I would, in a heartbeat. The failures of government (D'Wayne's prior releases on earlier crimes with actual victims) do not justify later excesses. Assuming your hypothetical, D'Wayne needs a bullet in the head. But putting him away for possession of firearm is like locking up organized crime members for tax evasion. It may work, and may broadly be just, but the cost to the rest of us is too high. We are forced to live with all of these freedom-destroying nanny-state laws just so prosecutors can find something that sticks on criminals that, for some reason, the state can't manage to put away on the merits of their real crimes. And we are told (and we hope) that we can trust prosecutors and the government to only pursue these charges in the cases of "real criminals". But I don't trust this system, and I won't support it. We shouldn't put people away for victimless crimes, and we should come down very hard on violent criminals. Why should we tolerate trading away freedom to a government too inept to enforce law in the first place?
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Legal Minds weigh in- Jury Nullification
- Thread starter Hiltonizer
- Start date
I would, in a heartbeat. The failures of government (D'Wayne's prior releases on earlier crimes with actual victims) do not justify later excesses. Assuming your hypothetical, D'Wayne needs a bullet in the head. But putting him away for possession of firearm is like locking up organized crime members for tax evasion. It may work, and may broadly be just, but the cost to the rest of us is too high. We are forced to live with all of these freedom-destroying nanny-state laws just so prosecutors can find something that sticks on criminals that, for some reason, the state can't manage to put away on the merits of their real crimes. And we are told (and we hope) that we can trust prosecutors and the government to only pursue these charges in the cases of "real criminals". But I don't trust this system, and I won't support it. We shouldn't put people away for victimless crimes, and we should come down very hard on violent criminals. Why should we tolerate trading away freedom to a government too inept to enforce law in the first place?
Incorrect. Jurors are the ultimate finders of fact, not the prosecution, and not the judge. All the prosecutor and judge bring to the courtroom are opinions. Their opinions are subsequently validated or rejected by the jury. This is why I don't like the word "nullification" at all, since it suggests that the jury went against fact, which cannot be the case.
You are incorrect for another reason: not all jurors take oaths. I didn't the first time I was called for Superior Court. I asked to be affirmed, and I was told that (at the time) there was no statutory mechanism to affirm jurors, so I should just keep quiet about it because the jury pool was already too small for the number of cases anticipated.
If the only charge he is being tried on is 269 10a, and none of his history of offenses is brought into evidence, yes. If he's already a felon, then they should have charged him with felon in possession in federal court. They didn't, so as a juror the only conclusion that I can come to is that he has no felony convictions, and most of the rest of your description seems to be hearsay.
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^^This!^^
Without hesitation. Which part of "shall not be infringed" don't you understand?
If he's so dangerous, he ought to still be in jail based on the robberies. But, whether he deserves to be in jail or not, there is no way i could ethically use unlicensed possession of a firearm to put him there. That law is an abomination.
n1oty
NES Member
Really?? You think that a jury acting this way is an abdication of responsibility? Let's see what some of the Founders and some case law has to say:
John Adams, when Second President, pronounced about the Juror: "It is not only his 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" (Source: Yale Law Journal).
"If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and a right that was once the citizen's safeguard of liberty". Elliot's Debates; 94, Bancroft, History of the Constitution, 267.
Thomas Jefferson, Founder of the Democratic Party, and Third President of the United States: "I consider Trial by Jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution".
According to Samuel Chase, US Supreme Court Chief Justice, 1796, a signatory to the Declaration of Independence: "The Jury has the Right to determine both the law and facts."
Chief Justice Oliver Wendell Holmes: "The Jury has the power to bring a verdict in the teeth of both law and fact".
Judge Harlan F.Stone, Chief Justice of the U.S. Supreme Court, 1941-1946: "The law itself is on trial quite as much as the case which is to be decided".
"The jury has a right to judge both the law as well as the fact in controversy."
John Jay, 1st Chief Justice U. S. Supreme Court, 1789.
"The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge..."
U. S. vs. Dougherty, 473 F 2nd 1113, 1139, (1972)
"Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off... This gives me comfort-that, as long as I have existence, my neighbors will protect me."
Patrick Henry (Elliot, 3:545, 546).
