Posted on
March 26, 2008 in
The following was sent to me by a prosecutor who wishes to remain anonymous. (No, it’s not AHCL.) I disagree with him — I think he’s missing at least one essential point (that jury nullification is the law, so that a nullifying verdict is a verdict “according to the law”) — but he’s not entirely crazy, and I thought I’d toss it out for discussion. Enjoy and comment (paging Clay Conrad). (Do I need to say that opinions expressed below the line don’t reflect my views?)
I just can’t leave this one alone.
I feel compelled to address the completely outrageous, legally andfactually unjustifiable act that you and the writers of The Wire are encouraging.
So let’s not discuss free will, etc. We’ll even leave out the admittedly dubious merits of the WoD for the moment. Let’s talk about one thing and one thing only: Jury nullification.
Can you please explain to me how jury nullification is not a gross and unconscionable violation of the juror’s oath? As you well know, in Texas (and I suspect most other states as well) the jurors must swear, prior to being impaneled, that they will “a true verdict render, based on the law and the evidence presented.” Read those words closely, and if I’ve left any out, please let me know. It doesn’t say “unless I disagree with the law in question,” or “unless I’m against the WoD.” It doesn’t mention jury nullification or even civil disobedience!
The Zenger case is often trotted out as the ultimate example of jury nullification. But somehow I doubt the jurors in that case ever took such a specific oath. Modern jurors are promising, in very specific terms, that they are going to render a TRUE verdict, based on the LAW and the FACTS presented. Jury nullification ignores all three of those things: The verdict will not be true, but will in fact be intentionally, knowingly, willfully and (I might add, to go outside of mens reas BLATANTLY false. The jury nullification verdict will not be based on the law, because it sets out to disregard the law because it is viewed as immoral, wrong, etc. Finally, the jury nullification verdict will most certainly not be based on the facts, because it chooses to ignore those facts as a matter of course.
How, then, do proponents of jury nullification justify their position that modern jurors are legally authorized to employ this fancifully archaic concept? Is it simply understood that the whole juror’s oath is but a subterfuge, and that the renegade juror must engage in this deception as a means to an end?
The writers of The Wire, in advocating the actions that they have, are essentially promoting the commission of a crime. Had they made the statements contained in the Time magazine article in Texas, then they would almost certainly be guilty of aggravated perjury. Outrageous, no? How dare I suggest that the exercise of their First Amendment rights could possibly constitute a crime? Pretty easily, actually. Just look at the law.
Perjury and aggravated perjury are defined as follows:
P.C. 37.02 Perjury
(a) A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning:
(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath
***
P.C. 37.03 Aggravated Perjury
(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:
(1) is made during or in connection with an official proceeding; and
(2) is material.
(b) An offense under this section is a felony of the third degree.
The writers of The Wire are telling their readers to premeditatedly violate this statute. By taking the juror’s oath, a juror who plans on engaging in jury nullification is making a false statement under oath, and the statement could hardly be more material to the proceeding! The elements of perjury are thus met. The violation is even more egregious since it is planned out in advance. The jurors enter the courtroom having already formed the intent to commit jury nullification in narcotics cases, regardless of the evidence (“save for a prosecution in which acts of violence or intended violence are alleged” of course, according to the sanctimonious and high-minded drivel put out in the article). Since it is premeditated, the jurors’ oath is false at the moment the jury nullification juror is taking it.
So how are The Wire writers guilty? Texas law further provides:
P.C. 7.02 CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.
(a) A person is criminally responsible for an offense committed by the conduct of another if:
***
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense
***
The Wire writers are, to put it bluntly, encouraging and directing their readers to break the law. And, let’s face it, that’s exactly what jury nullification is: Breaking the law. Not to mention breaking your oath, lying, and a host of other things your mother probably told you not to do.
In America, God bless her, we do have legitimate forms of protest. We have the right of free speech and we have the right of assembly. The series of tubes known as The Internets is probably the greatest vehicle ever for exercising both of these fundamental rights. Jury nullification is not a legitimate form of protest any more than robbing a bank is a legitimate form of protest against unfair lending practices or the subprime mortgage crisis. So what are we left with? you ask. What recourse do we have against the tyranny of the evil WoD?
Well, in America, God bless her, we also have something known as a democracy, and along with it the right to vote. We have elected legislatures whose precise purpose is to enact the will of the people. If you disagree with the WoD, the solution is to vote for a candidate who will cease that war and legalize narcotics. The solution is not to lie under oath and deliberately pervert the justice system. Jury nullification undermines confidence in the judiciary at a time when that confidence is already tragically low. It opens a whole range of unpleasant questions about inequities in its application. After all, if jury nullification is to be carried out in drug cases, then why not resisting arrest cases, DWI cases, or even murder cases? After all, those laws could be considered to represent a war on people with oppositional defiant disorders, alcohol problems, or anger management issues. Ask the defendants and their family members if THEY would prefer the jurors to ignore the facts. I’ll bet the candid ones would say yes in a heartbeat.
Jury nullification, for all the noble prose and liberatarian philosophies behind it, has no place in the modern criminal justice system. As a prosecutor, I commit my jurors to following the law, and I ask if they can promise to do that and convict if I prove my case to them beyond a reasonable doubt. It’s a proper and appropriate question (even under Standefer ) and the people who are honest enough to say “No” get to go home. If you disagree with the WoD, that is your free gift from our justice system. You are hereby exempted from jury service. And there is no shame in it, either. I often ask my panelists if, for reasons of personal conviction or belief, they simply cannot follow a certain law. They have that opportunity to speak. (And for perjury enthusiasts, I should add that voir dire is conducted under oath, as well.) I do not ask anyone to enforce a law they are dead set against if it would violate their conscience to do so. There is nothing wrong with admitting that you cannot or will not abide by your oath and follow the law. What IS wrong is calculatedly concealing that fact for the purpose of subverting the legal process. That can and should lead to troubles that are — to borrow from The Wire writers again — far from fictional.
Since Bushel’s Case in 1670, jurors have been free to bring a verdict in the teeth of the law and the facts. Public officials cannot be prosecuted for perjury for violating their oath of office to take care that the constitution and laws be faithfully executed (think of Richard Nixon, for example), because those oaths are precatory–they look to the future. The same is essentially true about the juror’s oath. No juror knows, when taking the oath to render a true verdict, what evidence will be presented. Indeed, if the juror knew the evidence, the juror would be disqualified from serving as a juror, and would be a witness instead. The truth cannot be foretold. Witnesses fail to appear. Witnesses fail to testify as expected. The prosecutor’s expectation of what the evidence will show is often correct, but is often enough wrong so that it cannot be taken as gospel. That’s why we have trials.
A witness’s oath to tell the truth as a witness is a present oath to tell the truth about past events to be testified to in the case at bar, and is limited by the rules of evidence, and other doctrines of the law. These limitations prevent the witness from being asked about his or her religious beliefs, for whom the witness voted at the last election, or other matters of conscience. Obviously, jurors who bring in nullification verdicts don’t accept testimony at face value. That’s why it isn’t perjury for jurors to bring a nullification verdict.
But Greg, you’ve added and ignored facts to arrive at your conclusion. You are ignoring the fact that nullifying jurors have already made up their minds before they even take the oath. It is not an evidence-based decision, but rather a predetermined verdict based on the fact that it is a narcotics case. That’s why The Wire writers said that they would acquit regardless of what evidence was presented. That is not a true verdict and, especially when premeditated, makes the juror’s oath a lie. You have also added that ” Obviously, jurors who bring in nullification verdicts don‚Äôt accept testimony at face value. ” This is not true, either, since as stated above, they are committed to nullification and acquittal regardless of the evidence and whether they believe it. Having reasonable doubts is certainly different from jury nullification and everyone is allowed to define that level of certainty for themselves. But, again, what The Wire writers and anyone else who sets out to commit jury nullfication are asking people to do is patently illegal and in violation of their oath.
A juror’s oath is not a statement of fact, but a promise. As such, it cannot be a grounds for perjury, which is based on a false statement of fact — material fact — made under oath. At most, it’s fraud.
Regarding juror’s oath
Not to mention that I don’t think anyone goes on a panel thinking they’re going to be part of a vast conspiracy to nullify the law.
Besides, I’ll bet if you polled them they’d say they rendered a true verdict.
Jury nullification is just what the experts label it in their hindsight.
Man, color me stupid. Until Grits posted on this I totally missed that the writer was saying that by promoting an idea the writers of the Wire were guilty themselves of criminal conduct.
Man this is truly scary. To have a Nazi like that in charge of enforcing our laws is, well, insane.
Maybe the Harris County DA’s office deserves Lykos.
Ron,
I don’t see the Grits posting, but your reaction doesn’t surprise me. Speaking of Nazis, I wonder if the bigots who used jury nullification to let murderers off after killing civil rights workers used the same rationale you do.
The suggestion that The Wire writers are advocating a crime by telling people to lie under oath is simply a logical response to their article. To some people, lying under oath or breaking a solemn vow is no big deal. It is to me, and I guess if that makes me a “Nazi” in your book then I’ll take that as a compliment.
But so far, neither you, nor our host Mark, nor anyone else who has responded to this posting has yet explained how falsely swearing to render a true verdict when you have absolutely no intention of actually doing so is anything other than wrong. Forget criminal, let’s just get back to kindergarten basics. Wrong. Lying is wrong. Can we at least agree on that? Voir dire means “to speak the truth” and that’s what jury selection is all about: Uncovering biases to find impartial people who have not already made up their minds. Believe it or not, the State is entitled to a fair trial, too, and I guess if wanting to start on an even playing field makes me a fascist, then so be it.
But, please, accept my invitation. Feel free to justify for me, using whatever ideology or morality you subscribe to, to swear falsely, break your jurors oath, ignore the law and the facts, and nullify the conviction of a defendant who has been proven guilty beyond a reasonable doubt.
Then maybe we’ll know how to “color” you.
You ask Ron to “forget criminal”, in response to your post containing three sections of the Penal Code showing that jurors who participate in nullification are criminals, and a TV show encouraging them is committing a crime as well. If you “forget criminal”, you just forgot your whole premise. Yes, lying is wrong. Taking an oath you do not intend to keep is not lying. Is it wrong? Quite possibly. It was certainly wrong of the white juries of the ’60s to violate their oaths to acquit murderers. I do not believe they committed crimes.
Since when was jury selection about finding impartial people? I’ve always been taught that jury selection was about finding people who would more likely vote for you than the other side.
“Believe it or not, the State is entitled to a fair trial, too.” Are you sure you’re not Anonymous C? (or J, I can’t remember the initial.)
“Taking an oath you do not intend to keep is not lying.”
That reasoning is, quite frankly, dumbfounding. Let’s review again what the jurors swear to with their right hands raised.
“You and each of you do solemnly
swear that in the case of the State of Texas against the defendant,
you will a true verdict render according to the law and the
evidence, so help you God”.
So you are maintaining that to take that oath, while having no intention whatsoever of fulfilling it or abiding by it, does not constitute lying. If so, please define for me exactly what WOULD constitute lying if that saying that you are going to do one thing while intending to do the opposite?
And, no, I’m not Anonymous C or J or any of those people.
