Nullification, if you make it on the jury, is easy. Just vote to acquit and don’t let anyone change your mind. Nothing wrong (or illegal) with that.
The trickier part wasn’t addressed in the post: How, as a nullifier, do you make it through voir dire? I’ve never been on a drug war jury (or a jury of any type, for that matter), but I hear that the prosecution routinely tries to ferret out the druggies, nullifiers, and anti-drug war types by asking if you’d ever vote to convict in a drug case. Basically you get the choice of perjuring yourself or never having the possibility to serve on a jury.
I’ve heard it argued that if enough people were honest about their intentions (just say, “No, I would not send anyone to jail for a victimless crime,” or words to that effect) it would make seating a jury hard enough that drug convictions and prosecutions would grind to a halt. Unfortunately, I don’t think that’s true, there are just not enough people who understand how high a price we’re paying for treating consenting adults like criminals.
First google for “voir dire nullification” brings up this case of a woman (in Colorado) named Laura Kriho who voted to acquit Michelle Brannon of possession in a meth case and told a fellow juror it was because she thought the government locking up teenagers for tiny amount of drugs was stupid. The case went to a mistrial and initially the prosecutor wanted to charge her with perjury until they realized they’d forgotten to ask her the standard voir dire questions.
Then they charged her with contempt of court, apparently for not realizing that they MEANT to ask those questions and removing herself from consideration during voir dire.
She was eventually acquitted, but it still sent the message: Vote to nullify and we’ll get you.
I’d never seen that second story and it bugs me. A lot.
For what it’s worth, I agree with you: I don’t think that you could find a majority of people opposed enough to our current set of drug laws and enforcement efforts that it would make it hard to sit a jury on a drug case at all. People are too frightened of industrial hemp to even consider efforts to let that be used as an industrial crop--the real stuff still scares the bejezus out of folks.
Depending on the questions they asked, I could be on a jury for a drug case. I can see situations where I would vote to convict--if there were violence involved, if they were caught driving will impaired, and if drugs were provided to minors, for instance. Pretty much anywhere that I can imagine having the same problem with someone who was drinking alcohol and where another activity was involved. That is, I can never imagine convicting someone of simply drinking alcohol, but drunk driving is a serious issue.
Now, if they ask the wrong questions, I wouldn’t lie just to get myself on a jury. Not only is there a danger to me, but it’s dishonest.
I’ve been called for jury duty a handful of times and I’ve always gone down willing to serve. At best, I’ve been told to go home as soon as I arrived. At worst, I waited a few hours for a case and then sent home having never set foot in a courtroom.
Radley Balko has an article where he calls voir dire a “perjury trap” for people who believe in nullification. Patterico shreds him for that, and I am on Patterico’s side. I don’t believe it is legitimate to lie in voir dire about one’s belief in nullification, and I don’t believe that nullification ( ie., voting to acquit because one believes that the law is wrong ) is valid - it is not the jury’s perogative to decide policy IMO.
Again, during jury selection, I wouldn’t like to be on a jury, nor can I say that I am committed to nullification on any specific issue in all situations. But if the judge’s instructions and the law violate my sense of right and wrong (say in a free speech case or in certain drug cases), you couldn’t buy a guilty verdict from me. You can say that it’s not a juror’s prerogative, but can the law or a judge order me to go against my own beliefs and principles to deliver a decision that I believe is wrong.
Read wrong in this case not merely to mean mistaken or “oops.” Read wrong to mean violation of another citizen’s rights, tyranny of the state kind of stuff.
Bushel’s (Bushell?) Case may not enshrine jury nullification, but it does give me some sense of solid ground to stand upon. And I found RB convincing in this piece that he wrote for Fox (it took a while to find it, sorry):
Here in America, the Founding Fathers understood the importance of allowing juries to determine not just the guilt or innocence of the man on trial, but the justice and fairness of the law he’s charged with breaking. John Adams said of jury nullification, “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 direction of the court.” John Jay, the first chief justice of the Supreme Court, said “The jury has the right to judge both the law as well as the fact in controversy.”