Alexander Hamilton (1804): Jurors should acquit even against the judge's instruction "...if
exercising their judgment with discretion and honesty they have a clear conviction that the
charge of the court is wrong." Quoted in Joseph Sax, Yale Law Review 57 (June 1968):
481-494.
"The people themselves have it in their power effectually to resist usurpation, without being
driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any
man may be justified in his resistance. Let him be considered as a criminal by the general
government, yet only his fellow citizens can convict him; they are his jury, and if they
pronounce him innocent, not all the powers of Congress can hurt him; and innocent they
certainly will pronounce him, if the supposed law he resisted was an act of usurpation." 2
Elliot's Debates, 94; 2 Bancroft's History of the Constitution, p. 267. Quoted in Sparf and
Hansen v. U.S., 156 U.S. 51 (1895), Dissenting Opinion: Gray, Shiras, JJ., 144.
"Unless the jury can exercise its community conscience role, our judicial system will have
become so inflexible that the effect may well be a progressive radicalization of protest into
channels that will threaten the very continuance of the system itself. To put it another way,
the jury is...the safety valve that must exist if this society is to be able to accommodate its
own internal stresses and strains...f the community is to sit in the jury box, its decision
cannot be legally limited to a conscience-less application of fact to law." William Kunstler,
quoted in Franklin M. Nugent, Jury Power: Secret Weapon Against Bad Law, revised from
Youth Connection, 1988.
"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." Lysander Spooner, An Essay on the Trial by Jury, 1852, p. 11.
"In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact,
except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."
Article XXIII, Constitution of Maryland.
"If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit,
even if its verdict is contrary to the law as given by a judge, and contrary to the evidence...If
the jury feels that the law under which the defendant is accused is unjust, or that exigent
circumstances justified the actions of the accused, or for any reason which appeals to their
logic or passion, the jury has the power to acquit, and the courts must abide by that
decision." United States v. Moylan, 4th Circuit Court of Appeals, 1969, 417 F.2d at 1006.
Alexander Hamilton, acting as defense counsel in a seditious libel case, said: "That in
criminal cases, nevertheless, the court are the constitutional advisors of the jury in matter of
law; who may compromise their conscience by lightly or rashly disregarding that advice, but
may still more compromise their consciences by following it, if exercising their judgments
with discretion and honesty they have a clear conviction that the charge of the court is
wrong." 7 Hamilton's Works (ed. 1886), 336-373.
Need I go on?? I have many more quotes, both old and new.
Bill Nance
Banned
Ding Ding Ding!
Precisely.
RKG:
I'm just as nervous about the idea of mob justice as you are. Sometimes jury nullification does go wrong, just as it did in the south over murders of civil rights workers. But short of the ammo box, this is pretty much the last vestige we have of a lawful and peaceful way of telling the government to back the F*** off.
I would have voted to acquit Jose Padilla in a heartbeat if I'd been on the jury and know what I now know. He was mentally tortured for years, held without charge or access to an attorney for years.
F*** that. The government pulls that crap with an American citizen and he could practically be the Devil himself and I'd let him walk just to make the point.
As much as we tolerate, we encourage, to paraphrase someone else on these boards. Giving up the right to Jury nullification or ignoring the obligation to try to bring justice on the charges presented with ALL the facts, is abdicating our rights to a democratic society. No thanks.
I served as a juror, and during deliberation I brought it up. We had one young kid on the jury, and he was nearly gonna break I think lol when he realized HE had to cast a vote on the charges (this was a case with MULTIPLE felonies, and lots of time). He said "So whatever we decide?" And I said "Yes. We could even decide that the law is unjust and refuse to convict based on that."(not an issue in that particular case, I was making a point 
) He was pretty overwhelmed, as were all of us I suppose.
I found it to be a great experience, although it very dark, the topic of the trial. I feel like I participated in an important thing, and was glad to do so.
) He was pretty overwhelmed, as were all of us I suppose. I found it to be a great experience, although it very dark, the topic of the trial. I feel like I participated in an important thing, and was glad to do so.
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F
Finalygotabeltfed
Bill, why do you or possibly RKG consider a lawfully assembled jury to be a "mob"?
