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Jury Nullification: Good or Bad?

“Jury nullification” is a term used to describe the phenomenon of a seated petit jury deliberately refusing to convict a criminal defendant, following a trial, despite evidence and legal instructions adequate to support a conviction. “Nullification” connotes the jurors’ decision to disregard the factual evidence of guilt, the applicable law, or both, to set an accused criminal free even though the law has technically been broken.

Is jury nullification good or bad? The topic has long provoked controversy, with strong feelings on both sides. Modern-day proponents of nullification have devised a more palatable moniker for the practice, dubbing it “jury veto,” or “jury independence,” or the exercise of a “fully informed jury.”  (In fact, a national organization based in Montana, the Fully Informed Jury Association, promotes the cause of nullification.) The terminology used, however, does not resolve the underlying philosophical dispute over the proper role of the jury.

Most courts actively discourage the circulation of pro-nullification pamphlets in front of courthouses by FIJA activists, believing that it encourages jurors to violate their oath—taken at the beginning of the case—to consider only the evidence presented and the instructions of the trial judge. In the courts’ view, jurors play an important but limited function: to sift through the evidence (especially conflicting testimony) and apply their factual findings to the relevant legal rules, which are determined elsewhere. Jurors are not lawmakers.

When juries step out of that limited role—and instead act as the ersatz “conscience of the community”—bad things can happen. In the Jim Crow South, all-white juries frequently acquitted defendants accused of lynching blacks and other heinous crimes—not because the evidence was weak, but out of sympathy for (or in solidarity with) the defendant. Conversely, in the O.J. Simpson case, the predominately African American jury arguably engaged in nullification in 1995 when it acquitted Simpson of murdering his ex-wife, Nicole, and her friend, Ron Goldman, despite what most observers felt was overwhelming evidence of Simpson’s guilt. More recently, many Americans were outraged when a San Francisco jury—possibly motivated by nullification—acquitted Kate Steinle’s killer. There are many other examples.

On the other hand, nullification is celebrated by many libertarians, including Ron Paul, who view it as a laudable “populist” check on the enforcement of unjust or excessive laws (sometimes referred to as “overcriminalization”), prosecutorial overreaching, and even overly-aggressive police officers. Proponents include Radley Balko, the Cato Institute (which has published a pro-nullification book), certain elements of the militia movement, the Tenth Amendment Center, and law professors such as Glenn Reynolds and Ilya Somin.

Proponents argue that the practice dates to the refusal of an English jury to convict William Penn for unlawful assembly, a charge that was a transparent pretext for restricting his freedom of religion. Proponents also cite later examples of Americans refusing to convict defendants charged with violating unjust laws such as the Alien and Sedition Act and the Fugitive Slave Act. In recent times, proponents advocate nullification in cases involving “victimless” crimes, such as possession of medicinal marijuana.

Some proponents assert that the Founding Fathers contemplated a broad role for juries, entitling them to judge both the facts and the law in any particular case. There is an element of truth to this claim. In the early American republic, the legal system—at least in some states—reflected what legal historian John Phillip Reid calls “a laical jurisprudence” controlled by laymen, not lawyers or judges.  During the 19th century, however, virtually all jurisdictions abandoned this practice in favor of the current system of judge-led trials. Accordingly, modern trial practice sharply restricts jurors’ discretion, requiring them to swear under oath that they will follow the courts’ instructions. It is difficult, therefore, now to argue that jurors act nobly by violating that oath and defying the law.

Critics of jury nullification include Orin Kerr, who contends that it “is a recipe for arbitrariness instead of informed judgment.” Robert Bork deemed jury nullification a “pernicious practice,” and saw it as a manifestation of a larger trend: “individualism in the law,” or “the substitution of private morality for public law and duty.” I agree with both criticisms. Objections to unjust laws (or overcriminalization) should be taken up with the legislature, to effect change, or raised in legal challenges to the constitutionality of the objectionable laws.

I wrote an essay on jury nullification over 20 years ago, in The Freeman, entitled “Nullifying the Rule of Law,” opposing nullification, and my position hasn’t changed. My primary objection to nullification is that it leads to the disparate application of laws, which is antithetical to the rule of law. As I argued in 1996:

And what is a jury acting outside of the law but a 12-person mob, like modern-day vigilantes? Although the jury-power activists point to historical events where juries refused to enforce the Fugitive Slave Act, there is no assurance that a jury operating outside the law would only acquit in a criminal case; it could just as easily “nullify” the instructions by convicting a person who was technically innocent. . . . Furthermore, nullifying the law strips the individuals who comprise society of their right to have the laws enforced. Nothing could be more tyrannical or despotic than the arbitrary decision of a jury that has rejected the law.

I continued:

The rule of law is essential to the preservation of liberty. Friedrich Hayek, perhaps this century’s pre-eminent theorist of classical liberalism—the political philosophy of freedom—believed that the defining characteristic of a free society is the rule of law, meaning legal rules stated in advance, uniformly applied, without excessive discretion. In Hayek’s words: “[W]hen we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free.” Thus, it is the universal, non-selective nature of law that allows us to be free. In Hayek’s view, it is precisely because judges and juries cannot pick and choose what laws to enforce in a particular case “that it can be said that laws and not men rule.”

I am surprised that those who support jury nullification are not more sensitive to the Hayekian principle being compromised, and the potential for abuse. In our system, laws are democratically enacted and apply to everyone. No one is above the law. As I argued in The Freeman, renegade jurors who ignore their instructions are scofflaws, “no more heroic than a rogue policeman violating the law or a politician accepting a bribe. If a juror (or any other member of the political community) feels that a particular law is unjust—and in a society as large and diverse as ours, we can assume that someone, somewhere, feels that every law on the books is unjust—the remedy is to petition the legislature for reform, not to infiltrate the jury and then ignore the law.”

The debate over jury nullification highlights the differences between libertarians, some of whom are “minarchists” uneasy with the constraints on individual autonomy inherent in the state, and classical liberals, who view civil society as indispensable to secure their liberty. Fundamentally, laws are necessary to preserve a free society, not—as libertarians suppose—inherently symbols of abject coercion. Freedom is not possible without the rule of law. Conceptually, jury nullification—selectively suspending the law—is “anarchy in a microcosm.” As a classical liberal, I view it as brazen lawlessness and a prescription for arbitrariness.

Reader Discussion

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on January 16, 2018 at 05:32:15 am

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Jury Nullification: Good or Bad? | Top 100 Blog Review
on January 16, 2018 at 09:45:19 am

OMG !!

An essay about "law" and the expressions of, and impacts on, **individual** liberty.

Here is something to ponder on "justice," the distinction (and differences) between LAW and Legislation (Rules of Policy); AND, the "why" of jurors' oaths.

Let's med'tate on some of those things rather than concentrate on "legal process" and "assigned functions."

