your intelligence, but I can't cede you an individual definition of justice, because then every hairy nutcase will want one, and, yep, anarchy.

From:salixquercusii
Date:January 30th, 2008 07:36 pm (UTC)

Re: grok your point, but no dice:

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P.S. I wasn't registered here when your new daughter was born so congratulations to you and your family. Our first child is expected in March, and I appreciate the many insights I've gained from reading your journal.
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From:extempore
Date:January 30th, 2008 07:51 pm (UTC)

Re: grok your point, but no dice:

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I value your intelligence, but I can't cede you an individual definition of justice

I bet you draw the line somewhere - in 1944 germany would you have been interested in faithfully executing the law? Me, I think that ruining someone's life for getting high is about as just as incinerating someone for having the wrong ancestors, and since I realize that could be misconstrued, what I mean is: on the justice scale, there isn't anything below zero.

Without "individual definitions of justice" there is little to stand in the way of the worst organized atrocities ever known. We might do well to encourage more such definitions, even if it's quite a bit messier than having everyone march in lockstep.
From:salixquercusii
Date:January 30th, 2008 08:57 pm (UTC)

Re: grok your point, but no dice:

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I'd really, really like to believe I'd draw the line if I was in 1944 germany, but let's examine it: Most 1944 Germans were not actually camp guards after all, but ran the gamut from vocal cheerleaders to spineless go-alongers to a brave few, too few, who actually ran resistance.

So far a minimum of 150,000 Iraqis have been killed since we invaded that country for, no matter what any freak says, claiming a share of the oil. Lots have been killed with bombs and bullets paid for by American taxpayers, which certainly includes me. Are they just as dead as any Jew or Gypsy from 1944? Check. And do I use oil everyday? Yep. Is the whole sordid enterprise conducted in part in my name as an "American"? Yep.

And what civil disobedience have I engaged in? Well, I wrote "Bush sucks" in a blog comment section once. But I am willing to, say, go to jail for refusing to pay taxes a la Thoreau? Man, I'm busy. Maybe later. For that matter, domestically, am I not funding the very war on drugs I hate? Where do they get all that money for prisons and training those damn dogs anyway?
When then say my property taxes funds not only the library but the Sheriff's office, they don't actually mean...Oh my God!

To which 1944 German do I best analogize? Well, I'm not comfortable with the conclusion, but I look to be one of those folks that just gets in line, or lockstep, if you will.


From:howardtreesong
Date:January 30th, 2008 09:10 pm (UTC)

Re: grok your point, but no dice:

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There are real differences in behavior, it seems to me, depending on where you are on the causal chain. Paying taxes to the IRS that go into some great pool, a small fraction of which goes to paying a fraction of the debt used to fund the making of a bomb for which you don't agree with the use is a far cry from watching the SS brand the Juden next door with a yellow star.

I don't think, BTW, that Bush is going to pardon 'ol I. Lewis. And his commutation of the sentence is a hell of a lot less revolting than the Marc Rich pardon IMO.
From:salixquercusii
Date:January 30th, 2008 09:20 pm (UTC)

Re: grok your point, but no dice:

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Yep. In fact I was watching CNN International the other day, and they had this Iraqi on whose house had been accidentally targeted and his whole family killed by an American bomb and he specifically said "I curse the American occupation, ...but, of course I hold blameless the non-voting American populace and that segment of the voting-age populace who opposed, even in spirit, this undertaking."
From:howardtreesong
Date:January 30th, 2008 09:34 pm (UTC)

Re: grok your point, but no dice:

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Well, I saw a competing news CNN clip where someone in Somalia was starving, and blamed me because I didn't send them food.

I don't personally blame you for the tragedy of the Iraqi you describe, and I think for you to blame yourself in the same way you could if you were Ann Frank's neighbor and watched, idle, as the SS carried her away is a serious mistake. I agree that the difference is one of degree and not of kind, but I submit that the difference really does matter.