It’s not a Jury’s place to decide policy?! That’s ridiculous. Nullification of unjust laws is historically based in common law and is a perfectly legitimate function of juries.
As far as Patterico, I seriously doubt that he “shredded” Balko. Maybe he’s a smart guy, but whenever he argues with Balko he gets a bit irrational. He’s also an prosecutor, so he’s not exactly unbiased on this subject.
Perhaps it is wrong to lie in voir dire (I wouldn’t), but I think it’s absolutely wrong for either prosecutors or judges to attempt to prevent jurors from participating because they think a law is unjust.
(BTW, I do know that the history of nullification is not without it’s blemishes… but I think Jim Crow and racism tarnished many of America’s otherwise illustrious institutions and it’s no reason to throw the baby out with the bathwater.)
I would SO take that pledge. And I stand behind Matt on the matter of the jury’s place to decide policy, basically agreeing with the fact that we are a nation with a gov’t for the people, BY the people.
It’s not just drug cases. The last time Denver called me up for jury selection, one of the questions during selection came from the judge, and was, more or less, “Do you agree to judge only the facts of the case, and to be directed by me as to the law?”
I told him I couldn’t do that, because he was asking me to give up my right to judge the law. He told me he was disappointed, because I “seemed like a smart guy” and he “thought I’d get a lot out of it” when he dismissed me.
By the way, jury nullification is in the Colorado State Constitution, although the language could be clearer as to whether it’s generally applicable or applicable only to libel cases (Bill of Rights, Article 2, Section 10). I’d feel more comfortable if it had been set off with a semicolon rather than a comma, but what sense does it make to only permit libel laws to be nullified?
David, Balko lacks credibility with me given his behavior in several stories.
Mr Lady if you think jury nullification is a government “for the people, by the people” then you are simply confused. Jury nullification is government by a random single person, not the people. Jury nullification is one person deciding to not apply policy decided by the people’s representatives. When the people’s representatives make a policy, and a minority randomly selected to a jury decides to frustrate it, you can’t pretend that that is democracy.
Reading quotations of the founding fathers often lacks context. Judges at the time in English practice could do several things not allowed to judges today. First, judges could comment to the jury about their views of the evidence itself - something few courts are allowed today and never done by those that can. Secondly, in English practice the judge could order the jury to return a particular verdict and punish the jury for failing to follow his orders.
When the judge tells you that nullification is invalid, smile and nod. When the prosecutor asks if you will uphold the law as written, look shocked and say “of course!”
When the bailiff closes the door and you start your deliberations, do what you damn well please.
If the “behavior” you’re talking about is the bogus Patterico claim that Balko should have disclosed his work on the Cory Maye story in his WSJ article on Dr. Hayne, well, it’s just that… bogus. Obviously, with all the work Balko has now put into the Hayne story it wasn’t just his desire to get Maye free that led to his attacks on Hayne.
If the Patterico/Balko blog wars have destroyed anyone’s credibility, it’s Patterico’s. He’s revealed himself to be an authoritarian and a supporter of the tyranny of the prosecutors that we currently live under.
Bob Hayes - Easy to say until they charge you with perjury or contempt (see my links to Kriho above).
"… I don’t believe that nullification ( ie., voting to acquit because one believes that the law is wrong ) is valid - it is not the jury’s p[r]erogative to decide policy IMO.”
Unless I’m mistaken, Zenger is still good law in the US; jury nullification is fundamental in common-law jurisdictions (I can’t speak to Louisiana).
Doug, Fraley is a lawyer and so, I believe, is Robin (although I could be confused on the subject--I often am).
If I’m ever asked what Wheels was asked, I’ll answer honestly and I won’t be on the jury. Which is a shame since I’m not committed to nullification as some unreasoning act of rebellion--there are few situations where I would go that route.
In reference to this:
“Secondly, in English practice the judge could order the jury to return a particular verdict and punish the jury for failing to follow his orders.”
As I understand it, that is entirely what the Bushel Case addressed--it protected jurors from punishment for not following the instructions of the judge.