We haven’t talked about the government’s rights lately. Guest, take a look at Collier v. Poe — the State has no right to due process. No right to due process means no right to a fair trial.
I think you’re missing that some of us reject your premise, that a nullification verdict is somehow not a “true verdict, according to the law.” Of course breaking your oath is wrong, but if your premise is wrong then a nullification verdict is not a violation of the jurors’ oath. If a nullification verdict is true (whatever “true” means in the context) then a nullifying juror has neither sworn falsely nor violated his oath.
“True”, in the context, doesn’t mean “find him guilty if he did it and not guilty if he didn’t.” Not guilty doesn’t mean innocent. Not guilty doesn’t even mean “not proven beyond a reasonable doubt” (consider a 38.23 charge). A factually guilty person, even one whom the government has proven guilty beyond a reasonable doubt, can be acquitted, and it can be a “true” verdict of not guilty. There are lots of ways that can happen, legally. (You know all of this, of course.)
One of those ways is that the jurors can exercise their common-law prerogative to nullify. Since, like it or not, the right to nullify (call it the “power” if you wish) is, de jure and de facto, part of the law, a nullification verdict is true, and a juror nullifying is not breaking his oath to render a “true” verdict any more than a juror with a reasonable doubt is breaking his.
A lie is a false statement of fact, made knowing that it is false. A statement of fact can only be made about something in the past or the present, not the future.
“It rained yesterday” is a statement of fact. If it did not rain yesterday, it is a false statement of fact. If the speaker knew it did not rain yesterday, it is a lie.
“It is raining” is a statement of fact. If it is not raining, it is a false statement of fact. If the speaker knows it is not raining, it is a lie.
“It will rain tomorrow” is not a statement of fact. The speaker may have material to guess intelligently that it will rain tomorrow, but he may be wrong. Even if he is, he is not lying. He is predicting incorrectly.
The difference between “it will rain tomorrow” and a juror’s oath is evident: a juror is making a statement about his future conduct, something that is usually within his control, even his knowledge, unlike the rain. Nonetheless, he is not stating a fact. Under civil law, a man who promises to deliver a bushel of bananas tomorrow and fails to do so can be civilly liable for breach of contract, but not perjury. If he knows that he is not going to deliver any bananas, he may be held liable for fraud, and may even be criminally liable for fraud, but he is not a liar. For one thing, fraud requires a reliance on a lie, while the crime of perjury does not.
I believe you’re not Anonymous J, though; she’d just repeat her previous argument and bang her fist on the table harder.
You guys are certainly giving this a go, aren’t you. And you deserve credit for that. Easy arguments first:
Michael, about midway thru that post I think you correctly realized the corner you painted yourself into. Let me make sure I understand: The dad who tells his son “I’m going to take you to Disneyworld tomorrow” with no intention whatsoever of doing it is NOT lying? He is just perpetrating “civil fraud?” I confess I do not see your distinctions. Certainly, future events are not always under our control, but I’m sure you would agree people can lie about their intentions and plans for the future, right? Nor do I really get the “fraud requires reliance on a lie” business. But, nonetheless, I’ll bite: Are you suggesting, then, that the Wire writers are guilty of fraud instead of perjury?
Now to the harder one: Mark, I do understand the underlying premise and I also (think I) understand your argument, but I don’t buy it and frankly I don’t think you buy it, either, deep down. My post, my hypos, so answer me this one.
The situation is this: The juror finds out she is going to be hearing a narcotics case, knows already she is going to acquit “regardless of the evidence presented” (just like the Wire writers told her to) but takes the oath to a true verdict render. Then, to take it further, she acknowledges to herself at the close of the case that the State has proven the defendant’s guilt beyond a reasonable doubt. There are no factual issues, no excuses, he is legally guilty. That juror then returns a verdict of Not Guilty because she disagrees with the WoD and wants to nullify the law with her verdict. Is this not, at the very least, intellectual dishonesty?
Your citation of 38.23 is misplaced because, as you know, in that situation, a jury who believes that rule has been violated would exclude and not consider the evidence. So, yes, the defendant would be factually guilty and legally not guilty, but the latter status would be due to an insufficiency of evidence.
If you look at my post on Grits, I found some recent cases pretty well disavowing jury nullification. This trend reflects the fact that defendants have many more safeguards today than they did in the Zenger case, where the judge apparently instructed the jurors to find him guilty!
I don’t find anything in your explanation persuasive on the point I was trying to make in my original post: That premeditated jury nullification requires lying. Nor do I interpret “true” as loosely as you do. “True” – I believe – means EXACTLY what you said it doesn’t: Guilty if he’s guilty and not guilty if he’s not.
I can’t help myself.
Reading this from a non-lawyer’s perspective, it seems so crystal-clear:
The State lies, deceives, steals, and kills almost with impunity.
It has violated its most fundamental laws.
It railroads over 95% of defendants into guilty pleas or verdicts.
And you’re defending it, and demanding I maintain scrupulous honesty with its courts to uphold farcical laws that are themselves in violation of the Constitution?
Oh, the humanity!
Guest Blogger,
It’s ironic you used the murder of “civil rights workers” as a counterpoint. You do know what kind of acts they were engaged in, right? Civil disobedience. Isn’t your holding them up as the heroic protagonists of your analogy all that needs to be said to dispense with your commentary? Who were the prosecutors during that era arguing for their prosecution I wonder?
Jury nullification is a particularly effective form of civil disobedience since one cannot, as a practical matter, be punished for it. (How are you gonna know?) And as for the Wire writers, their First Amendment right to advocate civil disobedience would trump your prosecution. As has been said by no less a court than the Supreme one, “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Brandenburg v. Ohio.)
Soliciting perjury and the like aren’t comparable, because those speech acts typically don’t constitute political advocacy, which receives the highest First Amendment protection. While the State’s interest in enforcing its laws is also high (which is the only thing that empowers it to prosecute solicitation of perjury in the first place), the Wire writers’ interests are at their zenith (as is not usually the case in a typical perjury prosecution), and the State’s interest would ultimately have to give way to the Wire writers’.
Your analysis regarding Texas’s law of parties also suffers from the lack of a connection between the juror who nullifies and the advocates arguing abstractly for jury nullification. Criminal responsibility for the conduct of another under Texas law would only attach if the party has directly encouraged an identifiable actor (this is clearly its intent). To attach criminal responsibility to a person for the acts of a third party that the first party never had a specific intent to “encourage” stretches that provision beyond all bounds.
Indeed, I could even advocate on the internet that “somebody” ought to assassinate a political figure, and, even if that political figure were eventually assassinated as a result of some random person reading my advocacy, I could not be held criminally responsible pursuant to Texas’s law of parties. (I never encouraged the person who ultimately acted with the requisite intent.) And even if I could be prosecuted under Texas’s law of parties, it wouldn’t be constitutional to do so (my online ruminations couldn’t possibly be considered “likely” to incite “imminent” violence unless I knew I had some cult following ready to immediately act on my every word).
In short, I am in Texas, and I can lawfully advocate for jury nullification. Whether I can lawfully nullify a verdict is a different question, but there is no doubt that I can do it and never be accused of it. So I think this is a lost cause for you.
Holy shit – let’s go straight to hyperbole. No guest blogger, I’m not advocating that people commit murder and justify it by jury nullification.
What I am saying is that it is a Nazi tactic to take those who disagree with you. Those who perhaps feel that people should rebel against oppressive and illogical laws, and try to turn them into felons.
I feel it’s a fair argument to ask if people who for whatever reason engaged in what legal minds would call “jury nullification” violated their oaths as jurors.
It is a far different argument to say that people who advocate rebellion against illogical or oppressive laws are guilty of a crime.
I know this threatens your control over us guest blogger. We should just follow along like lemmings to your lead, right?
“The oppressed should rebel, and they will continue to rebel and raise disturbance until their civil rights are fully restored to them and all partial distinctions, exclusions and incapacitations are removed.” –Thomas Jefferson
PJ,
Boy, I hate to admit it, but your post is intelligent and makes sense (on some points.) You appear to be ahead of me on researching when the 1st amendment trumps directing/encouraging a crime, so I will not fight you there.
Having said that, I never took it as my “cause” to get the Wire writers or anyone else prosecuted — breathe easy, Mark Bennett. But I do stand by my assertion that their comments and position are outrageous and that, even if they themselves are immune, people who follow their urgings would be committing a crime, regardless of whether, as a practical matter, they could ever be prosecuted.
Let me make one big concession that may refocus this discussion a bit. There ARE cases out there where the “right” verdict may seem to conflict with the law and the facts, and convicting may seem to be injustice. These cases are rare and one would only recognize them after having seen and heard all the evidence. To that extent, and to that extent ONLY, depending on the merits of an individual case, I concede that there are situations where jury nullification could conceivably be appropriate. What bothered me the most about the Wire writers’ exhortation is that it involved PLANNED jury nullification. PLANNED jury nullification, in this day and age, by necessity involves lying and swearing falsely. The distinction, as I have stated before, arises from the fact that the juror is swearing to do something that they ALREADY KNOW they have no intention of doing, Mark’s tortured definition of “true” notwithstanding. This is aggravated perjury.
Jury nullification in this instance is not civil disobedience. Civil disobedience would be refusing to sit on the jury in the first place. The fact that it is “effective” and you can get away with it don’t make it right. Those qualifiers could describe a lot of bad conduct indeed.
So, no, on that point I do not agree with you that using civil rights murders as an example dispenses with my commentary. It just demonstrates how easily this judicially perverted act of dishonesty returns to its evil roots. A lie is a lie is a lie, and the ends DO NOT justify the means.
Ron,
I’m done responding to you. You managed to fulfill the 2 certainties of weblogs in the 5th post: 1. That the longer the discussion continues, the greater the certainty that the Nazis will be mentioned, and 2. If you can’t really debated the issue intelligently, launch an ad hominem attack. And spare me the radical readjustments: You didn’t criticize my tactics. You called me a Nazi. You did more than I could ever do to demonstrate your own ignorance. Appreciate it.
Guest blogger
Excuse me, but I’m not the one who says that the writers of Wired are felons.
I wholly stand by my analysis. You, sir, have, no business enforcing the laws of this country. You’re a petty narrow minded bureaucrat who shouldn’t be dog catcher let alone actually deciding who goes into jail and who doesn’t.
My sincere hope is that Pat Lykos runs you into what you would consider “hell,” defending real people who are no different than you.
If you don’t like being called a “Nazi” then don’t act like one.
I understand that, when acting as a juror, I have a role to perform, and that it’s important to do it well and with integrity. But I also believe in my heart that many things that happen as part of the war on drugs are, to keep this simple, evil—evil like witch burnings and slavery and Kristallnacht.
Some of these evil things are done by prosecutors. If they don’t want me to nullify, they shouldn’t ask me to take part in their foul deeds. I need to be able to sleep at night.
Exhibit A for evil prosecution is Richard Paey, wheelchair-bound father of three, sent to prison for 25 years for forging his prescriptions for painkillers. If it would have been wrong for the jury to nullify in that case, does that mean Paey deserved his sentence?
Had I been on Paey’s jury, and had I realized what would follow a guilty verdict, I’d like to think I’d have had the moral courage to nullify. My justification would be that I nullified because the law regrettably did not allow me to have the prosecutor jailed for his cruelty.