From:salixquercusii
Date:January 30th, 2008 09:46 pm (UTC)

Re: grok your point, but no dice:

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Oh, I'm not having trouble sleeping at night. I'm responding to our host's query of whether I'd be a good German. I'm simply not confident enough to assert how I would act if they were taking Ann Frank away and trying to save her ass would get me jailed or killed and cause all sorts of grief for my family. Would I karate chop the SS guys or wave goodbye behind closed doors? The truth hurts.
From:howardtreesong
Date:January 30th, 2008 10:03 pm (UTC)

Re: grok your point, but no dice:

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I agree that it is easy to say or conceive and much harder to implement when the prospect of joining Ms. Frank is in fact very real. You will, I suspect, grapple with this in a new and different way after your firstborn arrives; congratulations, BTW. It is a massive change in perspective, and not just in how you view the potential value of roadkill.
From:salixquercusii
Date:January 30th, 2008 10:22 pm (UTC)

Re: grok your point, but no dice:

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Thanks. The whole world already seems more full of creepy carcass coddlers than it used to, and if I had had access to the internet as presently constituted at age 12 or 13, well, I can only shudder to think.
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From:ezrastiles
Date:January 31st, 2008 05:06 am (UTC)

Re: grok your point, but no dice:

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[quote]we invaded that country for, no matter what any freak says, claiming a share of the oil. [/quote]

Sorry to get off topic, but I'm very curious about this. Where did my share of that oil go? Every time i go to the gas station, prices are higher, and frankly, it's pissing me off. Where did we put all the oil we stole? Can someone please go get some for me? My SUV is hungry...
From:salixquercusii
Date:January 31st, 2008 02:52 pm (UTC)

Re: grok your point, but no dice:

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The heist just started. We're not quite past the shoot all the security guards stage, and the panicked customers haven't even quit screaming. The vault's there.
From:howardtreesong
Date:January 30th, 2008 08:45 pm (UTC)

Re: ok, enough smartassery

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I'm right with you on nullification here -- although I'll quarrel slightly with you at the edges on "never," as it suggests that you'd not convict on a drug sale charge where the buyer is a minor. If someone were selling meth hits to an eight-year-old for lunch money, yeah, I'd convict. But that's a limiting-case argument that doesn't undercut your position much.

Is your view here restricted to drugs? What about, say, a copyright infringement civil case? I recall your position that our current notions of IP rights are not sustainable, but don't frankly recall if this is more an issue of conscience for you or merely a description of likely future outcomes.

Rather amusingly, a friend of mine raised the jury nullification argument with me not long ago, in the context of the gentleman who, while driving along a road in Wisconsin, espied a dead deer. Being a rather unconventional sort, he decided to pull over and have his way with the carcass. He was charged with mistreatment of an animal and ended up entering a plea. I have no sympathy for this sicko, but I'd nullify this case right away if I were a juror.
From:salixquercusii
Date:January 30th, 2008 09:04 pm (UTC)

Re: ok, enough smartassery

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What if you drove past this act in flagrante delicto with your kids, and your 8 year old daughter got this freakshow forever seared into her darling mind? Get a room, as they say.
From:howardtreesong
Date:January 30th, 2008 09:17 pm (UTC)

Re: ok, enough smartassery

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Good question, although the chance of a child seeing this is a waaaaay different factual premise than an actual drug sale to a minor. It is all about the children, of course, but I think we've all seen that the worthy purpose exception to liberty has and does lead inexorably to massive increases in government power.

On balance, I think I nullify so long as it's straight sex with a dead deer. If it's anal, well, that's out of bounds.
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From:hgfalling
Date:January 30th, 2008 09:30 pm (UTC)

Re: ok, enough smartassery

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On balance, I think I nullify so long as it's straight sex with a dead deer. If it's anal, well, that's out of bounds.