"Jury nullification is government by a random single person, not the people. Jury nullification is one person deciding to not apply policy decided by the people’s representatives. When the people’s representatives make a policy, and a minority randomly selected to a jury decides to frustrate it, you can’t pretend that that is democracy.”
No, if the nullifier is acting in a vacuum he’ll have no effect at all. They’ll just declare a mistrial and try again with a new jury. But if there’s a groundswell of anger about certain laws that isn’t getting translated into legislative action (for whatever reason) then the maybe the whole jury will decide to nullify and the defendant will be acquitted. Or the next jury will have a couple of nullifiers, causing another mistrial. With randomly selected juries nullification only has an effect if a large portion of a community disagrees with a law.
If we’re not going to allow nullification we might as well get rid of juries and have courts run by tribunals of judges.
David, I try to avoid guild sanction when talking about law or medicine. I wouldn’t want to be thought to be violating somebody’s legally enforced monopoly.
Our system of government has checks and balances. There are other, better, legal ways affect policy besides misrepresenting your views during voir dire. Judges are elected or appointed, lawmakers are elected. If there is truly a groundswell of anger, it will be expressed through the election and appointment of legislators, executives, and judges. It may take time...but it is clear to me that one of the best guarantors of liberty and freedom is that it takes an incredible sustained effort to change policy, making it less likely someone will create an astroturf movement just get a desired goal.
I am against activist judges changing policy, why would I think activist jurists would be any better?
But I will also say that Matt Moore’s final post has good thought I feel are worth further consideration before I ever find myself in the position of being in a jury pool again.
...and on second thought, John Grisham’s Runaway Jury is applicable here...but could be used as grounds for either Robin R.’s or Matt Moore’s view.
...and on third thought, I have to lock in on agreeing with Robin R. People who justify their actions by saying “but there is no other way to get past entrenched special interests” are usually wrong. And I also tend to believe that allowing someone to believe something not true about you (that you would consider conviction when you know you won’t) will usually be bad for both you and society in the end. But I’m an idealist with a pretty narrow definition of integrity.
If jury nullification is inherently anti-democratic, why isn’t prosecutorial discretion inherently anti-democratic? In each case, an unelected person or group is making a decision not to punish even when the law says punishment is expected. And in each case, that discretion is supported by long tradition (and the exercise of both was expected when the federal and most state constitutions were framed).
I don’t see a principled difference.
That said, I’m not going to lie during a voir dire. I will make it very clear that I will decide based on the totality of my experience and the instructions of the judge, but with the full knowledge and understanding of my right to judge both the law and the facts, as articulated in Zenger.
I expect that would get me booted from a jury, and I think that’s quite probably unconstitutional, but it’s still probably the right thing to do.
I would never misrepresent myself during voir dire unless it was to reduce my likelihood of being on the jury. I also don’t think there’s anything wrong with jury nullification per se. I’m uncomfortable with it becoming too closely identified with one particular and deeply unpopular political position (which drug legalization still is), since it’s very easy to get people these days to throw out bath, baby, and the whole damn bathroom.
As for this:
People are too frightened of industrial hemp to even consider efforts to let that be used as an industrial crop--the real stuff still scares the bejezus out of folks.
I don’t see people being scared of it. I don’t think most people know the least little thing about it.
And of those who do, probably the majority are merely skeptical of the hype, as we are of the hype surrounding gullible warming and ethanol.
First, I don’t play a lawyer on TV or in real life so no legal advise here.
Matt Moore asks: The trickier part wasn’t addressed in the post: How, as a nullifier, do you make it through voir dire?
There are some suggestions for accomplishing this in this article by Clay Conrad who wrote a book about jury nullication* back in the 20th century.
Robin: ..it is not the jury’s perogative to decide policy IMO.
Well, we are not talking policy here. Rather we are talking law. There is a long history supporting the idea that a jury should decide a case in its complete context which includes the law and all the facts.