Bill Nance
Banned
Have you stopped beating your wife yet?
WTF kind of question is that supposed to be?
Where did I ever say I thought a fully informed jury was a mob? I said I understood his concern about mob justice. And to most people who oppose FIJ, that's exactly the risk of a FIJ and nullification: That Klansmen get away with murder because the jury pool all thinks the N****s should stay in their place.
If you think that's not even something worth considering before discarding, you're not thinking every side of the issue through. It's a big deal and a serious issue. Criticisms should be answered, not just shouted down or picked apart because someone used one commonly used phrase to describe a perfectly valid concern.
I think he's dead wrong, which was clear in my post. But he's not making a foolish or trivial argument. Nor was I.
J
Jose
The answer to mob justice is violence
If not for the part in bold, yes.
If DooWayne has been convicted twice of armed robbery then why is he roaming the streets and associating with known gang members? Either he has paid his debt to society and is now fit to rejoin society or he should be back in lockup. The part of him discarding a weapon where it could be accessed by children is the part that would cook his goose in my eyes. That's what constitutes misuse of the weapon, not the fact that he didn't have a permit.
I might not like DooWayne, his friends, or his lifestyle, but if I vote to convict him solely of unlicensed carry/possession then I'd also have to vote to convict the old guy in Chicago that used an unlicensed gun to defend himself recently.
ETA: How about this hypothetical:
Casper Milquetoast has been a law abiding citizen all his life. Never been arrested or convicted of anything. Heck, he even has been known to help old ladies cross the street. Casper own guns and has a permit. He likes to go to the range and punch holes in paper. But Casper has been found in possession of a post-ban high capacity magazine for one of his guns, and he's on trial here in the PRM.
There's no question that Casper had possession of the magazine. You're on the jury. The law and the facts are clear. Would you vote to convict?
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I was not claiming that it was out of fear of "jury nullification" but out of the knowledge and reality that jurors bring predjudices into the the jury room that can be unpredictable towards a successful prosecution. As has been evidenced in this thread.
I cannot answer, as your hypothetical omits some important facts. I'd have to know, for instance, how CM came to be in possession of the contraband and whether he knew (in fact) or should have known (based on what he did know) that possession of it was a violation of the statute.
It seems there is a good deal of sentiment revealed here for a society under which "The law means only what I say it does," whichis a variant of "Obeying the law is discretionary for each of us." I guess I'm surprised that more people don't find that sort of arrangement a bit scary, but so be it.
I must say, I don't see a lot of difference between a juror deciding not to apply the law to a defendant who has violated it and a President deciding not to enforce the immigration laws because he doesn't like what they say.
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Jury Nullification is a good thing. It's about the only check the people have left against a system which has proven to be rigged on the front end.
For those who think it's bad- HINT- if the laws didn't suck so much, it would never, or rarely be necessary- and more people would respect the laws that do exist verbatim. The rule of law is a great concept, when the laws themselves aren't pure s**t.
-Mike
For those who think it's bad- HINT- if the laws didn't suck so much, it would never, or rarely be necessary- and more people would respect the laws that do exist verbatim. The rule of law is a great concept, when the laws themselves aren't pure s**t.
-Mike
The difference is the president and the plethora of other a**h***s who create these laws generally don't have to live under the garbage they create. Law enforcement officers and joe citizen types end up bearing the overwhelming brunt of the costs of poorly written laws, and as individuals, are generally powerless to do anything about it.
-Mike
Fair enough answer, RKG. But even if Casper didn't know about the statute he still broke the law. That old tenet "Ignorance of the law is no excuse." My point is that if a jury strictly follows only the purely factual evidence in a case and doesn't consider the fairness or propriety of the law in question, then you're going to get some "unjust" decisions. Nullification can also have bad results, like a jury that refuses to convict based on racial bias.
It's an imperfect system and every juror is going to have to decide where they draw their moral line. When it comes to gun licensing alone, I've decided where mine is.
Bill Nance
Banned
Any time anyone goes into a courtroom there's risk. It's why I wish prosecutors would be permanently banned from ever holding elective office. They have too much power and a direct self-interest in high conviction rates and examples of how "tough on crime" they are so they can run for office on it later. That's a very bad combination of motive and opportunity to do great injustice with pretty much no oversight.