This is .signature material of the highest class.
From:salixquercusii
Date:February 21st, 2008 04:44 am (UTC)

Saw this on the appeal sheets and laughed:

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The Court in Wisconsin just denied the guy's appeal. They're cool with the argument that the statute barring sex with animals doesn't encompass dead ones, but since he pleaded no contest, just beat it freak, etc.
From:inet_stranger
Date:January 31st, 2008 05:59 pm (UTC)

Re: ok, enough smartassery

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maximizing justice is several orders of magnitude less important than minimizing injustice.

So current doubt isn't reasonable enough? Maybe it isn't but re-offending of the freed guilty coupled with consequential deterrent-failure inevitably leads to a higher victim rate. The chase:

How many lives ruined by rape are worth of one ruined by wrongful conviction?
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From:fich
Date:January 30th, 2008 10:34 pm (UTC)

Re: ok, enough smartassery

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Last year I was called for jury duty. I was dismissed without even going through voir dire, but I imagined a similar situation if I had.

My plan was to answer that I refuse to let the law get in the way of doing what's right and let the chips fall where they may.

I was more worried I'd be selected for a jury, and end up in jail on a contempt charge because I can't drag my professional gambler ass out of bed before noon.
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From:qwrrty
Date:January 30th, 2008 05:22 pm (UTC)
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I don't know what the answer would be. Why don't you stop being coy and say what you think would happen or should happen?

The Wikipedia article on jury nullification is incomprehensible, by the way. I found the *second* google hit much more helpful: http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html. I think this is an excellent example of a situation where a jury may do more harm than good by trying to learn the finer points of law by searching the Internet rather than asking for clarification from the people whose job it is to explain that to them.
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From:extempore
Date:January 30th, 2008 05:43 pm (UTC)
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I'm not trying to be coy. I think the answer should be something like what treesong said he would say, but I don't think that is an answer I would ever receive.

Juries are intentionally designed to act as part of a system of checks and balances, and I guess my point in all this is that like others of our systems of checks and balances, it has fallen way out of whack.

I consider my ethical obligation to consider jury nullification in the face of injustice a far higher imperative than any I have to following the law. To me it is a simple facet of having a conscience. I would never vote to convict anyone of a crime unless I agreed it ought to be a crime and that the probable sentence was just. But the legal system (perhaps of necessity) is not likely to assist in making people aware of this. Thusly it is proven (to me) that it is immoral for a juror to refuse to consider outside information in rendering a verdict.

Of course I'll never end up on any jury if they ask me even slightly probing questions beforehand.
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From:qwrrty
Date:January 30th, 2008 08:01 pm (UTC)
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You seem to think that for a juror to ask the judge to explain nullification would expose some fundamental underlying flaw in the whole judicial process, but you chose not to explain what flaw that is and I didn't see it. That's why I suggested that you should stop being coy.

Your conclusion that it would be "immoral" for a juror to refuse outside information appears to rest on your assumption that a judge would not answer the question directly, and also that the jury has a right to consider nullification. But the whole subject of jury nullification and whether juries have a right to nullify trials, as I understand it, remains an intense topic of debate. So it's far from clear to me that a judge who declined to answer a question about nullification would be obstructing the law. I see a lot of grey area where you apparently have already thrust your stake in the ground. But then you never have been much interested in moral ambiguity. :-)
From:wealthandtaste
Date:January 30th, 2008 10:05 pm (UTC)

must...obey...

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What a brilliant plan qwrrty! Just getting spoon fed your propaganda is so much easier than actually thinking. I would be completely unable to understand the intricate nuances of why adding sodium bicarbonate to cocaine warrants a life sentence whereas normal cocaine is a low grade felony, without the help of my omnibenevolent Statist rulers.

