Fully Informed Clueless Juries
Once again (cf. this), Radley Balko is in way over his head on a legal issue he knows little or nothing about. This time, a higher-profile blogger than I was the one to call him on it, and an interesting discussion has arisen as a result. The debate seems to be mostly between two camps: those who think “the law” is something passed by a legislature and signed into law by an executive, and those who think “the law” is whatever some like-minded political activist tells them it is.
UPDATE: As commenter Magus notes in a comment, results may vary in other states.
July 29th, 2005 at 12:35 pm
“Fully Informed Clueless Juries
Filed under: Miscellaneous Issues Crime by Xrlq @ 12:05 pm
Once again (cf. this), Radley Balko is in way over his head on a legal issue he knows little or nothing about. This time, a higher-profile blogger than I was the one to call him on it, and an interesting discussion has arisen as a result. The debate seems to be mostly between two camps: those who think “the law” is something passed by a legislature and signed into law by an executive, and those who think “the law” is whatever some like-minded political activist tells them it is.”
My bone fides: I’m a republican. A neocon. An ex-military officer weirdo. Balko is right on this one. As an academic issue Nullification is a loser.
I don’t know why Patterico is so invested in it. Balko is telling the truth: There ain’t no such thing as a directed verdict in a criminal case. And the government cannot appeal a not guilty verdict in a criminal case.
Y’all might wish different. But there it is. Y’all know it. Quit bitching, deal with it.
July 29th, 2005 at 12:53 pm
those who think “the law” is whatever some like-minded political activist tells them it is.
That statement is false. I’m the first to admit thatI like the concept of jury nullification but what I’ve argued that whether it is legal or following the law or not is irrelevant because juries can do it.
You just seem to think they shouldn’t be able to do it.
July 29th, 2005 at 1:59 pm
I suppose two camps may have been a bit of an oversimplification. Craig seems to be fixated on the irrelevant concepts of directed verdicts and appeals, which he repeats over and over and over and over again, while Uncle seems to be changing his tune. Originally, his position was this:
Followed by this:
And even this:
But now, apparently, his position has shifted to this:
I’m glad that’s your position now, but it isn’t what you were arguing before, which was that juries may legally refuse to apply the law (which they can’t), not that they can illegally do so with impunity (which they can). The distinction is important because the debate isn’t about ending jury nullifications completely, but about whether or not judges and lawyers should encourage juries to engage in acts that would be universally viewed as misconduct if done by a judge in a bench trial.
I accept as inevitable the fact that they are able to do it, just as Supreme Court Justices are able to rule that the Constitution says all kinds of screwy things it doesn’t really say. I do not think they should be encouraged to engage in such misconduct, however, let alone be told that it isn’t really misconduct at all.
July 29th, 2005 at 2:05 pm
Well, you could get a law passed by a legislature and signed into law by an executive :)
And I did argue they can legally do so because there is no law saying they cannot. And until someone shows me a law saying they can’t do that, I think it’s still a fair statement.
July 29th, 2005 at 2:37 pm
Whaddya mean, ignorance of the law is no excuse? I’ve never heard that one, have you? Anyway, you can’t plead ignorance anymore. Here’s California Penal Code Section 1126:
Happy?
July 29th, 2005 at 2:42 pm
Jury nullification because of thinking a law is bad is not something I am at all comfortable with.
But nullifying a particular case because the specific application of the law is bad may very well be good.
I recall a case which never actually got to court because the prosecutor(s) recognized that no jury would refrain from “nullification.” A man on parole came into possesion of a gun, violating his parole. The law quite clearly calls for rescinding the parole and returning him to prison - and he was notified of this and instructed to surrender himself. Cut-and-dried, no defense because he admitted the facts.
But there were more facts. The store where he was working was held up by an armed robber. The robber forced the three employess into a back room, and proceeded to tie them up. While he was somewhat distracted with this, our defendant managed to take away the gun and hold the robber until the police arrived.
Had this gone to court, would you have said you did not agree with the law that parolees should not have firearms? IF you agreed with the law, would you nonetheless have voted to acquit?
July 29th, 2005 at 3:14 pm
Happy?
Quite. However Penal Code Section 1126 does not say that a jury can’t use jury nullification. It says the questions of law are decided by the court. I take that to mean that if there’s a question about law, ask the judge. The jury can still say we find the defendent not guilty because this is stupid, this is excessive monkeys are flying out our butt, or whatever reason they want.