But Utopian pipe dreams aside, the risk of going before a jury is always there for BOTH sides and there is no way to fix that beyond what we already do. (excusing jurors for cause etc.) I have yet to meet a lawyer who wants to go to court if he can stay out of it and still serve his client's best interest. Juries are always unpredictable.
A fully informed jury however gets to look at the facts presented and the charges brought and determine
A: if the guy is guilty of the charges
AND
B: If the law is being applied correctly in this case.
The only risk really is to the prosecution. Sure, a jury can find a black man guilty because they hate black people, but that would be true whether or not they were fully informed. Their feelings about black people wouldn't have changed in either case.
If it's a matter of letting more people go free who a jury thinks have been wrongly charged with a BS crime, I'm fine with that. If the price we pay is some really bad people on the street I can live with that too.
Maybe next time they won't waste my time in Superior court with a BS state weapons charge and refer it to a federal prosecutor for federal felon in possession charges. That IS the feds damned job, after all, if they can be bothered to stop hassling cancer patients over the eviil weed long enough.
On the contrary. The prosecutor alleges that the defendant committed a crime, and asserts certain details to bolster his position, including his opinion of what the defendant did or did not do, and what the actual law is. the jury rejects the prosecutor's opinion and acquits, finding that the true facts of the case are not what the prosecutor alleges.
Let's stipulate that democracy and rule of law are necessary to a decent society.
I understand why one would prefer social respect for the law and even to expect citizens to embrace it, particularly in the role of juror. Yet, without question, even a perfectly arranged society can produce unjust law. Are either of you claiming that every law is proper, that violations are always prosecuted ethically, and that sentences are invariably just? Unless you believe these statements are reality (and I would be amazed if you do), then how can you doubt the propriety of a juror who is willing to fight an unjust outcome?
And yes, this does mean that in some way each of us writes our own law when we become jurors. It means that trial outcomes are uncertain. And it means that the law, as written, is not the last word.
How is that "scary"? Is the alternative comforting? Would you prefer that a simple majority do anything it wants, and that any injustice can rain down on the citizenry with law enforcement, prosecutors, judges and jurors all marching in step? Don't you want these people to question what they are doing? Don't you hope somebody has the will to stand against injustice?
From the constitution all the way down to a cop on the beat, the law, at any moment, is no better or worse than the people who create it, read it and enforce it. Some find comfort in the fiction that documents and prior agreements can protect them from injustice. They can't. At every step there is interpretation and bias, the potential for confusion and indifference, corruption and greed, and in the end, simple application of human frailty. When people stop thinking for themselves and do what they are told, the weaknesses in the system can only get worse.
We don't have a jury system because our peers are somehow best suited to "find facts". We have a jury system because our peers can look out from that jury box and imagine what they would want, and what they would deserve, if they themselves were being prosecuted. The jury is there to protect the individual from injustice. And, unfortunately, but inevitably, that injustice can come from the law and the people who prosecute it.
The imperfection in this system is disquieting. Yet no social system lacks imperfection, and to pretend that a compliant citizenry is better than the alternative is dangerous. It leads to concentration of power and social tolerance for its unlimited application.
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So I tell you something that is based in fact, never once telling you my beliefs, feelings or wishes and I am the slave slave to the law? I even told you how to virtually ensure that your efforts at nullification are successful and I am the slave to the law?
Just because you would go in to a court room tilting at windmills in grand style doesn't mean you would be successful. If fact, I am pretty confident you would be very much unsuccessful. I on the other hand get shit done. I work the system in front of me to make sure that my goals are met. While you were pissing into the wind making a statement, you can bet I would be doing anything within the bounds of proper moral behavior to ensure that justice and right prevailed.
You just don't seem to understand the jury system. The jury's job is not to be a pro-forma rubber-stamp for the State's theory of a case. The jury is an important part of the system, with the real power to decide the facts.
Let me state it more explicitly: When the prosecutor's and/or judge's theories, opinions, presentations, assertions, etc. about a given case are in opposition to the jury finding, then the prosecutor and/or judge is factually wrong.
J
Jose
Believe whatever you like. I don't care.
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