A fundamental rule of jurisprudence is that one cannot act as a judge in one's own trial, thus it is hardly surprising that State power continues to grow so irrepressibly when cases are brought before it that pit the State vs. an individual. All one has to ask is cui bono? It is forbidden to point out that the emperor has no clothes, that murder is murder (death penalty, drug raids), theft is theft (taxation, eminent domain) and that coercion is evil.
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From:qwrrty
Date:January 30th, 2008 10:26 pm (UTC)

Re: must...obey...

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See, this comment has words like "drugs" and "theft" and "taxation" in about the right proportions, and while it consists mostly of English words, they're strung together in a mostly arbitrary fashion. A true libertarianism rant generally rises somewhat above the level of "OMG WAR ON DRUGS IZ BAD".

So as slavish paulp fanboyism I'm afraid I have to give this comment only a 3. Better luck next time!
From:nahmiase
Date:January 30th, 2008 06:03 pm (UTC)

nullification

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I'll throw in my two cents, even though I don't quite agree with your premise. I don't believe the judge "can and should provide juries with any information they need", as this is far too broad.

But if you were to ask a judge about jury nullification in the voir dire process, you'd almost certainly never make it to the jury, either being removed for 'cause' by the judge, or if not then most certainly kicked off the prosecutor.

If you were to ask about jury nullification during the deliberation process, by sending a note to the judge or some other way of communicating it to him, there would be a discussion on the record between you, the judge, and both lawyers. The rest of the jury would not be present. They would delve into your feelings about nullification, why you are posing the question, if you intend to 'nullify', and so on ad nauseum. Depending on your answers, you'd either be removed from the jury and replaced by an alternate juror (the most likely outcome), or sent back to do your civic duty with the admonition of 'mr. phillips, you took an oath as a juror to follow the law, listen to all the facts, and render a fair verdict according to the facts and law involved in this case. jury nullification is in direct conflict with that oath, and you are expected to refrain from such conduct', or something to that effect.

But because it would be impossible to actually compel you to follow your oath and ignore your feelings about nullification (unless your state has mind control capabilities), the minute you posed the question you could pretty much rest assured that you'd be on your way home.
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From:extempore
Date:January 30th, 2008 06:57 pm (UTC)

Re: nullification

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an oath as a juror to follow the law, listen to all the facts, and render a fair verdict according to the facts and law involved in this case

What happens if I say my conscience won't let me take such an oath? If I am to be penalized in any way for that (held in contempt?) then whatever happens is on them. An oath made under duress is meaningless.
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From:qwrrty
Date:January 30th, 2008 07:43 pm (UTC)

Re: nullification

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If you refused to take the oath when empaneled, I would fully expect the judge to excuse you from jury duty and find an alternate.
From:nahmiase
Date:January 30th, 2008 08:05 pm (UTC)

Re: nullification

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In my experience, a juror who states during questioning that they cannot or will not follow the law due to their conscience, their religious beliefs (I can't count the number of times a juror stated 'it is not my job to judge peoples' guilt or innocence. only the lord can do it...'), or whatever else it is that prevents them from taking and fulfilling said oath, that juror is questioned as to those beliefs and if found to be genuine (as opposed to made up in order to get out of serving), they are simply thanked for their honesty (sometimes with a grimace or slight sarcasm from the judge) and excused from jury duty. Have a nice day.

If someone lies, however, during questioning in order to hide those beliefs so as to get on the jury and perhaps nullify, then they could conceivably be held in contempt or even prosecuted for lying under oath (since you swear to tell the truth during jury questioning).

But, jury service is not mandatory in the sense that if you are not suitable, they aren't going to tie you to the chair and tape your eyelids open. No contempt charge there. Just 'see you next year when the summons comes again'.
From:howardtreesong
Date:January 31st, 2008 03:45 am (UTC)

Re: nullification

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That wouldn't warrant contempt. You'd probably get some raised eyebrows, gentle mockery, and an excuse from jury service. If in response to that you lobbed a rotten tomato at the trial judge, THEN you'd get contempt.

