Standard Mischief

To think that the legislative process is somehow so sacrosanct that laypeople sitting on juries shouldn’t second guess the judgment of lamwakers when dumb laws railroad unthreatening people reveals a trust in politics and lawmaking I’d say is rather unhealthy.

The above is a quote from Radley Balko over at his blog The Agitator. In it he discusses all the reasons why he’d argue for acquittal, and hang the jury if necessary, even though he’s probably sure the accused technically broke the law.

It’s from last August, but go read it anyway. Because it clearly states the arguments for us pro-Fully Informed Jury people.

I’m still looking for someone to argue the other side. You know, the side where only the people with law degrees and black robes can figure out whether or not certain laws are unconstitutional.

So if you are following along with the thread I pointed out on Monday, you’ll notice that I didn’t really received an answer to my question, probably because what I’m looking for really isn’t out there. Zuzu pointed to the Federal Rules of Evidence, but didn’t really explain or point to a well argued essay explaining why juries are supposed to apply the law as written, not as they wish it might be.

Then, of course, she accused me of thread-jacking. Well the topic did wander a bit, but that was never my intent, and I’ll claim I was aided and abetted by some lady who claims she has three years of law school and ten years of federal litigation practice.

The deal is that the Federal Rules of Evidence were adopted well past the William Penn landmark case, and in any event I was looking for the reasoning behind those rules, not the rules themselves.

Before Penn’s case, juries in England were frequently packed with crown supporters or were threatened with punishment unless they issued the proper verdict, in this instance they returned a verdict of not guilty to the charge of preaching an illegal sermon. The judge was not at all pleased and sent Penn back to jail for contempt, and fined and held the jury for three days without food or water.

When the dust had settled, we ended up with not only a common law right to practice a religion of one’s choosing, but also the right to be tried by a juries that could also judge whether or not the law was a just one, or whether it was fairly applied.

Nowadays, in California, after the Voir Dire process, but before the jury is impaneled, they are required to swear an oath:

“Do you, and each of you, understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?”

This roughly translates into “will you be a meat-bot for the judiciary of the state of California?”, as it does not allow for the jury to nullify a poorly applied law or a law that is clearly unconstitutional.

John Silveira wrote an excellent article about California’s effort to only impaneled the meat-bots. Thankfully, Backwoods Home magazine has put the short and worthy-of-your-time article online for me to point you to. Go read it. This is the money quote here, but it does not spoil the ending:

What the state wants are machines and people who think and are predictable like machines. But if this is how justice is to be dispensed in the United States, then God help us.

That would be this one, said over at Say Uncle’s, back in July 2005:

# Mark Jones Says:
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Heh. Yeah, the cops has discretion aplenty on whether to arrest or merely warn you. The Prosecutor’s office has discretion aplenty on whether to charge you for a crime or crimes (and what charges to bring, and what penalties to ask for). The judge is a tinpot god in his own courtroom.

But if the JURORS show the slightest bit of independent thought, civilization will collapse into flaming ruin.

I’m skeptical.

So this is a legal bleg. I’m sure there’s well argued dissertations against the practice of fully-informed juries or that discuses opposition to the widespread practice of jury nullification, it’s just that I haven’t stumbled upon any of them yet.

So I’m asking. That’s what this post is about

This post originated on another thread, on another blog, and if you wish to read that, it’s right here. Everything below the line is my latest comment, posted over there.

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zuzu Says:

That’s it, SM. You’ve convinced me that everything I’ve learned in three years of law school and ten years of federal litigation practice is wrong, wrong, wrong, and you’re right.

You are the man, so I must bow to your superior knowledge.

Aw, you’re so cute when you get all sassy!

Look, I’m serious here. I know some people are against jury nullification, but this is the first time I’ve actually discussed it with someone.

And honestly, I’m really learning something here. So, I actually already knew that there were reasons why evidence could be excluded from a trial (like fruit of the poison tree), but this is the first time I really understood that the defense needed to stick to a certain preapproved defense strategy. That really depreciates the phrase “had his/her day in court”, now doesn’t it?

On the issue of jury nullification, well I’ve got Thomas Jefferson, and John Adams on my side. Even though they are dead white guys who perpetuated the patriarchy, I’m still counting them as aces. Also, I’ve already read the stuff from groups such as the Fully Informed Jury Association, and formed an opinion from it.

But that doesn’t mean there isn’t another side of the story, and that’s what I’m asking.

So somewhere out there there’s an honest argument where someone defends the practice of telling jurors that even if they think the law is being unfairly applied, they have to convict if the state proves it’s case. I’d really like to read that argument and let that opinion weigh in with what I’ve already read, but I’ve not found it yet.

All I’m asking for is a pointer, I can go fetch it myself. Surely with your vast legal education and experience, that request is a piece of cake.

Otherwise, I’ve just got to assume that a bunch of lawyers, and judges (who are almost always lawyers) and a bunch of politicians (who are usually lawyers too, oddly enough), are trying to pull a fast one over all of the rest of us.

…same old crappy cobbled-together theme. I’m gonna have to do something about that.

Comments are open if you notice any problems. Thanks.