July 29th, 2005 at 3:18 pm
Oh, please. Now you’re starting to sound like those tax “honesty” nuts who say they don’t have to pay income tax until someone else shows them the law that requires them to, then someone does, and they say “but where does it say my earnings are ‘income,’ nya nya nya nyah nya” ad infinitum.
I doubt there’s a statute specifically prohibiting jurors from judicially nullifying, but then again, there are general laws on contempt and perjury, which are enough.
July 29th, 2005 at 3:20 pm
Uncle,
How do you respond to the Cal. Supreme Court quote I gave in a comment at my blog (I also included it in an update)?
July 29th, 2005 at 3:52 pm
Xrlq, no it’s nothing like that. There is a law (the supreme law, i believe - TLTG) that says you pay taxes on whatever sources derived. There is no law that says jury nullification is illegal. Period.
Pattycakes, seems to me a case of the court making laws up as they go, which is what xrlqy wrlqy accused me of doing and is not unheard of :)
Actually, i don’t find it surprising. Lawyers are motivated to keep their hold on the law. It says they can be discharged but if the verdict is rendered, it’s moot.
July 29th, 2005 at 3:57 pm
one more thing, I do understand your aversion to nullification. Obviously, if it was used too much the courts would be a sham (as though they’re not, eh?). And it should be used sparingly. However, if I were a juror in the case Mr. Anderson described above and the judge said you need to decide based on the law and the guy in fact was violating the law, i’d tell the judge to blow it out his ass.
July 29th, 2005 at 4:15 pm
In a trial for any offense, questions of law are to be decided by the court, and questions of fact by the jury. Although the jury has the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court.
Apparently, as begrudgingly as possible the law concedes that juries have some authority to determine some questions of law.
Xrlq, doesn’t this mean that the jury is bound by the Constitution? Are not all laws?
And if so, what is the constitution? Is what the Supreme Court has said? Or is it something greater than that? If you think it is something greater, this discussion resolves itself.
The constitution is not just what the US Reports say it is, although, that is what you can get lower courts to agree to.
I’ll just leave it at this “At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
perhaps a consequential individual.
July 29th, 2005 at 6:11 pm
Common guys, what juries say the law is, is. Try telling us that OJ’s jury obeyed the law. Exactly what difference does it make since OJ is legally off the hook.
No one knows what an individual thinks, nor his thought processes. Scotland and England recognize this rather than engage in legal fictions and fantasies. The problem is our all or nothing verdicts encourage ridiculous verdicts based on one mindless individual. Try sitting on a juryt and you’ll be amazed at both the great common sense and incredible stupidity present in the population.
July 31st, 2005 at 5:23 pm
This is a topic near and dear to my heart, BTW.
Jury nullification does (and should) exist. It’s why, I think, the Founders required us to be judged by a “jury of (our) peers.” The jury decides, not if the law is just, but if it is just in the specific application of the case at hand. And yes, that power can - and is - abused. The fact that you almost couldn’t get a jury to convict a Klansman during the 60’s is a black mark on our record - but that’s a failure of the people, not the law.
This is one of those topics where people seem to lose sight of the fact that our nation is made up of individuals, and the rights of the individual are what our Constitution is there to protect. We’ve all heard the “boxes” cliche, the nation stands on four boxes: The soap box, ballot box, jury box, and cartridge box; but there’s a major portion of truth in it.
Government overreach is restricted - in order - by those four things. We’ve done a pretty good job of convincing John and Jane Q. Public that their job in a jury is to decide whether or not someone did what they’re accused of, but in reality they are there also to judge whether the government is overreaching its boundaries. John Anderson’s example is a good one, but take a look at what NYDA Elliot Spitzer’s been up to lately and tell me that what he’s doing isn’t outright extortion using the threat of prosecution. But it’s “legal”. What is there that can restrain him but the soap box, the ballot box, and the jury box - where the beliefs on one individual can thwart the actions of one official?
Jury nullification rests on an admittedly soft foundation, the belief that the public is moral enough to do what is right. I submit that our Founders believed that if we demanded it of ourselves, we would by and large live up to the ideal. I will further admit that our culture has been severely debased over time, but training wheels and safety harnesses won’t correct that problem. The elimination of jury nullification is just that - the elimination of one more of the protections against the tyranny of the majority. “You can’t do that, you’re not responsible enough!”