I tend to side with those who see The Law as including jury nullification as a fully legal and immutable necessity of the common-law tradition which overrides the petty desires of judges and legislatures to bend the masses to their will. Still, we can easily play within a smaller sandbox.
If there can be absolutely no punishment for the violation of a statute, is it really a law? I don’t know about your definition of the law, but I would say that it isn’t a real law, but rather it is merely an impolite suggestion. And if it is not a real law, then it cannot be a crime to suggest that someone else break it, since there is no actual law to be broken. I’m not yet a lawyer, so maybe there’s a fancy-pants legalese way to say all this that would be more convincing.
I’m not a lawyer in Texas, however, the juror’s oath leaves a very wide path for the juror to “nullify” in that “true verdict” can be interpreted many ways, being that nullification is an accepted common law practice. If the juror’s job is to either rubber stamp the State’s evidence (or not), why even have a jury? A judge can make the determination of fact easily enough. The jury’s fundamental job is to act as a brake on the state and prosecutors.
I’m not sure if this has been brought up, but in consideration of:
“You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God”.
What does this really mean? Especially “according to the law and the evidence”. We are supposed to consider the validity of the evidence. You don’t take testimony as fact just because the person was under oath. You consider the validity of it. Based on the way this oath is phrased, the same applies to the “law”, and there is nothing that distinguishes one from the other in this regard. I’m don’t think I’m playing semantics here, that’s literally what it says to me.
How does the author extrapolate his interpretation from this?
Guest Blogger,
Here’s what I’ll say about the deception angle, which I think was implicit in my first post by my describing jury nullification as civil disobedience. There is a historical point that was pointed out on Grits’ blog to keep in mind for context here: at the time of this country’s founding, the jury had the prerogative to determine both the facts and the law in any given case.
Over time, the jury’s prerogative to determine the law has been stripped away from it, to be sure. Jurors can be questioned in voir dire on their ability to “follow the law” and if they state they cannot, they can be challenged for cause. This is the State’s most effective means to protect its (rather newly acquired) prerogative over the law. So I agree that a potential juror who goes into a drug case knowing they will not convict regardless of the evidence will have to either answer questions deceptively or else answer questions subtly enough to outwit the prosecutor, which I imagine would be fairly difficult to do.
As a result, jury nullification is now an act of civil disobedience that might require dishonesty or even breaking the law to perform. But that jury nullification requires deception or law breaking does not inform the question of its rightness or wrongness.
Deceiving the State or breaking its laws is not universally wrong (think: Underground Railroad). One has to look through the act of civil disobedience to judge its merit. Obviously, opinions can differ. A person who supports the war on drugs may see such acts as immoral. But a person who sees the war on drugs–including its draconian sentencing mandates and its radically racially uneven enforcement–as itself immoral will obviously come to a different conclusion about the morality of jury nullification, even if it requires deception or law-breaking to achieve.
(Mark, you may note who this accords with the excerpt from E.O. Wilson’s book you posted yesterday.)
I see that the oath requires a juror to render a verdict based on “the law.” Which law? The oath does not say the law of the jurisdiction in question (state, federal, etc). It just says the law. I would assume that to mean Natural Law as well, the unwritten law on which our rights are based. If a person is charged in such a way as to violate the Natural Law, I would hope that the jurors in question would render a verdict of “not guilty.”
“There are four boxes to be used in defense of liberty: soap, ballot, jury, and ammo. Please use in that order.” -Ed Howdershelt
The anonymous prosecutor conflates several issues in his post against jury nullification. At bottom, he tries to win the debate with his citations to the Texas code book. This is wrongheaded.
There is a landmark Second Amendment case currently pending before the Supreme Court. Prosecutors in Washington, DC cannot win the debate over the meaning of the Second Amendment by arguing, “DC residents do not have a constitutional right to keep a handgun in their home for self-defense. Why? Because the DC code provision 555 (whatever) bans gun possession.”
One can argue for the militia theory, as the DC government is doing, but one cannot use the challenged statute in support of the constitutional argument because that’s begging the very question under consideration.
Similarly, those of us who support the jury’s nullification prerogative would like to see the oaths that jurors take (which vary from jurisdiction to jurisdiction) changed, where necessary, so that they are consistent with that prerogative.
The Framers of the American Constitution would be shocked by the way in which jurors are presently manipulated. Our second president, John Adams, once wrote that “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the instruction of the court.” The prosecutor comes pretty close to saying that such words can no longer be repeated in the state of Texas. If a talk radio host says the same words–jail. If a newspaper columnist quotes or paraphrases Adams–jail. If someone puts the Adams quote on a sign and walks around Dallas, Houston, or San Antonio–jail.
For those who want to learn more about this subject, check out Jury Nullication by Clay Conrad. If you do not want to go so far as to read an entire book, read this: https://instapundit.com/lawrev/conradrv.htm
Isn’t it possible that the “facts” of the case point towards nullification? If you must consider both the law and the facts and still nullify, I think there’s no violation of the oath.
[…] Myers, one of the commenters on my guest blogger’s nullification post, included this little gem in his […]
There is another issue to consider, the *law itself* is on trial. Jurors are the last defense against injustice – hence the right to a trial by jury: in a country where someone can be branded a sex-offender and basically screwed for the rest of their life because they took a pee in public on the way home from the bar Jurors can say “this may be the law but in this case it is wrong.” And send the law back to Congress to either try again or realize the error of their ways.
Jury Nullification is consistent with the law…it is specifically the reason why we have a right to a jury trial at all. The jury system is a mechanism that exists to ensure that justice is served. There exist situations in which following the letter of the law does not lead to the most just outcome. Juries exist as a check to this problem. The point is that depriving someone of life, liberty, or property is a serious thing to do, and if 12 randomly selected people do not agree that justice dictates that the accused is guilty then that person is legally not guilty.
What purpose does a jury system provide if not to make a judgment on the justice of a given legal action? If I were trying to design a legal system that would deliver verdicts based purely on the evidence presented and the letter of the law, I would certainly not involve people with no legal or forensic experience in the decision making process. Blind adherence to the letter of the law does not lead to justice, which is exactly why trial by jury (which implies jury nullification) is guaranteed by the constitution as a fundamental human right.
The prosecutor is being ridiculous for a lot of reasons:
1) The process of guilty/innocent is hardly black and white. The idea of “…beyond a reasonable doubt..” by definition cannot be calculated. Note the jury isn’t asked to define truth, they are asked a question that involves a lot of judgment. Anybody who has served on a jury (or a qualified prosecutor) would know this
2) When you swear an oath to “uphold the law”, part of the law is Jury Nullification, thus, there is no conflict here.
3) This prosecutor seems incredibly non-nuanced. It’s like he’s really a cop pretending to be a prosecutor.
The idea that promoting jury nullification as a concept is a criminal act is ridiculous. The concept of jury nullification has been talked about for decades. No crime can come from promoting the idea or advocating its use. Now, if someone approached a seated juror in an ongoing case and specifically promoted jury nullification, such an act could be a violation of law because it is attempting to interfere with the outcome of a specific case. Short of that, anyone anywhere is free to promote the idea and adoption of jury nullification. Why not issue an indictment against the thousands of person advocating jury nullification, including in Texas. It will never happen because they know it is a loser. Such a prosecution would end up the same way the Beef Industry’s attempt to sue Oprah ended up. I hope the writers and producers of the Wire take some of the profits they have made and fund a nationwide campaign to educate all persons of their right to render any verdict they want. If we were to see a string of jury nullifications, perhaps over zealous prosecutors would think twice about prosecuting questionable cases.
[Artfully edited by MB to remove ad hominem attacks.]
It comes down to this: the only check and balance that the people of this country can actually participate in directly is when they are serving in a jury. It’s a matter of democracy, albeit a small part of gaining the consent of the govern. That is, if unjust laws exist on the books and prosecutors insist on enforcing them, then the only remedy is a jury that is enlighten to the fact that they hold the power to cancel or hold that power in check. I am reminded of the recent case in Georgia of the 17 year old given a ridiculously harsh sentenced for having sex with a 16 year old even though the 16 year old and her family did not want him prosecuted. This is an example where the jury should have checked the power of the prosecution but instead they felt compelled to comply with the existing laws.
Moral reasoning 101:
Lying is NOT always wrong. As a general rule, “honesty is the best policy” may work, but whether or not it is actually wrong to tell a lie is heavily context sensitive. There are morally trivial justifications for lying – like telling your wife you’re going out for a beer with your buddy when you’re actually going out to pick up her surprise birthday present. Wrong? Seems not. But there are also perfectly legitimate, morally significant reasons to tell lies – for example to protect people from harm who deserve not to be harmed. “No, Mein Fuhrer, there are no Jews in my attic!”
Assuming that the war on drugs if profoundly unjust and immoral, since it has as its purpose the deliberate infliction of suffering and deprivation of liberty of peaceful people who are violating the rights of nobody, then all other things being equal, it is PERFECTLY LEGITIMATE to lie until your pants explode into flames if you can effectuate a Just, if “unlawful” verdict.
[…] at the blog of criminal defense attorney Mark Bennett, a Texas prosecutor has put up an astonishing guest post arguing that merely advocating for jury nullification is in itself a crime, and that the authors of […]
… and part of “THE LAW” is the common law right of nullification.
I see no contradiction.
Believe it or not, the State is entitled to a fair trial, too, and I guess if wanting to start on an even playing field makes me a fascist, then so be it.
Um, no. IANAL (but am scared that you are one) but because of the asymmetric power relationship between the individual and the the State, criminal trials are specifically biased *against* the state and *towards* the accused, right?
What law are you upholding?
If in good faith you believe a law is in conflict with the constitution, then I see no problem refusing to convict on the basis of upholding a higher law.
Every verdict to acquit or convict is inherently a moral choice of the jury. Trials are not merely about facts they are also about morality. Nullification is one polar extreme of the equation & convicting people of distribution for passing a joint back & forth is the other.
Prosecutor’s hate nullification because it replaces their morality with someone else’s, the People’s.
The entire purpose of a jury trial is to ensure that justice is administered by the people, not the government. If the Jury holds a law unjust, then they sure as hell can vote to acquit. They’re the JURY. The jury represents the PEOPLE, and the people outrank the government, in any free country.
I hope that if the person who sent you that rant is in an elected, rather than an appointed position, that the voters of his district will bounce his totalitarian ass off the public payroll at their earliest opportunity.
-jcr
The entire purpose of a jury trial is to ensure that justice is administered by the people, not the government. If the Jury holds a law unjust, then they sure as hell can vote to acquit. They’re the JURY. The jury represents the PEOPLE, and the people outrank the government, in any free country.
I hope that if the person who sent you that rant is in an elected, rather than an appointed position, that the voters of his district will bounce his totalitarian ass off the public payroll at their earliest opportunity.
-jcr
The entire purpose of a jury trial is to ensure that justice is administered by the people, not the government. If the Jury holds a law unjust, then they sure as hell can vote to acquit. They’re the JURY. The jury represents the PEOPLE, and the people outrank the government, in any free country.