Also, bad legislation does not constitute good law; law which adheres to the rule of law. See Barhett’s The Structure of Liberty** for a lengthy exposition on the rule of law.
Wheels recites a voir dire question: “Do you agree to judge only the facts of the case, and to be directed by me as to the law?”
Echoing Bob Hayes it seems to me that this can be answered yes and you can still proceed to nullify without perjuring yourself. The judge is going to tell you what the current “law” is. Great. You do not have to agree that the law is valid.
Matt Moore: Bob Hayes - Easy to say until they charge you with perjury or contempt (see my links to Kriho above).
When freedom, liberty and justice are at stake perhaps we should be willing to take a perjury or contempt charge as part of the battle. It would not be the first time in our history that folks have gone to jail as a result of their actions on behalf of those concepts. More than a few have given their lives in this battle.
In this theme Nathan says It may take time...but it is clear to me that one of the best guarantors of liberty and freedom is that it takes an incredible sustained effort to change policy, making it less likely someone will create an astroturf movement just get a desired goal.
When legislation (policy?) violates our basic rights, yes, a sustained effort to change it is one of the methods that should be used to drive change. That this approach is underway is no excuse for not standing up against injustice though all other available means: marching, picketing, nullifying, etc.
Perhaps more later. I’ve got to get on the road for work. Another fun day of drving and meetings and not online.
PS: Sorry about the links. I couldn’t get’m to work after the first one.
Comments & Trackbacks
Nullification, if you make it on the jury, is easy. Just vote to acquit and don’t let anyone change your mind. Nothing wrong (or illegal) with that.
The trickier part wasn’t addressed in the post: How, as a nullifier, do you make it through voir dire? I’ve never been on a drug war jury (or a jury of any type, for that matter), but I hear that the prosecution routinely tries to ferret out the druggies, nullifiers, and anti-drug war types by asking if you’d ever vote to convict in a drug case. Basically you get the choice of perjuring yourself or never having the possibility to serve on a jury.
I’ve heard it argued that if enough people were honest about their intentions (just say, “No, I would not send anyone to jail for a victimless crime,” or words to that effect) it would make seating a jury hard enough that drug convictions and prosecutions would grind to a halt. Unfortunately, I don’t think that’s true, there are just not enough people who understand how high a price we’re paying for treating consenting adults like criminals.
First google for “voir dire nullification” brings up this case of a woman (in Colorado) named Laura Kriho who voted to acquit Michelle Brannon of possession in a meth case and told a fellow juror it was because she thought the government locking up teenagers for tiny amount of drugs was stupid. The case went to a mistrial and initially the prosecutor wanted to charge her with perjury until they realized they’d forgotten to ask her the standard voir dire questions.
Then they charged her with contempt of court, apparently for not realizing that they MEANT to ask those questions and removing herself from consideration during voir dire.
She was eventually acquitted, but it still sent the message: Vote to nullify and we’ll get you.
I’d never seen that second story and it bugs me. A lot.
For what it’s worth, I agree with you: I don’t think that you could find a majority of people opposed enough to our current set of drug laws and enforcement efforts that it would make it hard to sit a jury on a drug case at all. People are too frightened of industrial hemp to even consider efforts to let that be used as an industrial crop--the real stuff still scares the bejezus out of folks.
Depending on the questions they asked, I could be on a jury for a drug case. I can see situations where I would vote to convict--if there were violence involved, if they were caught driving will impaired, and if drugs were provided to minors, for instance. Pretty much anywhere that I can imagine having the same problem with someone who was drinking alcohol and where another activity was involved. That is, I can never imagine convicting someone of simply drinking alcohol, but drunk driving is a serious issue.
Now, if they ask the wrong questions, I wouldn’t lie just to get myself on a jury. Not only is there a danger to me, but it’s dishonest.
I’ve been called for jury duty a handful of times and I’ve always gone down willing to serve. At best, I’ve been told to go home as soon as I arrived. At worst, I waited a few hours for a case and then sent home having never set foot in a courtroom.
