August 30, 2006
Patterico Agrees With the Lizard!
In my response to Patterico's post on jury nullification, Jury Nullification Or Nullifying the Jury?, I stuck up for the right of juries to, in effect, thwart the clear path of the law on those rare occasions where the law was careering towards a precipice of injustice:
Without the human element, even betimes in defiance of mechanical judgments of guilt or innocence, "justice" becomes a soulless, heartless, senseless steamroller, crushing the individual between the asphalt of necessity and the steel of the Law.
I do not want trial by foolish consistency; I do not want to be tried by computer. I want a judge to be able to hear a jury say "guilty," and to respond, "that's ridiculous; I'm overruling that verdict and finding him not guilty."
And likewise, I want the jury itself to be able to reject what would be a preposterous result and find a defendant not guilty, even when a computer with no higher moral sense would insist he was guilty beyond a reasonable doubt.
Patterico continues the conversation here, in Is Jury Nullification Ever Appropriate?... and wonder of wonders, it turns out we agree to a T-square.
He begins by allowing as how "[t]here are few absolutes in this world," but cautions that "[t]hat doesn’t invalidate general principles." Fair enough.
But he gets to the point with this pontification (all emphasis added by moi):
I am against jury nullification. Some have advanced extreme examples that either would never occur in the real world, or where the moral choice is so clear that it would be obvious, except to those blinding themselves to their own humanity for the sake of consistency. [He unconsciously references R.W. Emerson, in his essay on Self-Reliance: "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."]
I would vote to acquit someone charged with the “crimes” of being Jewish, or saving slaves.
Well -- this is my entire point in a nutbag: that there are occasions where jury nullification would be appropriate. But Patterico isn't finished; he finds it important to note the rarity of such instances:
The jury is an important bulwark against the state.
But if a drug dealer is the scourge of a Compton neighborhood, creating a heightened risk of drive-by shootings from rival drug dealers, as well as a generally lower quality of life, the people of that neighborhood should not be subjected to that drug dealer because some wine-sipping libertarian from the Westside decides that, in his opinion, drug dealing is a victimless crime and he won’t convict even if the evidence is overwhelming.
Let the wine-sipper lobby his Assemblyman, or start an initiative. The jury room is not the place to change the law. Juries are not freestanding Legislatures of 12, and to allow them to act as such is to undermine the Rule of Law.
Patterico is absolutely correct to note that jury nullification is not simply for situations where the juror disagrees with a law. Let me take his own example: although I do not sip wine (I guzzle cheap tawny port); and even though the only "Westside" I live on is the west side of a small city east of Los Angeles; and despite the fact that I no longer call myself a libertarian (that label having been hijacked by a disreputable gaggle of egomaniacs and narcissistic nancy-boys in leather spray-ons, who prance about denouncing the NSA al-Qaeda intercept program because it tramples the rights of bloodthirsty savages who would as soon grind the libertarians' bones to make their humus as look at them)... in spite of all these things, I believe that possession and use of all drugs except antibiotics should be completely decriminalized: a free people should be allowed to medicate themselves however they want, except when it would directly jeopardize the lives of others who disagree (hence the antibiotic exception).
But Patterico, I would have no difficulty convicting that drug dealer. I distinguish between a law I merely dislike, and a law that is so flagrantly unjust that it's worth dragging the entire legal world to a halt, just in order to stop its implementation.
To me, jury nullification is such a drastic step that it must be reserved for truly apocalyptic situations:
- I would have voted to acquit any Japanese of escaping Manzanar, if such a case came to a civilian courtroom;
- I would have voted to acquit any black of failing to move to the back of the bus, no matter how clear-cut the evidence;
- And if the BCRA/McCain-Feingold law were extended to say that bloggers couldn't write about candidates within sixty days of an election -- an example Patterico himself has used; and if Patterico makes good his threat to refuse to obey it; then I guarantee you that if I end up on the jury that tries him, he will either get acquitted, or at the very least, a hung jury... for I will not vote to convict him, even if he writes "vote for Mitt Romney on November 4th, 2008!" in big, Crayola letters across the face of his blog, for all to see.
I point at the gaps, while Patterico emphasizes the fills; but we each live in the same universe.
Hatched by Dafydd on this day, August 30, 2006, at the time of 1:14 AM
TrackBack URL for this hissing: http://biglizards.net/mt3.36/earendiltrack.cgi/1164
The following hissed in response by: Big D
I think the real bedrock of your argument is based in why we have juries at all. Why should we be judged by a jury of our peers? Why drag a bunch of nonprofessionals into the court? Why not just have a judge decide?
The jury system was installed as a check on the combined power of the judiciary and executive branches. In a way the only purpose or point of the jury system is the potential for nullification, i.e. to free prisoners being railroaded by the state, or being subjected to unjust laws.
But here is where I think we differ. I consider that a normal function and purpose of a jury. Otherwise, why bother with them? A jury is supposed to apply the laws and the community sense of justice. They are supposed to free prisoners of unjust laws. It is the primary purpose of the jury system.
However, I would define nullification as an act that ignores both the law and the interests of community justice. Such as releasing a prisoner not because he wasn't guilty of a crime, but because he was a member of a particular ethnic group.
I don't think we are very far apart here.
The following hissed in response by: KarmiCommunist
"jury nullification" first requires some Laws, and then Law and Order...so to speak.
Sure, such sounds good, and looks great on paper, but what happens to such during times of *WAR*?!?
We have all been reading about the MSM's photos, the "Doctored" ones from Reuters and the AP, and used by our own MSM to put Israel in a bad light during their brief recent war.
And now...Not long after Israel...nevermind. Now we have *THIS*!!! BTW, more photo "Doctoring" once again, but from CBS Evening News this time.
Laws are about to change...here in America, and most Americans don't seem to care. The Juries we now have, will be replaced by our Enemies...who are about to win this *WAR*. Heck, even Dafydd thinks that "Water Boarding" is torture!!!
Forget what a beheading is about. Let us just compare "Water Boarding" to a female placed into a 'sack'/'bag', with her hands tied behind her back whilst in that 'sack'/'bag'. She is then basically buried to the waist...hands tied behind her back...in a 'sack'/'bag', and then stoned to death. i have no photo of a "Water Boarding", but do have this one, of a stoning:
Use your best imagination, and try to imagine that the "Water Boarding" is more brutal than the Stoning. Heck, imagine that they are the same, and try to explain your point to one as ignorant as i.
The above hissed in response by: KarmiCommunist at August 30, 2006 5:46 PM
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