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R Richard Schweitzer
on January 16, 2018 at 09:46:25 am

Whether we think jury nullification is a good or bad thing is beside the point. To a man, the Framers thought it was a good idea, and the Seventh Amendment preserves it unaltered. Taken from Scribd some time ago:

"The right to a trial by jury preserved by the Seventh Amendment is that which existed at common law at the time the Amendment was adopted, Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935), and the signal feature of the jury trial in 1791 was that the jury—not judges!—had lawful authority to “determine the law as well as the fact in controversy.” Georgia v. Brailsford, 3 U.S. 1, 4 (1793) (jury instructions of Jay, C.J.). By taking ultimate decision-making power out of the hands of judges, the Seventh Amendment preserved one of the "transcendent privileges" of the Englishman: "that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.” 4 Wm. Blackstone, Commentaries on the Laws of England *379 (1765).

"To the Framers’ generation, the right to a jury trial, with one’s peers deciding both the facts and law, was a sacrosanct privilege of citizenship: they fought a revolution to secure it; several Framers refused to sign the Constitution because it did not adequately preserve it. Justice Rehnquist drives this point home: “The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 343, (1979) (Rehnquist, J., dissenting) (emphasis added).

On this point, the Framers’ intent could not have been more pellucid. The express purpose of this “Heaven-taught institution,” Fabius, Letter to Editor, Delaware Gazette (1788), reprinted in, John Dickinson, The Letters of Fabius, in 1788, on the Federal Constitution; and in 1797 on the Present Situation of Public Affairs 32 (1797), was “to guard agst. corrupt Judges,” 2 Farrand, The Records of the Federal Convention of 1787 587 (1909) (statement of Elbridge Gerry (MA)); reducing them to glorified consiglieri. As Thomas Jefferson explained, it is left “to the juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty.” Thomas Jefferson, Letter (to L’Abbe Arnoux), Jul. 19, 1789 at 2. There is no contrary authority."

ln a jury trial, the judge was a check on the runaway jury, and the jury was a check on the judge. But the ultimate responsibility for decision lies with the jury:

"It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision."

Georgia v. Brailsford, 3 U.S. 1 (1794).

History is replete with examples of juror resistance to unjust laws, including that of Penn (1670), the famous trial of Peter Zenger (1734), the odious Fugitive Slave Act and Alien and Sedition Act, and modern laws criminalizing possession and use of marijuana. Radly Balko, Justice Often Served By Jury Nullification, FoxNews.com, Aug. 1, 2005. lt can be argued, as Alexander Hamilton did in his Letters from Phocion, that jury nullification was intended as a check on an out-of-control state (and increasingly, federal) legislature.

But the most pernicious "law" is judge-made law. lt is here that jury nullification could do the most good. Again taken from Scribd:

"Still, the most blatant act of judicial sodomy of the Constitution is claimed by the doctrine of absolute judicial immunity. It is a medieval common-law doctrine, tracing its origin to the notorious Star Chamber of the Tudors. Floyd and Barker [1607] 77 Eng.Rep. 1305 (Star Chamber). Created by judges for the benefit of judges, it is predicated upon a sophistry even Lewis Carroll would find impenetrable. Professor Abimbola Olowofoyeku of London’s Brunel University justifiably ridicules it:

"You have been injured by the misconduct of a judge. We have to deny you redress. This is necessary because we have to protect your interests by protecting the judges, so that they in turn can protect your interests without fear of apprehension."

No sane man would ever willingly strike such a bargain, and the very notion of the rule of law necessarily precludes it. As Canada recently enacted its own bill of rights (the Charter of Rights and Freedoms), the Supreme Court of Canada recently rejected the doctrine of immunity, finding it irreconcilable with the very concept of rights under law, Nelles v. Ontario, 2 S.C.R. 170 (1989) (Canada), joining the rest of the civilised world. E.g., Simpson v Attorney-General (Baigent’s case), 3 NZLR 667 (CA 1994) (New Zealand), Maharaj v Attorney-General of Trinidad & Tobago (No. 2) [1979] AC 385; Case C-224/01, Köbler v Austrian Republic [2003] 3 CMLR 28) (European Union). Professor Chemerinsky piles on, explaining that it places a common-law principle above the Constitution, obliterating the Supremacy Clause and extinguishing "the right of every individual to claim the protection of the laws, whenever he receives an injury." Erwin Chemerinsky, "SEE NO EVIL: Sovereignty Immunity Puts States Above the Law, Implying They Can Do No Wrong," Mar. 21, 2001, L. A. Daily J. at 6 (quoting Marbury v. Madison, 5 U.S. at 163). But when an unelected and unaccountable judge is forced to choose between fealty to the Constitution and his personal self-interest, he is going to pick the latter every time."

Judge-made law isn't really law, and juries should be aware that it is their duty to ignore it.

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Alana
on January 16, 2018 at 10:39:06 am

MP: "I am surprised that those who support jury nullification are not more sensitive to the Hayekian principle being compromised, and the potential for abuse."

Last time l checked, Hayek wasn't a Founding Father. No one disputes that the potential for abuse doesn't exist. But we also understand that the practice was designed to prevent egregious abuses. lt reflects a larger value judgment, as expressed by Blackstone: "It is better that ten guilty persons escape than that one innocent suffer."

MP: "Some proponents assert that the Founding Fathers contemplated a broad role for juries, entitling them to judge both the facts and the law in any particular case. There is an element of truth to this claim."

You have a gift for understatement, Counselor. There is no evidence that any of the Framers were opposed to the practice. Quite to the contrary, it was understood that legislatures of the day would not read their powers narrowly, to the detriment of the citizens that they ruled. By way of example [again, all this is taken from other works], John Adams explains:

"As the Constitution requires that the popular branch of the legislature should have an absolute check, so as to put a peremptory negative upon every act of the government, it requires that the common people, should have as complete a control, as decisive a negative, in every judgment of a court of judicature."

2 The Works of John Adams, Second President of the United States 253 (Charles F. Adams ed., Little, Brown & Co. 1850). See also, e.g., Madison's Remonstrance. "lf men were angels...."

MP: "During the 19th century, however, virtually all jurisdictions abandoned this practice in favor of the current system of judge-led trials. Accordingly, modern trial practice sharply restricts jurors’ discretion, requiring them to swear under oath that they will follow the courts’ instructions. It is difficult, therefore, now to argue that jurors act nobly by violating that oath and defying the law."

On what basis did the courts have a right to act unilaterally to curb the constitutional power of the jury? Law is about process, and a court acting sua sponte constitutes a per se abuse of its discretion. An attorney would be expected to understand this but yet, Pulliam chose to be oblivious.

MP: "Jurors are not lawmakers."

And judges like William Alsup ARE?!?