Fuck that. I know what my rights and duties are. If I am called to jury duty and asked if I will abrogate my duty to judge not only the facts of the case, but also the law as it is applied in the case before me, I will say no.
And I will therefore probably be rejected outright as a candidate.
August 1st, 2005 at 5:39 am
I’m late to the party here… and as others have said “I’m not a lawyer”.
I looked at state Constitutions other than Kommiefornia and found (I think) some intresting phrasing re juries.
It seems that at least half the States reconize nullification (judging the law) in some circumstances.
Maryland’s Constitution [See Art. 23 - X.]: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact…”
Indiana’s Constitution [Article 1, Section 19]: “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.”
Oregon’s Constitution[Art. 1, Sec. 16]: “…In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law…”
Georgia’s Constitution[Art. 1, Sec. 1, Par. XI]: “…the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be judges of the law and the facts.”
South Carolina [Art. 1, Sec. 16]: “…and the jury shall be the judges of the law and facts.”
Alabama [Article 1, Section 14]: “…and that in all indictments for libel, the jury shall have the right to determine the law and the facts under the direction of the court.”
Colorado: “…and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.”
Connecticut: “In all prosecutions or indictments for libels, the truth may be given in evidence, and the jury shall have the right to determine the law and the facts, under the direction of the court.”
Delaware: “…and in all indictments for libels the jury may determine the facts and the law, as in other cases.”
Kentucky: “…and in all indictments for libel the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.”
Maine: “Freedom of speech and publication; libel; truth given in evidence; jury determines law and fact.”
Mississippi: “…and in all prosecutions for libel the truth may be given in evidence, and the jury shall determine the law and the facts under the direction of the court…”
Missouri: “…and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.”
And so on, with similar language, through Montana, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Wisconsin, Wyoming.
August 1st, 2005 at 5:53 am
Follow up:
Even though most of the referenced constitutions are talking about libel cases, many say “…as in other cases.”
Kentucky for example: “…in all indictments for libel the jury shall have the right to determine the law and the facts…as in other cases.”
Or to rearrange it a bit: “…in all indictments for libel, as in other cases, the jury shall have the right to determine the law and the facts.”
Also, my understanding of the phrase “under the direction of the court”, where it appears, means the judge is to explain what the law says, not that the jury must do only what the judge says. The judge cannot direct a verdict.
August 2nd, 2005 at 12:39 pm
Jury Nullificaion
Radley Balko wrote a column on jury nullification — the idea that a jury has the authority to refuse to convict a person under an unjust law or in an unconscionable situation — and drew plenty of criticism, with Patterico…
August 2nd, 2005 at 1:52 pm
>>”Once again (cf. this), Radley Balko is in way over his head on a legal issue he knows little or nothing about.”
vs.
>>”UPDATE: As commenter Magus notes in a comment, results may vary in other states.”
You’ll have to pardon my smirk.
I conceded I had the law partially wrong on the Schiavo case.
Perhaps you’ll concede you got the law wrong on nullification? Or at least retract the “he knows little or nothing about” crack?
I won’t hold my breath.
Yours,
Radley “Krugman of the Right” Balko
August 2nd, 2005 at 2:49 pm
Smirk away, Paul … err, I mean, Radley … but the overbreadth of my statement does nothing to vindicate your position. Neither of the two individuals whose sob stories you paraded in your article, Ed Rosenthal and Richard Paey, hails from any of the states whose constitutions authorize jury nullification. Rosenthal was tried in federal court, which does not recognize jury nullification, in the State of California, which also does not recognize jury nullification (not that the latter detail matters, of course; federal law is federal law). Paey was tried in Florida, which also does not recognize jury nullification and, in fact, expressly provides that jurors may be 2004->Ch0913->Section%2003#0913.03″>excused for cause if they hold “conscientious beliefs that would preclude [them] from finding the defendant guilty.” So while I concede my statement was worded more broadly than it should have been, I do not concede that makes your article any less wrongheaded.
