TheAgitator.com
“You want it to be one way … but it’s the other way.”
Thursday, March 27th, 2008A few weeks ago, the writers of The Wire wrote an article in Time vowing if that if any of them were ever called to serve on a jury in a drug case, they’d engage in jury nullification, and refuse to convict.
Over at the blog of criminal defense attorney Mark Bennett, a Texas prosecutor has put up an astonishing guest post arguing that merely advocating for jury nullification is in itself a crime, and that the authors of the Time article have violated Texas law.
The writers of The Wire, in advocating the actions that they have, are essentially promoting the commission of a crime. Had they made the statements contained in the Time magazine article in Texas, then they would almost certainly be guilty of aggravated perjury. Outrageous, no? How dare I suggest that the exercise of their First Amendment rights could possibly constitute a crime? Pretty easily, actually. Just look at the law.
This is not only absurd, it’s reckless. It’s a direct attack on free expression by a government agent. He’s arguing that anyone in Texas who advocates for jury nullification is committing a crime—and by definition then risks prosecution. And this argument is coming from a man who has the power and the position to carry out just such a prosecution.
If this guy can look at a magazine article advocating a jury power that dates back to the founding of the country and see a crime, one could be forgiven for looking at his blog post and seeing a man who lacks the proper temperament, good judgment, and respect for civil liberties to continue to serve as a prosecutor.
Someone might also want to notify noted nullification expert and advocate Clay Conrad, who who happens to live Houston, Texas. I’m sure the SWAT team’s on its way.
Headline reference here.
MORE: Here’s Tim Lynch, my former boss at Cato, in the comments section to the post:
The Framers of the American Constitution would be shocked by the way in which jurors are presently manipulated. Our second president, John Adams, once wrote that “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 instruction of the court.” The prosecutor comes pretty close to saying that such words can no longer be repeated in the state of Texas. If a talk radio host says the same words–jail. If a newspaper columnist quotes or paraphrases Adams–jail. If someone puts the Adams quote on a sign and walks around Dallas, Houston, or San Antonio–jail.
I don’t think he’s foolish enough to actually bring charges against anyone for merely advocating nullification. But the mere implication that a prosecutor could is itself an attack on free expression.
I would love to see this prosecutor bring charges. This law would certainly be found unconstitutional. A challenge could bring a little publicity to the concept of nullification.
I think this is more of a case of unclear writing. The prosecutor simply couldn’t be arguing that advocating jury nullification is aggravated perjury, because it isn’t under the statute he quotes: P.C. 37.02 Perjury
(a) A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning:
(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath
***
P.C. 37.03 Aggravated Perjury
(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:
(1) is made during or in connection with an official proceeding; and
(2) is material.
(b) An offense under this section is a felony of the third degree.
Advocating jury nullification in a magazine is not perjury under 37.02, nor is it “made during a connection with an official proceeding” as required in 37.03.
Rather, this guy is saying that, had the Time authors sworn their oath in Texas, and then broke it by nullifying, they’d be committing aggravated perjury (which, unfortunately, looks true under the statute).
The only reasonable reading of this guy’s post is that “the statements contained in the Time magazine article” refer to the actual lying to get on the jury, not the advocacy of nullification.
Greg — I don’t think this guy deserves a reasonable reading. He’s pretty clearly arguing that mere advocacy of nullification is a crime.
Here’s the meaty part:
“…and a host of other things your mother probably told you not to do.”
And that’s what makes nullification the fun thing to do
I’ve been going back and forth on this since posting that comment above. I just didn’t think this guy could be THAT ridiculous.
But yes, you’re absolutely right.
Unfortunately, now I think the prosecutor might be right as well. Not in the sense that he SHOULD bring charges, but only that he could.
He’s obviously a clown (a sad, depressing clown), but I think he might be able to get a conviction under those statutes.
Actually, on second (third) thought, I don’t think “merely advocating” is enough to trigger these statutes.
If I say, “I approve of jury nullification, and would nullify if given the chance,” I’m not “acting with intent to promote or assist the commission of the offense,” nor is it soliciting, encouraging, directing, aiding, or attempting to aid another in the commission of the offense.