The role of the jury in nullification is to protect the citizen from abuses of governmental powers. As Barrister Sir John Hawles, Solicitor-General to King William III, writes:

"Tho’ judges are more likely to be able than jurymen, yet jurymen are more likely to be more honest than judges; especially in all cases where the power of the prerogative, or the rights of the people, are in dispute. Our rights, therefore, both as individuals, and as a people, are more likely to be secure while juries follow the result of their own opinion; for less danger will arise from the mistakes of jurymen, than from the corruption of judges."

John Hawles, The Englishman's Right: A Dialogue Between a Barrister At Law and a Juryman 71-2 & fn. (1680) (reprinted 1844).

All the jury is ultimately saying is that "this 'law' really isn't law, and we're not going to do what you tell us." This is not "making law."

MP: "Objections to unjust laws (or overcriminalization) should be taken up with the legislature, to effect change"

On this point, we can agree. But it seems silly for the people not to use all of the weapons in their arsenal to control an often-corrupt and tone-deaf legislature.

l would think that an actual trial attorney (a vanishing breed!) would understand what happens in the crucible of a courtroom. l don't know Mark's background, but this part of his education appears to be sorely lacking.

Whether nullification is a good thing in the abstract is a fair topic for debate. But despite MP's best efforts, it cannot reasonably be denied that it is an integral part of our legal system. l really can't say why MP ignored the historical evidence, apart from the cynical surmise that he knows that it would not support his thesis, either 20 years ago or today.

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Alana
on January 16, 2018 at 11:26:25 am

I didn’t “ignore” the historical “evidence.” I linked to this book. https://www.amazon.com/Controlling-Law-Politics-National-Hampshire/dp/0875803210
I don’t pretend to be a historian, and many law professors are ill-suited for that task. Did the Founding Fathers desire a perpetual lawmaking role for juries? I haven’t seen a persuasive argument for that, and whatever the colonial experience was, the overwhelming consensus now supports the modern practice. If jury nullification makes sense in the 21st century, proponents should explain why, instead of citing hoary and obscure precedents from the distant past.

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Mark Pulliam
on January 16, 2018 at 11:59:50 am

Very nice. You should add John Lilburn's two state trials first for treason and sedition and later for returning from banishment under pains of death to your list.

The trial for treason on was October 24, 1649 (Howell's State Trails Vol. 4, p. 1270 et seq.) and the trial for returning from banishment was between July 7 and August 25, 1653 (Howell's State Trials Vol. 5. p. 407 et seq.) They were both much more famous in their time than those of Penn and Zenger.

Lilburn's charge to the jury in the treason trial of 1649 begins halfway down page 1395. He tells the jury that they are the judges of both law and fact and that the judges are merely cyphers whose only task is to received and record the jury's verdict, if that should be the jury's pleasure.

https://books.google.com/books?id=SVdTAAAAcAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

The second state trial is not so well recorded but the jury clearly nullified the penalty for returning from banishment.

Lilburne was an old hand at all this since he had been appearing pro se before the prerogative courts for over ten years laying the ground work for what has developed into our ideas of due process and equal protection. Lilburne's work in the 1640s is the foundation of Amendments 4-7.

N.b.: The British practice is to ignore the Interregnum as much as is possible so the citations assume the revolution never happened. Thus, 20 Charles I refers to 1648, the last of Charles I's reign, and 1 Charles II refers to the first year of Charles II's imputed reign, 1649.

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EK
on January 16, 2018 at 13:24:54 pm

Thank you for the courtesy of a response.

MP: "Did the Founding Fathers desire a perpetual lawmaking role for juries? I haven’t seen a persuasive argument for that"

lt is more accurately described as a veto power, and their intention could not be more plain:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

lt was the only use of the word "preserved," and its meaning is plain. They contemplated a system under which the jury was a check on the judge, and vice versa (through j.n.o.v.), and that it would remain in place in perpetuity. The guilty man will occasionally go free, but this was a feature of the CL--not a vice.

MP: "If jury nullification makes sense in the 21st century, proponents should explain why, instead of citing hoary and obscure precedents from the distant past."

So, you're a Segall/Tribe Living Constitutionalist? That is the gravamen of Segall's argument: Judges are not historians, and can't be originalists.

With respect, the burden lies with you, as the 7Am "preserves" the jury trial as it existed in 1791, and two centuries of precedent support this reading. lt seems to me that what we are doing today is facially unconstitutional. See e.g., Suja Thomas, Why Summary Judgment Is Unconstitutional, 93 U.Va. L. Rev. 139 (2007).

lf you want to change this, you have to amend COTUS, and that will be a heavy lift.

One can make strong policy arguments for either position, but the Framers have answered the question for us.

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Alana
on January 16, 2018 at 13:26:12 pm

Thanks, but someone else did the heavy lifting here.

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Alana
on January 16, 2018 at 14:35:39 pm

Several years ago - not that long after the Simpson trial - I was selected for jury duty. During Voir dire, the prosecutor put a nickel on the rail and said: “Suppose I told you that in this state stealing a nickel was punishable by a year in the state prison. If I then proved beyond a reasonable doubt that the defendant stole a nickel, could you find him guilty knowing he would spend a year in prison?”

All of the other prospective jurors answered that they could. I answered that I would not. After both the prosecution and defense presented their cases, the judge sent the jury to deliberate but instructed me to remain behind because, unbeknownst to the rest of the jury, I was an alternate and would not participate in the deliberation.

The judge said that I was welcome to wait for the outcome and while the jury was out, the prosecutor, the defense attorney and I had a discussion about - of all things - jury nullification. I told the prosecutor that I believed that a juror had an obligation to consider whether the punishment fit the crime.

He said “I agree but I still didn’t want you on this jury!”

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Fred Bachmann
on January 16, 2018 at 16:00:18 pm

HaHa all your Wiki-learning to back up your fatuous notion:
"Whether we think jury nullification is a good or bad thing is beside the point."

Constitutional silliness on philosophical stilts!

OJ Simpson's acquittal was a good example of "jury nullification" as was the fictional jury's conviction of Tom Robinson in "To Kill a Mockingbird," itself all-to-real and typical of a century of Jim Crow "jury nullification," none of which was constitutionally, philosophically or morally justifiable, a commentary that can be said of all jury nullification of the rule of law in a law-honoring social order.

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Pukka Luftmensch
on January 16, 2018 at 16:02:57 pm

HaHa all your Wiki-learning to back up your notion:
“Whether we think jury nullification is a good or bad thing is beside the point.”

Constitutional silliness on philosophical stilts!

OJ Simpson’s acquittal was a good example of “jury nullification” as was the fictional jury’s conviction of Tom Robinson in “To Kill a Mockingbird,” itself all-to-real and typical of a century of Jim Crow “jury nullification,” none of which was constitutionally, philosophically or morally justifiable, a commentary that can be said of all jury nullification of the rule of law in a law-honoring social order."

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Pukka Luftmensch
on January 16, 2018 at 16:02:59 pm

A: "Judge-made law isn’t really law, and juries should be aware that it is their duty to ignore it."