I hope that if the person who sent you that rant is in an elected, rather than an appointed position, that the voters of his district will bounce his totalitarian ass off the public payroll at their earliest opportunity.
-jcr
The entire purpose of a jury trial is to ensure that justice is administered by the people, not the government. If the Jury holds a law unjust, then they sure as hell can vote to acquit. They’re the JURY. The jury represents the PEOPLE, and the people outrank the government, in any free country.
I hope that if the person who sent you that rant is in an elected, rather than an appointed position, that the voters of his district will bounce his totalitarian ass off the public payroll at their earliest opportunity.
-jcr
“Jury nullification is not a legitimate form of protest ”
Like hell it isn’t! It’s as legitimate as voting, speaking, or petitioning for redress.
-jcr
“Jury nullification is not a legitimate form of protest ”
Like hell it isn’t! It’s as legitimate as voting, speaking, or petitioning for redress.
-jcr
“Jury nullification is not a legitimate form of protest ”
Like hell it isn’t! It’s as legitimate as voting, speaking, or petitioning for redress.
-jcr
“Jury nullification is not a legitimate form of protest ”
Like hell it isn’t! It’s as legitimate as voting, speaking, or petitioning for redress.
-jcr
One more thing, Mr. Bennet: I feel that by allowing that prosecutor to remain anonymous, you’re exposing the public to a grave danger. Clearly the man recognizes no boundaries to governmental power, and the time to end his political career is right NOW.
-jcr
One more thing, Mr. Bennet: I feel that by allowing that prosecutor to remain anonymous, you’re exposing the public to a grave danger. Clearly the man recognizes no boundaries to governmental power, and the time to end his political career is right NOW.
-jcr
One more thing, Mr. Bennet: I feel that by allowing that prosecutor to remain anonymous, you’re exposing the public to a grave danger. Clearly the man recognizes no boundaries to governmental power, and the time to end his political career is right NOW.
-jcr
One more thing, Mr. Bennet: I feel that by allowing that prosecutor to remain anonymous, you’re exposing the public to a grave danger. Clearly the man recognizes no boundaries to governmental power, and the time to end his political career is right NOW.
-jcr
I have found all the posts before mine very entertaining, and very well thought out. I have been a prosecutor, and am currently a defense attorney. I have practiced law for over 11 years, and have seen just about everything you can think of in criminal law cases.
I can firmly tell you that as a defense attorney, one of the scariest things I can think of is a jury that decides to do what is “right.” Because sometimes, the “right” thing is to convict a person, even though the evidence is not there. I don’t know how many times I have conducted post verdict interviews with jurors only to find out they believed the defendant guilty, yet did not believe the prosecution proved its case. Which is a totally different reason than they didn’t agree with the law. That is the product of our jury system and the instructions the judge gives to them before the case starts, and after the conclusion of evidence. The jury instructions that are given are very well thought out, are proposed by both the prosecution and the defense, and generally tend to protect the rights of the defendant. Our judges are trained to present these instructions is a way that is voice neutral, and rarely does a jury learn from the judge what he/she is thinking about the case. Any esoteric arguments about the law itself are handled outside the hearing of the jury, and can be automatic grounds for appeal should a guily verdict be returned.
In fact, in my experience, the nullifaction issues you have been talking about generally come from the judge, not a jury. It is the judge in a trial who decides issues of law; and that is what jury nullifaction is all about. Is this law constitutional, does it allow for proper due process, etc. Those are questions a judge should answer and rule on, not a jury. Let’s not forget, for the most part, only the attorneys and the judge have extensive legal training, and can debate and rule on such arguments.
I have participated in, been lead counsel, and witnessed over one hundred jury trials in my career. I have yet to see the jury get a verdict “wrong” based on the evidence and law presented to them.
As for as the current debate concerning the prosectors remarks that the writers in The Wire could be prosecuted, consider this. What better way to spark a public debate than to answer one radical position with another equally radical position?
Many people have a false sense that our legal system is completely broken, possibly beyond repair. Unforetunately, this perception is based almost entirely on the “train wrecks” that manage to make national headlines (the O.J. case springs to mind). Let me say, that at least in my part of the world, the jury system works, and works well.
A Nullification Denouement…
WindyPundit weighs in:Unless you are truly devoid of moral reasoning, there must be some level of unjustness at which you will abandon the law to ……
i’m not a lawyer and know little about law so I am only speaking in principle. Jury nullification was heavily championed by our founding fathers and jefferson in particular. If the government began passing ridiculous laws, it was up to the people to decide whether to enforce them or not. It was a MAJOR check on government power. However, like someone mentioned, it did rear its ugly side during civil rights violence. However, I believe the creators were endorsing in the same way jefferson did, as a check on what they believe is an overextension of gov’t power.
creators of the wire that is
The law includes the Constitution, and each juror must consider the entirety of the law in rendering his or her true verdict. The only “true verdict” that can be rendered against someone charged with violating an unconstitutional law is “not guilty.”
Prosecutors would have us believe that only the U.S. Supreme Court can judge the constitutionality of a law. Sadly this view has recently become so pervasive that legislators and executives have no qualms about passing and enforcing blatantly unconstitutional laws with the idea that it’s solely the Supreme Court’s role to enforce the Constitution. But this role is purely customary; nowhere in the Constitution is the Supreme Court given this role; I think it’s clear that we’re all required to enforce the Constitution, including jurors.
I believe drug prohibition laws are an unconstitutional invasion of our natural rights, and therefore if asked to render a “true verdict” against someone charged with voluntarily ingesting substances that the state happens to disapprove of, I would with a clear conscience agree to render such a “true verdict.” I would take that oath proudly, and would proudly render my true verdict of “not guilty” according to the totality of the law and the evidence.
I wish I knew where this prosecutor worked so I could write angry letters to the DA & AG.
We Texans don’t take kindly to this sort of government.
What’s the point of the point of a Jury? A Judge can follow the law. A Jury is there as a circuit breaker when the government goes too far (like the WoD)
There is also the question of whether the law requiring the oath, and the oath itself, passes constitutional muster. If not, then the jury would have no obligation to follow the directive in the first place. This would seem to be a common law right guaranteed to the people, and if the law were read the way you are suggesting, Texas would be overstepping its’ rights under the Const. if it were attempting to deprive the people of this right.
In other words, is the right to nullify guaranteed by the constitution, so that your take on the law (attempting to hold someone criminally liable) is a constitutional violation and thus illegal in and of itself?
And, if we are to start convicting people who we presume nullified the verdict, can we also convict those that convicted someone even though the prosecution didn’t dot their I’s and cross their T’s? Those that were shown evidence of prior substantially similar crimes that shock the conscience enough to make the jury take a leap of faith to connect the defendant to another crime, or those that are convicted solely on circumstantial evidence would come to mind. And if you, as a prosecutor or asking the jury to convict when you know there are holes in your argument, missing links, etc., aren’t you then doing exactly what you are accusing the wire of doing? Are you willing to be prosecuted every time you ask a jury to make that leap with you, no matter how small? (I have no idea what the wire is, or what they said, so cut me some slack here) This is a can of worms that I’m not sure you want opened there skippy.
On a completely other avenue, I might actually be persuaded to accept that one can be convicted for this supposed perjury if we are to also allow the prosecution of every judge, prosecutor, politician and police officer, who, sworn to uphold the law and constitution, violates it in any way, shape and form.
I bet you aren’t though.
I think the most shocking thing of all is this prosecutor who is supposedly sworn to uphold the law & Constitution would so readily deny freedom of speech to someone because he disagrees with them. Do you not have an oath of your own?
I guess they’ve never heard the phrase “I disagree with what you say, but I will defend to the death your right to say it.”
Sir, please do the legal profession a favor: Turn in your license.
The Supreme Law of the Land forbids cruel and unusual punishments. By any reasonable meaning, that must mean punishments that are cruel and unusual relative to the crime committed. That the Death Penalty is an acceptable punishment for murder does not mean that it would be proper to sentence a jaywalker to 30 years’ hard labor.
If I as a juror happened to know that the sentence for a particular crime would be so far beyond anything I would consider appropriate as to constitute ‘cruel and unusual punishment’, why would not the Supreme Law of the Land require that I acquit?
An interesting addendum: AHCL, over at her blog, has argued, “What if a jury went back to deliberate and decided to nullify the 5th Amendment?”
Well, at the point a jury gets that question, a judge has already nullified it. Judges–particularly in Texas–frequently (bordering on consistently) nullify the constitutional rights of defendants. Appellate courts usually also support the nullification. (I guess we can call this phenomenon “court nullification.”) So, really, where’s the beef? Defendants have no recourse when the judicial wing of the State does it and the State has no recourse when a jury does it. Goose and gander satisfied.
You Guest Blogger are sworn to uphold the Constitution, and by advocating against the First Amendment rights of the producers of the HBO show The Wire you have violated your oath of office in a manner far graver than you hold others in your ludicrous interpretation of the matter of nullification. There should be real penalties as severe as the ones that exist for High Treason involved in failing to uphold the Constitution for an office holder, or else there is no real check on your power to violate the Authority of the Supreme Law of the Land.
Forcing a juror to swear an oath or even presenting an ABA approved pamphlet decrying jury nullification to a potential juror is tampering with a jury, plain and simple.
The early dialog in this thread had an unusually high quality. We saw a finely reasoned debate by a few armed with knowledge and witnessed some actual mind-changing (in the sense of absorbing new information and admitting it). Exemplary! Both the Guest and critics are to be complemented.
Sadly, the comments are spoiled midway by ignorant (in the sense of not having studied the laws of either Texas or the U.S., but fully armed with political and extra-legal opinions) people led here by an inflammatory headline in reddit, to wit “Texas attorney is a fascist moron, declares that merely advocating jury nullification is in itself a crime, and Time has broken the law by publishing article about The Wire”.
I ask all these, please shut up.
This discussion of jury nullification as a crime is interesting, but it has missed a major point. Texas Rule of Evidence 606(b), which is almost exactly the same as its federal counterpart, states the following:
Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury’s deliberations, or on any juror’s mind or emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict or indictment. Nor may a juror’s affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
Guest Blogger has failed to realize that a jury’s verdict is considered sacred under common law legal systems. Courts only call jurors to testify about what went in on in the jury room in extreme circumstances. One rationale is that jurors must be free to express their thoughts and opinions in deliberation without the fear that what they think and say will be later challenged.
Another policy reason is that if the government has the ability to subpoena jurors as witnesses, then a defendant could do the same. The result would be that masses of individuals convicted of crimes would subpoena each juror from their for impropriety in the jury room. While the government may find a few scattered instances of jury nullification, large numbers of defendants could successfully argue jury misconduct in their trial merits a reversal of their conviction. It is ironic that a prosecutor would advocate disturbing juries’ verdicts.
Additionally, even if Rule 606(b) did not exist, Guest Blogger’s substantive argument is weak. John Jay, the first Chief Justice of the U.S. Supreme Court, wrote, “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision . . . you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy”. Georgia v. Brailsford, 3 U.S. 1,4 (1794). Of course, everyone knows that John Jay was an avid fan of the Wire.
Hi.
It’s one of The Wire writers you are discussing.