As to the Schiavo case, it was very white of you to concede you had had the law “partially” wrong, but in fact, you had it completely wrong, on too many levels to count (not that this prevented me from trying, of course). Your “correction,” which only addressed one of your many legal boners, was almost as far off base as the error it purported to correct. Contrary to your fanciful “understanding,” there is nothing in the Constitution to distinguish private laws granting jurisdiction in individual court cases from private laws granting other forms of relief, let alone a distinction between private laws that do vs. don’t end up in the U.S. Code, which the Constitution doesn’t even mention.
Playing a lawyer on TV isn’t quite as easy as it looks, is it?
August 2nd, 2005 at 5:48 pm
I’d like to see some more guidance on what holding “conscientious beliefs that would preclude [them] from finding the defendant guilty” means. If it means “I couldn’t convict anyone of anything” then I think it is reasonable. I will be very disappointed to find that it means, “if you aren’t willing to convict regardless of the conscientiousness of that act, then you are precluded.”
August 2nd, 2005 at 5:54 pm
All the more reason for jury nullification and keeping the lawyers out of control. A legal system that can only be navigated by lawyers is tyranny.
Through all of this, you have had a pretty contemptous tone about juries in particular and laypersons in general. I think it behooves you to examine yourself and see if this is indeed the case. If it is, that isn’t a healthy quality for an officer of the court to hold.
August 2nd, 2005 at 6:36 pm
I have a little contempt toward juries, sure, but none toward laypersons generally. I do have contempt toward people who think their strong feelings on an issue are a substitute for actually knowing anything about it. A law degree is not a guarantee that you know much about the law, nor is the absence of such a degree a guarantee that you don’t. Dafydd ab Hugh has no legal training but has take the time to learn a great deal about our legal system on his own, and can debate fine points of law with the best of us. Catherine Crier has been admitted as a lawyer, worked as a judge, and even works as an anchor on Court TV, so with a background like that, she really ought to know what a bill of attainder is, or which courts do and don’t review factual determinations - yet incredibly enough, she doesn’t.
I agree that a legal system only lawyers can understand is not good. However, calling it tyranny is over the top, and in any event simplicity is overrated. Some complexities in the law are pointless, but many others are not, and if a trained, experienced lawyer can’t always tell which is which, it’s insanity to expect a jury to do a better job in this regard.
My position is a common-sense one. Juries have no specialized knowledge of the law. They do have a specialized knowledge of the facts of the case before them. Let them do what they do best.
August 2nd, 2005 at 7:16 pm
My basis for saying that a judicial system that only a lawyer can understand is rooted in my belief that if someone can’t understand the law, then that person cannot know when they are or aren’t breaking the law. It is a corrolary to the idea of having enough overlapping laws to make everything illegal. Both instances give absolute power to the prosecutor.
We are damned close to that situation now, which is why jury nullification is so important. If everything is illegal because of contradictory laws, and juries are required to rule based on the facts of the case and the laws that the prosecutor chooses to pursue in that instance, then anyone can be convicted whenever the prosecutor chooses. If the law can mean whatever the judiciary instructs the jury that it means and is so riddled with penumbras and nuance that it can apply to anyone the judge decides that it can, then all the power rests with the judge.
If an individual cannot look at a law and figure out if his actions will violate it, then it is not a law; it is a bludgeon for the state whenever it chooses to apply it. That is why a judicial system that only a lawyer can understand is tyranny. The jury doesn’t need any specialized knowledge of the law — only the level of knowledge a reasonable man would be expected to have when he is brought forward as a defendant.
August 2nd, 2005 at 7:21 pm
I missed a point (and I hate double commenting):
I couldn’t disagree more. The jury is the proxy for the People. All laws derive their power and authority from the consent of the People. Therefore, when the law is in conflict, it is entirely reasonable to submit that ambiguity to the People to divine its will. The best way to determine which laws the people consent to is to submit the question to the jury.
August 2nd, 2005 at 11:01 pm
We’re probably talking about two different things. “The judicial system” as a whole is a helluva lot more complex than the “thou shalts” and “thou shalt nots” that make up the Penal Code. The system gets a lot simpler when you set aside tax law, probate law, family law, corporate law, landlord-tenant law, insurance law, wills, trusts, estates, trademark law, patent law, conflict of laws, etc. upon etc., and limit yourself to the handful of laws a typical individual needs to worry about in order to stay out of prison. You may need a lawyer to tell you teh elements of common-law burglary, but all it takes is common sense to know you can’t break into someone else’s house and help yourself to the contents. And when criminal statutes do get so vague, ambiguous or contradictory that an individual cannot be reasonably expected to know how to comply, we have a much better remedy for that than jury nullification. It’s called judicial review, which helps not only the one defendant who can afford to hire Johnnie Cochran, but all future defendants, as well.