The worse offenders of judge-made law & judge made rights occur at appellate levels well-above courts checked by juries. (No, I didn't bother to read your entire long-winded essay, but perhaps I should as you admit it isn't your own work, it might actually have some merit).

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Paul Binotto
on January 16, 2018 at 17:22:43 pm
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EK
on January 16, 2018 at 22:16:19 pm
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40yearLawPriof
on January 17, 2018 at 00:43:00 am

Is it “nullification” if the jury is asserting its right to state what the law is according to its own judgment, rather than to make or block law? And isn’t the right of the jury to decide what the law is part of the common law that Hayek praised?

“Nullification” implies disregarding the law.

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Richard S
on January 17, 2018 at 03:53:58 am

PB: "The worse offenders of judge-made law & judge made rights occur at appellate levels well-above courts checked by juries."

First and foremost, you're not paying attention. Both judges and juries have a duty to NOT follow bad precedent. Follow the process. Jury 1 decides "X. " An appellate panel decides "not X," and remands the case to the trial court . Jury 2 decides "X." Another appellate panel decides "not X." Jury 3 decides "X." Eventually, if the "precedent" really is bad, the court of appeals will give up.

Second, this is an integral part of your infantile whine over Roe, which was correctly decided from an originalist perspective. Remember that judges don't "make" rights; they merely recognize them. Here's another articulation of Randy Barnett-style originalism, taken from an amicus in the Pidgeon case:

"Some would argue that the right to gay-marry is fundamental. Others respectfully disagree. But no one has ever articulated where a distinction is drawn in the Constitution between fundamental and non-fundamental rights, or how judges can reliably tell the difference.

James Madison would have found the distinction nonsensical. In introducing his draft of our Bill of Rights to the House of Representatives, he explained that he consciously avoided attempting to enumerate all the rights retained by the people, arguing that

"….by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

1 Annals of Congress 456 (1789) (remarks of Rep. Madison). ...

This is the Rosetta Stone for interpretation of our modern-day Ninth and Tenth Amendments. While the Ninth doesn’t create rights, it is a constitutionally mandated canon of construction, prohibiting judges from interpreting the Constitution in any manner that would "deny or disparage [unenumerated rights] retained by the people," U.S. Const, amend. IX, and the Tenth is an express reservation of powers to "the States respectively, or to the people." Id. amend. X. As such, government can only infringe upon those rights that were willingly relinquished by the people, and only when needed in order to discharge its legitimate duties as our authorized agents. Professor Barnett refers to this foundational concept as "the presumption of liberty." Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004). ...

[Discussing application of the the famous William Penn trial]

In a land where “all men are created equal,” The Declaration of Independence para. 2 (U.S. 1776), the right not to genuflect to a superior authority is necessarily implicit, irrespective of whether that refusal was borne of religious conviction. As such, Penn’s was not a “religious” right protected by the First Amendment. But it would seem, on its face, to be so trivial a matter that it could easily be found to be “non-fundamental.”"

The right of two men to enter into a marriage contract or a woman, to abort a fetus, are both unenumerated rights. The State cannot create rights; it can only take them away. And it was up to the State to make the case that it had a right to take them away.

The 5/14AM only protects "persons," and the definition of that term was well-established at the time of their enactment. You could go all Larry Tribe on us, claim that the Constitution is a "living organism," and make the argument that a fertilized zygote is a "person." But let's not fool ourselves: You are rewriting COTUS in your image.

lf it is improper for judges to do this, why is it proper for you to do so?

As always, your arguments collapse on themselves.

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Alana
on January 17, 2018 at 04:13:12 am

"lf the glove doesn't fit, you must acquit." The case should have been prosecuted where the crime was committed, but all that defense counsel must raise is reasonable doubt. The L.A. prosecutors were grossly incompetent, and that incompetence cost them the trial.

Yes, there were a lot of abuses during Jim Crow. But far more cases are lost due to a lack of competent counsel--public defenders are badly overworked and don't have the resources to do their jobs. This is one of the worst cases l've seen: https://www.vice.com/en_us/article/av4gp5/guilty-until-proven-innocent

For those who won't click on the link, the defendant was accused of throwing his four-year-old daughter off a sea-cliff to avoid paying child support. He was a baggage-handler making $50K/year, and child support was $12K/year. And if it were him alone, that burden would have been crushing. But his family was wealthy, and he married an engineer banking almost $200K/year. lf they're pulling down $250K/year, $1K/month isn't a crushing burden.

This guy was imprisoned in solitary confinement as a flight risk through three trials and over 10 years. Even Phil Spector got house arrest! And when he had competent counsel, the two juries hung. But the PD had almost no resources, and he had no hope.

l suspect that the guy had Asperger's Syndrome, and didn't realize the danger he put his kid in. And the lying-in-wait charge required for Murder One barely passes the smell test. But in 'Murrika, you only get as much justice as you can afford; l think it more likely that the REAL difference between the two cases (the D was white) had to do with money and celebrity--not race.

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Alana
on January 17, 2018 at 04:18:40 am

An astute and well-distilled observation, that appears to have escaped the author. Nullification is a bit of a misnomer, in the sense that the jury is declaring what the law of the land is, unfettered by an application of sketchy "precedent" and "laws" of dubious pedigree.

l'm not much of a Hayek scholar--frankly, l dismiss him as a crank--but if he praised the CL, he had to approve of this feature, as it is zealously protective of personal liberty.

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Alana
on January 17, 2018 at 04:22:20 am

l guarantee that l will never sit on a petit jury. :) l'm full-on FlJA, and on this topic, know more than 99% of judges and prosecutors.

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Alana
on January 17, 2018 at 04:27:59 am

Appellate briefs. l routinely "steal" paragraphs and put them in files. Better than trying to reinvent the wheel.

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Alana
on January 17, 2018 at 04:32:06 am

Asked and answered elsewhere.

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Alana
on January 17, 2018 at 04:47:11 am

Wiki-like but Wiki-light research!

The way of talking points purveyors for Fake News propogandists.

I once knew a man (notable only for his intellectual pretense) who would read book reviews and expound as if he'd actually read the books.

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Pukka Luftmensch
on January 17, 2018 at 07:26:06 am

Alana LawDog,

ALD: “Both judges and juries have a duty to NOT follow bad precedent.” – this duty not to follow bad precedent falls, as officers of the court, just as much on lawyers who argue for it; and even more so than juries.

I stand corrected, "recognize" not make, I should have used more precise language. It seems to me, the right not recognized in Roe is the more obvious and most recognizable (the Justices needed look no further than in the mirror), than the one they managed to "tease" out to fit their pre-conceived outcome.