I was just in Austin, actually, just last week. Spoke at the University of Texas and got a nice award there and got to sit on the stage of Austin City Limits, hallowed ground where Johnny Cash once stood. Very exciting. The communications and film people were very cool. And in response to a question about what could be done to alleviate the nightmare of the ongoing drug war, I reaffirmed my commitment to never voting to convict anyone of a non-violent drug offense and urged all the good Texans within hearing to do the same if they no longer believed in the venal war against the poor that drug prohibition has become. Got a lot of applause on it, too. Don’t know if any of the people were from Harris County.
To be clear, I did not urge anyone to lie during voir dire or to in any way mislead anyone as to their views. I simply urged folks, if they should find their way onto a jury, to search their conscience for something more honest and resonant than the offense in question and to do what feels just. Will most such jurors not pass muster during voir dire? Probably. But even so, if more and more Americans refuse to collaborate with the drug war, then at some point it becomes harder for Pharoah and his army to seat a jury in non-violent drug offenses. At that point, well, perhaps it is the beginning of the end, or at least the end of the beginning for this ineffective, wasteful and brutal orgy of hypocrisy that, forgive me, only a lawyer could still defend.
If there is a penalty to such disobedience, the writers of The Wire accept that we will be obliged to pay such penalty for our stance. But frankly, no such penalty exists. unless we actually mislead anyone during voir dire, there is — to our own readings, and to the legal opinions we sought before penning the essay in Time — no penalty whatsoever that has ever been successfully imposed on either jurors or advocates with regard to jury nullifcation. American juries have had the implicit and explicit right to nullification in precedent as far back as the 17th Century.
Other than that, Texas was great. Had BBQ at the Salt Lick and Smitty’s over in Lockhart. Magnificent. Worth the trip, and would love to come back at some point, so if my schedule allows, let me know when and where you want me to stand trial. I should make it clear that I will require a comprehensive list of the best BBQ and Tex-Mex fare before setting foot in a given county.
Hook ’em horns…
David Simon
Baltimore, Md.
Herr prosecutor neglects to acknowledge that juries in the United States have the power and the right to determine not only the facts in a case but also the law. They are not required to blindly follow the law as interpreted by the state (which includes the judge), but are indeed empowered to decide whether a particular statute is in keeping with the Constitution and common sense. The courts are not able to peek into a juror’s mind to assess his intent either prior to or after a verdict. Therefore, absent any collusion with the defense or prosecution, any verdict is “true.”
Rather than the high priest(s) of the “justice” system fainting away at the audacity of the little people to disobey their oath, why not discuss the elephant in the room – Why are jurors compelled to swear (affirm) an oath that goes against the law? Why is the right/power of jury nullification not allowed to be discussed in the courtroom?
It seems obvious to those not in a position of power in the justice system that it is a threat to the carefully controlled power heirarchy and cannot be tolerated in an age when citizen means consumer.
The argument seems like so many unethical, but “legal” arguments – if we assume that people are bound by an unlawful oath then the following house of cards can be built on that foundation…
“But somehow I doubt the jurors in that case ever took such a specific oath.” Yes, exactly.
Just one point here. Since the oath in question claims that a juror will uphold the law, and since the right of jury nullification is a part of established law, then you cannot be considered breaking the oath (let alone lying or committing perjury) by upholding your legal right to nullify.
All the arguments about perjury, then, are simply a red herring.
[…] clipped from bennettandbennett.com […]
Since these jury “oaths” were made up lawyers and legislators and required of jurors, why even have a jury? Might as well send people straight to jail if the juror is not allowed to make up their own mind about the lack of evidence, criminal and or heavy handed prosecutors and abuses of the system. I will never convict anyone for violation of drug laws, but then I usually get out of jury duty because I believe that a human being’s life is their own and I reserve the right to eat, drink or take whatever food, liquid or drug I chose. I can’t wait until we start going after criminal judges and prosecutors. Maybe their attitude would change about criminal behaviour.
One more comment, by fighting our right to jury nullification, I believe that judges and prosecutors collude to commit FRAUD upon the American public.
[…] to this Texas prosecutor who wisely chooses to remain anonymous, what I just wrote was a crime. That’s right. In Texas […]
[…] to this Texas prosecutor who wisely chooses to remain anonymous, what I just wrote was a crime. That’s right. In Texas […]
[…] to vote their conscience in certain cases. That article has, in turn, sparked a debate over at the Defending People blog. A Texas prosecutor started the debate with an anonymous post against jury […]
To the anonymous prosecutor:
Everything turns on the underlying justice and morality of law the prosecution is trying to enforce. If the law is unjust and immoral, the court system has no right to ask the jurors to swear to uphold that law. And thus to lie in that circumstance is not immoral.
To illustrate my point, let’s suppose the law the prosecution is trying to enfoce makes it a death penatly crime to critize the President. Protester Bob says that the President mismanged the war in Iraq. The feds arrest Bob. Moore Thomas is summoned to appear as a juror in Bob trial. He is informed about the nature of the case. Moore rightly determines the prosecution of Bob is immoral and unjust. Moore is asked to swear he will render a “true” verdict according to the law and facts. Moore can refuse to do so and not get seated on the jury, or swear to the oath with the intent of rendering a not guilty verdict, regardless of the facts.
What is RIGHT thing for Moore to do? I bet your mother told you to stick up for people that were being treated unjustly.
What is the greater evil: lying to someone that has no right to ask you the question or telling the truth and as a consequence do nothing you when you could have saved a man that was unjustly accused?
If Moore swears to the oath, acquits Bob (who accoridng to the facts and law is guilty), and then gets prosecuted for perjury, that perjury prosecution is just as unjust and immoral as the underlying prosecution of Bob.
Weren’t the Patriots of 1775 “jurors”?
Did they not render a verdict on the laws of the King?
If they had no right to do this, then we are not a legitimate nation then.
I guess, jury nullification is a right of the people for as stated in HURTADO 110 US 516, laws are only presumed constitutional, which means, they can be prsumed to be unconstitutional.
Sounds about right.
Weren’t the Patriots of 1775 “jurors”?
Did they not render a verdict on the laws of the King?
If they had no right to do this, then we are not a legitimate nation then.
I guess, jury nullification is a right of the people for as stated in HURTADO 110 US 516, laws are only presumed constitutional, which means, they can be prsumed to be unconstitutional.
Sounds about right.
Weren’t the Patriots of 1775 “jurors”?
Did they not render a verdict on the laws of the King?
If they had no right to do this, then we are not a legitimate nation then.
I guess, jury nullification is a right of the people for as stated in HURTADO 110 US 516, laws are only presumed constitutional, which means, they can be prsumed to be unconstitutional.
Sounds about right.
Weren’t the Patriots of 1775 “jurors”?
Did they not render a verdict on the laws of the King?
If they had no right to do this, then we are not a legitimate nation then.
I guess, jury nullification is a right of the people for as stated in HURTADO 110 US 516, laws are only presumed constitutional, which means, they can be prsumed to be unconstitutional.
Sounds about right.
I think I can say without bragging that I’ve done more research into the history, purpose and practice of jury nullification than any other lawyer in Texas. I’ve written several academic articles, a book (Jury Nullification: The Evolution of a Doctrine) and many articles for professional and general audiences.
I do not advocate that jurors nullify: I advocate that they consider nullification and act upon their own best judgment to render a just, and thus true, verdict, according to the law, the facts, and their sense of justice and common sense — things the state often asks jurors to remember! This verdict often will be “not guilty,” even if the accused “done it.”
Remember that judges have discretion. Cops have discretion. Prosecutors have discretion. Why shouldn’t jurors, the people themselves, have discretion? Obviously, they do, the Founders intended for them to have that discretion, and no Texas Penal Code provision can take it away.
The anonymous (and thus cowardly) prosecutor knows nothing of what he writes about. A juror, at the time he takes his oath, knows very little of the case before him. How it could ever be shown that a juror intended to nullify at the time he took his oath, instead of developing that intention after hearing the law and evidence? It simply cannot be shown.
Again, I have always said that the decision to nullify should never be made until the case is closed, and the juror begins to deliberate. At that time the juror should seek to render a just verdict. If prosecutors did the same (instead of merely seeking to accumulate scalps on the wall) maybe fewer jurors would need to nullify to do justice.
Moreover, I note this prosecutor hasn’t taken Mr. Simon or his co-authors to a grand jury… cowardice, Mr. Prosecutor? Or do you simply realize that your response is mere hyperbole?
HOWEVER, the most significant fault in this diatribe is that it is thoroughly a-historical. What, exactly, was the trial by jury the Founders had in mind when the Constitution was written? (Or do you think Texas Penal Code Sec. 37.07 somehow trumps the Sixth Amendment?) Even Justice Samuel Chase wrote that “An act of legislature (for I cannot call it a law) contrary to the great first principles in the social compact, cannot be considered a rightful exercise of legislative authority.” (Calder v. Bull, 3 US 386 (1798)).
Is an attempt to outlaw jury nullification contrary to those great first principles? Undeniably so.
Clearly, the Founders recognized that the jury plays a political, as well as a fact-finding role. Numerous quotations from the Founders establish this fact. Justice John Jay noted in Georgia v. Brailsford that the jury may decide both law and fact should it choose to.
Both Noah Webster’s Dictionary of the English Language (1st Ed., 1812) and Jacob’s Law Dictionary (1782) note that the criminal trial jury has the right to judge both law and fact. Jacob’s was the leading law dictionary during the time of the Founding, and Madison owned a copy at the time he drafted the Sixth Amdnement.
What was meant by judging law and fact? We must remember that Natural Law theory prevailed at the time of the Founding. Judging the law meant judging the justice of the law. THIS is the trial by jury the Founders intended to bequeath to posterity.
So, we have another prosecutor more interested in advancing a pro-state agenda than in the Constitution, or the intent of the Founders. What a surprise!
p.s. An interesting sideline note : most jurors do not actually take the oath. They listen to it being read, hold up their hand, but say nothing. They get on juries anyway because the oath is pro forma, and not taken seriously by lawyers or courts. How can you ever show that any juror actually TOOK the oath?
p.p.s. The use of jury nullification in civil rights cases is hugely overblown. As I pointed out in an article in the Cornell Journal of Law and Public Policy, Scapegoating the Jury, civil rights cases were often tried by prosecutors who did not want convictions, before judges who did not want convictions, with cops who were often themselves Klansmen as witnesses — and the juries were then scapegoated for the results. Federal civil rights cases, with juries selected from the same communities, routinely ended in convictions, due to the differences in the investigators, judges and prosecutors. The juries based their verdicts on the evidence brought before them.
Jury Nullification is in the U.S. Constitution.
I find it highly disturbing that this prosecutor believes that the U.S. Constitution is not the law of Texas.
Jury nullification is the final word in a Democratic society which putatively seeks to maintain a nation of the people, for the people, and by the people. When fat cat treasonous lawyers band together with treasonous and fascist politicians, the will of the people can (admittedly rarely) overcome the criminals that seek to oppress us through the venue of nullification.
When a Jurist finds that a law is unjust or that there was overwhelming mitigating circumstance, he or she is NOT committing perjury, he or she is engaging in his or her duty as an American citizen to stand up and fight for what’s right.
