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Thread: Rethinking jury nullification. Ilya Somin @ Volokh Conspiracy

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    Rethinking jury nullification. Ilya Somin @ Volokh Conspiracy

    "Jury nullification occurs when jurors choose not to convict a defendant they believe to be guilty of the offense charged, usually because they conclude that the law in question is unjust or the punishment is excessive. When I first thought about jury nullification as a young law student, I was inclined to be against it. Yes, it could potentially be used to curb unjust laws. But it can also be a vehicle for jury prejudice and bias. Most notoriously, all-white juries in the Jim Crow-era South often acquitted blatantly guilty white defendants who had committed racially motivated crimes against blacks. Moreover, ... [ ... ]

    https://www.washingtonpost.com/news/...nullification/

    Reynolds: Nullifying juries more interested in justice than some prosecutors
    http://www.usatoday.com/story/opinio...lumn/31124011/

    Don’t support laws you are not willing to kill to enforce
    [ ... ]But, as Carter emphasizes, incidents like this are also a predictable consequence of the overextension of the regulatory state:

    On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.
    https://www.washingtonpost.com/news/...ll-to-enforce/
    Last edited by Nightmare; 08-08-2015 at 07:49 AM.
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    HAM SANDWICH NATION
    http://www.columbialawreview.org/wp-...debar-1023.pdf

    I've been preaching jury nullification for years.

    When discussing jury nullification with people I explain jury nullification with this fable.

    In this little town there lived a rich old ogre and a poor old kindhearted man.
    The ogre was always taking advantage of the town's people.
    The poor kindhearted man was always helping, the best he could, others in need.
    The ogre accused the poor old man of stealing his pig.
    It was obvious the nice old man stole the pig.
    There was a trial and the judge instructed the jury that if they believed the nice old man stole the rich ogre's pig then they would have to find the nice old man guilty.
    After five minutes of deliberation the jury said that if the nice old man agreed to return the pig they would find him not guilty.
    The judge was outraged and informed the jury they had to either find the nice old man guilty or not guilty.
    After another five minutes of deliberation the jury found the poor old kindhearted man not guilty and he could keep the pig.

    This is jury nullification.
    Last edited by color of law; 08-09-2015 at 12:17 AM.

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    Regular Member twoskinsonemanns's Avatar
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    Quote Originally Posted by color of law View Post
    HAM SANDWICH NATION
    http://www.columbialawreview.org/wp-...debar-1023.pdf

    I've been preaching jury nullification for years.

    When discussing jury nullification with people I explain jury nullification with this fable.

    In this little town there lived a rich old ogre and a poor old kindhearted man.
    The ogre was always taking advantage of the town's people.
    The poor kindhearted man was always helping, the best he could, others in need.
    The ogre accused the the poor old man of stealing his pig.
    It was obvious the nice old man stole the pig.
    There was a trial and the judge instructed the jury that if they believed the nice old man stole the rich ogre's pig then they would have to find the nice old man guilty.
    After five minutes of deliberation the jury said that if the nice old man agreed to return the pig they would find him not guilty.
    The judge was outraged and informed the jury they had to either find the nice old man guilty or not guilty.
    After another five minutes of deliberation the jury found the poor old kindhearted man not guilty and he could keep the pig.

    This is jury nullification.
    Of all the BS crimes you could choose in your nullification example you pick one where one individual actually stole the personal property of another individual? Doesn't really keep with what I consider good use of nullification.
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    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by twoskinsonemanns View Post
    Of all the BS crimes you could choose in your nullification example you pick one where one individual actually stole the personal property of another individual? Doesn't really keep with what I consider good use of nullification.
    It appears Henry Potter is your hero, so you have a Wonderful Life.

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    Regular Member twoskinsonemanns's Avatar
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    Quote Originally Posted by color of law View Post
    It appears Henry Potter is your hero, so you have a Wonderful Life.
    Truly, you have a dizzying intellect.
    "I support the ban on assault weapons" - Donald Trump

    We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission - Ayn Rand

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    Regular Member Da Rat Bastid's Avatar
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    Quote Originally Posted by twoskinsonemanns View Post
    truly, you have a dizzying intellect.
    Wait 'til he gets going!
    Last edited by Da Rat Bastid; 08-14-2015 at 01:17 PM.