The argument you offer, while some may find persuasive, (I do not) has been countered, in my opinion, more persuasively, but we will have to leave it at that. American's, (enough of them anyway), both Democrats & Republicans love their abortions, and so long as this remains the case, the bad law of Roe, and the 45 years of bad precedent that followed will remain the "law of the land".

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Paul Binotto
on January 17, 2018 at 07:53:41 am

Alana (or should I call you “Law Dawg” or “Trevor Chase” or “Miss Creant”: Your sneering tone and faux erudition betray you. And cloying anonymity—why don’t you profess your learned opinions in your own name? Because the administrators delete your comments so frequently? And your need to argue every point, over and over. And the emoji’s. “l’m full-on FlJA”? Really? We never would have guessed. Hayek is a “crank”? Good grief.

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Mark Pulliam
on January 17, 2018 at 08:10:12 am

I know, its so obvious - LawDog's comments give him away, especially once he gets heated up, or wishes to speak of his own lustrous career, and forgets himself. Ha! - such a silly little charade, but I will play along, if he insists. Maybe I will even take on my own ultra-personality, Casandra, maybe, or does that make me sound too mysterious, too alluring? - ha!

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Paul Binotto
on January 17, 2018 at 08:22:28 am

This is an extremely thought-provoking post. I'll admit that I am a proponent of jury nullification, but this post has got me re-examining my thoughts on the matter. You make some excellent points, especially the Hayekian argument which I know I've made in the past regarding judges. So, now I must look at myself to see if I am an accidental hypocrite :-)

You've given me a lot to think about. I'm not going to say at this time I've changed my mind away from jury nullification, but you've certainly given me strong cause to re-evaluate.

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Jon Murphy
on January 17, 2018 at 08:56:12 am

The commenter (he, she or it) soi disant as "Alana" says:
“Both judges and juries have a duty to NOT follow bad precedent.”

I agree re judges as to the law since judges both interpret the law and often make the law (unfortunately.) I disagree, and it makes no sense as to juries since juries neither interpret nor make law; they find the facts, all the facts and nothing but the facts. The problem with "Alana's" admonition that "judges... have a duty to NOT follow bad precedent" is that, like most admonitions, it's rarely honored in practice and it's frequent evasion is often rationalized.

Casey vs Planned Parenthood is a perfect example of my point:
There, Scotus had come to grips with its dire mistake (its "bad precedent") in Roe, fully recognized Roe's myriad constitutional and political deficiencies and was on the brink of overturning it (five-four). But, at the last minute, the "human jump ball," that ever-fickle cosmological philosopher, Justice Kennedy, ever embarked, Spinoza-like, on his causa sui project, ever searching, Sartre-like, for his existential meaning and Kant-like for the meaning of the universe, changed his mind and switched his vote, completely reversing his in-conference decision to overturn Roe.

That was "the switch in time (to quote the post-Packing Era of FDR's Court) that saved... " the Court's constitutionally worst, its politically most damaging and its personally most deadly precedent, while dooming to early death tens of millions of prenatal infants.

By way of comparison, Taney's dreadful Dredd Scott decision (at the time, far more legally tenable among law scholars while far less morally repugnant among the electorate than is, today, the much more morally repugnant to the electorate but far less legally tenable among law scholars, Roe ) never damaged federalism, never substituted robed wisdom for the police powers of the elected legislators of all the states, and it never killed anybody.

Both precedents were very bad. One remains.

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timothy
on January 17, 2018 at 09:22:02 am

I quite agree on your points and characterization of Kennedy. What say you to my assertion that lawyers that argue for the perpetuation of bad precedent share a duty (and the blame), with judges, not to.?

Then, too, Prof. Philip Hamburger makes an excellent observation in his paper, "Chevron Bias", that lower-level federal judges are under tremendous pressure to concede and conform to (bad, even unconstitutional, if they in fact, recognize it as such) precedent set by SCOTUS, as to be placed between that proverbial "rock and a hard place"; whether to adhere to bad precedent or uphold their constitutional duty in this regards, and none but the most courageous are willing to insist on latter in these situations.

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Paul Binotto
on January 17, 2018 at 09:37:54 am

Mark, Paul and I seem to be the only ones to have caught on to the troll "Alana", whom I call "Alana Bot, apparatchik of Cryptofa" ( crypto-fascism or fascism-in-disguise as Leftist Democrat politics, but that's redundant) as opposed to "Antifa" (which is decidedly not anti-fascist.) You both call "Alana" LawDawg, a nom de plume I vaguely recall from about the time I started reading L&L a few months ago.

I am curious to know the proper pronouns for an anonymous, Cryptofa-inspired (controlled?) internet troll. For example, is the Alana LawDawg troll an "it", a "he" or a "she?" Is it "cis-gendered" or might he or she or he/she and/or it be "fluidly cis-gendered"? In the good old pre-transgender/cis-gender days people knew what they were and people could not self-identify. They may have had split personalities, like Dr. Jekyll and Mr. Hyde, or even multiple personalities, like Eve with her three faces. But in olden times folks were not nearly so quick to take offense and wither at being inadvertently misidentified and, back then, identifying folks was a whole lot easier than it is today.

I want badly to avoid any micro-aggressions.
So, Alana Bot or LawDawg or Alana LawDawg. please clarify your pronouns so we can all be on a proper pronoun basis. I'm a he for sure, and I don't melt under criticism or hide out in safe spaces.

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timothy
on January 17, 2018 at 09:47:29 am

It seems to me that the case for dispensing with what Reid with reason calls "laical jurisprudence" grew from the rise of legislation--law made by the people's representatives. As the law became laws created by our representatives, for the jury to judge law independently would be to undermine the law the people's representatives made.

The jury system, as Reid and other scholars correctly describe it, was part of the the larger common law system. And the spirit of the common law was dialectical. After all, common law was not, classically speaking "judge made law." It was the common law of the realm. Court cases, because they were written down, were the record of the law. Judges did not, however, make the law, nor did they understand themselves to be making law. To describe it as judge made law is an anachronism, putting legal positivism into an era that understood the nature of law differently than positivists do.

As we return to laws that are not made by our representatives, but are, instead, made by the administrative branch, the case for restoring this common law check on the danger of a runaway governing class would be strong.

The question is, in part, can such a system work in a multicultural land? Did the system only work because of the relative cultural homogeneity of England.

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Richard S
on January 17, 2018 at 10:28:54 am

Oh, no, Timothy, Mr. Gabe has also caught on, and has suggested so on numerous occasions recently. And, more so, I can recall, when Alana-LawDog was simply LawDog, Mr. Gabe even insinuated in one post that he knew LawDog's real identity. I think this is why Mr. Gabe is often more tolerable of him than you might prefer. And, why I am, too.

LawDog's invectives were even more obnoxious in those days, if you can believe it, and then as now, most/many directed at yours truly, as I recall, the worst of them, in any event. It was then that I decided to like the old fool, despite; I find his nasty rhetoric far too pathetic to ever hate him for it. Then again, I guess kind of like WR, I have always been able to find something I like in most people. Would he an I ever become best-buds, not likely, would I have a beer with him, sure, why not, as long as I can sit on his right side and he keeps his hand always where I can see them - ha-ha!!