Increasingly in this theofascist State under the Bush regime’s thumb, Americans are finding that the video camera is the tool to fight fascism with, and increasingly the fascist State is disallowing videotape acquired by victims and by eye-witnesses to be introduced or applied in criminal and civil courts of law. (Fascists demand that there is no trail of evidence and that video shows only what one wants video to show.)
At the same time the fascist State is free to introduce any video and any evidence they wish.
Jury nullification offers a reasonable and lawful counter to the corrupt legal system which denies collaborative evidence which proves undeniably an individual’s innocence but which is ruled by Judges to be inadmissable. Nullification allows juries to weigh the truth of a matter rather than weigh just the one-sided evidence that the fascist State allows.
The problem is, that the jurors should not be forced to swear to ignore consideration of the validity of the law. Such a requirement was put into place by the “the State is always right, even when it wrongs” people. It ignores common law precedent.
There is no reason to have a jury system if that jury cannot rule on the law itself — a panel of judges or experts could verify “facts” better than a jury preselected, via vor dire, to be as nearly ignorant as possible. A large part of the jury system’s function is to incorporate humanity into the operation of the law.
Interesting picture here, though:
1. A prosecutor rants against jury nullification, a prerogative even he admits they have, in order to try to persuade people that it is illegal.
2. A large discussion ensues. In it, jury nullification is discussed, and by far the consensus is that it is lawful. The discussion is covered nationally, in blogs far away from Houston, Texas.
3. The end result of the prosecutor’s effort: thousands of people are caused to think about nullification, and as a result may be more likely to exercise this prerogative when they are next called for jury duty.
Great work, GB!!! Keep it up!!!
Jurors have a RIGHT to do anything lawful as they see it. No mere judge can order a jury to do anything for the judge is only there by privilge. Judges have the power to determine what the rights of juroros are?
What, judges still have Royal Immunity as granted to them by the King of England?
Surely judges don’t get immunity from the Constitution for it is not there.
Immunity is a mere privilege, it is not a right.
Jurors have rights, judges mere privileges.
Jurors have a RIGHT to do anything lawful as they see it. No mere judge can order a jury to do anything for the judge is only there by privilge. Judges have the power to determine what the rights of juroros are?
What, judges still have Royal Immunity as granted to them by the King of England?
Surely judges don’t get immunity from the Constitution for it is not there.
Immunity is a mere privilege, it is not a right.
Jurors have rights, judges mere privileges.
Jurors have a RIGHT to do anything lawful as they see it. No mere judge can order a jury to do anything for the judge is only there by privilge. Judges have the power to determine what the rights of juroros are?
What, judges still have Royal Immunity as granted to them by the King of England?
Surely judges don’t get immunity from the Constitution for it is not there.
Immunity is a mere privilege, it is not a right.
Jurors have rights, judges mere privileges.
Jurors have a RIGHT to do anything lawful as they see it. No mere judge can order a jury to do anything for the judge is only there by privilge. Judges have the power to determine what the rights of juroros are?
What, judges still have Royal Immunity as granted to them by the King of England?
Surely judges don’t get immunity from the Constitution for it is not there.
Immunity is a mere privilege, it is not a right.
Jurors have rights, judges mere privileges.
What exactly is the legal definition of a “true verdict”? Not a lawyer (obviously), but and interested layperson. Poking around findlaw and a few other places didn’t turn anything up, but maybe I was doing it wrong.
The oath itself is unconstitutional as a jury by definition is a tribunal, and trial by jury requires they have that right.
Thinking about this more, does a “true verdict” differ between states and/or Fed law? Is this definition explained to jurors commonly in jury instruction?
I ask this, only because I know common use and legal use frequently diverge, I’m curious, and it occurred to me that “false verdict” seems much easier to define, from a layperson’s perspective. And we’re almost by definition talking about lay people. It has to be defined in at least one place, somewhere.
I don’t know about Texas, but in most of the country we’ve still got the remains of the common law, under which juries have the duty to judge the law as part of their verdict. In Maryland, where The Wire is set, it’s even part of the state constitution. Judges and especially prosecutors mostly don’t like it; no surprise there. Nor is it surprising that some Texan prosecutor wants to be both self-righteous and anonymous at the same time.
An oath is a religious test, and contradicts my religion, and I wouldn’t take one, but I do understand that the state wants me to agree to render a true verdict if I end up on a jury. I’ll be happy to listen to a judge’s explanation of the law, because usually judges know more about it than I do – but the Constitution’s pretty straightforward, and if a law violates it, that law isn’t the Supreme Law of the Land. State constitutions aren’t usually as well written… but back when I lived in Jersey, the Constitution there guaranteed the public the rights to life, liberty, and the pursuit of happiness. Drugs probably won’t give you happiness, but they can be kind of fun, and it’s your right to pursue that if you want. And having the state running a war against them has real problems with freedom of religion, and the typical penalties violate my beliefs about what the Bill of Rights says about excessive fines.
As a layman I can only express my own thoughts.
From the the beginning of the introduction of the rule of law as noble as it’s intention and it’s necessity. Coupled with the advent of jury trials there have always been those who had the power to manipulate both.
And sometimes, in some circumstances it only through the juries balloting for what is right in their conscience as opposed to the letter of the law can justice be served.
Oaths and laws can only be required in pursuance of the Constitution.
Show me where an oath of a juror is required by the Constitution.
There is none.
As there is no judicial immunity for judges in the Constitutioin, there is no oath required for jurors.
Oaths and laws can only be required in pursuance of the Constitution.
Show me where an oath of a juror is required by the Constitution.
There is none.
As there is no judicial immunity for judges in the Constitutioin, there is no oath required for jurors.
Oaths and laws can only be required in pursuance of the Constitution.
Show me where an oath of a juror is required by the Constitution.
There is none.
As there is no judicial immunity for judges in the Constitutioin, there is no oath required for jurors.
Oaths and laws can only be required in pursuance of the Constitution.
Show me where an oath of a juror is required by the Constitution.
There is none.
As there is no judicial immunity for judges in the Constitutioin, there is no oath required for jurors.
“… I concede that there are situations where jury nullification could conceivably be appropriate.” -Guest Blogger
As a juror, G.B. would know while taking the oath that he did not plan to keep that oath if the situation turns out to be one where he felt it “appropriate” to do so.
The expected rarity of the “appropriate” situations, does not change the fact that G.B. would be telling a lie in taking the oath that requires, without exception, for him to return a “true” verdict.
“A lie is a lie is a lie, and the ends DO NOT justify the means.” -Guest Blogger
So the Great Clay S. Conrad finally weighs in, only to pronounce me a coward and take me to task for not bringing the Wire writers before a grand jury. In what state, Clay? Apparently your extensive research into jury nullification did not include anything about venue or jurisdiction.
My anonymity is borne of discretion, not cowardice, and that decision has only been validated by the crackpots you see posting on this site calling for my scalp. Suffice to say this much: You know me, and I know you, and while you seem like an okay guy and I prefer not to make this sound like an ad hominem attack, I feel pretty comfortable about how our legal knowledge stacks up against each other.
Having said that, I’ve never written a book on jury nullification and I have no doubt that on this subject you have me at a disadvantage. But from your post it sounds like you didn’t really read any of the preceding posts very closely, (including the original one and the article by the Wire writers that started it all.) You say:
“Again, I have always said that the decision to nullify should never be made until the case is closed, and the juror begins to deliberate.”
But isn’t that precisely what the Wire writers are advocating? They are not interested in the law, facts, or justice of any individual case, only in rendering acquittals in narcotics cases. Again, they are advocating a position that Texas jurors cannot adopt without violating their juror’s oath.
Many of the posters here have lauded jury nullification as the ultimate democratic safeguard in our society. (One moron from NYC even said it’s in the Constitution. Care to show me where? Somehow it didn’t show up in my copy.)
I’ll give you credit for one thing, Clay. You posited the one argument FOR jury nullification that is most difficult for prosecutors to counter: Discretion. You are correct that police officres, prosecutors, judges and others have discretion over what violations they will prosecute and how. I don’t think we’re really vested in this law so much as given it de facto. i.e. someone’s got to make the call, and no one else has time to micromanage every decision we make. That’s why I can’t in good conscience say that EVERY instance of nullification is wrong. I’m comfortable that, in principle, it is wrong, but I can’t rule out that there might be a situation out there where it could be required.
But the premeditated, planned out exercise advocated by the Wire writers is definitely not one of those situations. In its own way, it is a blanket call to insurrection and anarchy.
Let’s consider, for a minute, exactly what jury nullification, which everyone on this liberal site seems to hallow and revere, is:
1. It is a lie. A deliberate, conscious subversion of fact and reality.
2. It is undemocratic. It requires the substitution of 12 people’s (or 1 person’s if you include mistrials due to individual nullification) judgment for everyone else’s. In essence, you are saying that the judge, the prosecutor, the grand jury, the investigating officer, the elected legislature, and a majority of the people are wrong.
3. It is arrogant — for all the reasons stated above. What could require more hubris than that? To take it upon yourself, simply because of your political views, to ignore the violation of a law enacted by the duly elected representatives of the people?
4. It is unfair. What about all the people who ABIDE by the law and expect its enforcement? What about those defendants who DO NOT enjoy the undeserved benefit of jury nullification?
5. It undermines confidence in the judiciary. After all, if one person can substitute their individual judgment to decide the consitutionality of a law (which, contrary to some posters here, is NOT the province of a jury) then why can’t anyone? This is how injustices are born and why people don’t trust our system.
Although it’s obvious some of the posters here don’t like it, we live in a society that has rules. Most people abide by those rules. A (thankfully) small minority do not. Our society is built on an expectation that people will obey the law. That’s why it functions. Is it really all that fascist or totalitarian to suggest that (a) we follow those rules, and (b) we acknowledge it when others have not followed those rules?
Our founding fathers enacted numerous safeguards to protect our freedom. The right to a trial by jury is one of them. Jury nullification, however much it was seemingly acknowledged or alluded to, is not one of them. If they had intended it to be so, they could have easily codified it in the Bill of Rights. We have plenty of other safeguards as well as remedies for dealing with laws we don’t like.
The Wire writers could just as easily have advocated a much more democratic (and possibly more effective) position by telling their readers to stand up during jury selection and simply tell the judge that they will not follow the law and convict unless the case involves violence. It would render them challengeable for cause, but if enough people agreed with them and did it, we would start busting panels and have difficulty forming juries for narcotics cases. That would be an effective means of protesting, would send a clear message, and would not involve perjury, subterfuge, or violating your juror’s oath.
But, alas, they chose to advocate an archaic, misunderstood, overly romanticized and thoroughly disapproved (in the modern legal system) method of protest that is ethically and legally wrong for all the reasons stated above.
And perhaps most telling of all, Mr. Conrad, is the fact that you, the authority on the subject, chose to attack me rather than defend their position. Instead, you appeared to distance yourself as much as possible and even timidly pointed out that you aren’t advocating nullification, only that they “consider” it. Well, the Wire writers went too far, and I called them on it.
If you think I am as benighted as you suggest, then feel free to get a copy of your book to Mark Bennett. (What am I thinking, he probably owns 6 copies?!) He can get it to me. I “swear” I’ll read it with an open mind. Or on second thought, maybe I’ll just raise my right hand and not say anything. Good enough for you?