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    Regular Member O2HeN2's Avatar
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    I'm going to have to agree that the fable really, really sucked because of personal property theft and all.

    Make the crime trespassing, and make the kind old man taking a shortcut across the ogre's land to quickly assist with putting out a neighbor's house fire.

    With no exceptions written into the trespassing law, now you have a good example of jury nullification.

    O2
    Last edited by O2HeN2; 08-16-2015 at 11:35 AM.
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    As an alternative, one can always tell the story of William Penn's jury.

    Penn was tried for preaching Quakerism in Anglican England. Everybody knew Penn had done it. The jury refused to convict, instead handing the judges a finding of guilt for a non-crime: speaking. (I love that part!)

    The judges, finally got tired of an obstinate jury, and locked them up. One of the jurors petitioned a higher court for relief. That court made it clear the jury cannot be penalized for their decision.

    The whole case is interesting reading. The Brits still have the trial transcript, or such as was kept in that period. Penn and his co-defendant made monkeys of the court and prosecution witness(es). If you ever get the chance, take a moment to read up on the whole thing.
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    Quote Originally Posted by twoskinsonemanns View Post
    Of all the BS crimes you could choose in your nullification example you pick one where one individual actually stole the personal property of another individual? Doesn't really keep with what I consider good use of nullification.
    Its a perfect example, albeit for reasons not stated.

    One question of many is: how was that law created? Did the creation process violate the defendant's 14th amendment right to due process.

    The answer to that question is: likely yes. At least in my state. Lets look at a few of the facts. 1) before this law existed it was a bill; 2) this bill was first examined by at least one legislative committee; 3) legislative committee members are members of the general assembly[GA]; 4) legislative committees are agencies of the state ; 5) courts look to the record created at the legislature for intent and other reasons when examining a law

    In CT the law requires: 1) all debate by GA members must be public (CT Const. Art. III, Sec. 16) 2) all deliberations and debate by public agencies must also be done in public [FOIA laws and common law].

    But where are bills discussed and decided? Behind closed doors. The public hearings that they have on bills are meaningless. As one can see in the attached record -- they have secret decision meetings behind closed doors. All committees have these secret meetings. The idiots actually think that this is OK; whereas our FOIA Act's preamble states:
    The legislature finds and declares that secrecy in government is inherently inconsistent with a true democracy, that the people have a right to be fully informed of the action taken by public agencies in order that they may retain control over the instruments they have created; that the people do not yield their sovereignty to the agencies which serve them; that the people in delegating authority do not give their public servants the right to decide what is good for them to know and that it is the intent of the law that actions taken by public agencies be taken openly and their deliberations be conducted openly and that the record of all public agencies be open to the public except in those instances where a superior public interest requires confidentiality.


    So here we have a guy on trial for a crime - as designated a crime by state statue; wherein the process by which the law became a law violates the guy's 14th amendment rights. And that is offensive and is offensive enough to nullify the law. Regardless of how you feel the person should be made to punish, the law made in violation of his rights is not the vehicle for this punishment.

    Have a few murderers go free due to jury nullification and the legislators will start passing laws in accordance with the law; until that time arrives, not guilty is the only verdict I can provide in my duty as a jurist.

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    The Trial of William Penn (1670)

    Quote Originally Posted by Citizen View Post
    [ ... ] The whole case is interesting reading. The Brits still have the trial transcript, or such as was kept in that period. Penn and his co-defendant made monkeys of the court and prosecution witness(es). If you ever get the chance, take a moment to read up on the whole thing.
    "[ ... ]
    Three more times the jury went out and returned with the same verdict. Finally, they refused to go out any more. The judge fined each of them forty marks and ordered them imprisoned until the fine was paid. Penn and Mead went to prison anyway for obeying the bailiff's order that they put on their hats. Later a writ of habeas corpus won freedom for the jurors while Penn and Mead left jail to come to America. (Earl Warren, "A Republic, If You Can Keep It", pp. 113-115) http://www.1215.org/lawnotes/lawnotes/penntrial.htm
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