My old pal Patterico — a prosecutor in California — has valliantly rushed to the defense of the police tactics……

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.

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.

Did you get my e-mail about the error in your column?

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.

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.

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.

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.

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.

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.

Playing a lawyer on TV isn’t quite as easy as it looks, is it?

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.