GB, meet the Ninth Amendment. Ninth Amendment, GB.
While we’re making introductions, GB, meet Texas Code of Criminal Procedure Article 13.01.
If you throw around the word “liberal” here without explaining what you mean, you get held up to ridicule. While Defending People has readers across the political spectrum (you can be exhibit “A”), the blog itself is about as liberal as those famous lefties, Samuel Adams and Thomas Jefferson.
I’ve ordered a copy of Clay’s book. I’ll loan it to you after I’ve read it.
Let’s look at where GB errs:
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Hardly. There is no lie in a decision to nullify. It is a decision that justice requires an acquittal. It is a far more honest verdict than to declare someone “guilty” whom the jurors believe is morally innocent.
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It is the most democratic of actions: it is direct democracy, allowing the people themselves to directly judge whether to brand one of their fellows guilty. It is certainly far more democratic than the actions of the typical legislature.
Remember that all laws are, by necessity, general. It is up to the jury, and the jury alone, to consider the individual defendant, their individual circumstances, the individual facts leading up to those individual charges, etc.
Yes, the jury is saying the prosecutor is wrong: when the jury acquits due to nullification, it is saying the prosecutor violated his oath in seeking an unjust conviction. Ditto for the cop. The judge is stuck with the law as written; not saying he’s wrong. The grand jury only hears from one side, so they don’t have a dog in the hunt. Obviously, they are saying that the legislature did not adequately account for the circumstance at hand, or that the law is simply wrong. As for the majority of the people — let’s be real. Unless the law was passed by initiative and referenda, which we don’t have in Texas, btw, then the majority of the people never voiced an opinion on the law. (Consider that 80% of the populace thing marijuana should be legal for medical purposes, yet the federal law and the laws of most states have yet to catch up.)
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How about the arrogance of passing a law that is aimed not at social protection, but at social control? Can’t top that for arrogance, can you?
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Partial justice is to be preferred to uniform injustice. A decision not to enforce an immoral law, or a law that is immoral in its individual application, does not harm anyone — it improves the level of justice in society. Is it unfair that not all juries are aware of their nullification prerogative? Yes. They all should be. They should learn it in junior high civics.
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Actually, I’m not talking about constitutionality, I’m talking about justice. And if one prosecutor can decide not to prosecute a case in the interests of justice, I don’t see why one, or twelve, jurors can’t decide not to convict in the interests of justice.
Seems alot of this is sour grapes that the jurors are able to grade the prosecutors papers and decide that prosecutors are pursuing cases that should not be pursued.
Consider it from this angle: the defendant who chooses to pursue a nullification strategy has decided to put the justice and righteousness of his or her actions before a jury of the citizens from the district in which the crime was committed.
The prosecutor who attempts to defeat the juries prerogative to nullify fears having the justice and righteousness of his or her actions judged by a jury of his or her employers — citizens from the district in which the crime was committed.
Seems like cowardice to me.
BTW, again, your failure to study history shows through. As I pointed out, the concept of a criminal trial jury familiar to the Founders included the prerogative of nullification. The Sixth Amendment right to trial by jury (as well as the Art. III right) therefore includes that prerogative.
In fact, if you went back to read the impeachment record of Samuel Chase, you’d see that one of the counts against him was that he allegedly denied the authority of the jury to judge both law and fact — an allegation Chase denied, acknowledging that the jury had exactly that prerogative.
There is nothing archaic or overly romanticized about jury nullification: it is a prerogative jurors have. Remember that the purpose of trial by jury, as recognized by the Supreme Court, is to prevent oppression by the government. (Duncan v. Louisiana). This is hardly “archaic.” It is alive and well, and accounts for more verdicts than you probably would care to realize.
This post, and my past, thoroughly addressed the issues. If you imagine that I’ve attacked you, and not simply stated the facts as I see them (including believing that if you believed what you wrote, you’d put your name to it, and that not doing so is cowardly), then you haven’t read what I’ve written (and it doesn’t seem that you have, because you haven’t grasped the fact that jury nullification is included in the Sixth Amendment.)
And one final note: my book was not self-published, it was published by the Cato Institute and Carolina Academic Press. I do not have extra copies of the book to give to Mark or anyone else. It is, however, available through Amazon, the Cato Institute, Barnes and Noble, and elsewhere.
I am just a little guy in oklahoma but isn’t the key word here “reasonable” dought. What any one person considers reasonable is for their own definition. When I sat on a juty and hear Dr,’s prfessionals, or even subbimited athorities, on any subject testify, it is up to my own reasoning to determine if there is reasonable dought. So when it may appear that some one is guilty I have the right to feel there is reasonable dought to the same persons guilt. Isn’t that why we panal and pick 6 or twelve citizens randomly. So if their opinion is there is reasonable dought in anybodys testimoney that is reason for aquittal.
Jury Nullification – A Prosecutor\’s View…
Jury Nullification – A Prosecutor\’s View…
[…] it’s about jury nullification. Via Radley Balko I found this post guest blogged by a Texas prosecutor who claims jury nullification is manifestly illegal. […]
I don’t know where the quotes went. I saw them in my posting, but they disappeared! They referred to GB’s points 1-5, which I responded to seriatim.
Jury nullification is a long-established part of the common law, and no amount of prosecutorial posturing is every going to change that.
Guest Blogger:
There are only two possibilities with regard to the juror’s oath:
1) That a juror voting for nullification as described in The Wire article is *not* a violation of their oath; or
2) That it does indeed violate the juror’s oath.
Since your premise requires the latter case for validity, let’s focus there.
According to the Supreme Court: “The [jury trial] clause was clearly intended to protect the accused from oppression by the Government. * * *.” Singer v. United States, 85 S.Ct. 783, 788 (1965).
Hence the law of the land states, in a relatively recent verdict, that the intent of the jury is to protect the accused from government oppression. How then, can a state court requiring jurors to swear an oath to uphold government laws be considered constitutional?
It is clear that the oath itself, if it would seek to prohibit a juror’s conscientious verdict (which must be the case for your premise to be valid), is unconstitutional as applied and therefore void ab initio.
Although I consider myself a fiscal conservative, and a social moderate, I would rather be a freedom loving Liberal, than an evil social conservative. Social conservatives are hateful and bad people.
A point about majority oppression, I believe the founders of the Constitution feared oppression of the majority. That is why as a citizen it is your right to disagree with unconstitutional laws and laws biased toward the majority. America is NOT a Democracy, it is a Constitutional Republic where the citizens have a right and a duty to nullify heavy handed and retarded laws.
“My anonymity is borne of discretion, not cowardice.”
Cowards are notoriously discreet.
“Brave, brave, Guest Blogger,…”
Those opposing jury nullification bring out a good point that in order to rule on the context of the law the jury needs to be knowledgeable of the law. This highlights a critical problem in our educational system. When you look at all of the nonsense that consumes time and space in the educational system one has to wonder why juries aren’t knowledgeable in the law.
It should be mandatory from about grade 5 up that American students learn the framework and content of the laws in this country. The principles are not that difficult. Also, I believe students should learn the framework and details of how “money” is created and flows through the society. This should help keep banking more honest which is one of the points of emphasis of the founders.
“Feel free to justify for me, using whatever ideology or morality you subscribe to, to swear falsely, break your jurors oath, ignore the law and the facts, and nullify the conviction of a defendant who has been proven guilty beyond a reasonable doubt.”
Wow, this is really easy. Let’s say I’m in Nazi Germany in 1940, and am named a juror for someone accused of harboring Jews. The moral thing to do would be to take any oath they tell you and then refuse to convict.
You have made a God out of the law. That is called idolatry, my friend.
CowardlyProsecutor writes:
“1. It is a lie. A deliberate, conscious subversion of fact and reality.”
Lying can be moral — for instance, lying to thugs who would kidnap someone for growing a relatively harmless weed.
“2. It is undemocratic.”
So was helping Christians escape from the lions — the majority of Romans were quite into that!
“In essence, you are saying that the judge, the prosecutor, the grand jury, the investigating officer, the elected legislature, and a majority of the people are wrong.”
And here we see the epitome of democratic “morality” — if all those folks want, say, blacks enslaved, well, then, better enslae ’em!
“3. It is arrogant — for all the reasons stated above. What could require more hubris than that? To take it upon yourself, simply because of your political views, to ignore the violation of a law enacted by the duly elected representatives of the people?”
Yes, yes! Never, ever, follow your own conscience! The authorities say kill Socrates, better kill him!
“4. It is unfair. What about all the people who ABIDE by the law and expect its enforcement?”
If they are ABIDING by unjust laws, their expectations deserve to be dashed.
“5. It undermines confidence in the judiciary.”
A judiciary that would enforce, say, today’s marijuana laws deserves no confidence.
[…] Discussing Jury Nullification 1 04 2008 You’ll remember my post about jury nullification in the drug war. The TIME article sparked some fascinating conversation among some lawyers, prosecutors and others over at Mark Bennett’s blog. […]
A system as broken as the current Texas and US Federal system deserves support to reform and change.
I will never vote to convict for drug laws, anti-gun laws, anti-speech laws, forfeiture laws, most traffic laws or any law empowering the state or contravening a strict, simple interpretation of the Bill of Rights.
GB wrote: “someone’s got to make the call” over what violations they will prosecute and how. If the idea is to avoid abuse of power, what better than to have the people, in the form of the jury, “make the call”?
[…] at the blog of criminal defense attorney Mark Bennett, a Texas prosecutor has put up an astonishing guest post arguing that merely advocating for jury nullification is in itself a crime, and that the authors of […]
I’m still confused about what constitutes a lie by a prosecutor. In one Texas case where the prosecutor lost his case ,to save face , he appealed the judges decision to the appellate court (located in his home town). The (“victim’s”)recent violent acts and bouts of rage had been attributed to his abuse of self-administered doses of anabolic steroids ,smuggled from old Mexico . according to the defense .
In his oral presentation to the appellate judges , the prosecutor said “An autopsy was performed on the “victim” and that no steroids showed up in the autopsy results” . Both these statements were factual , but misleading .The trial transcripts told a different story . The forensic examiner had testified that the technology he uses in his laboratory would not pick up steroids and he didn’t know one way or another if steroids were present .Was the prosecutor lying to the appellate judges or simply trying to mislead them ?
I happy to see so many people striving to find the form of common law freedom that was intinded for this nation from the very beginning.I personally fill pivileged to have found web site.And to those few bloggers who are contrary to the popular belief of this site.I pray to my creator that your thoughts be comfounded on your coquest to hang on to a statutory system that is robbing us of our liberties.
Prosecutor in Texas,
I am an attorney in Texas albeit a business transaction guy with a fondness of Constitutional Law.
You asked right off the bat, “Can you please explain to me how jury nullification is not a gross and unconscionable violation of the juror’s oath?”
I will tell you EXACTLY how, with no hard feelings attached.
Scenario 1: When a legislature/executive signs a law that encroaches on our natural and inalienable rights. i.e. when those branches neglect their own oaths to the Constitution when they took office.
Scenario 2: During the law enforcement phase, enforcement is applied against the intention and policy of the enacted law, in a manner that is a detriment to the community it serves, well prejudicial enforcement, etc. This occurs when the law enforcement officer has already breached his oath to the Constitution and the law.