Radley Balko has an article where he calls voir dire a “perjury trap” for people who believe in nullification. Patterico shreds him for that, and I am on Patterico’s side. I don’t believe it is legitimate to lie in voir dire about one’s belief in nullification, and I don’t believe that nullification ( ie., voting to acquit because one believes that the law is wrong ) is valid - it is not the jury’s perogative to decide policy IMO.
Again, during jury selection, I wouldn’t like to be on a jury, nor can I say that I am committed to nullification on any specific issue in all situations. But if the judge’s instructions and the law violate my sense of right and wrong (say in a free speech case or in certain drug cases), you couldn’t buy a guilty verdict from me. You can say that it’s not a juror’s prerogative, but can the law or a judge order me to go against my own beliefs and principles to deliver a decision that I believe is wrong.
Read wrong in this case not merely to mean mistaken or “oops.” Read wrong to mean violation of another citizen’s rights, tyranny of the state kind of stuff.
Bushel’s (Bushell?) Case may not enshrine jury nullification, but it does give me some sense of solid ground to stand upon. And I found RB convincing in this piece that he wrote for Fox (it took a while to find it, sorry):
You can read the rest of it here, although I imagine you won’t find it convincing. I don’t always agree with Radley Balko--which makes sense since I’m not a Libertarian--but this is one area where I pretty strongly agree with him.
I haven’t read what Patterico has to say on the subject, so I can’t speak to his thoughts.
It’s not a Jury’s place to decide policy?! That’s ridiculous. Nullification of unjust laws is historically based in common law and is a perfectly legitimate function of juries.
As far as Patterico, I seriously doubt that he “shredded” Balko. Maybe he’s a smart guy, but whenever he argues with Balko he gets a bit irrational. He’s also an prosecutor, so he’s not exactly unbiased on this subject.
Perhaps it is wrong to lie in voir dire (I wouldn’t), but I think it’s absolutely wrong for either prosecutors or judges to attempt to prevent jurors from participating because they think a law is unjust.
(BTW, I do know that the history of nullification is not without it’s blemishes… but I think Jim Crow and racism tarnished many of America’s otherwise illustrious institutions and it’s no reason to throw the baby out with the bathwater.)
I would SO take that pledge. And I stand behind Matt on the matter of the jury’s place to decide policy, basically agreeing with the fact that we are a nation with a gov’t for the people, BY the people.
It’s not just drug cases. The last time Denver called me up for jury selection, one of the questions during selection came from the judge, and was, more or less, “Do you agree to judge only the facts of the case, and to be directed by me as to the law?”
I told him I couldn’t do that, because he was asking me to give up my right to judge the law. He told me he was disappointed, because I “seemed like a smart guy” and he “thought I’d get a lot out of it” when he dismissed me.
By the way, jury nullification is in the Colorado State Constitution, although the language could be clearer as to whether it’s generally applicable or applicable only to libel cases (Bill of Rights, Article 2, Section 10). I’d feel more comfortable if it had been set off with a semicolon rather than a comma, but what sense does it make to only permit libel laws to be nullified?
TW: once39 - Yes, some time ago.
David, Balko lacks credibility with me given his behavior in several stories.
Mr Lady if you think jury nullification is a government “for the people, by the people” then you are simply confused. Jury nullification is government by a random single person, not the people. Jury nullification is one person deciding to not apply policy decided by the people’s representatives. When the people’s representatives make a policy, and a minority randomly selected to a jury decides to frustrate it, you can’t pretend that that is democracy.
Reading quotations of the founding fathers often lacks context. Judges at the time in English practice could do several things not allowed to judges today. First, judges could comment to the jury about their views of the evidence itself - something few courts are allowed today and never done by those that can. Secondly, in English practice the judge could order the jury to return a particular verdict and punish the jury for failing to follow his orders.
When the judge tells you that nullification is invalid, smile and nod. When the prosecutor asks if you will uphold the law as written, look shocked and say “of course!”
When the bailiff closes the door and you start your deliberations, do what you damn well please.