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From:novalis
Date:January 30th, 2008 06:45 pm (UTC)
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As it happens, I know of at least one case where the answer was that the juror was kicked out and replaced by an alternate. This was quite unfortunate, as my friend was representing the accused, and would have liked a pro-nullification juror.
From:directcodeword
Date:January 31st, 2008 01:31 am (UTC)

chanes seem slim...

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...i would imagine that most people would lack the balls to confront the judge about the possibility of nullification if they were unsure what it entailed...and if they actually knew what it meant, they wouldn't be stupid enough to show their hand before they got into the deliberation room...just speculation though...
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From:d14n
Date:January 31st, 2008 06:57 pm (UTC)
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And here I decided that your 'stop basing your verdict on what's "true"' post wasn't quite close enough to the topic of jury nullification to share this:

Several years ago, I tried jury nullification... sort of.

I was called for jury duty and reported to the courthouse on time. I figured that I would sit in a waiting room reading a book all day, but much to my surprise, I was called up to a courtroom for voir dire.

The other potential jurors and I sat down in rows. The judge told us about the case that was being presented. Very simply, a man was being prosecuted for soliciting an undercover cop posing as a prostitute. (One part that amused me a little bit was that when I walked into the courtroom, the first thought I had when I saw the woman who turned out to be a cop was this: she looks like a high-class hooker in that outfit.)

The judge then asked us a series of questions. The rules were to raise your hand if you could NOT answer yes to the a particular question. If you raised your hand, the judge noted who you were and which question he had asked. Once all the questions had been asked and all the non-yes answerers had been recorded, all potential jurors were sent out of the courtroom. Then each non-yes answerer was called into the courtroom in turn for further questions.

I answered yes to all the questions except this one: Can you find the defendant either guilty or not guilty based solely upon the evidence that will be presented in court? I think it was worded somewhat differently, but however it was worded, I felt that I had to answer no because I was considering jury nullification of the case. (And I'd heard anecdotally of a case in Texas where someone was prosecuted for jury tampering or obstruction of justice or something because he ran into a situation very much like this one.)

When I was brought back into the courtroom, the judge asked me why I had answered no to his question. I said that I would be able to determine if the defendant had violated the law based on the evidence, but that it would not be my sole basis for deciding if the defendant was guilty or not. He asked what other basis I would use. I said that if I thought the law was unjust, I would find the defendant non-guilty.

The prosecutor simply glared at me. And I'm fairly certain the defendant's female lawyer would've had my child at that point if I'd asked her.

Needless to say, I was peremptorily dismissed by the prosecution.
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From:extempore
Date:February 1st, 2008 01:27 pm (UTC)
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I guess the main thing that I take out of all this discussion is that having a higher loyalty to your conscience than to the law brands you as a troublemaker, which tells me a little more than I want to know about how rare is that prioritization.
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From:d14n
Date:February 2nd, 2008 08:45 am (UTC)
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In retrospect, I wish I'd just kept my hand down and my mouth shut until jury deliberations.

Of course, I'm willing to bet that they'd have dismissed me anyway as soon as they found out I work them computer thingies and, therefore, must be all ana-muh-lytical.

Hell, the fact that I was carrying a real book* and not a copy of People Magazine probably labeled me a subversive.

* A Vonnegut book, if I recall. It goes with my user icon, you see.
From:nahmiase
Date:March 11th, 2008 09:28 am (UTC)

Nullification

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paul, not sure if you're still checking this thread, but this might be worth a read.

http://patterico.com/2008/03/11/a-challenge-to-nullification-proponents/
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From:extempore
Date:March 11th, 2008 02:41 pm (UTC)

Re: Nullification

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You're kidding. That guy is like every fallacy ever known rolled up into one. I had to laugh by the end - trips into 30%er-land are freaking bizarre.

Not to mention his entire argument is a non-sequitur to me because nullification interests me as a way to combat unjust laws, not specific unjust instances. But for future reference, nothing he writes will ever be worth a read.