It seems to me that in either of these situations, it is the jury’s duty to stop them in order to MAINTAIN their own oath. In so doing, the jury of ones peers retains the power to keep both of these in check. They don’t set precedent, but in that specific scenario they can “call foul”, but again, Do you not trust your own community to be able to make that call?
I do.
FYI:
https://www.joebageant.com/joe/2008/06/jury-nullificat.html
Here’s a simple — I hope — question from a layperson: How many successful prosecutions are there each year in the United States of jurors or prospective jurors for: (a) lying under oath about their opposition to the law or laws under which the defendant is charged, their intent to disregard the judge’s instructions, or their intent to acquit the defendant irrespective of the evidence presented during the trial; or (b) failing to volunteer that they are aware of jury nullification, whether or not they intend to practice it in the instant case?
ECV — Simple.
a) Zero.
b) Zero.
I didn’t have time to read all of the above, but let me point out a few relevant facts anyway:
[If you don’t have time to read others’ comments, why would anyone bother to read yours? I’m cutting out the middleman and deleting the rest. MB]
FWIW, I see several folks trying to reduce a difficult question to a simple one, starting with the anon guest blogger.
Yup, it is a simple issue, generally speaking: people ought not, by and large, make promises that they don’t intend to keep. But even the law — which, as we know, is an ass — recognizes exceptions to that; duress, say. Point a gun at my head and make me promise to pay you twenty bucks, and I don’t have to keep that promise.
Jury nullification is much the same thing, even though the metaphorical gun is, by and large, pointed at somebody else’s head. Windy brings up the Richard Paey case, which is an easy example. A guy who’s done not a damn thing wrong is put on trial, with huge penalties if he’s convicted of the crime of which he is, no question, guilty.
Compared to putting him in a cell for years, what’s little fib? — which, by the way, is made under duress. (If an erstwhile juror actually tells the truth during voir dire, and the actual truth is, “I’m going to do what makes sense to me and my conscience, and if that’s not in accord with what you and that person in the black robes think, I do hope you’ll suffer great mental anguish,” think that they’re safe from a contempt citation?)
But that’s an easy case, and even there, there are some repercussions to doing the right thing in that instance. (The chance of stopping the insane War on Some Drugs goes down, just a little, when jury nullifications happen only in such obvious and egregious cases.) Yup, in another easy case, it’s wrong to let the white murderers of a civil rights worker, proven guilty beyond a reasonable doubt, go because they’re white guys. But it’s wrong not because of the fib involved in taking the oath, but because, well, it’s the wrong decision.
Getting on a jury while being consciously willing to engage in nullification is, in and of itself, a little fib. Any grownup should know that little fibs are sometimes okay. Depends on the situation.
But sure, absent some good enough reason to fib, it’s wrong to fib. And if you can totally ignore all the good reasons why a good person might fib, we’re back to the old Abe Lincoln bit: if you call a tail a leg, how many legs does a lamb have?
Answer: four. Because calling a tail a leg doesn’t make it one. And neither does calling jury nullification inherently wrong make it so.
The Texas prosecutor is dead wrong.
Texas constitution:
“And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.”
U.S. Supreme Court ruled in 1895 case, Sparf and Hansen v. U. S., that juries indeed have veto power, but need not be told of it.
Since Jury nullification is the law – The juror that nullifies is abiding by his oath.
I saw a man prosecuted in Texas, because his wife dropped 1(one) prescription pain killer on the floor of his car. An officer pulled him over for speeding a few days later, asked if he could search the vehicle; the law abiding man said “sure”. The officer found the pain killer and arrested the man.
The prosecutor insisted that the man violated the letter of the law, by having in his possession a controlled substance for which he had no prescription. The judge agreed and instructed the Jury accordingly – the man was found guilty and sentenced to probation. Now a law abiding citizen is a convicted felon. – The jury should have nullified.
[…] exploring the subject. The blogosphere seems to be full of both avid proponents (here and here) and vigorous opposition (which argues directly against this article in Time […]
I am aware that the words of the Texas Constitution still state that a juror cannot be excluded from serving “provided he acknowledge the existence of a Supreme Being.” The fact that a federal court has nullified that clause is irrelevant.
Sorry, but I cannot support the Texas Constitution and feel morally obligated to subvert it. Jury Nullification is only one way to exercise my protest.
A lot of people like you (including me) cannot agree with it. But we cannot do much except disagreeing.
An interesting op-ed piece in today’s (12/20/2011) NY Times: “Jurors Need to Know That They Can Say No” By Paul Butler at https://www.nytimes.com/2011/12/21/opinion/jurors-can-say-no.html?ref=opinion, further supports the right and desirability of jury nullification.
Just couldn’t help but post this: a federal judge in NY, Kimba Wood, just ruled that efforts to distribute jury nullification literature outside a federal district court in Manhattan were NOT illegal, because they were not aimed at a specific case or specific issue, but were protected First Amendment activities.
Anonymous cowardly prosecutor: 0
Folks like me: 1
I approached this issue from a 6th Amendment perspective; the defendant’s right to an impartial jury.
In 1794, Chief Justice John Jay, writing for the unanimous opinion of the Supreme Court, determined that jurors had the right to determine both the law and the facts of a case. See State v. Brailsford, 3 U.S. 1, 4 (1794).
This right must have constituted at least in part, if not in whole, the definition of an impartial jury. The taking away of such a fundamental right from the jury must necessarily create an imbalance in favor of the State in criminal proceedings. The balance must not shift in favor of the State because the 6th Amendment is a limitation on State powers not a malleable set of theoretical rights which the State can manipulate in order to deprive the accused of a fundamental right.
The OP couches all of his arguments in modern jurisprudence with good reason. That being, the founders do not agree with the OP’s modern interpretation. Theophilus Parsons at the Massachusetts convention of 1788 upon the vote for adoption of the United States Constitution; an objection was heard concerning the lack of a Bill of Rights in the Constitution. Parsons stated, “The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms…Let him be considered as a criminal by the general government; yet only his fellow-citizens can convict him. They are his jury, and, if they pronounce him innocent, not all the powers of congress can hurt him; and innocent they certainly will pronounce him if the supposed law he resisted was an act of usurpation.” [2 Elliot, Deb. 94; 2 Bancroft, Hit. Const. 267].
Up until January 21, 1895, the common law of the land had been that the jury could determine both the facts and the law of a case. In 1895, Justice Harlan wrote the majority opinion in Sparf v. United States. For one hundred and one (101) years, a unanimous decision from the Supreme Court held sway ensuring that every juror had the right to determine both the facts and law of a case. By extension, the accused standing before those jurors enjoyed the benefits the founding fathers intended when the Constitution guaranteed the right to an impartial jury. The unanimous decision reached in Brailsford was ultimately defeated by a majority opinion in Sparf which appears on its face to make every effort to undue that which was already done. See Sparf v. United States, 156 U.S. 51 (1895).
In reaching the decision in Sparf, Justice Harlan was constrained by the decision in Brailsford. Instead of narrowly construing a jurors right to determine the law as expressed by Justice Jay, Harlan concluded the reporting of Justice Jay’s words were incorrect. Harlan relies on the words of Justice Curtis who states, “The whole case was an anomaly. If it be correctly reported, I can only say it is not in accordance with the views of any other court…in this country or in England”. Id at 65.
From there my analysis centered around Florida jurisprudence and the historic timeline. Florida is interesting to me because a statute continues to exist which mandates the jury be told the penalty. See s. 918.10 Fla. Stat. (2011). The Florida Court quickly determined the statute to be constitutionally invalid under the Separation of Powers doctrine. See In re Florida Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla. 1972).
The Florida Supreme Court, beginning in 1972 goes into an impressive series of back flips in determining that “must” means “may”, “shall” means “may” and finally (with back against the wall) determines “must” means “must”. Defense lawyers had little time to rejoice once the Court amended its rules of criminal procedure; finally getting it right on the third try. See Fla. R. Crim. P. §3.390(a).
The OP restricts his analysis because to do otherwise would shed light on the historical timeline and give credence to the original intent of the founders and the Supreme Court. The term Jury Nullification has been redefined much like liberal and conservative. The right of the jury to nullify was intended as a stop gap measure when the government overreached and there was no proper remedy. It is as necessary now in that role as it was in 1789 and will continue to be as long as men govern men.
My apologies if this was a bit verbose but I believe there still exists particular remedies within the courtroom which may in the end overturn bad case law.
All I can say is that WHEN the State’s Attorney’s office is more concerned about justice than it does convictions…….THEN I will disagree with the nullification rights of a jury. For example, WHEN the people see that the State (routinely rather than NEVER) prosecutes their own prior “state’s witnesses” for committing perjury to get an innocent defendant convicted of a crime….which includes Police Officers…then the escape of a nullification ruling should disappear but that is like asking to see that all Major League Pitchers apologize if they hit a batter and didn’t mean to.
If “true verdict” only meant “verdict according to the law”, there would never be any need for a jury at all.
A verdict is true only if it is just. If the defendant is guilty of breaking an obviously unjust law, or if the law as applied to the defendant’s specific circumstances is unjust, then the only true verdict is Not Guilty.
That said, I’m a lot more cautious about singing the praises of nullification than I used to be at one time. I consider those people tried and acquitted for lynchings by nullifiers, and consider how many gay/lesbian/transgender, immigrant, liberal, atheist, etc. people might die, and their murderers be acquitted, in Texas today if nullification were more respectable than it currently is.
Bottom line: all law is only as good and just as the people who make it, enforce it, and live under it.
Where is the line between a terroristic threat and freedom of speech drawn? Is it a personal, grayish line? If someone made statements about me like this person has made about government officials, I would feel threatened. Should Twitter be responsible for the statements of this person? No. Twitter is an outlet in 2013 as the newspaper was in 1973. However going back to the original question – where is the line drawn?
Without jury nullification, we have trials by government.
A fully informed jury is our best defense against courtroom tyranny.
https://www.fija.org
Well, since ALL district attorney’s “on a daily basis” breach their oath of office by HIDING exculpatory evidence.. ie there isn’t ONE single statute today that is published with and or includes a mandatory ENACTING CLAUSE.. that’s a violation of due process!!
Combined with the fact that a percentage of each and every fine goes towards the elected officials RETIREMENT FUND.. a clear case of CONFLICT OF INTEREST!
Why should WE THE PEOPLE NOT breach an enforced oath, that only serves to further encroach on our Constitutional and god given rights.. Rights, which by the way are antecedent to the formation of this country and it’s twisted laws enacted by those who wish only to enrich themselves!!?!?!?
Benjamin Franklin stated, “it is better 100 guilty Persons should escape than that one innocent Person should suffer”. But these days that is not the adage that prosecutors hiding evidence go by. It seems to be just the opposite. It is better to convict 100 innocent people rather than let one guilty get away and bring down our conviction rates. Prosecution in this country has not become justice any more, it has become revenge. And extract that revenge if need be by breaking the law… because we all know the ends justify the means. If this prosecutor cries for the rules to be followed to the letter, then that means both sides, not just the opposition that he (or probably she) wants to pin down with that great tear jerking essay. OK OK Probably he.