If the “behavior” you’re talking about is the bogus Patterico claim that Balko should have disclosed his work on the Cory Maye story in his WSJ article on Dr. Hayne, well, it’s just that… bogus. Obviously, with all the work Balko has now put into the Hayne story it wasn’t just his desire to get Maye free that led to his attacks on Hayne.
If the Patterico/Balko blog wars have destroyed anyone’s credibility, it’s Patterico’s. He’s revealed himself to be an authoritarian and a supporter of the tyranny of the prosecutors that we currently live under.
Bob Hayes - Easy to say until they charge you with perjury or contempt (see my links to Kriho above).
"… I don’t believe that nullification ( ie., voting to acquit because one believes that the law is wrong ) is valid - it is not the jury’s p[r]erogative to decide policy IMO.”
Unless I’m mistaken, Zenger is still good law in the US; jury nullification is fundamental in common-law jurisdictions (I can’t speak to Louisiana).
Oh: IANAL, ask a real lawyer for legal advice.
Doug, Fraley is a lawyer and so, I believe, is Robin (although I could be confused on the subject--I often am).
If I’m ever asked what Wheels was asked, I’ll answer honestly and I won’t be on the jury. Which is a shame since I’m not committed to nullification as some unreasoning act of rebellion--there are few situations where I would go that route.
In reference to this:
“Secondly, in English practice the judge could order the jury to return a particular verdict and punish the jury for failing to follow his orders.”
As I understand it, that is entirely what the Bushel Case addressed--it protected jurors from punishment for not following the instructions of the judge.
"Jury nullification is government by a random single person, not the people. Jury nullification is one person deciding to not apply policy decided by the people’s representatives. When the people’s representatives make a policy, and a minority randomly selected to a jury decides to frustrate it, you can’t pretend that that is democracy.”
No, if the nullifier is acting in a vacuum he’ll have no effect at all. They’ll just declare a mistrial and try again with a new jury. But if there’s a groundswell of anger about certain laws that isn’t getting translated into legislative action (for whatever reason) then the maybe the whole jury will decide to nullify and the defendant will be acquitted. Or the next jury will have a couple of nullifiers, causing another mistrial. With randomly selected juries nullification only has an effect if a large portion of a community disagrees with a law.
If we’re not going to allow nullification we might as well get rid of juries and have courts run by tribunals of judges.
David, I try to avoid guild sanction when talking about law or medicine. I wouldn’t want to be thought to be violating somebody’s legally enforced monopoly.
Oh, now you’re just trying to start a fight…
I think I’m closer to Robin R.’s viewpoint.
Our system of government has checks and balances. There are other, better, legal ways affect policy besides misrepresenting your views during voir dire. Judges are elected or appointed, lawmakers are elected. If there is truly a groundswell of anger, it will be expressed through the election and appointment of legislators, executives, and judges. It may take time...but it is clear to me that one of the best guarantors of liberty and freedom is that it takes an incredible sustained effort to change policy, making it less likely someone will create an astroturf movement just get a desired goal.
I am against activist judges changing policy, why would I think activist jurists would be any better?
But I will also say that Matt Moore’s final post has good thought I feel are worth further consideration before I ever find myself in the position of being in a jury pool again.
...and on second thought, John Grisham’s Runaway Jury is applicable here...but could be used as grounds for either Robin R.’s or Matt Moore’s view.
...and on third thought, I have to lock in on agreeing with Robin R. People who justify their actions by saying “but there is no other way to get past entrenched special interests” are usually wrong. And I also tend to believe that allowing someone to believe something not true about you (that you would consider conviction when you know you won’t) will usually be bad for both you and society in the end. But I’m an idealist with a pretty narrow definition of integrity.
If jury nullification is inherently anti-democratic, why isn’t prosecutorial discretion inherently anti-democratic? In each case, an unelected person or group is making a decision not to punish even when the law says punishment is expected. And in each case, that discretion is supported by long tradition (and the exercise of both was expected when the federal and most state constitutions were framed).
I don’t see a principled difference.