I don’t know where you get the idea that a jury is “the” proxy for the people. Legislators and executives - from the governor right down to the D.A. - are elected by the people, and depending on the state you live in, so are judges. Juries are the one element of the system that is in no way accountable to the people. We don’t elect them, and since they’re only there for one case, we can’t even fire them for lousy performance. To the extent juries - particularly those encouraged to judge law as well as facts - are a proxy for anything at all, they are a proxy for the people of a given locality, a virtual guarantee that no federal law that is unpopular in Chicago will be enforced in Chicago, that no duly enacted California law that is unpopular in San Francisco will ever be enforced in San Francisco, etc. Under your system, once Scott Peterson got his change of venue to the Bay Area, the death penalty would have immediately ceased to be an option.
August 3rd, 2005 at 1:04 pm
Radley,
Did you get my e-mail about the error in your column?
August 5th, 2005 at 1:55 pm
X: “and limit yourself to the handful of laws a typical individual needs to worry about in order to stay out of prison.”
But you’re missing the bigger point. Intentionally, I think. Yes, in everyday usage, PROBABLY you won’t run afoul of a prosecutor out to misuse his/her authority, as well as law enforcement doing the same.
Probably, you’ll never have to revolt against the government, either.
And you’ll probably never care about a government-mandated church.
But that’s not why we have those ironclad protections in the Constitution, and why the people who build the systems wanted it to *FAIL IN SOME CASES* to allow for greater liberty and freedom.
That’s why you MUST have a jury trial. Sure, it would have been lots easier, and less fuss and muss if criminal trials were by judge. But they’re not. You’ve got to waive a jury trial - because that’s your natural right to be tried by the government.
If you and Patterico were right, then there would *be* no need for a trial, the prosecution, possibly with a judge overseeing, would be able to determine the facts, and decide on guilt or innocence. No jury, or even defense council needed.
But juries, and defense counsels *are* mandated. I understand, you went to law school, and (are both?) prosecutors. You want the facts, the facts alone to be the deciding factor. (If not, explain why a jury is mandated. Why else, if not to judge the case?)
But that’s *not* the system that was designed - that replaced a system that was remarkably similar to what you’re saying is the case. Now, it does differ from state to state how obvious it is - but in your system, William Penn was guilty, and the jury should have been punished for failing to convict him.
August 6th, 2005 at 10:58 am
I don’t see how you get from requiring juries to rule on facts alone to NOT allowing juries to function at all. Whether a defendant asserts his right to a jury trial or opts for a bench trial instead, the issues before the court are exactly the same; the only difference being who decides, and not what is decided. Yet you are arguing that juries should have powers that judges do not have if the right to jury trial is waived. That makes no sense at all. If the law itself were supposed to be on trial, then a defendant who opted for a bench trial should be able to make the same nullification arguments FIJA activists say they should be allowed to make to juries, and judges should be free to nullify any laws they don’t like. I call such behavior judicial activism; presumably, you call it “fully informed judges,” instead?
And yes, I want the facts alone to be determined by the jury. If there are problems with the law itself, that’s what legislators are for. If there are problems with the judge’s interpretation of the law, that’s what appellate courts are for. If the problem really is with the law - as there would be if anyone tried to re-enact the law that got William Penn in trouble - let the Supreme Court rule that way and set everyone free. But if the problem is with the jury’s attitude, or that 12 guys who can’t see past their noses think “it ain’t fair,” then that’s a pretty lousy reason to let any individual criminal go free while others just like him do hard time with no recourse.
FYI, I am a practicing attorney, but not a prosecutor like Patterico. Both of us are veteran attorneys who lean libertarian on a wide range of issues, however, so the fact the neither of us embraces the libertarian shibboleth that is jury nullification ought to give some pause.
November 23rd, 2006 at 11:03 am
Patterico. Again….
My old pal Patterico — a prosecutor in California — has valliantly rushed to the defense of the police tactics……