Its a wonderful mascaraed he is treating us to; whoever will he be next?

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Paul Binotto
on January 17, 2018 at 11:58:53 am

You can vet the research by going to the source. ln my experience, you don't have to do that often, b/c an opponent will call you out on it if you cheat.

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Alana
on January 17, 2018 at 13:01:07 pm

Gotcha. Correcto! Gabe, too, has spotted the troll (but seems to enjoy toying with it.)

Difference of rhetorical styles and, perhaps, of temperaments.

I take the opposite approach for this reason: Based on experience and a good deal of literature, I conclude that self-willed "fools" are a) often delusional if not insane (as, e.g., with Obama, Hitler, Stalin, Mao and other leaders of millions of "True Believers"), b) frequently dangerous and cunning (see all of the above and all of their truly devoted followers) and c) always morally and spiritually "hollow men" (as in TS Elliot's poem). So, I view debating "fools" as a) further deluding and encouraging them by making them think they should be taken seriously, b) empowering them politically by lending them unwarranted credibility in the public eye (Tucker Carlson often does this on Fox News when he "debates" with a "talking points" moron) and c) feeding their hollow souls with the fuel of ego gratification, which is the last thing a morally and spiritually deprived person (a "hollow man") needs.

What America needs to do with serious "fools", in my estimation, is to use truth to morally shame, emotionally demean, reputationally besmirch and intellectually disrespect and oppose them at every opportunity. We ought not ever tolerate, respect or encourage a serious fool in any way. And having a serious intellectual or moral or spiritual debate with a serous fool is a waste of time that plays directly into his political strategy.

Extending Christian charity to a malicious fool during an existential civil war for country and culture is suicidal.

When any serious fool suggests he wants to destroy you or what you hold dear, believe him.

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timothy
on January 17, 2018 at 13:31:55 pm

You may be right, Timothy, but I think if he were truly Megalomaniacal to the extent of those you name above, his ego would require, nay, it would be irresistible, that he use his real name, (The irony that I should say this when I use my real name is not lost on me - ha!). Although, I do recall him saying one time that he used to use his real name until someone tried to track him down in Fiji, but he was not there - so maybe you have a point.

But, in truth, I peg A-LD as a fellow rather long-in-the-tooth, nearing the end of the ride, his stop fast approaching, and not really up to the task you have outlined for him. He's tired but still wants to party like its 1968. And, more than a little amazed that this 2000 year old aberration called Christianity is still alive and going strong, and likely to long out-live him.

But, as I say, I still would want him to keep his hands always where I can see them, just in case you're right...

P.S.: As to the above irony in my use of my real name, rest assured, I am also too tired to cause much of a ruckus, and really not all that cut out for the rigors of dictatorship.

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Paul Binotto
on January 17, 2018 at 13:50:15 pm

Again, very nice.

I have always overlooked the actual language of Art. VII. I'm reminded of the case of Widow Sherman's pig in the Bay Colony about 1635. It involved the settlers, one of the merchant adventures in Boston and a stray pig picked up by the hog warden. It developed into proxy lawsuit between the Presbyterians and the Independents. Sadly, the Independents lost control of the colony in 1637.

You've been taking some heat; don't be deterred.

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EK
on January 17, 2018 at 13:52:08 pm

Sorry, "Article VII" supra = 7th Amendment

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EK
on January 17, 2018 at 14:05:35 pm

I refrain from use of my last name
too many nut-jobs on the Left
an "Impeach Clinton'' bumper sticker in 1994 (I was way ahead of my time:) earned me a smashed rear window
Trump poster on my lawn in October 2016 earned me a busted mailbox and trees full of TP
head of Trump's EPA gets death threats, even his children, and requires heavy-duty security
vandals and rioters during the Inauguration were identified on video yet acquitted by a DC jury (talk about jury nullification !)
Antifa (what I insist we all start calling "Cryptofa") is everywhere, "lone wolves" and DNC-funded.
Cybersecurity, privacy from major media attacks and family and personal safety are real risk considerations for anyone who speaks out against Democrats and their Cryptofa military arm
I know conservative lawyers who have been forced to move out my area for reasons of safety
et cetera et cetera in terrorem ad nauseam.

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timothy
on January 17, 2018 at 14:31:08 pm

As late as the 1830s, a judge would still charge a jury noting , in a case in which a woman admitted she had violated a law limiting Black schools, that if the jury finds "the law was void for unconstitutionality" they should not convict her, but must convict otherwise. That's the originalist view of the role of the jury.
https://books.google.com/books?id=ByY2DgAAQBAJ&pg=PA162&lpg=PA162&dq=Crandall+%2B+%22void+for+unconstitutionality%22&source=bl&ots=BhSqCYXYf6&sig=XVFUx1lxlyVKbylzONKpEysW0-Y&hl=en&sa=X&ved=0ahUKEwiqm4eC3t_YAhUNbawKHVIKCl0Q6AEIKTAA#v=onepage&q=Crandall%20%2B%20%22void%20for%20unconstitutionality%22&f=false

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Richard S
on January 17, 2018 at 15:18:44 pm

LawDog is bright as hell, EK (Yale man, probably Skull & Bones), but any heat Alana-LawDog has been taking is due to a match he's lit under his own bottom, so before blowing any more smoke up in that direction, be aware, you haven't said anything he disagrees with yet.

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Paul Binotto
on January 17, 2018 at 15:31:24 pm

I don't blame you and probably should myself. Don't blame anyone for using a Nom de Plume, either; only when they use in a cowardly manner to hide behind their tough, abusive, malicious, and borderline libelous attacks. So I like to remind those people, in this high-tech age, there is no guarantee of anonymity. And, just because they appear masked here, there remains a discoverable record with the publisher, in this case, an email address..

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Paul Binotto
on January 17, 2018 at 15:34:42 pm

P.S. And, by using my real name, perhaps makes libel more arguable.

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Paul Binotto
on January 17, 2018 at 17:49:58 pm

[…] a recent post at the Law and Liberty website, conservative legal commentator Mark Pulliam takes issue with […]

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Does Jury Nullification Undermine the Rule of Law? - DC Weekly Daily News
on January 17, 2018 at 18:20:31 pm

[…] a recent post at the Law and Liberty website, conservative legal commentator Mark Pulliam takes issue with […]

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Image of [Ilya Somin] Does Jury Nullification Undermine the Rule of Law? – Ben Lee
[Ilya Somin] Does Jury Nullification Undermine the Rule of Law? – Ben Lee
on January 18, 2018 at 01:26:28 am

When a jury says that a person is "guilty" they are not just saying that he did a crime, but also that he can be legally punished for it--since a verdict of guilty near always leads to punishment. If a person did something for which he cannot be punished, then a jury should not find him guilty--regardless of whether he "broke" the law or not. Just as you would not describe your daughter as "guilty" of something if you were not intending to punish her for it

Morally speaking, you should not make a person available for punishment (find them "guilty"), if they have done nothing which deserves to be punished. Now if you are in a direct-democracy, you can simply vote to repeal any law that is immoral or vote to pardon the person after they are found guilty. But in a representative democracy, the people have no control over the laws or pardoning, so they have to not find 'guilty' in the first place.