If I say, “I would nullify, and you should too” might be enough (but I doubt it).
It’s a fine line, but I’m not sure “mere advocacy” is enough to trigger the statutes.
That said, I’m confident (after reading that second part of the statute, which I totally didn’t read the first time) this prosecutor THINKS mere advocacy would make the advocate liable, which is nightmarishly scary.
Radley, the article is doubled.
On better news from Texas today, an Amarillo jury only took 11 minutes to acquit an HIV patient charged with marijuana possession.
http://www.reason.com/blog/show/125724.html
Jury nullification is not illegal. Lying when asked about one’s knowledge of that may be illegal, though the trial of someone accused of such might offer some interesting challenges to the state. In any case, I’m pretty certain that a proper charge of criminal responsibility would require that the advocate either be addressing a particular person or calling for a particular action.
Consider the scenarios:
-1- Joe writes in his column that he thinks he’d like to, someday, in the middle of a crowded shopping mall, shout out “TWO PLUS TWO IS FIVE!”
-2- Joe writes in his column that people should, at some time in their lives, go to a crowded shopping mall and shout “TWO PLUS TWO IS FIVE!”
-3- Joe asks readers of his column to go to the Quincy Court Shopping Mall on Saturday May 31, go to the food court just before noon, and on the twelfth strike of the clock, shout out “TWO PLUS TWO IS FIVE!”
-4- Joe arranges for Fred, Barney, and twenty of his other friends to assemble in the mall as above, while Betty videos the whole thing.
I could see criminal responsibility in the later scenarios, but in the first?
Addendum: if I believe as a juror that the punishment a person would likely receive for a particular crime would be cruel and unusual, beyond what the crime deserves, then under the Constitution why would I not be required to acquit?
From Wikipedia, the free encyclopedia
Jury nullification refers to a rendering of a verdict by a trial jury , disagreeing with the instructions by the judge concerning what the law is, or whether such law is applicable to the case, taking into account all of the evidence presented. Although a jury’s refusal relates only to the particular case before it, if a pattern of such verdicts develops, it can have the practical effect of disabling the enforcement of that position on what the law is or how it should be applied. Juries are reluctant to render a verdict contrary to law, but a conflict may emerge between what judges and the public from whom juries are drawn hold the law to be, or the legitimacy of a law itself. A succession of such verdicts may signal an unwillingness by the public to accept the law given them and may render it a ” dead-letter ” or bring about its repeal. The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict, through judging both the accused and the law, than officials who may be unduly influenced to follow merely the established law. Jury nullification is a reminder that the right to trial by one’s peers affords the public an opportunity to take a dissenting view about the justness of a statute or official practices.
Surely one of the worst threats to the rule of law is prosecutors using ingenious and contorted interpretations of laws in order to gain convictions. Part of the rule of law is the predictability of the law. When prosecutors violate the spirit and intent of the law they undermine the rule of law.
Jury nullification is one defence against this.
I approve of jury nullification, and would nullify if given the chance, and I am encouraging all of you to do so, especially those of you serving on juries, and particularly those of you serving on juries in Texas.
There I said it. Come and get me!
For some reason, I can’t get the expression “little Eichman” out of my mind.
(Are you in Texas, William?)
Mark Bennett is a criminal defense lawyer in Houston, Texas.
Maybe that will help with some of the confusion? I found The Agitator and Mark’s Blog at about the same time and can tell you that you and he share a lot of common ground.
Carcetti’s behind this somehow.
Be careful what you wish for. Do you REALLY want THIS Supreme Court, with its record actually deciding this issue?
It would be a hoot to see jury nulliification adjudicated by a jury.
Would the jury nullify?
Would there be any way to differentiate between a not guilty verdict and a nullification?
‘Would there be any way to differentiate between a not guilty verdict and a nullification?”
That is my question.
Look at that Amarillo veridct. How do we know it was not a nullified jury? Has a jury member told us?
So jury nullification inherently involves perjury…but isn’t that just because the attorneys screen out nullifiers when vetting potential jurors, which means that an advocate would have to lie during voir dire to get onto a jury? So he’s against it because it’s illegal, but it’s only illegal because he (and other DAs) is against it.
