Posted on March 28, 2008 in Uncategorized

Via NPR, this StoryCorps story about Julio Diaz, who was getting off a subway in the Bronx when a teenage boy approached and pulled a knife:

"He wants my money, so I just gave him my wallet and told him, ‘Here you go,'" Diaz says.As the teen began to walk away, Diaz told him, "Hey, wait a minute. You forgot something. If you're going to be robbing people for the rest of the night, you might as well take my coat to keep you warm."

There's much more to the story. Have a listen/

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 Posted on March 27, 2008 in Uncategorized

I'm declaring Defending People a no-Nazi zone. If you want to call someone a Nazi, go elsewhere.

Why?

Because I don't like ad hominem attacks in comments. They are, as Michael pointed out in a recent comment, absolutely unpersuasive.

The "Nazi" attack is particularly offensive because it minimizes Nazism. You want to prosecute nullifiers? "You're a Nazi!" No, you're not. Let's face it: nothing that anyone could possibly say on the web could possibly compare with the systematic murder of six million Jews. And anyone who's proposing anything that holds a candle to the systematic murder of six million Jews probably wants to be called a Nazi.

We might recognize tendencies toward totalitarianism in some of our fellow denizens of the blogosphere, and we might believe that there is a short slippery slope between (a) depriving the jury of the right to tell the government to go pound sand and (b) genocide. But calling people Nazis is not going to win any arguments.

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 Posted on March 27, 2008 in Uncategorized

From NewsLI.com (little known geographical fact: Texas is so big that Amarillo is actually closer to Long Island, New York than it is to Houston) comes this story about a successful marijuana defense by Jeff Blackburn:

A Texas patient who uses medical marijuana to treat the symptoms of HIV won acquittal on marijuana possession charges March 25 based on a "necessity defense." Though such a defense – which requires the defendant to establish that an otherwise illegal act was necessary to avoid imminent harm more serious than the harm prevented by the law he or she broke – has rarely been successful in Texas, the jury took just 11 minutes to acquit Tim Stevens, 53. The trial was hotly contested.

Not jury nullification, exactly - it sounds like Jeff (el chingón, previously famous for clearing the names of Tulia defendants framed by Tom Coleman) gave them a legal reason to acquit, and they seized it. Here's Texas's law on necessity:

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 Posted on March 27, 2008 in Uncategorized

Robb Myers, one of the commenters on my guest blogger's nullification post, included this little gem in his comment:

"There are four boxes to be used in defense of liberty: soap, ballot, jury, and ammo. Please use in that order." -Ed Howdershelt

Perfect.

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 Posted on March 27, 2008 in Uncategorized

Jurors in Texas must swear that they "will a true verdict render according to the law and the evidence."

My Guest Blogger maintains that a nullification verdict is not "a true verdict according to the law and the evidence," insisting that "true" in the context means "Guilty if he's guilty and not guilty if he's not."

He is wrong.

Around these parts (Defending People) we talk about "legal guilt" and "factual guilt." "Legally guilty" means "found guilty beyond a reasonable doubt after a trial or a guilty plea." "Factually guilty" means "he did a bad thing."

If GB means to say "The jury must find the accused legally guilty if he's factually guilty and not legally guilty if he's not factually guilty," (the only non-tautological meaning that I can see for his statement) then he's flat-out wrong. There are lots of situations in which a person is factually guilty must be found not legally guilty.

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 Posted on March 27, 2008 in Uncategorized

As soon as I get a mention on Fark.com, my website crashes.

Thanks so much, Lunarpages. I'll be looking for a new ISP.

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 Posted on March 26, 2008 in Uncategorized

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.

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 Posted on March 26, 2008 in Uncategorized

This is one of those things. If you do know it already (like Jon Katz), I don't need to tell you, and if you don't know it already, it's not going to make any sense to you and you're going to fight it. So here goes:

Our anger is almost always based on our fear.

"Hey, waitaminute!" you say. "When that guy cut me off in traffic this morning, he made me angry, but I wasn't afraid of him."

The fear that leads to anger doesn't have to be fear of the person you're angry at. When you got angry at the guy who cut you off in traffic, it was because you (a) felt a loss of control - which triggered deep-seated fears that you would suffer hurt and loss when you couldn't control things - or (b) perceived a loss of dignity - which triggered deep-seated fears that by "taking away" your dignity someone could take away your self.

Imagine, if you can, that you've let go of all attachments. You don't have to be first in line. It doesn't matter when you get to your destination, or whether you get there at all. You don't care what other people think of you, or if they think of you at all. You don't care about stuff. You're not afraid of dying. Whatever happens is okay with you. You fear nothing. What makes you angry? Nothing.

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 Posted on March 25, 2008 in Uncategorized

I said yesterday that what's important about the Chronicle writing that Kelly Siegler admonished other lawyers to "make people afraid" is that jurors know about it.

Why? Because I think people are much less likely to be manipulated if they know that someone is going to be trying to manipulate them.

If a prosecutor gets up in voir dire and says, "now, during this trial, I'm going to try to make you peopleafraid. How do you feel about that?" how do you think the jurors will respond? Favorably? Or do you think people don't want to be deliberately made to feel one way or another?

Suppose the defense lawyer gets up in voir dire and says, "now, this prosecutor has written that she thinks that a prosecutor's job is to make people afraid. How do y'all* feel about that?"

Or how about if (again in jury selection - the only time we get to speak last) the defense lawyer says "sometimes a prosecutor will try to make jurors feel afraid so that they are misled from following the law. If the prosecutor in this case does that, how do you think it'll make you feel?"

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 Posted on March 25, 2008 in Uncategorized

PJ's first comment here made me think of this, from Edward O. Wilson's sociobiology book, On Human Nature:

Lawrence Kohlberg, an educational psychologist, has traced what he believes to be six sequential stages of ethical reasoning through which each person progresses as part of his normal mental development. The child moves from an unquestioning dependence on external rules and controls to an increasingly sophisticated set of internalized standards, as follows: (1) simple obedience to rules and authority; (2) conformity to group behavior to obtain rewards and exchange favors; (3) good-boy orientation, conformity to avoid dislike and rejection by others; (4) duty orientation, conformity to avoid censure by authority, disruption of order, and resulting guilt, (5) legalistic orientation, recognition of the value of contracts, some arbitrariness in rule formation to maintain the common good, (6) conscience or principle orientation, primary allegiance to principles of choice, which can overrule law in cases the law is judged to do more harm than good.The stages were based on children's verbal respnses, as elicited by questions about moral problems. Depending on intelligence and training, individuals can stop at any rung on the ladder. Most attain stages four or five. By stage four they are at approximately the level of morality reached by baboon and chimpanzee troops. At stage five, when the ethical reference becomes partly contractual and legalistic, they incorporate the morality on which I believe most of human social evolution has been based. To the extent that this interpretation is correct, the ontogeny of moral development is likely to have been genetically assimilated and is now part of the automatically guided process of mental development. Individuals are steered by learning rules and relatively inflexible emotional responses to progress through stage five. Some are diverted by extraordinary events at critical junctures. Sociopaths do exist. But the great majority of people reach stages four or five and are thus prepared to exist harmoniously - in Pleistocene hunter-gatherer camps.

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