Despite the fact that a majority of people believe marijuana should be legal, it is illegal federally. The people's will isn't represented in the law (i.e., the law is illegitimate), so the only thing they can do is to not enforce the law in whatever way is available to them, i.e., not find guilty.

Just as the state has discretion in what laws they pass, who they arrest. and what charges they bring against them; so the jury has discretion in what laws they find people guilty for.

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Timothy McJury
on January 18, 2018 at 09:26:41 am

Silly comment!
Lack understanding of law and political philosophy.
Lacks even logic and common sense.

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Pukka Luftmensch
on January 19, 2018 at 09:17:22 am

Suggestion: Read Chapter 6 of Volume One of Hayek's "Law, Legislation and Liberty."

[Not Hayek] Instructions on the 'Law" apply where the "Law" is of **general** application.

Since much "Statute Law" is, by nature of the reasons for enactment, for specific application, there is not "equality under legislation." [not a quote, but Hayek's position.

He did differ from (and with) Kelson.

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R Richard Schweitzer
on January 19, 2018 at 09:42:31 am

Depending on the real (and depth of) interest of the commentators, one's thinking on trial functions may be expanded by reading about the establishment and (mitigating?) role of EQUITY into the function of the COMMON LAW,

To go deep, read Maitland & Pollock. There is much to be understood about the limitations of Common (General application) Law; the elimination of distinctions between Law and Equity - all affected by what has come to be " Code Pleading."

In the end, what provides justice (applicable to the circumstances of the case); and what is that "justice," other than the determination of, and performance of, the obligations of the party or parties in the circumstances examined by juries or judges?

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R Richard Schweitzer
on January 19, 2018 at 09:49:56 am

[…] and the libertarian law professor Ilya Somin have been debating these questions this week. Pulliam views jury nullification as “brazen lawlessness and a prescription for arbitrariness.” As he […]

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Image of The Originalist Case for Jury Nullification - DC Weekly Daily News
The Originalist Case for Jury Nullification - DC Weekly Daily News
on January 19, 2018 at 09:55:07 am

[…] and the libertarian law professor Ilya Somin have been debating these questions this week. Pulliam views jury nullification as “brazen lawlessness and a prescription for arbitrariness.” As he […]

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Image of The Originalist Case for Jury Nullification – iftttwall
The Originalist Case for Jury Nullification – iftttwall
on February 08, 2018 at 18:00:08 pm

"I am surprised that those who support jury nullification are not more sensitive to the Hayekian principle being compromised, and the potential for abuse. In our system, laws are democratically enacted and apply to everyone. No one is above the law."--While I can appreciate the sentiment, our system has in many cases been perverted to serve the system itself. Jury nullification allows "the people" to judge bad laws by refusing to enforce them. That won't always work towards justice as an end, but it allows for it when lawmakers refuse to pass just law. For example, the case can be made that jury nullification resulted in the repeal of prohibition. Is that not democracy in action too?

I don't know where you are from, but Texas is, in many ways, little more than a plutocracy. The lawmakers serve more at the whims of big donors than the people. In such a system, jury nullification may be the only way people can push back.

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Tammy Blair
on February 22, 2018 at 01:19:57 am

I'm a bit surprised that nobody has mentioned or quoted from Lysander Spooner's "Trial By Jury":

"FOR more than six hundred years that is, since Magna Carta, in 1215 there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws."

Kurt

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Kurt
on July 29, 2018 at 12:00:32 pm

Jury nullification is a not the answer. It’s a symptom of a systemic problem that has nothing whatsoever to do with either juries, liberty, or representative vs. direct democracy. For one thing, it’s not the answer not because it’s morally “bad,” any more than putting a Bandaid on a gunshot wound is “bad,” but because it’s incomplete.

Nullification in the context of our current legal system is unreliable. There’s no way to ensure it will happen when it ought to. The legal system does its best to ensure jurors don’t know about it, but even if there were a massive publicity campaign, jurors torn between their conscience and their obligation to serve the court may come to regret their own decisions later.

Nullification is also often unavailable. Some criminal cases are never heard by a jury, as in Virginia, where certain traffic violations are treated as criminal offenses yet judged only by a single judge. One can be charged by a judge with a class 1 misdemeanor, just short of a felony, for “failure to maintain proper control of a vehicle” after purposely driving a skidding car into a median barrier to avoid hitting oncoming traffic. One might well wish to commit this crime repeatedly rather than kill or injure someone else or attempt to regain control by driving like a stunt driver. One could pay an attorney to bargain the citation down to a large fine for “improper driving,” but if one actually thinks the driving one did, as opposed to the “control,” was quite “proper” under the circumstances, who is going to nullify this unsafe, unjust law? The judge? One who in my case, a clerk confided, was a retired substitute up from down south? One who tried to blow through his case load as fast as he could by cutting off all defendants in midsentence and sentencing them, unless they were represented by an attorney, so that he could get off early to visit his grandchildren?

So then what is the solution? Petitioning officials, as nullification’s detractors espouse? Let’s say that instead of nullifying in court, we all get together and lobby our lawmakers to change potentially stupid laws. Which ones? What are they? I’m not talking about the laws we all know about from the news, like immigrant deportation, abortion, etc. I’m talking about the laws no one cares about because no one outside the legal establishment knows they exist until they get charged with violating them. Should we all spend our evenings in law libraries trying to identify them? Let’s say we did that. Would we be any better at identifying the bad ones than our poor legislators are? The only way I found out that I couldn’t park within 25 feet of the front side of a stop sign, despite the absence of any parking signage whatsoever, was to unknowingly violate this law when there were no other parking spaces within a 5-block radius of my destination late at night in a dangerous neighborhood. Now I know about this curious law. Now I also know something about its flaws. These flaws I would never ever have discovered by spending every night in a law library for years. But now I’m also guilty. What sort of an impression does a guilty man make lobbying “selflessly” for better laws? What if he’s in jail, or has a criminal record for purposely driving into a road barrier to avoid killing a human being? Where does he get the money to lobby? How is an acknowledged criminal supposed to garner the support of the community or the lawmaking establishment? Are lawmakers are supposed to take pity on his poor family?