By fighting our right to jury nullification and requiring oaths and penalties, I believe that judges, prosecutors and legislators collude to commit FRAUD upon the American public. I can’t wait until we start going after criminal judges, prosecutors and legislators. I see many law suits against cities, counties and law enforcement, but the real criminals, the ones driving the criminal activity against American citizens, are herein mentioned above.
If memory serves me correctly, the concerted attack on jury nullification mostly began during alcohol prohibition (unjust law, natch). There were many juries that couldn’t, in good conscience, sentence someone to prison for doing something that only days (or weeks or months or a few years) earlier was completely legal.
During this time is when many states added or changed the oaths jurors were taking, trying to “nullify” jury nullification. It’s sad that so many of the people who are charged with the administration of justice (legislators, prosecutors and judges) have such a narrow view of justice.
It shouldn’t be any wonder that unjust laws (drugs prohibitions) lead to further injustices as time marches on.
A lawyer friend read the prosecutor’s remarks and this is his interpretation of the prosecutor’s remarks.
Okay. I’ve read what the lawyer actually said.
It seems he doesn’t think the Wire people don’t have a right to advocate it - but a juror who takes an oath to uphold the law would be committing perjury by taking the oath and then voting to nullilfy.
I don’t agree with that position either.
[...] The Agitator, whose comments on this are well worth [...]
[...] The Agitator, whose comments on this are well worth [...]
The whole notion of trial by jury is clearly intended as a check on the power of judges and prosecutors. When a case comes to trial, the prosecutor has already come to two conclusion. They must believe the defendant is guilty, and they must also believe that their crime warrants punishment. The judge is the first check on these conclusions, being able to dismiss a case or, when not bound by mandatory minimums, decide appropriate punishment. It’s completely reasonable that both these checks extend to the jury. While a jury must decide the guilt of a defendant, it should also be charged with deciding whether or not the charges warrant punishment. In the case where a law is unreasonable or unconstitutional, the jury has the right and the duty to nullify. It’s clear that throughout judicial history, jurys are often asked to decide if a law is reasonable.
Of course prosecutors have a check on jurors, being able to strike them. But where does that leave us who would vote to nullify? Lying under oath about your willingness to nullify is still a crime. I would not go so far as to advocate perjury, but is clearly is within our rights to convince as many people as possible to be willing to nullify. If enough prospective jurors admit this, the prosecutor will simply be unable to strike them all. Convincing these people of their rights could be as simple as making sure judges instruct them that they do have this right. That should be the focus.
Wonder what McNulty would say if he were real
[...] it’s about jury nullification. Via Radley Balko I found this post guest blogged by a Texas prosecutor who claims jury nullification is manifestly [...]
“If this guy can look at a magazine article advocating a jury power that dates back to the founding of the country and see a crime, one could be forgiven for looking at his blog post and seeing a man who lacks the proper temperament, good judgment, and respect for civil liberties to continue to serve as a prosecutor.” Actually, I think he has demonstrated such appalling ignorance of the foundations of the American legal system that he should not be a lawyer.
As a young prosecutor, I would bet that Mr. Anonymous Prosecutor here is also a young prosecutor. It is surprisingly easy to forget that the mere title of “Prosecutor” can transform your idiotic 3 a.m. ramblings into a national controversy. I agree with Radley that this particular prosecutor was suggesting that the Wire’s authors could be prosecuted for their comments if they were made in Texas. However, the suggestion is, frankly, laughable. I can guarantee you that Mr. Anonymous couldn’t get those charges past his own superiors in the D.A.’s Office, much less a trial judge or an appellate court. It is horribly irresponsible for a prosecutor to make casual comments in public about prosecuting anyone, because speaking as a “prosecutor” means you’re speaking with all of the power and authority of your office. If I made unauthorized public statements like that, I would be fired immediately, no questions asked. Mr. Anonymous had better hope that he remains anonymous.
Ok, all you blow hards have shot your legal knowledge wad on this! Can someone tell me how any case where any substance is being considered criminal and used to prosecute and others substances aren’t with the same side effects or worse is not considered DISCRIMINATION?