Patterico responds here to my previous post on nullification.

One small concession: As bloggers sometimes do, I was perhaps a bit rash in using the word “lie.” I wouldn’t outright lie in voir dire, though I’m sure Patterico and other opponents of nullification would interpret the misdirection I would use in answering questions to have the same practical effect. I would answer questions in a way that’s not openly false, but that certainly masks what I’d intend to do. Of course, the odds of my ever actually serving on a criminal jury are nil. I’d imagine a prosecutor would excuse me the moment I set foot in the courtroom. But we’re talking hypotheticals, here.

Patterico glosses over the historical examples I provide in defense of nullification, and instead focuses on the more recent cases in which I argue that nullification would have been justified, calling my list a radical libertarian agenda. Maybe. But I wouldn’t consider intervening to prevent a man like Richard Paey, who was sentenced to 25 years in a maximum security prison for the “crime” of merely trying to alleviate his own excruciating pain, any more radical than intervening to prevent a black man from going to prison for the “crime” of having sex with a white woman. What is and isn’t “radical” is subjective, I guess.

I can’t recommend Clay Conrad’s book on nullification enough. The history section goes into great detail explaining the long tradition of nullification in this country, and how the founders rightly saw it as a last check on injustice. Conrad points out, for example, that the first article of impeachment against Samuel Chase, the only U.S. Supreme Court justice ever to be impeached, was his refusal to recognize the rights of jurors to judge the law (as opposed to merely the facts) in the Fries treason trial. Conrad also looks at more recent examples, including the apparently rampant use of nullification during Prohibition.

In this quick summary of his book Conrad wrote for Counterpunch, he outlines ways you could answer questions during voir dire that would allow you to stay on the jury, but wouldn’t leave you vulnerable to perjury charges later. It’s worth a look if you’ve ever considered nullifying.

One other thing worth noting: It would be extremely difficult for a prosecutor to charge a juror with perjury for nullifying after taking an oath to uphold the law. Such prosecutions are quite rare, and it’s even rarer that they’re successful. What transpires in the jury room is generally off-limits. You would essentially have to boast about having perjured yourself, and damn-near invite the prosecutor to charge you. The far more likely outcome is your dismissal during deliberations, or a hung jury and a retrial.

Still, I think that somewhere, sometime soon, some civil liberties group needs to mount a challenge. The abundant support for nullification that pervaded at this country’s founding stands in stark contrast to these perjury traps judges and prosecutors now set to eliminate potential nullifiers during voir dire. There have been challenges aimed at upholding nullification when it comes to jury instructions. Unfortunately, in recent years they’ve failed more often than they’ve succeeded.

But to my knowledge, no one has yet challenged those jurisdictions that require jurors to take an oath that effectively prohibits them from nullifying.

I’d certainly be interested to see how such a challenge might play out, and how so-called “originalists” would deal with it. Might make them squirm even more if it were a gun control case.

This entry was posted on Thursday, August 31st, 2006 at 2:06 pm by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.