Maybe instead of promoting solutions like nullification or public lobbying, we should start thinking about the actual problem these proposals are intending to solve. Is it right or wrong to take someone’s clothes out of a dryer in a busy laundromat if their owner doesn’t retrieve them in a reasonable period of time? If you do that, their owner may be unhappy that a stranger touched her personal possessions. In the USA, it’s considered a violation of social norms. So what’s the problem here? Is it that perceived social pressures constrain our liberty to make rules for ourselves and others? Or is it that the laundromat manager is never around to realize she needs to post time limits, while her minions never bother to suggest it to her?

My experience with research on enterprise software tells me that anyone who works in an office has had to “game” a stupid system. I’ve interviewed people who were forced to lie about a travel exception to get an automated flight serve to provide a reservation at above the approved cost ceiling when they had to reserve close to the date of travel..In another case, employees stationed overseas could not connect to an online system to complete required reports and did not have the information to complete the required fields, so they rebelled by creating their own unofficial versions of the reports on their laptops. Over time, in both cases, as the system’s flaws persisted, people lied gleefully and mocked the system. Meanwhile, junior management fully supported and publicized the actions and disdainful attitude of their scofflaw staff, but not because they wanted to support their liberty and autonomy from senior management. They did so simply to remind senior management that the dysfunctional system had not yet been fixed!

Eventually it got fixed, and far from being censored, the violators were praised for their role in the improvements. Imagine if instead of changing the rules to allow more flexibility, senior management had said “you were a very bad employee, but given “the extenuating circumstances” and “your spotless record in the past” (which everyone reading this post knows has nothing to do with the violation), I am going to reduce your sentence to 4 hours sitting in the break room.” Would there ever be any innovation in our society?

A successful system for managing human activity requires not just rules and guidelines but an iterative process of testing in context of use and successive refinement of the rules.
The Chinese do not actually ban opposition parties. They turn them into advisory boards. But I’m not representing the Chinese Communist Party here. I know from experience that this process is the norm not only in many U.S. federal offices and non-profit organizations, but also in U.S. corporations that attract libertarians. Even the military and some religious institutions are coming round to it in an effort to retain members.

With churches evaluating Biblical prohibitions in context, why are we still not seeing the legal system for what it is? You can complain all you want about partisan lawmakers and a small percent of politically motivated laws. But when it comes to the system as a whole, what we call the rule of law is nothing more than the rule of well-intentioned folks who aren’t around to hear the details of the case. Any case, except for any that might have prompted initial passage of the law in question because those cases happened to make it to the news. The lawmakers never bothered to send their legislative staff or even private contractors into a courtroom for observation, or even run any statistics to find out how well their laws work.

The problem is not, as Timothy McJury suggests, representative vs. direct democracy. It’s barriers to communication between the courts and the legislature. If our lawmakers knew about the person who finds a gun in his front yard at night and takes it inside for the evening for safekeeping, only to be arrested for possession of a firearm without a license, or the perpetrator of “cruelty to animals” who rescues a child from an aggressive pit bull by kicking it, or the unwitting mule, unknowingly carrying illegal drugs on her person, they would realize that what seemed like good ideas at the time are not so in other circumstances. But that’s never going to happen by relying on the ill informed public or criminals to petition legislators into action.

There’s no inherent reason why separation of powers couldn’t be maintained while allowing legislative staffers to sit in on court cases, consult with judges, and report back to lawmakers on what’s not working. To protect the accused from serving as guinea pigs, sentences could be temporarily suspended while new laws are being evaluated. Legislators could be reelected based on how many flawed laws they improved rather than how many tough laws they passed.

Scholarly citations of historical precedents for jury nullification miss the point and play into the Hollywood dichotomy that fetishizes on the one hand apocryphal God given “rule of law” and on the other, rogues and rebels who believe they know better. Hollywood doesn’t make much of incremental improvements, but it’s time our judicial system did.

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ConnedSumer
on July 30, 2018 at 19:39:53 pm

You may be thinking "that's all we need, laws that change every month." As a citizen, I would rather get a monthly newsletter in plain non-legal prose telling me about the laws that have changed in my state and municipality than no notice of the law whatsoever until I am issued a citation at the whim of a police officer.

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ConnedSumer
on July 30, 2018 at 21:48:27 pm

The entire reason for jury trials is nullification, which it is the duty of the jury to perform. This means either finding that the prosecution fails (merely fails to prove the case, or is prosecuting maliciously) or that the law itself is unjust.

This is one reason why bypassing jury trial such a legal and social negative, whether it's to stand before a judge for trial, or to bypass trial entirely by means of plea agreements.

The scheme for incremental improvement you wish for plays directly into the hands of authoritarians - it's the way Microsoft learned from the government - embrace, extend, extinguish.

The only real hope is for real cultural change - and I don't hold out a lot of hope for it. But, to go through the motions, defendants should always ask for a jury trial, at all points, and appeal, and fight some more. This will crush not only the public defenders offices, but more importantly the prosecutors offices.

Jurors need to be educated that their duty to freedom and the law is to judge both the circumstances of the case and the law itself, and if either fails, to refuse to convict.

Then, we need to take a (and oh, how I hate to say this) Trumpian approach to things - we need to require that for every law and regulation that is passed that at least two, and preferably ten, be repealed.

As I implied above, I'm a pessimist, but that's what it's going to take.

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Kurt
on July 31, 2018 at 05:27:52 am

"[D]efendants should always ask for a jury trial, at all points, and appeal, and fight some more. This will crush not only the public defenders offices, but more importantly the prosecutors offices." - The quality of defense received will certainly suffer, as will due process, Ineffective counsel appeals will go through the roof. This tactic his will also crush the courts and correction systems, too, so sentences will become even lighter. This REALLY would be the Blue Screen of Death, to use your MS analogy, for the Justice System in America - ha!

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Paul Binotto
on July 29, 2019 at 12:02:36 pm

When ever I become involved in issues that are literally beyond my expertise, I try to find something to hang my hat on for guidance.
A jury has responsibilities that were accrued over centuries. The purpose of the jury was to LIMIT the discretion of authority in containing the populace. Nullification permits the expression of rebellion according to the personal findings and analysis of what is presented and it's lack of validity to THAT set of persons sitting in judgement.
Most of the discussion avoids the origination of laws and to whom the advantages were gained.
We, the people have an absolute right to disagree with any portion of any law. We can march, post signage, etc. openly. Yet, when we have the privilege of confronting and overruling the consequences of an Elitist program of laws, in a civilized manner, in controlled conditions, the lackeys (sorry folks it's who you are) inform us of the countless tribulations and curses that will befall a 'court system'.
I'm agnostic and old. I have seen the courtiers to TPTB endlessly defend their right to a system that benefits THEM.
JN is a last recourse for allowing the system to roll on without it becoming MORE burdensome.
Rebellion against tyranny is a good thing.
Knowing who the tyrants are is the difficult aspect. It's mostly you and your sponsors though.

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Dennis Earl Bohner

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