That said, I’m not going to lie during a voir dire. I will make it very clear that I will decide based on the totality of my experience and the instructions of the judge, but with the full knowledge and understanding of my right to judge both the law and the facts, as articulated in Zenger.
I expect that would get me booted from a jury, and I think that’s quite probably unconstitutional, but it’s still probably the right thing to do.
I would never misrepresent myself during voir dire unless it was to reduce my likelihood of being on the jury. I also don’t think there’s anything wrong with jury nullification per se. I’m uncomfortable with it becoming too closely identified with one particular and deeply unpopular political position (which drug legalization still is), since it’s very easy to get people these days to throw out bath, baby, and the whole damn bathroom.
As for this:
I don’t see people being scared of it. I don’t think most people know the least little thing about it.
And of those who do, probably the majority are merely skeptical of the hype, as we are of the hype surrounding gullible warming and ethanol.
I think “deeply unpopular” is taking it too far. We’re very close to marijuana being decriminalized.
Oh, and comparing legalization to global warming is a bit unfair, too. It’s not about hype, it’s about sweet, sweet freedom.
Freedom.
I’m raising the BS flag on that one.
It’s almost as ubiquitous an excuse as The Children (TM), because who could be against sweet, sweet freedom?
Stop the overly emotionally-charged trump cards and win or lose on the facts, please. On any issue.
A. It was a joke.
B. Lots of people are against freedom.
You’re right. I should have caught on to the “sweet, sweet” antecedent as a signifier of snark.
I’m apparently a damn, evil not-joke-getter.
Or something.
Naww, it’s not you. It just wasn’t very funny.
What a great discussion!
A few thoughts and comments follow.
First, I don’t play a lawyer on TV or in real life so no legal advise here.
Matt Moore asks: The trickier part wasn’t addressed in the post: How, as a nullifier, do you make it through voir dire?
There are some suggestions for accomplishing this in this article by Clay Conrad who wrote a book about jury nullication* back in the 20th century.
Robin: ..it is not the jury’s perogative to decide policy IMO.
Well, we are not talking policy here. Rather we are talking law. There is a long history supporting the idea that a jury should decide a case in its complete context which includes the law and all the facts.
Also, bad legislation does not constitute good law; law which adheres to the rule of law. See Barhett’s The Structure of Liberty** for a lengthy exposition on the rule of law.
Wheels recites a voir dire question: “Do you agree to judge only the facts of the case, and to be directed by me as to the law?”
Echoing Bob Hayes it seems to me that this can be answered yes and you can still proceed to nullify without perjuring yourself. The judge is going to tell you what the current “law” is. Great. You do not have to agree that the law is valid.
Matt Moore: Bob Hayes - Easy to say until they charge you with perjury or contempt (see my links to Kriho above).
When freedom, liberty and justice are at stake perhaps we should be willing to take a perjury or contempt charge as part of the battle. It would not be the first time in our history that folks have gone to jail as a result of their actions on behalf of those concepts. More than a few have given their lives in this battle.
In this theme Nathan says It may take time...but it is clear to me that one of the best guarantors of liberty and freedom is that it takes an incredible sustained effort to change policy, making it less likely someone will create an astroturf movement just get a desired goal.
When legislation (policy?) violates our basic rights, yes, a sustained effort to change it is one of the methods that should be used to drive change. That this approach is underway is no excuse for not standing up against injustice though all other available means: marching, picketing, nullifying, etc.
Perhaps more later. I’ve got to get on the road for work. Another fun day of drving and meetings and not online.
PS: Sorry about the links. I couldn’t get’m to work after the first one.
*http://www.amazon.com/Jury-Nullification-Evolution-Clay-Conrad/dp/0890897026/ref=pd_bbs_sr_1?ie=UTF8&s=books&qid=1205334920&sr=8-1
**http://www.amazon.com/Structure-Liberty-Justice-Rule-Law/dp/0198297297/ref=pd_bbs_sr_1?ie=UTF8&s=books&qid=1205335557&sr=8-1
Especially since the freedom in this case smells more like burning rope…
<ducks, runs, gets hit anyway>